The law of air mobility - the international legal principles behind the U.S. Mobility Air Forces' mission.
Foreword by Major General Steven J. Lepper I. INTRODUCTION II. CONVENTION ON INTERNATIONAL CIVIL AVIATION OF 1944 III. TERRITORIAL SOVEREIGNTY & NATIONAL AIRSPACE A. Transit Through Territorial (National) Airspace B. "State Aircraft" versus "Civil Aircraft" C. Aerial Intrusions IV. FREEDOM OF THE SEAS A. National Waters 1. International Straits 2. Archipelagic Waters B. International Waters 1. Contiguous Zone 2. Exclusive Economic Zone (EEZ) 3. Continental Shelf V. NATIONALITY OF AIRCRAFT A. Airspace Management & Security Zone 1. Air Defense Identification Zones (ADIZ) 2. Flight Information Regions (FIRs) B. Sovereign Immunity of State Aircraft VI. SUMMARY & CONCLUSION
Most Airmen familiar with the Air Force's practice of operations law know that it has traditionally focused on the kinetic application of air power in armed conflict. The development and distribution of Rules of Engagement (ROE); the routine, required briefing of Airmen of their rights and obligations under the Law of Armed Conflict (LOAC); and, the role of judge advocates in the air commander's targeting decisions are perhaps the best known examples of Air Force operations law practice and the duties of Air Force operations lawyers. While it is important for all Airmen to understand the impact of the law on the conduct of combat air operations or on their individual duties as Airmen serving in combat or combat support, it is equally important to understand that law also impacts the conduct of other Air Force operations in air, space, and cyberspace.
In this article, Lieutenant Colonel Chris Petras describes a class of operations not typically addressed in our traditional approach to operations law: air mobility operations. Where the "combat air force" (CAF) is concerned about targeting, LOAC, and ROE, the "mobility air force" (MAF) is engaged in airlift, aeromedical evacuation, and air refueling. None of these mobility missions requires in-depth knowledge of international law applicable to kinetic (the delivery of "steel on targets") air operations. Rather, mobility Airmen are more concerned about the domestic and international law governing the relationship between military and civil aviation, rights and responsibilities associated with the operation of "state aircraft" that enjoy sovereign immunity, and the authority of Air Force aircraft commanders over US aircraft and aircrews that often overfly and land in countries where there may be no or a very limited US military presence.
When I talk to Airmen about the differences between CAF and MAF operations law, I like to use an example that illustrates how different CAF and MAF operations are from an international legal perspective: When a CAF aircraft involved in combat operations--generally a fighter or bomber--takes off from a runway outside the US, it usually lands at the same place it took off. That place is typically an airbase where the US military is located in large numbers. Finally, the combat operations generally involve the destruction of a military target in a non-permissive environment--that is, in a geographic area over which the US neither needs nor seeks permission to fly. In contrast, MAF aircraft are cargo or tanker aircraft that may take off from anywhere in the world, to include the US, and land anywhere in the world. The takeoff and landing locations may or may not be places where US forces are otherwise present (often, they are foreign civil airports). MAF combat operations don't directly involve target destruction; rather, they are engaged in the logistical support of combat forces. Finally, while MAF aircraft may ultimately land in places where we do not need permission to fly or land, especially if they are bases in territory occupied by US forces, it's likely that in getting there, they must overfly other countries whose permission is necessary. I conclude my talks by pointing out that each of these differences requires the application of very different aspects of international law. This article defines and describes those aspects as a MAF-centric subset of international law we've named "The Law of Air Mobility" (LOAM).
In addition to defining LOAM, this article is one piece of an overall effort by Air Mobility Command to establish an operations law practice that provides mobility Airmen the same "real time" legal advice and support that CAF operations lawyers provide CAF commanders and Airmen. JAG contributions to Operations IRAQI FREEDOM and ENDURING FREEDOM (OIF/OEF) have reinforced the role of law in numerous aspects of US combat operations. The role perhaps most relevant to this discussion is performed by the JAGs who provide legal advice in the OIF/OEF Combined Air Operations Center (CAOC) at Al Udeid AB, Qatar. In the CAOC, JAGs provide the Joint Force Air Component Commander (JFACC) advice on targeting, intelligence collection, LOAC, and myriad other ops law issues. The MAF counterpart to the CAOC is the Tanker Airlift Control Center (TACC). Until recently, the TACC had no organic legal support; the AMC and 18th Air Force headquarters legal staffs provided whatever advice the TACC required. That changed recently as a result of another initiative in our overall mobility ops law program that established a JAG position for the TACC.
In the following pages, Lt Col Petras' discussion of LOAM principles and applications reinforces the need for legal support to air mobility operations. Our desired results are, first, to develop a greater appreciation among Air Force ops lawyers and paralegals for the facts that ops law comes in a variety of forms and, to be effective, must be tailored to the mission. Second, we hope this discussion of the legal environment in which our MAF operates will help mobility Airmen to understand the legal rights and responsibilities that impact their missions. Third, this discussion of the Law of Air Mobility is the substantive legal foundation upon which our vision for a comprehensive mobility ops law practice in AMC, in the MAF, and across the Air Force will be based. Finally, we seek to inspire confidence in our AMC JAGs and paralegals by equipping them with the tools they need to provide the advice our MAF commanders and Airmen need but have lived without for a very long time.
Professional militaries have long recognized the tactical, operational, and strategic importance of mobility. However, in the 1990s, U.S. military strategy underwent a significant shift away from "forward basing," whereby U.S. national interests were protected by large military forces based overseas, and towards "foreign presence," which relies on forces based inside the continental United States (or CONUS) that rapidly deploy to overseas locations during crises. (1) This development so elevated "global mobility" (2) to the forefront of U.S. military strategy that it is now recognized not only as a critical enabler for American forces to operate effectively but as essential to national and international security) The U.S. military generally achieves global mobility through prepositioning supplies and equipment at critical points around the world and the combined efforts of its land-lift, sealift, and airlift assets in transporting personnel and materiel. (4) But in the aerial domain in particular, global mobility is embodied in the airlift, (5) air refueling, (6) and air mobility support capabilities (7) that the "Mobility Air Forces" (MAF) (8) provide.
The focus of the "Law of Air Mobility" (LOAM) construct advanced here is the distinct body of law associated with global air mobility operations vis-a-vis the law of armed conflict (LOAC) issues--e.g., military necessity, discrimination, proportionality--commonly associated with air combat operations. This dichotomy is, in part, attributable to the fact that unlike most "combat air forces," (9) which function as instrumentalities of armed conflict and, in this role, exercise the combat rights of a belligerent (e.g., overflying territory of an opposing belligerent, attacking military targets, etc.), (10) mobility air forces operate across the full spectrum of national, strategic, and theater objectives. (11) For example, in addition to providing wartime combat support and aeromedical evacuation, (12) mobility air forces aircraft provide, inter alia, peacetime sustainment and aeromedical evacuation of U.S. forces worldwide, as well as support to civil authorities and humanitarian relief. Also, while combat air forces operate mainly intra-theater and tend to be based at U.S. or allied-controlled air bases, (13) global mobility demands that mobility air forces operate intra- and inter-theater and regularly utilize foreign military and/or civilian airports, sometimes in countries with no U.S. military presence at all.
In further contrast to the combat air forces, global air mobility is not exclusively a function of military aircraft. The Civil Reserve Air Fleet (CRAF), which consists of passenger and cargo aircraft that commercial carriers have agreed to allow the Department of Defense (DoD) to use in times of crisis, represents more than 40 percent of the United States' strategic airlift capability. (14) As an incentive for civilian carriers to provide aircraft to the CRAF, the DoD makes day-to-day airlift business available to participating airlines through the International Airlift Service Contract. In fiscal year 2008, the DoD purchased more than $3 billion of international airlift services from CRAF carriers. (15) Congress has also recently directed the Air Force to explore the possibility of utilizing commercial air refueling (or tanker) aircraft as well. (16)
Thus, mobility air forces fundamentally differ from combat air forces, with the MAF's sizeable, far-reaching peacetime airlift mission, the truly global nature of its operations, and its extensive use of civil aircraft. As a result, the rights and freedoms of air navigation recognized in international law and the legal privileges and immunities of State aircraft, as opposed to civil aircraft, (and vice versa) are considerably more pertinent to day-to-day MAF operations than are the LOAC targeting rules that are the main focus of operations law for the combat air forces. Building upon General Lepper's vision, this article provides an overview of the principles of international law upon which global air mobility depends. The intent is to further distinguish and expound the "Law of Air Mobility" concept and provide practitioners a useful guide to understanding the international legal underpinnings of air mobility operations.
II. CONVENTION ON INTERNATIONAL CIVIL AVIATION OF 1944 (17)
Concluded in the unanimity that accompanied the Allied side towards the end of the Second World War, (18) the Convention on International Civil Aviation (Chicago Convention) has been hailed as a "monumental drafting achievement." (19) Participants agreed on the convention's 96 articles in a span of just 37 calendar days at the 1944 International Civil Aviation Conference, with virtually no consultation or circulation of proposed texts before the Conference opened. (20) The treaty subsequently entered into force on 4 April 1947--30 days after the United States became the requisite twenty-sixth nation to submit notice of ratification (21)--and today has a remarkable 190 State parties. (22) Still, the agreement is most noteworthy for two principal accomplishments: (1) it recognized and codified certain principles of substantive public international law; and (2) it established the International Civil Aviation Organization (ICAO)--a U.N. Specialized Agency responsible for ensuring "safe, regular, efficient and economical air transport." (23)
The Chicago Convention, by its terms, does not apply to "state aircraft," which though not defined by the treaty, is deemed to include military aircraft. Specifically, Article 3 states "[t]his Convention shall be applicable to civil aircraft, and shall not be applicable to state aircraft.... Aircraft used in military, customs and police services shall be deemed to be state aircraft." (24) Paradoxically, however, several treaty provisions expressly apply to state aircraft. (25) For example, Article 3(c) of the treaty circumscribes traffic rights for state aircraft, (26) and Article 3(d) provides that contracting States "will have due regard for the safety of navigation of civil aircraft" when issuing regulations for state aircraft. (27)
On top of these provisions, U.S. policy requires DoD aircraft operating in international airspace on routine point-to-point and navigation flights to follow ICAO flight procedures whenever practical and compatible with mission requirements. (28) It further requires that DoD operations not conducted under ICAO procedures meet certain express conditions deemed necessary to fulfill the United States' obligation of "due regard" for the safety of civil aviation under Article 3(d) of the treaty. (29) What's more, like aviation generally, the MAF's global air mobility mission has an acutely international character, which derives from the ability of military airlift and air refueling to cross political boundaries, negate geographic frontiers, and rapidly transit the world. (30) Its success thus hinges on the air navigational rights and freedoms recognized in international law. So, the fact that military aircraft are excluded from the Chicago regulatory structure notwithstanding, the treaty is germane to MAF operations as both a comprehensive codification of public international air law and a Constitutional instrument for ICAO. (31)
John Cobb Cooper, a prominent American jurist, scholar, and air law pioneer, was President Franklin D. Roosevelt's aviation advisor and represented the United States at the 1944 Chicago Conference. Cooper identified four basic principles of public international law set down by the Convention: (1) territorial sovereignty; (2) national airspace; (3) freedom of the seas; and (4)nationality of aircraft. (32) Because of the importance of aerial navigation rights and freedoms and other aeronautical legal principles recognized in international law to the ability of mobility air forces to successfully conduct their operations, each of these principles has a prominent place in the Law of Air Mobility construct. Professor Cooper's enumeration of these principles therefore provides a useful framework to discuss their relevance to MAF operations.
III. TERRITORIAL SOVEREIGNTY & NATIONAL AIRSPACE
The principle of territorial sovereignty stands for the unilateral and absolute right of each nation to permit or deny entry into its territory and to control all movements therein. (33) Not coincidentally, this precept of public law sovereignty originated with the rise of the modern sovereign State in the 18th century; however, the related concept of sovereignty over "national airspace"--i.e., the airspace above a State's national lands and internal and territorial waters (34)--arguably did not take hold in international law until the early part of the 20th century, when heavier-than-air aircraft became a reality. (35)
In 1910, the French government called an international conference to address the status of airspace in international law, where proponents of freedom of the air contended that airspace ought to be like the high seas (free for all), while proponents of sovereignty in national airspace maintained that airspace was the sovereign territory of the subjacent State, yet no definitive conclusion was reached. (36) But the First World War, which was fought in the name of the independence of States, together with the great and rapid advances in military aviation technology that it witnessed, thrust the "State imperium" to the forefront of the public international air law agenda. (37) So it was that the Paris Conference of 1919 produced the Convention Relating to the Regulation of Aerial Navigation (the Paris Convention), (38) which abruptly ended the almost two decades old debate over whether airspace was "free" like the high seas or formed part of the sovereign territory of the subjacent State: "In the shadow of the wartime experience, States firmly and unequivocally confirmed the complete and exclusive sovereignty of States over their airspace. This principle has become an axiom and a cornerstone of international air law ever since." (39)
A. Transit Through Territorial (National) Airspace
The 1919 Paris Convention cemented the prevailing customary principle of State sovereignty over air space in international law. (40) Article 1 of the 1944 Chicago Convention thus recognized what had by then become the pre-existing rule of customary international law, that "every State has complete sovereignty over the airspace above its territory." (41) So, with no international legal principle in national airspace analogous to the customary freedom of the high seas, (42) the Chicago Convention instituted a three-tiered conventional law regime to effectuate the exchange of over-flight (or air traffic) rights. (43) First, under Article 3(c), State aircraft (including military aircraft) are prohibited from overflying or landing in another State's territory without special authorization from the over-flown State (e.g., diplomatic clearance (44)) and then only in accordance with the terms of that authorization. (45) Secondly, Article 5, paragraph 1, of the treaty grants "nonscheduled flights" (e.g., charter flights) of other States the first two of the so-called "five freedoms" of the air: (1) the freedom to fly into or across the territory of another State (transit), and (2) the freedom to make stops for non-traffic purposes, such as refueling or maintenance (technical stops) both of which may be exercised without prior permission, subject only to the right of the over-flown State to require a landing. (46) Lastly, Article 6 establishes traffic rights for "scheduled" air services--it provides that, like State aircraft, the scheduled flights of one State may not enter the airspace of another State without "special permission or other authorization." (47)
Though expansive on their face, the first and second "freedoms" granted to nonscheduled flights under Article 5 of the Chicago Convention are in reality markedly limited. The over-flown State can, in the interest of safety, require that nonscheduled aircraft obtain special (prior) permission for such flights or follow prescribed routes over areas deemed inaccessible or without adequate air navigation facilities. (48) This effectively means the aircraft operator can also be required to inform the over-flown State of their flight plan, intended flight path and technical stopover sites, and furnish other information before entering foreign airspace as well. (49) In spite of this, the first paragraph of Article 5 is still viewed by some as significant for establishing a degree of freedom of flight through foreign airspace for nonscheduled flights (50) that is "comparable to the maritime right of innocent passage." (51)
Furthermore, while Article 6 serves to highlight the absence of a multilateral exchange of traffic rights for scheduled flights within the four corners of the treaty, the Chicago Convention was actually successful in drawing up a "side" agreement known as the International Air Services Transit Agreement (or "Two Freedoms Agreement") that was open to all signatories to the Convention and granted the first two freedoms of the air on a multilateral basis. (52) Read together, Article 5 of the Chicago Convention and the Transit Agreement thus essentially afford nonscheduled and scheduled flights the same basic traffic rights. (53) Still, only 123 of ICAO's 190 member nations have actually ratified the Transit Agreement; conspicuously absent are some of the States with the largest territories, including Russia, China, Canada, Brazil, and Indonesia (with its vast archipelagic sea). (54) Consequently, first and second freedom rights extended to scheduled air services under the Transit Agreement have only limited geographic application.
In practice, however, the "special permission or other authorization" required for scheduled air services under Article 6 has taken the form of the reciprocal exchange of traffic rights between States through bilateral treaties known as "air transport" or "air services" agreements. (55) In 1946, the United States and the United Kingdom concluded one of the earliest post-Convention air transport agreements, commonly referred to as Bermuda I. (56) It introduced a formula for exchanging air traffic rights on a quid pro quo basis that for four decades was not only the template by which all U.S. bilateral agreements were negotiated but also a model for agreements of other nations as well. (57)
More recently, the paradigm for dealing with scheduled traffic rights has shifted from Bermuda I to the U.S. "open skies" framework, which allows contracting parties' airlines to fly between any point in the territory of one party and any point in the territory of the other party with no restrictions on routes, flights, aircraft, or prices charged. (58) In fact, "open skies" is now the rule in the exchange of traffic rights between the United States and all 27 European Union member States--an estimated 60 percent of global commercial air traffic. (59) Thus, all told, Article 6 serves as the basis for a vast web of as many as 3,000 agreements between nearly 200 States for the operation of scheduled air services. (60)
Notably, the Convention defines neither "nonscheduled flight" nor "scheduled air services," nor is there a unanimously or even widely accepted definition of either term; rather, "nonscheduled flight" is only negatively described as not being scheduled air transportation, which again is also undefined. (61) In 1952, the ICAO Council (62) sought to resolve this dilemma by adopting the following definition of "scheduled international air service":
A scheduled international air service is a series of flights that possesses all of the following characteristics: (a) it passes through the airspace over the territory of more than one state; (b) it is performed by aircraft for the transport of passengers, mail or cargo for remuneration, in such a manner that each flight is open to use by members of the public; (c) it is operated, so as to serve traffic between the same two or more points; either, (i) according to a published time-table, or (ii) with flights so regular or frequent that they constitute a recognizable systemic series. (63)
This definition was intended to be applied cumulatively, "spelling out what scheduled services are, thereby delimiting nonscheduled services in a negative manner"--in other words, if any one element of "scheduled international air service" is not met, the service is classified as "nonscheduled." (64) However, the Council's proposal failed to find acceptance with the majority of member-States, as many instead adopted their own national regulations that contained positive definitions for "scheduled" and "nonscheduled" air transport services. (65) For example, the U.S. Department of Transportation (DOT) regulations define "scheduled service" quite simply as "[t]ransport service operated pursuant to published flight schedules." (66) In contrast, "nonscheduled service" is broken down more extensively as including
transport service between points not covered by Certificates of Public Convenience and Necessity issued by the Department of Transportation to the air carrier; service pursuant to the charter or hiring of an aircraft; other revenue services not constituting an integral part of the services performed pursuant to published schedules; and related nonrevenue flights. (67)
DoT regulations further delineate "charter service" as follows:
Nonscheduled air transport service in which the party receiving transportation obtains exclusive use of an agreed upon portion of the total capacity of an aircraft with the remuneration paid by the party receiving transportation accruing directly to, and the responsibility for providing transportation is that of, the accounting carrier. (68)
In reality, however, the technical distinction between scheduled and nonscheduled air services has only limited practical application to traffic rights for U.S. carriers, since U.S. bilateral air transport agreements generally provide for air service rights for both scheduled and charter--as opposed to nonscheduled--air services. (69)
B. "State Aircraft" versus "Civil Aircraft"
The legal distinctions between State and civil aircraft, which are borne out by virtue of States' exercise of sovereignty over their national airspace, are intrinsic and particularly significant to MAF operations, especially in comparison to the CAF. As a case in point, access to foreign territory and airspace is generally important with any military force projection capability, (70) to include land-based fighters and support aircraft alike. (71) However, combat air forces are, for the most part, equipped and configured to fight most effectively from "in theater," as evidenced by the fact that aircraft such as the A-10, F-15, F-16, and F-117 have unrefueled combat radii of only 300 to 500 nautical miles. (72) Plus, as instrumentalities of armed conflict, the raison d'etre of combat aircraft is to intentionally penetrate a belligerent's airspace without authorization.
Mobility air forces, on the other hand, represent a military capability that is more global in character and, even during wartime, fulfill a wide variety of international engagement missions and other mobility needs in addition to combat missions within or in support of the theater of operations. (73) In fact, the U.S. Air Force's Air Mobility Command (AMC), the organization responsible for providing the U.S. military's airlift, air refueling, air mobility support, and aeromedical evacuation capabilities, conducts an estimated 700 to 900 operational sorties per day worldwide (74)--by comparison, in 2005 the CAF flew around 100 to 200 combat sorties per day in the Southwest Asian theater. (75) The day-to-day constraints of territorial airspace and diplomatic clearances relative to state aircraft thus have a discernibly greater impact on global air mobility than they do on combat air operations. Moreover, in contrast with most CAF aircraft, which are, by their nature, quintessential military aircraft, (76) the MAF transport cargo and passengers interchangeably on both military and chartered commercial aircraft, oftentimes "on a reimbursable basis for other agencies, international organizations, other nations, and sometimes individuals." (77) The State versus civil aircraft delineation therefore directly controls what legal regime governs a given MAF mission, not only in terms of overflight rights but also with respect to the ICAO regulatory scheme.
As noted previously, military aircraft are one of three categories of state aircraft enumerated in Article 3(b) of the Chicago Convention and, as such, are excluded from the treaty's regulatory system, (78) yet international law lacks a formalized definition of military aircraft. (79) Some commentators have argued that the concept of military aircraft as "instrumentalities of nations performing noncommercial sovereign functions" was crystallized as a norm of customary international law beginning with the Paris Convention of 1919. (80) However, the DoD has rejected the commercial versus noncommercial distinction as "too vague" and "[jeopardizing] the sovereign immunity of military aircraft conducting international operations." (81) Instead, the DoD advances a definition of military aircraft that parallels the definition of "warships" in the 1982 Convention on the Law of the Sea. (82) This definition, which has emerged under international law, classifies as military aircraft "all aircraft operated by commissioned units of the armed forces of a nation bearing the military markings of that nation, commanded by a member of the military forces, and manned by a crew subject to regular armed forces discipline." (83)
By analogy, U.S. domestic law buttresses the DoD position, rejecting the "noncommercial purposes" criterion in the context of whether military aircraft are "public aircraft" and therefore exempt from the provisions of U.S. civil air regulations. Rather, these statutes straightforwardly defined military aircraft as any "aircraft owned or operated by the armed forces." (84) Thus, from the U.S. perspective, military aircraft operating under the direction of the DoD are "Chicago-type" state aircraft--with the attached sovereign immunity and other rights and privileges (85)--regardless of why the aircraft are flown or whether the military service receives reimbursement. (86)
The state versus civil aircraft distinction also holds special significance for mobility air forces because of the CRAF contributions they receive. (87) The CRAF has three main segments--international, national, and aeromedical--as well as three stages of incremental activation, used to augment airlift as needed to meet a given contingency: Stage I is for minor crisis; Stage II is for major theater war; and Stage III is for periods of national mobilization. (88) Additionally, the U.S. government incentivizes airlines to participate in the program by guaranteeing CRAF carriers access to billions of dollars of DoD steady-state passenger and cargo airlift business. (89)
Here again, jurists and legal scholars have proposed a "functional test" for civil aircraft along the lines of the "noncommercial purposes" test for military aircraft, whereby civil aircraft involved in military activities, such as a commercial carrier's Boeing 747 transporting military personnel and/or equipment under the International Airlift Service Contract or CRAF program, would be classified as a state (military) aircraft. (90) Nevertheless, the United States has consistently taken the position that aircraft under contract to the DoD and other government agencies do not qualify as state aircraft unless the U.S. Government specifically designates them as such. (91) U.S. domestic law likewise specifies that civil aircraft chartered to provide transportation or other commercial air services to the armed forces retain their civil character unless the Secretary of Defense designates the operation as being required in the national interest. (92)
As a matter of policy, the United States will not normally designate DoD contract aircraft as state aircraft. (93) A major reason for the U.S. stance in this regard is the absence of any statutory authority to allow the U.S. Government to routinely assume liability for tort claims arising from the activities of contract aircraft. (94) Under international law, "[a] state must accept full responsibility for the operation of its state aircraft" (95)--however, when it comes to contract airlift, the "U.S. Government has neither the operational control nor the legal authority to meet this responsibility." (96) U.S. policy also clarifies the status of DoD contractor aircraft flying AMC missions so that, for example, an AMC charter, operating on the assumption that it is a civil aircraft entitled to exercise the right of overflight and to make technical stops under Article 5 of the Chicago Convention, is less likely to be erroneously classified as a state aircraft operating in the overflown State's airspace without the requisite authorization. (97)
Notably, many of the agreements for the basing of American military forces in foreign countries actually "grant DoD contract aircraft the same rights of access, exit, and freedom from landing fees and similar charges enjoyed by U.S. military aircraft under the agreements[;]" however, "such agreements do not have the effect of declaring DoD contract aircraft to be state aircraft." (98) Instead, commercial aircraft flying AMC missions typically function as nonscheduled civil aircraft. (99) Contractors are therefore responsible for complying with foreign countries' domestic law requirements for nonscheduled commercial aircraft and obtaining overflight and landing clearances for their aircraft. (100) Because of the significant number of commercial aircraft flying AMC missions, (101) this obligation places the Chicago Convention's commercial traffic rights regime on par with the state aircraft diplomatic clearance process as a catalyst for MAF mission accomplishment.
The applicability of the Chicago Convention to commercial aircraft flying AMC missions also means that contractors must take into account the cargo restrictions imposed by Article 35 of the treaty. Specifically, Article 35 prohibits civil aircraft from carrying munitions and implements of war over the territory of another State without that State's permission. (102) What's more, the treaty leaves it to each State to individually define through its own regulations what constitutes war materials. (103) So to avoid allegations that the United States is violating or circumventing Article 35, DoD airlift contractors are further expected to find out whether any State that their aircraft will overfly or land in imposes "special clearance" requirements based on the military nature of the aircraft's cargo. (104)
C. Aerial Intrusions
As discussed earlier, consistent with the principles of sovereignty and national airspace confirmed by the Chicago Convention, a foreign aircraft may lawfully enter another country's airspace only with that State's authorization. (105) Any unauthorized incursion into national airspace by a foreign aircraft--or "aerial intrusion"--would thus violate customary sovereignty and the Chicago Convention. (106) The affected State would then have the legal right to respond by intercepting the offending aircraft and turning it away; forcing it to land at a designated airfield; impounding the aircraft if it lands; or even shooting it down. (107)
After the 1983 downing of Korean Air Lines Flight 007 by Soviet fighter aircraft, the ICAO Assembly (108) amended the Chicago Convention, adding Article 3 bis (109) which, inter alia, provided that States "must refrain from resorting to weapons against civil aircraft in flight" or, in the case of interception, endangering the safety of the aircraft and those on board (110)--a rule that can today be regarded as part of customary international law. (111) But because of the potential security threat that trespassing military aircraft represent to the territorial sovereign, international legal standards for State responses to aerial intrusions treat civil and military aircraft differently, imposing a much lower threshold for the use of force without warning against military aircraft that intrude into the territory of another State. (112)
Yet, while invoking the right of self-defense by the territorial State logically begets a lower burden of proof for using force against intrusion by a military aircraft, (113) international rules on the resort to armed force and, in particular, the principles of necessity and proportionality, offer at least some pro forma protection to trespassing military aircraft in peacetime. (114) For example, inasmuch as the overflown State may not resort to disproportionate force against an intruder, the State should arguably give foreign military aircraft that do not present an immediate and serious threat a reasonable opportunity to change course or land before being attacked. (115) The United States has further advanced the view that international law supports normative standards similar to those applicable to civil aircraft with respect to interception of military aircraft that trespass national airspace due to error, distress, or force majeure. (116)
Besides the standard jus ad bellum protections that extend to all trespassing military aircraft, two additional international principles, to varying degrees, offer legal safeguards specifically for mobility air forces. First, in cases of intrusion by unarmed military transport aircraft, custom and State practice offer an exception to the traditional approach that calls for using force against trespassing military aircraft that fail to respond to orders to change course or land. This exception grew out of two separate attacks on U.S. C-47 transport aircraft over Yugoslavia in 1946. (117) In both instances, there was no question that the U.S. aircraft had intruded into Yugoslav airspace (though the United States maintained the intrusions were unintentional and the result of bad weather); rather, the main point of contention between the parties was the nature of the attacks, specifically whether the C-47s had been attacked without warning. (118)
Following the second incursion, which saw Yugoslav fighters shoot down the C-47, killing all on board, Yugoslavia declared that it would no longer fire on the transports, even if their intrusion into Yugoslav airspace was intentional. (119) Furthermore, while Yugoslavia would continue to intercept and invite such intruders to land, noncompliant aircraft would simply be identified and the matter addressed through diplomatic channels. (120) Since its pronouncement, the Yugoslav approach has gained some traction as a prescriptive norm by which (1)use of force against an unarmed military transport aircraft is prohibited in peacetime absent manifest hostile intent, and (2) failure of an intruding military transport to land at a designated airfield is to be treated as a diplomatic incident and handled through proper channels. (121) However, given the persistence of contrary positions on the treatment of aerial intruders, (122) it is doubtful that this practice has satisfied the "opinio juris" requirement, (123) such that it can be considered legally binding. (124)
A second category of legal protection for military aircraft with special relevance to mobility air forces is the conventional regime relating to medical aircraft set down in the 1949 Geneva Conventions and its Protocols. (125) Article 36 of the first Geneva Convention; (126) 39 of the second Convention; (127) and 22 of the fourth Convention, (128) prohibit attacks on aircraft used exclusively for medical transport (129) during both peacetime and armed conflict. (130) However, to be immune from attack in the midst of an armed conflict, medical aircraft must fly along routes and altitudes agreed to by adverse parties whenever they are flying over enemy-controlled territory or close to enemy lines. (131) Plus, although no agreement with adverse parties is necessary for medical flights over friendly territory or seas not under enemy control, notifying adverse parties of such flights is nonetheless also advised, especially if the aircraft will fly within range of enemy anti-aircraft systems. (132) Still, the Conventions require that belligerents issue warnings or order offending medical aircraft to land before they resort to force. (133)
Because the Geneva protections depend on the State's ability to recognize medical aircraft, the identification of medical aircraft is a key aspect of the regime. The 1949 Geneva Conventions required that medical aircraft be clearly marked with a distinctive emblem--e.g., the red cross (or red crescent) on a white background. (134) For more than 30 years, the Air Force flew the C-9 "Nightingale" aeromedical aircraft, with its distinctive white tail flash adorned with a red cross. (135) But in 2005, the Air Force retired the C-9 in favor of a new aeromedical technology in the form of the patient support pallet (PSP) system, which allows patients to be transported aboard aircraft not always used for aeromedical evacuation. (136)
Even in 1949, however, the Diplomatic Conference recognized that advancing military technologies would increasingly enable attacks on aircraft from ever-greater distances without any visual contact, thereby eroding the protection that was afforded medical aircraft by virtue of their markings. (137) The Conventions were thus eventually supplemented to expand the internationally recognized means of identifying medical aircraft beyond distinctive emblems, to include flashing blue lights (to permit identification of medical aircraft in reduced visibility, from a distance, or at night). (138) The supplements also included identification measures that do not depend on visual contact, such as flight-plan notifications; two-way radio communications; radio signals; international codes established by ICAO, the International Telecommunications Union, or the International Maritime Organization; and electronic identification using radar transponders. (139)
Additionally, per the Geneva Conventions, aircraft need not be specially equipped or permanently detailed for medical transport to be protected by the regime. (140) Subsequent Protocols likewise make it clear that conventional protections for medical aircraft derive from their protected status under international law and the use of distinctive emblems, signs, or signals simply facilitates protection by giving this status a concrete form of expression. (141) Aircraft temporarily detailed for medical transport that bear no medical markings, such as Air Force air refueling and military transport aircraft evacuating wounded and sick via the PSP system, (142) are therefore legally shielded from attack provided that during a relief mission the aircraft are used exclusively for that purpose and are completely unarmed. (143) Consequently, a belligerent who knowingly attacks a medical aircraft based solely on the absence of a distinctive emblem, sign, or signal could be deemed to be guilty of a war crime. (144)
To prevent abuse of medical aircraft protections, a belligerent has the right to issue a "summons to land" to medical aircraft flying over enemy controlled territory or contact areas, which medical aircraft are duty bound to obey, (145) otherwise they lose their protected status. (146) If upon landing and inspection, the status of the medical aircraft is confirmed, it should be allowed to promptly resume its flight to ensure the wounded and sick do not suffer because of the delay. (147) If, however, the examination reveals actions harmful to the belligerent, such as, for example, the transport of munitions or intelligence collection, the aircraft once again loses the benefit of the Geneva protections. (148) The belligerent may then seize the aircraft, take the wounded prisoner, (149) and treat any medical personnel or material according to the Conventions' general rules. (150) Under such circumstances, crew members and passengers may similarly be regarded as having forfeited their rights under the Geneva Conventions and therefore interned and even put on trial for espionage, sabotage, or other activities hostile to the security of the belligerent concerned. (151)
In contrast, a belligerent has no obligation to allow a medical aircraft to resume its flight when it is forced to land or otherwise comes down in enemy-controlled territory involuntarily. (152) Instead, the medical aircraft may be seized as war booty, (153) and its crew, as well as any wounded and sick on board, treated as prisoners of war. (154) However, medical personnel must still be afforded special protection and allowed to administer to those taken prisoner, (155) and any medical equipment or supplies on board the aircraft must be reserved for this purpose. (156)
Finally, the Geneva Conventions further give medical aircraft license to overfly as well as land in neutral territory--whether by necessity or as a port of call--subject to three express provisos comparable to the rights of belligerents. (157) Specifically, to be "immune from attack" when flying over neutral territory, (158) a medical aircraft must (1) give advance notice of its passage; (2) fly along routes and altitudes agreed to by the neutral State concerned; and (3) obey any summons to land. (159) For their part, neutral powers may put conditions on the passage or landing of medical aircraft within their territory, provided such conditions apply equally to all belligerents. (160) A medical aircraft that violates neutral airspace by failing to follow any of these conditions may be compelled to land--whereupon the aircraft may be seized and interned, along with all personnel on board (161)--or, after defying an order to land, shot down by the neutral State. (162) At its discretion, the neutral state may inspect a compliant medical aircraft that lands in neutral territory, whether of its own accord or in response to a summons. (163) Once the plane's status as a medical aircraft is confirmed, it must be allowed to resume its flight. (164) Before doing so, however, the aircraft commander (or pilot-in-command) of a medical aircraft may, with the consent of local authorities, lawfully off-load wounded and sick needing immediate treatment. The neutral State must then intern the off-loaded patients and furnish them medical treatment at least as favorable as that owed to prisoners of war. (165) If the neutral State determines that the aircraft engaged in activities inconsistent with protected status, the aircraft and all persons on board may be interned for the duration of the conflict. (166)
IV. FREEDOM OF THE SEAS
The principle of freedom of the seas, which recognizes that the surface of the high seas and the superjacent airspace are free for use by all, (167) is both a corollary to and limited by the principles of territorial sovereignty and national airspace. The Chicago Convention reaffirms the fight of every State to complete sovereignty over its national airspace--i.e., the airspace above its land areas and adjacent territorial waters. (168) It thus follows that international airspace, which encompasses, inter alia, airspace over the high seas, is open to aircraft of all States, including military aircraft. (169)
At the same time, the freedom of the seas is delimited by territorial seas, which in the decades since World War II have expanded from the age-old three-mile limit to twelve miles in response to States' increasing demands and capacity to control the oceans with an eye on enhanced security, environmental protection, and natural resource exploitation. (170) The freedom of the seas is further constrained by the rights and authorities ceded coastal nations within jurisdictional zones established by the 1982 United Nations Convention on Law of the Sea (UNCLOS), also referred to as the Law of the Sea Convention, which span international waters from the twelve mile territorial sea limit seaward to the high seas. See Figure 1. (171)
[FIGURE 1 OMITTED]
Although the United States is not a party to the Law of the Sea Convention, according to former Assistant Secretary of State for Oceans, Environment, and Science, David B. Sandalow, (172) its provisions embody "longstanding U.S. negotiating objectives," including recognition of customary international law freedoms of navigation and overflight; a precise maximum territorial sea limit of twelve miles; establishment of a 200-mile exclusive economic zone (EEZ); and recognition of coastal State sovereignty and jurisdiction over the continental shelf for purposes of exploration and natural resource exploitation. (173) Thus, since 1983, the United States has accepted and complied with nearly all the Convention's provisions, (174) as both reflecting customary international law and fulfilling U.S. interest in "a comprehensive legal framework relating to competing uses of the world's oceans." (175) Excepted from this policy--and the basis advanced by President Ronald Reagan for not acceding to the Convention--were the provisions in Part XI and Annexes III and IV relating to deep seabed mining. (176) Yet despite the negotiation of a 1994 agreement to eliminate or modify the deep sea provisions to address objections made by the United States and other industrialized countries, (177) both the Law of the Sea Convention and the so-called "Part XI Agreement" are still pending U.S. ratification. (178) Nevertheless, by virtue of Reagan's 1983 Oceans Policy Statement, most provisions of the Convention are tantamount to U.S. policy, particularly those related to freedom of navigation and overflight of international waters. (179)
Much like airspace, sea space is legally bifurcated, with national waters on the one hand and international waters on the other. (180) The legal regime for national waters is relatively straightforward since these regions are subject to the territorial sovereignty of the coastal nation, albeit with certain navigation and overflight rights reserved to the international community. (181) Conversely, international waters are beyond the limits of territorial seas, where all States enjoy the high seas freedoms of navigation and overflight. (182) However, controversy persists over the degree of control coastal States can exercise over ships and aircraft operating in the zones of functional jurisdiction adjacent to the territorial sea and overlapping international waters recognized by the Law of the Sea Convention. (183) Given that 60 percent of AMC's daily missions entail transoceanic flight, (184) these maritime principles have particular relevance for the MAF in comparison to the CAF.
A. National Waters
National waters consist of internal waters, territorial seas, and archipelagic waters. (185) Internal waters are those waters landward of the baseline from which the breadth of the territorial sea is measured, while territorial seas are a belt of ocean that is measured seaward up to 12 nautical miles from the baseline of the coastal State (see Table 1, supra). Both areas are subject to the absolute territorial sovereignty of the coastal State, as is the appurtenant (national) airspace. (186) Significantly, although Article 5 of the Chicago Convention grants nonscheduled flights certain overflight rights akin to innocent passage, (187) the customary right of innocent passage through territorial seas does not include the right of overflight. (188) Thus, for purposes of overflight, the airspace above internal waters and territorial seas is equivalent to the airspace above territorial land areas. (189) In other words, state aircraft may transit this airspace only with special authorization from the over-flown State; (190) likewise, civil aircraft may transit only in compliance with the Chicago Convention regime for the exchange of overflight or air traffic rights. (191)
1. International Straits
In the special case of international straits overlapped by territorial seas, (192) the Law of the Sea Convention strikes a compromise between the freedom of navigation and overflight that all ships and aircraft enjoy on the high seas and the maritime right of innocent passage, with its "transit passage" regime. (193) Codification of the transit passage regime is considered one of the Convention's most important achievements and is particularly important to aircraft, which, again, have no right of innocent passage over territorial seas. (194) The unequivocal position of the United States is that transit passage is customary international law, (195) and though this view is not universally shared, (196) the concept of transit passage for ships and aircraft through and over international straits is fairly uncontroversial. (197)
Transit passage offers all ships and aircraft, both military and commercial, the right of unimpeded, continuous, and expeditious transit through international straits and the superjacent airspace, which cannot be suspended by the coastal State for any reason during peacetime. (198) For ships and aircraft exercising the right of transit passage, the criterion of "innocence" has been replaced by the obligation to
 proceed without delay through or over the strait....  refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States bordering the strait and ...  refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. (199)
The treaty also prescribes additional aircraft-specific duties, requiring that aircraft observe "rules of the air" established by ICAO (200) and monitor appropriate radio frequencies. (201)
The transit passage regime has considerable implications for military aircraft inasmuch as it not only prohibits the threat or use of force but also restricts operations in international straits to those that are "incident to their normal modes of continuous and expeditious transit." (202) For aircraft in general, "normal mode" is commonly understood to mean flight at normal or usual cruising altitude and speed for the particular type of aircraft making the passage in a given circumstance. (203) But because of the disparity in the respective formulations of transit passage and innocent passage--which, in addition to barring the threat or use of force, prohibits specific activities of warships crossing territorial seas (204)--debate continues over the extent to which certain tactical activities might be considered permissible in transit passage as incident to the normal mode of transit for a particular military aircraft. (205)
Although transit passage is more inclusive than innocent passage (in that it extends to aircraft and imparts less coastal State control such that it cannot be suspended), (206) it encapsulates an exception to State sovereignty over territorial seas carved out solely for the limited purpose of transit. (207) Accordingly, the absence of a list of prohibited activities for aircraft exercising the right of transit passage should not be viewed overly expansively; (208) to the contrary, the scope of permissible activities for military aircraft engaged in transit passage must be viewed restrictively as limited to those which are part-and-parcel of normal navigation for a particular aircraft under the circumstances. (209) So, for example, the employment of radar, sonar, or depth finders is considered permissible in transit passage insofar as these devices are normally used in navigation through constricted waters or necessary for safety reasons, as are variations in course and speed to account for tides, currents, weather and navigational hazards, etc. (210) Alternatively, things such as weapons testing and firing, intelligence collection, propaganda, and communications jamming are commonly viewed as falling outside the realm of activities incident to continuous and expeditious transit of international straits. (211)
Certain military activities are not necessarily precluded from transit passage, but their status is less obvious and, as a result, they are controversial; for example, the launching and recovery of aircraft by aircraft carriers (212) or aircraft flying in combat formation. (213) Another such activity that is particularly noteworthy for present purposes is aerial refueling. The drafting history of the Law of the Sea Convention itself offers contradictory evidence with respect to whether aerial refueling is considered to be within the scope of transit passage. As proof it is permissible, proponents can point to the fact that during treaty negotiations an amendment to UNCLOS Article 39, which would have explicitly prohibited in-flight refueling, was rejected. (214) On the other hand, opponents can single out refueling as one of a broader set of high seas freedoms deliberately withheld under the qualified "freedom of navigation and overflight" extended to ships and aircraft in international straits solely for the purpose of continuous and expeditious transit. (215)
However, based on the wording and the negotiating context of the treaty, the permissibility of aerial refueling during transit passage can be reasonably inferred. (216) Again, Article 39 of the Law of the Sea Convention sets out the standard for assessing the permissibility of activities, providing that ships and aircraft may engage in activities that are incidental to their normal modes of continuous and expeditious transit. (217) In other words, subject to the prohibition on the threat or use of force, (218) a ship or aircraft transiting a strait need not suspend an activity that "is normal or usual for navigation by the particular type of ship or aircraft making the passage in given circumstances," (219) even if the activity would ostensibly be inconsistent with transit passage under UNCLOS Article 38 (i.e., navigation or overflight for the sole purpose of transit). (220) Thus, for example, a vessel that normally employs sonar in constricted waters or otherwise for safety reasons in navigation on the high seas may likewise do so in international straits, even though sonar may yield information of intelligence value. (221)
In the case of aerial refueling, the "normal mode" of continuous and expeditious transit for U.S. fighter aircraft deploying from one theater of operations to another is via "Coronet" missions. (222) A Coronet (commonly referred to as a "fighter drag") is a mission wherein an aerial refueling (or tanker) aircraft "escorts fighter aircraft as they deploy between bases[,] ... eliminating the need for the fighters to make numerous fuel stopovers ...[,]" while providing "aid in weather avoidance, oceanic navigation and communication, and command and control of the mission[,]" in addition to air refueling support. (223) Aerial refueling operations conducted as part of a Coronet-type mission are thus incidental to the normal or usual modes of transoceanic transit of both the tankers and the escorted fighter aircraft. (224) Moreover, such activities would surely not in and of themselves constitute a threat of the use of force as contemplated by UNCLOS Article 39. (225) Accordingly, the conduct of aerial refueling operations by aircraft flying Coronet-type missions would logically qualify as permissible during transit passage even though "refueling" in the context of the traditional freedom of navigation on the high seas is prohibited. (226)
[FIGURE 2 OMITTED]
The continuous and expeditious transit of fighters or other military aircraft within a given theater of operations will also oftentimes necessitate aerial refueling activity. These intra-theater aerial refueling operations are typically conducted by tankers flying either along designated tracks or in anchor areas (227) (see, e.g., Figure 2). (228) With air refueling tracks, operations generally occur along a straight path--with a designated air refueling initial point, air refueling contact point, and a designated air refueling exit point so both the tanker and the receiver aircraft are able to proceed in transit throughout the refueling. (229) In anchor areas, however, the tanker flies in an elliptical pattern within a defined airspace while awaiting its rendezvous with the receiver aircraft, and after being joined, continues to circle in a "racetrack" pattern while the refueling occurs. (230) So in assessing whether an intra-theater aerial refueling is incidental to continuous and expeditious transit for purposes of transit passage, a distinction could be made based upon the method of aerial refueling being employed. (231) In other words, an aerial refueling track forms a constituent part of the transit flight of both the tanker and the receiving aircraft, such that the refueling is ancillary to continuous and expeditious transit and, hence, consistent with transit passage. (232) Conversely, the loitering of aircraft in fixed orbits characteristic of anchor refueling is facially at odds with the obligation of aircraft transiting straits to do so without delay (233) and, as a result, could be deemed "non-transit" passage by States bordering the strait. (234) Such nonconforming passage would violate U.S. international obligations and render it responsible to the coastal States for any resulting loss or damage. (235)
Notably, DoD aircraft are, as a rule, required to secure an approved altitude reservation (ALTRV) prior to conducting air refueling operations. (236) An ALTRV is a temporary airspace reservation, either stationary or mobile, established through coordination between the user and the appropriate air traffic services (ATS) authority for use by large formation flights or other military air operations that necessitate non-compliance with normal air traffic procedures. (237) The U.S. Air Force's Pacific Military Altitude Reservation Function (PACMARF), located at Hickam Air Force Base, Hawaii, serves as the DoD's single point of contact for coordination of ALTRV requests with civil aviation authorities in the Pacific region. (238) The PACMARF's counterpart in Europe is the European Central Altitude Reservation Facility, located at Ramstein Air Base, Germany, which is responsible for coordinating all ALTRVs over the Atlantic, as well as for Europe and Africa. Within the United States, this function is performed by the Federal Aviation Administration (FAA) Central Altitude Reservation Function. (239) Because ALTRVs are issued for use of airspace under prescribed conditions and can, therefore, be presumptively revoked if an aircraft deviates from its approved routing or altitude, (240) ALTRVs effectively afford coastal States a degree of control over military aircraft engaged in air refueling activities in straits that is otherwise unavailable to them under the transit passage regime. (241)
2. Archipelagic Waters
In addition to codifying the special regime for transit through straits, the Law of the Sea Convention also creates a new legal regime for archipelagic waters and adjacent territorial seas. (242) Under this new archipelagic regime, States "constituted wholly by one or more archipelagos" can draw straight archipelagic baselines encompassing the outermost islands of the archipelagos and the interconnecting waters, (243) which then serve as the baseline from which the breadth of the archipelagic State's territorial sea is measured. (244) The waters enclosed within the archipelagic baseline constitute archipelagic waters, over which the archipelagic State exercises sovereignty subject to a number of rights enjoyed by third States, (245) the most important of which, for present purposes, is the right of archipelagic sea lanes passage.
The Convention's regime of passage through archipelagic waters is actually twofold. (246) First, under Article 52 of the treaty, all ships enjoy the right of innocent passage through archipelagic waters. (247) Additionally, however, UNCLOS Article 53 allows archipelagic States to designate sea lanes and corresponding air routes through archipelagic waters and the adjacent territorial sea for the continuous and expeditious passage of foreign ships and aircraft. Within these routes, said ships and aircraft enjoy the "right of archipelagic sea lanes passage." (248) Article 53 further provides that if an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through routes normally used for international navigation. (249) This latter provision is especially important to aircraft, "for without it aircraft would have no guaranteed right to overfly archipelagos, since aircraft, unlike ships, enjoy no right of innocent passage." (250)
Beyond affording archipelagic States the right to designate air routes--a power not expressly available to littoral States under the transit passage regime (251)--the regime for archipelagic sea lanes passage also delineates the specific aspect of flight for aircraft during archipelagic sea lanes passage in relation to defined sea lane axes and/or the coastlines of islands bordering the route. (252) Otherwise, however, the concept of archipelagic sea lanes passage is essentially the same as transit passage through international straits as set down in Articles 39, 40, 42, and 44 of the Law of the Sea Convention (and discussed above), in terms of both navigation rights of ships and aircraft and the respective rights and duties of foreign and coastal States. (253) Moreover, as in the case of transit passage, the United States views the right of all nations to engage in archipelagic sea lanes passage as reflecting customary international law and recognizes the right of an archipelagic nation to establish archipelagic baselines enclosing archipelagic waters, provided the State does so in conformity with the Convention's provisions. (254)
B. International Waters
As noted previously, international waters comprise those waters beyond the internationally recognized twelve-mile territorial sea limit wherein all States enjoy the high seas freedoms of navigation and overflight, i.e., complete freedom of movement and operation for all ships and aircraft. (255) However, the Law of the Sea Convention recognizes three new maritime regimes or "quasi-regimes" (256) in the form of functional zones measured from the territorial sea baseline and extending seaward out from the twelve-mile limit and into international waters: the contiguous zone (UNCLOS Article 33), the exclusive economic zone (UNCLOS Articles 55-57), and the continental shelf (UNCLOS Article 76) (see Figure 1). (257) Each of these overlapping zones extends the coastal State's functional jurisdiction with new rights and responsibilities over matters such as customs, immigration, environmental and natural resource management, etc., such that they ostensibly chip away at the traditional juridical division of the oceans and superjacent airspace into the unshared national areas and the universally shared expanse beyond. (258) Nevertheless, as the following discussion makes clear, with respect to navigation, overflight, and related activities, "freedom of the high seas" remains the dominant regime outside the twelve-mile territorial sea. (259)
1. Contiguous Zone
The contiguous zone dates back to the "Hovering Acts" enacted by Great Britain in the eighteenth century against foreign smuggling ships "hovering" within eight leagues (twenty-four miles) from the shore. (260) Contiguous to the twelve-mile territorial sea, this zone is similarly bounded with an outer limit of not more than twenty-four nautical miles from the territorial sea baseline. (261) Within the contiguous zone itself, the coastal State has the right to exercise jurisdiction and enforcement authority over violations by vessels of its customs, fiscal, immigration, or sanitary laws that occur within its territorial sea. (262) Plus, if violations occur, the coastal State may commence pursuit of an offending vessel within and has the right of "hot pursuit" outside the contiguous zone, provided pursuit is uninterrupted. (263)
International confusion about the contiguous zone has led to widely divergent state practices and, as a result, it is of dubious significance. (264) Indeed, with the establishment and propagation of the exclusive economic zone, which extends up to 200 nautical miles from territorial sea baseline and thereby subsumes the waters of the contiguous zone, (265) the continued legal relevance of the regime has come into question. (266) Yet the rights exercisable by the coastal State in the contiguous zone, though limited, are nonetheless distinct from the sovereign rights or jurisdiction in the exclusive economic zone relating to natural resources. (267) The contiguous zone is also arguably relevant as both the precursor to the exclusive economic zone and as a framework for coastal State pollution controls and environmental protections for the high seas. (268)
Once more, however, the contiguous zone is contiguous to but not part of the territorial sea, (269) and the enforcement jurisdiction ascribed coastal States under UNCLOS Article 33 is limited to offenses committed within their territory or territorial sea. It does not include security rights or otherwise allow interference with the freedom of overflight enjoyed by aircraft of other nations in the airspace above the zone. (270) So, while the Law of the Sea Convention's formulation of the contiguous zone may not rule out law enforcement action against a hydroplane on the water's surface or even interception of an aircraft seeking to land within the territory of the coastal State, the contiguous zone has little application to aviation generally and perhaps even less specifically for military aircraft operations. (271)
2. Exclusive Economic Zone (EEZ)
The exclusive economic zone (EEZ) was born in the latter half of the twentieth century out of a compromise between States seeking to extend their jurisdiction beyond the limits of the traditional territorial sea, mainly to protect fisheries and other natural resources, and States interested in safeguarding the freedom of navigation and overflight and other traditional freedoms of the high seas. (272) As a consequence, the Law of the Sea Convention established a specific legal regime for the EEZ, defined as an area beyond and adjacent to the territorial sea that can extend up to 200 nautical miles from the territorial sea baseline (273) (see, e.g., Figure 3). (274) Within this zone, the coastal State is granted sovereign rights for exploring, exploiting, conserving and managing the natural resources in waters, seabed, and seabed subsoil within the EEZ; and other economic activities within the zone (e.g., energy production). (275) The coastal State further has jurisdiction over establishing and using artificial islands, installations and structures; marine scientific research; and protecting and preserving the marine environment. (276)
[FIGURE 3 OMITTED]
As in the case of the contiguous zone, the Law of the Sea Convention's framing of the EEZ makes clear that it is not part of the territorial sea (277) and that historic high seas freedoms are retained, (278) to include "[m]ilitary activities, such as anchoring, launching and landing of aircraft, operating military devices, intelligence collection, exercises, operations and conducting military surveys." (279) Furthermore, although States conducting military activities within the FEZ must show due regard for coastal State resource and other specific rights enumerated in Article 56 of the Convention, (280) Article 58 makes it "the duty of the flag State, not the right of the coastal State, to enforce this 'due regard' obligation." (281) Yet despite the treaty's unequivocal rejection of territorialism in the EEZ, (282) its legal status has been a continuing source of controversy due to excessive claims of jurisdiction and sovereignty by several States. (283) These include, most notably, China, whose assertions of sovereignty in the EEZ were at the center of a highly publicized diplomatic dispute with the United States, after a U.S. Navy EP-3 surveillance aircraft and a Chinese F-8 fighter plane collided over the South China Sea in April 2001. (284)
According to a U.S. Navy report on the "EP-3 incident," the mid-air collision occurred when a Chinese pilot, engaging in overly aggressive interception tactics and harassment maneuvers, lost control of his F-8 fighter and flew into one of the EP-3's propellers. (285) The impact ripped the F-8 fighter in half--causing it to crash into the ocean and leading to the pilot's death--and forced the EP-3 to make an emergency landing on the Chinese island of Hainan, where the aircraft was seized and the twenty-four aircrew members were taken into custody. (286) Perhaps not surprisingly, the U.S. version of events stood in stark contrast to China's claim that the EP-3, though renowned as a "lumbering and slow moving propeller plane," (287) had suddenly veered and crashed into the Chinese jet, which was purportedly following and monitoring the EP-3 from about 1300 feet away when the U.S. plane allegedly swerved. (288)
In the aftermath of the EP-3 incident, the Chinese government maintained that the United States was legally responsible for the mishap, in part, because the United States violated China's rights by conducting surveillance against China from within its EEZ. (289) While acknowledging that general international law and the Law of the Sea Convention recognized the freedom of "overflight" above the EEZ, the Chinese government averred that the EP-3's surveillance activities were threatening and inconsistent with the requirement to show due regard for the rights of the coastal State (Article 58) and, therefore, outside the scope and an abuse of the overflight freedom. (290) In effect, China has espoused a limited freedom of overflight for the EEZ, whereby military reconnaissance activities are prohibited without permission of the coastal State, based on the sui generis concept of the EEZ--i.e., a zone outside the territorial sea, but yet not subsumed by the high seas, such that the high seas freedoms do not ipso facto apply. (291)
However, the Law of the Sea Convention, as a whole, makes clear that use of the adjective "exclusive" and the concepts of "sovereign rights" and "jurisdiction" with respect to the EEZ do not impart sovereignty; (292) rather, these terms merely signify that only the coastal State may exercise authority within the zone for economic purposes. (293) In other words, the rights and competences granted the coastal State by Article 56 relate to resources in the EEZ, not to the zone as a space. (294) Additionally, from the negotiating context of the treaty it is equally clear that the freedom of high seas referred to in Article 58 is not limited to passage rights. (295) To the contrary, the full freedoms are preserved, so that the freedoms of navigation, overflight, etc., under Article 58 are qualitatively and quantitatively the same as the traditional high seas freedoms beyond the EEZ, to include, inter alia, overflight of the superjacent airspace by military aircraft, along with the right to engage in other internationally lawful uses of the sea related to the freedom of overflight. (296) Activities of aircraft overflying the EEZ are thus subject to the sovereignty of the coastal State only insofar as those activities relate to "exploring and exploiting, conserving and managing natural resources ..." or otherwise affect "the economic exploitation and exploration of the zone." (297)
Article 58's legislative history also conclusively rebuts China's claims that the EP-3's surveillance activities were an unlawful threat to China's security and thus contrary to Article 58's "due regard" requirement. It establishes that even potentially provocative military activities associated with the operation of ships and aircraft, such as naval maneuvers, weapons practice, placing sensor arrays, aerial reconnaissance or intelligence collection, are nevertheless permissible as internationally lawful uses of the sea related to the high seas freedoms of navigation and overflight that all States enjoy in the EEZ. (298) The overwhelming weight of legal authority has also consistently upheld this view. (299) Furthermore, neither Article 301 of the Law of the Sea Convention, entitled "peaceful uses of the seas," nor Article 88 of the treaty, which reserves the high seas for "peaceful purposes," is generally understood to forbid anything other than aggressive actions--i.e., the threat or use of force in a manner at odds the U.N. Charter. (300) China's challenge to the lawfulness of the EP-3's intelligence-gathering activities, which involved neither force nor the threat thereof, is therefore untenable in light of current international norms. (301) Still, it remains emblematic of the current controversy over the right to engage in military and intelligence gathering activities in the EEZs of other States; a dispute likely to continue. (302)
3. Continental Shelf
As evidenced by the ten explanatory paragraphs of UNCLOS Article 76, the continental shelf does not easily lend itself to simple description. (303) For present purposes, however, the continental shelf of a coastal State can be roughly defined as the sea-bed and subsoil extending either from the baseline from which the territorial sea is measured to the outer edge of "the continental margin" (up to 350 miles) or from the baseline from which the territorial sea is measured up to 200 miles, whichever is greater. (304) Pursuant to the Law of the Sea Convention's continental shelf regime, coastal States have exclusive rights to natural resources of the continental shelf, such as fisheries, oil, gas, and minerals. (305) So when paired with the EEZ (UNCLOS Article 56), the continental shelf provides a second legal basis for coastal State rights in relation to the sea bed. (306) The doctrine of the continental shelf actually preceded the concept of the EEZ and is considered to be firmly established in customary international law. Thus, it stands as an independent doctrinal basis for coastal States' rights over their continental shelves for States that do not accept the EEZ as customary international law or recognize claims based on the concept. (307) However, the inception of the continental shelf doctrine extended jurisdiction and property rights over marine resources in an area that under the classical doctrine was to remain part of the high seas. (308) Therefore, coastal State rights over the continental shelf are strictly limited and do not affect the legal status of the superjacent waters or of the airspace above those waters. (309) Consequently, the airspace above the continental shelf beyond the territorial sea has the same legal status as the airspace above the high seas, in which all aircraft enjoy freedom of overflight to operate without interference by other nations. (310)
V. NATIONALITY OF AIRCRAFT
The last of the basic international law principles espoused by Professor Cooper as being embodied in the Chicago Convention is "nationality of aircraft." (311) This concept recognizes that aircraft have characteristics of nationality similar to those that exist under maritime law with respect to the "flagging" of ships. (312) As with ships, nationality of aircraft is synonymous with State of registry, (313) and aircraft engaged in international air navigation must similarly display markings indicating nationality and registration. (314) Notably, however, contracting parties to air transport agreements concluded pursuant to Article 6 of the Chicago Convention have historically imposed ownership restrictions on the carriers designated to receive traffic rights and/or access to routes, requiring these airlines be owned and controlled by citizens of a contracting party, thus ensuring airlines from non-contracting States do not benefit from the bilateral exchange of traffic rights. (315) This has effectively prevented international aviation from adopting the maritime concept of "flags of convenience," (316) whereby an owner may register a ship in a foreign country (e.g., in order to profit from less restrictive regulations), such that the nationality of the vessel's owner and vessel's State of registry are different. (317)
Nevertheless, because States have traditionally exchanged air traffic rights on the basis of bilateral agreements, aircraft nationality and air traffic rights are inextricably linked. (318) Aircraft nationality is also the basis for the reciprocal duties and responsibilities borne by States with respect to aircraft that they register and by aircraft vis-a-vis their State of registry. (319) Having said this, nationality-related issues like ownership, identification, and air traffic rights have only limited relevance for military aircraft, which (a) are not obliged to be registered; (b) are, by definition, operated by and marked with the military ensign of the State's armed forces; (320) and (c) cannot overfly another State's territory without that State's authorization. (321) Furthermore, States generally have exclusive competence in the area of military aircraft operations, albeit subject to international legal limitations like the law of war prohibition of perfidy, (322) or the Chicago Convention's mandate to operate with "due regard" for the safety of civil aviation. (323) But owing to the distinctly global nature of MAF operations, the concept of aircraft nationality continues to hold significance for mobility aircraft in certain respects.
Once again, MAF peacetime and contingency support missions oftentimes involve transoceanic, international flights and landings at outlying foreign military and/or civilian airports where there may be no other U.S. military presence. These aspects of MAF operations can make mobility aircraft especially susceptible to interference from foreign nations based on nationality, both in the air and on the ground. A case in point is States' administration of air space management and security zones, sometimes used by States to justify excessive claims of sovereignty or to otherwise impose restrictions on the freedom of overflight of military aircraft in international airspace based on their nationality. Aircraft nationality is also fundamental to the question of the sovereign immunity of state aircraft from foreign enforcement jurisdiction. These are the topics of discussion in this final section.
A. Airspace Management & Security Zones
Airspace management and security zones comprise assorted airspace control measures with a variety of legal bases. In the present context, "airspace management zone" is simply a generic term for a delimitation of airspace based on responsibility for and/or authority over the airspace and the provision of air traffic control (ATC) services. "Security zone," on the other hand, generally describes a volume of airspace in which air navigation is restricted to further national or, in some cases, international security interests. Both types of zones can encompass national as well as international airspace and can be established pursuant to either States' domestic laws or international regimes.
The right of a State to restrict or prohibit overflight of designated areas, or of its entire national territory for that matter, is a natural consequence of the complete and exclusive sovereignty of the State articulated in Article 1 of the Chicago Convention and further confirmed by Articles 3, 9 and 12 of the treaty. (324) Yet simultaneously, these provisions also place some conditions and limitations on its exercise. (325) For example, Article 3 requires that States issuing guidelines for use of navigable airspace by military aviation show due regard for the safety of civil aviation. (326) Next, Article 9 requires that any restrictions on overflight of certain territorial land or sea areas by foreign aircraft that States impose in the interest of military necessity or public safety be (1) nondiscriminatory (i.e., applied "uniformly" without regard to nationality of aircraft) and (2) "of reasonable extent and location so as not to interfere unnecessarily with air navigation." (327) Finally, Article 12 requires State parties to ensure not only that aircraft overflying their territory comply with all of their applicable rules and regulations, but also that their own regulations conform to ICAO standards and recommended practices (SARPs) "to the greatest possible extent. (328)
These principles are the underlying rationale for the FAA's "National Airspace System" (NAS) within the jurisdiction of the United States. The NAS establishes two categories of airspace: regulatory and nonregulatory. (329) Regulatory airspace includes Class A, B, C, D, and E airspace areas, along with "prohibited" and "restricted" areas, while nonregulatory airspace consists of "warning areas," "military operations areas" (MOAs), "alert areas," and "controlled firing areas." (330) The Class A through E airspace areas represent classifications of "controlled" airspace wherein the classification corresponds with the type of ATC services provided (331) (see Figure 4). (332)According to FAA regulations, these classifications apply within the airspace above the forty-eight contiguous U.S. states and Alaska including the airspace overlying territorial waters (333)--and correlate to ICAO airspace classifications. (334)
[FIGURE 4 OMITTED]
The two remaining areas of regulatory airspace together with the four areas of nonregulatory airspace make up the six FAA "special use airspace" (SUA) areas where certain (mainly military-related) activities must be confined, or "where limitations may be imposed on aircraft operations that are not part of those activities:" (335)
* Prohibited area: Airspace above a prescribed surface area "... within which the flight of aircraft is prohibited ... for security or other reasons associated with the national welfare." (336)
* Restricted area: Airspace above a prescribed surface area "... within which the flight of aircraft, while not wholly prohibited, is subject to restrictions [due to] ... the existence of unusual, often invisible hazards to aircraft such as artillery firing, aerial gunnery, or guided missiles." (337)
* Warning area: "[A]irspace of defined dimensions, extending from three nautical miles outward from the coast of the [United States] that contains activity that may be hazardous to nonparticipating aircraft." (338)
* Military operations area (MOA): "[A]irspace of defined vertical and lateral limits established for the purpose of separating certain military training activities [e.g., air combat tactics, air interceptions, aerobatics, formation training, and low-altitude tactics] from IFR traffic." (339)
* Alert area: Airspace areas depicted on aeronautical charts "that may contain a high volume of pilot training or an unusual type of aerial activity." (340)
* Controlled firing area (CFA): Airspace areas that "contain activities which, if not conducted in a controlled environment, could be hazardous to nonparticipating aircraft." In contrast with activities in other special use areas, CFA activities will be immediately suspended if a nonparticipating aircraft approaches the area. (341)
By definition, FAA SUAs only apply within U.S. territorial airspace, except "warning areas," which may be located over national waters (three to twelve nautical miles from the U.S. coast) or international waters (beyond twelve nautical miles) or both, and may therefore occupy international airspace. (342) Again, warning areas are zones designated to warn nonparticipating pilots of the potential danger and unusual hazards posed by military activities within the airspace, such as live-fire exercises with artillery firing, aerial gunnery, or guided missiles, aircraft carrier operations, air-to-air refueling, and radio jamming. (343) While warning areas are similar to restricted areas, only warning areas can extend into international airspace where the United States does not have sole jurisdiction. (344)
Notably, both restricted and prohibited airspace areas are explicitly prescribed by ICAO standards and recommended practices (SARPs) in Annex 2 to the Chicago Convention (Rules of the Air) (345)--one of eighteen annexes to the treaty adopted pursuant to ICAO's quasi-legislative authority, (346) each of which contains SARPs on a specific substantive area. (347) Annex 2 further expressly prohibits aircraft from flying in a duly published restricted or prohibited area, except in accordance with the conditions of the restrictions or by permission of the States over whose territory the areas are established. (348) The remaining FAA special use areas (i.e., warning areas, MOAs, alert areas, and controlled firing areas) fall into the category of "danger areas," which are defined in Annex 2 as "airspace of defined dimensions within which activities dangerous to flight exist at specified times," and which, unlike restricted and prohibited areas, are not expressly limited to the confines of territorial airspace. (349)
Where States have established airspace management and security zones above their land areas and/or territorial waters, overflying aircraft are bound by all-encompassing State sovereignty, as well as by the Chicago Convention, to comply with associated limitations that may be imposed on their operations. (350) The same, however, cannot be said for zones that extend beyond territorial limits, since States lack the legal capacity to prevent flights through international airspace where all aircraft enjoy freedom of overflight. (351) So, for example, in the case of U.S. warning areas, FAA guidance makes clear the fact that these zones only serve as a warning of potential danger and that nonparticipating pilots are not prevented from entering them. (352) Nevertheless, the ICAO regulatory regime does require that aircraft operating under the direction of air traffic control precisely maintain their assigned route and altitude (353) and comply with ICAO ATC procedures designed to ensure aircraft avoid active danger areas. (354) What's more, Annex 2 also authorizes military interception of civil aircraft if necessary to guide them away from a prohibited, restricted or danger area. (355)
Military aircraft are considered to be state aircraft and, as such, are not bound by ICAO rules and procedures. (356) So when operating in international airspace, they are not legally subject to the jurisdiction or control of the ATC authorities of a foreign country. (357) As noted before, however, DoD policy is that routine point-to-point and navigation flights shall normally follow ICAO procedures. (358) Therefore, to the extent it is practical and compatible with mission requirements, U.S. military aircraft, including MAF aircraft will generally accede to ATC routing around active danger areas established and operated by foreign countries in international airspace in accordance with ICAO SARPs. (359) At the same time, DoD regulations dictate that operations that do not lend themselves to ICAO flight procedures be conducted under the "due regard" prerogative of state aircraft. (360) In such cases, regulations require that DoD aircraft satisfy specific operational and technical criteria necessary for the United States to fulfill its obligations under Article 3(d) of the Chicago Convention. (361)
These criteria essentially obligate the military aircraft pilot-in-command to act as his or her own air traffic controller and to separate his or her aircraft from all other air traffic. (362)
1. Air Defense Identification Zones" (ADIZ)
The airspace management and security zones expressly sanctioned by the Chicago Convention and ICAO SARPs notwithstanding, some States, including the United States, have unilaterally established "air defense identification zones" (ADIZ) (363) that can extend hundreds of miles into international airspace (see, e.g., Figure 5). (364) An ADIZ is generally set up to facilitate identification of approaching aircraft for national security purposes and so requires that aircraft entering territorial airspace from points outside satisfy certain identification requirements as a condition of entry. (365) These may include mandates for filing a flight plan, two-way radios and transponders, and position reporting. (366) Aircraft failing to comply with ADIZ requirements will typically be identified through military intercept. (367)
[FIGURE 5 OMITTED]
Whether ADIZ can be justified on the basis of specific provisions in the Chicago Convention is subject to debate. (368) However, a State's right to establish an ADIZ as a means of placing reasonable conditions for entry into its territory is generally accepted, whether as a manifestation of the fight of self-defense or a customary right born out of State practice. (369) Then again, it is equally well recognized that an ADIZ does not give States sovereignty over international airspace and therefore cannot interfere with other States' exercise of their high seas freedoms of navigation and overflight. (370) Thus, while States can lawfully require an aircraft approaching national airspace to identify itself while in international airspace as a condition for entry into the States' territory, States have no right to apply ADIZ procedures to transiting foreign aircraft that do not intend to enter their national airspace. (371)
U.S. policy both reflects and supports the dichotomy between the right of States to establish an ADIZ as a means of identifying aircraft entering into their territory on the one hand, and the right of States to unencumbered use of international airspace on the other. So while the United States has established an ADIZ, (372) it does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace. (373) Furthermore, DoD regulations make clear the U.S. position that military aircraft transiting through a foreign ADIZ without intending to penetrate foreign sovereign airspace are not required to follow foreign ADIZ procedures. (374) DoD guidance therefore instructs that "U.S. military aircraft not intending to [enter a foreign State's] national airspace should not identify themselves or otherwise comply with ADIZ procedures established by foreign nations, unless the United States has specifically agreed to do so." (375)
2. Flight Information Regions (FIRs)
On top of all of the aforementioned airspace management and security zones, the world's airspace has also been divided into a series of contiguous Flight Information Regions (FIRs). FIRs are delimitations of airspace that generally correspond to the sovereign territory of the subjacent State wherein the State concerned has accepted responsibility for ATC services. (376) For coastal States, FIRs can also include large swaths of international airspace above oceanic areas in addition to the airspace over their territory and territorial waters (377) (see, e.g., Figure 6). (378) However, unlike similar zones discussed previously that States draw up unilaterally (albeit, in some cases, under the authoritative umbrella of the Chicago Convention), air traffic control authority for designated FIRs is specifically assigned to States in ICAO Regional Air Navigation Plans (RASPs). These RASPs are, in turn, collectively drafted by ICAO member States through Regional Air Navigation Conferences and approved by the ICAO Council. (379)
[FIGURE 6 OMITTED]
Annex II to the Chicago Convention allows coastal States providing ATC services across oceanic regions within their FIRs to apply the same rules and regulations States have adopted for air navigation services within their national airspace to international airspace. (380) Additionally, consistent with Article 12 of the treaty, contracting States must ensure that all aircraft bearing their "nationality mark" comply with applicable ATC service rules and regulations. (381) Here again, however, Article 3 exempts military aircraft from the provisions of the Chicago Convention and its Annexes and thus, by extension, from ICAO SARPs. (382) So, while coastal State FIR procedures and ICAO air traffic control measures are equally applicable to civil aircraft of other contracting States, (383) ATC services have no authority to control navigation or restrict operations of military aircraft transiting international airspace within the FIR. (384)
Areas of air traffic management responsibility also must not be confused with national airspace. In other words, though the Chicago Convention and its Annexes require States to ensure air navigation safety and allow them to apply domestic ATC procedures within their assigned FIRs, a FIR does not confer State sovereignty over international airspace, (385) nor may States use a FIR as a national security zone. (386) Thus, military aircraft not intending to penetrate foreign sovereign airspace may operate in international airspace within a FIR without a diplomatic clearance or other permission or clearance from the coastal State or the ATC service provider. (387) Furthermore, although military aircraft must always operate with due regard for the safety air navigation, (388) they are not subject to the jurisdiction or control of any foreign country's ATC authorities. (389) As a result, the coastal State or ATC provider cannot require military aircraft to give prior notification or to submit a flight plan before operating in international airspace within a FIR. (390)
In practice, however, the exemption for military aircraft from ICAO rules and procedures has limited operational significance, because military aircraft are generally expected not to contravene these regulations. (391) As has been noted, U.S. military flights in international airspace will typically observe ICAO rules and procedures, (392) to include, for example, filing an ICAO flight plan with foreign civil aviation authorities. (393) The DoD expressly reserves the right to conduct certain operations in international airspace under the "due regard" prerogative instead of ICAO flight procedures, (394) but even "due regard" requires aircraft to operate subject to one or more conditions designed to provide for a level of safety equivalent to that normally given by ICAO ATC agencies. (395) Moreover, DoD guidance spells out that flight under "due regard" deviates from normally accepted operating procedures and practices and so is not to be undertaken routinely, (396) and further specifies that any such departures from procedures "shall be of no greater extent or duration than is required to meet the [operational] contingency." (397)
B. Sovereign Immunity of State Aircraft
Beginning with the Paris Convention of 1919, military aircraft have long been recognized as instrumentalities of State sovereignty having the same status under international law as warships (398)--i.e., "they are immune from the jurisdiction of other States, even when they are in the territory of those other States." (399) The Chicago Convention does not explicitly recognize the sovereign immunity of military aircraft, but Professor Cooper states,
It is felt that the rule stated in the Paris Convention that aircraft engaged in military services should, in the absence of stipulation to the contrary, be given the privileges of foreign warships when in national port is sound and may be considered as still part of international law even though not restated in the Chicago Convention. (400)
Indeed, prominent air law commentators have noted that sovereign immunity is not typically set forth in positive rules of international law but instead is oftentimes expressed by exempting public vessels from the terms of a particular treaty. (401) So, for example, per Article 3 of the Chicago Convention, state aircraft are excluded from the legal framework for civil aviation, whereby civil aircraft are not only subject to the jurisdiction or control of foreign air traffic control authorities when operating in international airspace (402) but also subject to search and inspection while within a foreign State's territory as well. (403)
More traditionally, however, the sovereign immunity of military aircraft has referred to customary immunity from the exercise of "enforcement jurisdiction" or, in other words, immunity from arrest, attachment, or execution in the territory of any foreign state. (404) Specifically, under the protections international law affords to state aircraft, foreign officials may not board another State's military aircraft without the aircraft commander's consent. (405) Military aircraft commanders also cannot be required to consent to an onboard search or inspection, including customs, safety, and agricultural inspections. (406) Moreover, the crew and the aircraft are immune from arrest or seizure when lawfully in the territory of another State and exempt from taxes and regulation. The owning state also exercises exclusive control over all aircrew members and passengers with regard to acts performed on board. (407) Finally, unless there is an express agreement between the States concerned to the contrary, military aircraft are exempt from fees for transit through another country's airspace or FIRs in international airspace, as well as landing, parking and other use fees at foreign government airports, including military installations. (408)
Of course, States have the sovereign prerogative to grant or deny any overflight clearances or rights to foreign state aircraft. (409) Absent a general or permanent clearance--sometimes referred to as a "blanket clearance" (410)--the overflown State generally authorizes overflight by state aircraft on a case-by-case basis through the competent military or civil authorities and usually requires a statement of the flight's purpose, route and final destination and the aircraft used. (411) However, because States enjoy complete and exclusive sovereignty over their airspace, (412) overflight permission may, for example, be further conditioned upon compliance with aircraft "disinsection" and quarantine requirements, providing passenger lists or cargo information, or other stipulations. (413) Aircraft that fail to comply with a foreign State's customs or security requirements may simply be denied access to or directed to immediately leave the State's territory and/or national airspace. (414)
A 2006 report by the Council of Europe (CE) (415) Secretary General highlighted this tension between the sovereign immunity of state aircraft on the one hand, and States' sovereignty over the airspace above their territory on the other. The report addressed allegations that State Parties to the European Convention on Human Rights (ECHR) had failed to fulfill their treaty obligations with respect to the clandestine transport of terror suspects through their territory and airspace. (416) In the report, Secretary General Terry Davis notes, "State aircraft benefit from immunity and [are] not subject to [foreign] controls," and that "such immunity also extends to ... personnel for acts committed on board ... and even those committed on the territory of the State where the aircraft made a stop." (417) Because it is thus "virtually impossible for States to assess with certainty whether aircraft transiting through their airspace or even using their airport facilities are used for purposes incompatible with the [ECHR]," (418) Davis concludes member States cannot effectively fulfill their treaty responsibilities in this regard once overflight authorization has been granted. (419)
The Secretary General therefore recommended changes to member States' procedures for granting overflight clearances. (420) First, to provide for effective human rights guarantees, he proposed drafting model "human rights clauses," which could be inserted in member States' bilateral agreements granting overflight rights to foreign state aircraft requiring that such flights comply with the ECHR and other internationally recognized human rights standards. (421) Secondly, to safeguard against abuse, States may appropriately require a waiver of sovereign immunity (e.g., authorization for search and seizure) as a condition for diplomatic clearances in certain instances. (422) Finally, in all cases, "[r]equests for overflight authorizations should provide sufficient information as to allow effective monitoring regarding the identities and status of all persons on board, the purpose of the flight and its final destination as well as the final destination of each passenger. (423)
Although the Secretary General's recommendations are non-binding, they could foretell a potential shift in European political norms away from the deference to sovereign immunity demonstrated in the post-September 11 practice of "[providing] blanket overflight clearances for the United States' and other Allies' aircraft for ... operations against terrorism." (424) If so, changes to European overflight clearance requirements along the lines of those proposed by the Secretary General could significantly impact MAF operations. Consider, for example, the proposed waiver of sovereign immunity. To be an effective check on abuses, it would arguably have to grant the overflown State not only the right of inspection, but also the right to issue a summons to land that transiting foreign state aircraft would be duty-bound to obey. (425) Such a requirement would, therefore, theoretically subject all U.S. airlift, aeromedical evacuation, and air refueling aircraft to random landings and inspections when overflying the territory of any of the forty-seven CE member States, which together comprise approximately twenty-percent of the earth's land area. Compliance with this mandate would clearly necessitate a drastic overhaul of U.S. policy on the sovereign immunity of military aircraft, (427) and, even then, would still seemingly be operationally untenable for the MAF, whose value lies in its ability to provide "rapid, flexible and responsive air mobility." (428)
Arguably, on a broader scale, "long-term success of the [U.S.] counter-terror campaign will depend on concerted cooperation from the European states." (429) The Council of Europe's proposal to restrict member States in granting diplomatic clearances shows how the role of European multilateral institutions continues to develop. (430) The emerging European order has been characterized as one of "compromised sovereignty." (431) That is, a system in which European States' "sovereignty"--"in the sense understood by diplomats and constitutional lawyers half a century ago"--is "increasingly held in common." (432) In the policy balance between bilateral and multilateral approaches to counter-terror cooperation with Europe, multilateral cooperation may thus become increasingly important. (433) So for policy-makers a "key question" will be "the extent to which that cooperation should be pursued through European multilateral institutions" versus traditional bilateral relationships. (434) However, from an air mobility operations perspective, cooperative bilateral relationships with States in Europe and elsewhere are obviously not only imperative, but essential, especially insofar as those States retain the right to grant or deny foreign state aircraft overflight clearances through their national airspace. (435)
VI. SUMMARY & CONCLUSION
Certainly, every Airman must have a solid foundation in LOAC, and especially the fundamental principles of necessity, distinction, and proportionality that are the underpinnings for combat ROE. In fact, for Air Force judge advocates and paralegals in particular, the jus ad bellum and jus in bello are considered core competencies. But in an age when adherence to the "rule of law" can itself be viewed as a "center of gravity" for democratic societies, (436) it is more important than ever for Air Force and, indeed, all operations law practitioners to have an effective understanding of the legal touchstones for their commanders' specific missions.
From providing fuel, materiel and aeromedical support to combat forces, to providing humanitarian supplies to hurricane, flood, and earthquake victims both at home and abroad, global air mobility is neither exclusively a wartime mission nor a peacetime mission--it is an everywhere, all the time mission. The rapidity and uniquely international character of MAF operations makes mission success inimitably dependent upon the navigational rights and freedoms of overflight enshrined in international law. Although the 1944 Chicago Convention governs civil aviation and confirms State sovereignty over territorial airspace, it also recognizes military needs for access to all airspace, as well as the customary freedom of overflight over the high seas encapsulated in UNCLOS. (437) Additionally, global air mobility also benefits from the standardization and improved air traffic management offered by ICAO SARPs; so much so that DoD aircraft, though not bound by the international regulatory regime, will normally follow ICAO flight procedures. These are among the factors that make the "corpus juris aeris" presented here preeminent as a legal framework for global air mobility operations.
Of course, a number of the international legal principles expounded here apply equally to all military aircraft, MAF and CAF alike. However, as the foregoing discussion and analysis makes clear, due to fundamental differences in the purpose, nature, and volume of air mobility operations versus combat air operations, these tenets hold much greater significance for the MAF. At the same time, certain other of these principles relate to unique aspects of air mobility operations (e.g., overflight rights of military medical transports or contractor aircraft), which have little relevance in the air combat realm. This body of law, which has here been christened the Law of Air Mobility or LOAM, thus stands out as a distinct operations law discipline.
The United States' military airlift forces notably once brandished the slogan "Anything-Anywhere-Anytime." (438) Although this slogan has been supplanted, it still rings true and highlights the fact that air mobility operations are constant and characteristically the same whether conducted in wartime or in peacetime. Likewise, in contrast to LOAC, ROE and other targeting-related issues that are of primary concern to the CAF, with few exceptions the principles of international law upon which global air mobility and sustainment depend transcend armed conflict. Perhaps because the MAF is so ubiquitous and the rules and principles that facilitate its mission derive from the well-established, widely recognized legal regime for international aviation, LOAM has oftentimes been given scant attention in our traditional approach to operations law.
However, the many examples of "effective application of non-lethal airpower" in Afghanistan, Bosnia, Iraq, Cambodia, Somalia, Rwanda and, most recently, the U.S. response to the Haiti earthquake, show air mobility to be "a national asset of growing importance for responding to emergencies and protecting national interests around the globe." (439) With more emphasis now being placed on using America's "soft power" (440) to counter terrorism, (441) and the vital role of the MAF in delivering what has been termed "human security" (442) (see Appendix 1), (443) the importance of air mobility to furthering U.S. national security and foreign policy objectives will likely increase exponentially. (444) It is hoped this article has begun the process of delineating Law of Air Mobility as a MAF-centric subset of international law and will prove a useful resource on LOAM to the correspondingly increasing number of lawyers, planners, policymakers, and others likely to be concerned with air mobility operations in the future.
(1) U.S. DEP'T OF THE AIR FORCE. AIR FORCE DOCTRINE DOCUMENT 2-6.3, AIR MOBILITY SUPPORT 1 (1999) [hereinafter AFDD 2-6.3].
(2) See David F. Todd & Philip A Bossert, Viewing Rapid Air Mobility as a Revolution in Military Affairs, 55 DEF. TRANSP. J. 10 (1999), available at http://www.airpower.maxwell.af.mil/archronicles/cc_archives/ cc_archives199598.htm; see also JOINT CHIEFS OF STAFF, JOINT PUBLICATION 1-02: DoD DICTIONARY OF MILITARY AND ASSOCIATED TERMS 390 (12 Apr. 2001) (as amended through Apr. 2010) [hereinafter DoD DICTIONARY] (defining "rapid global mobility" as the "timely movement, positioning, and sustainment of military forces and capabilities across the range of military operations"), available at http://www.dtic.mil/doctrine/dod_dictionary.
(3) Todd & Bossert, supra note 2, at 10; Bernard H. Oxman, The Territorial Temptation: A Siren Song at Sea, 100 AM. J. INT'L. L. 830, 840-841 (2006):
Global mobility is a predicate of the international security system as it exists at present and for the foreseeable future. Both collective self-defense and collective security under the United Nations Charter, including enforcement, peacekeeping, and humanitarian operations, continue to rest on the presumption of global mobility....
See also U.S. DEP'T OF THE AIR FORCE, GLOBAL ENGAGEMENT: A VISION FOR THE 21ST CENTURY AIR FORCE 11 (1996), http://www.au.af.mil/au/awc/awcgate/global/global.pdf; JOINT CHIEFS OF STAFF, JOINT VISION 2010 (AMERICA'S MILITARY: PREPARING FOR TOMORROW) passim (1996), http://www.dtic.mil/jv2010/jv2010.pdf.
(4) See Major Michael W. Cummings, The Evolution of Military Airlift and the C-17: How Unique Capabilities Fall Short of Filling the Airlift Gap 3 (2006) (unpublished research paper, Air Command and Staff College, Air University, Maxwell Air Force Base, Alabama), https://www.afresearch.org/skins/RIMS/home.aspx.
(5) "Airlift forces conduct operations through the air to transport personnel and materiel in support of strategic, operational, and tactical objectives and to deliver these personnel and materiel via airland or airdrop methods." JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-17: JOINT DOCTRINE AND JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR AIR MOBILITY OPERATIONS I-3 (2 Oct. 2009) (emphasis in original) [hereinafter JOINT PUB. 3-17].
(6) "Air refueling forces conduct operations through the air to transport and transfer fuel to designated receivers in support of strategic, operational, and tactical objectives." Id. (emphasis in original).
(7) Air mobility support is provided through the Global Air Mobility Support System (GAMSS) (also referred to as the "En Route System"), a set of permanent support locations at key CONUS and overseas bases and deployable units capable of augmenting the permanent en route locations or creating support locations where none exists. The GAMSS is designed to provide responsive, worldwide support to airlift and air refueling operations and permit continuous, global command and control over most of the Mobility Air Forces regardless of location. See JOINT PUB. 3-17, supra note 5, at I-3; see also AFDD 2-6.3, supra note 1, at 2, 13-21 (providing an overview of the GAMSS En Route Support System and its organizational structure).
(8) "The mobility air forces are comprised of those air components and Service components that are assigned air mobility forces and/or that routinely exercise command authority over their operations. Also called MAF." DoD DICTIONARY, supra note 2, at 308.
(9) Combat Air Forces (CAF) are "[a]ir forces that are directly engaged in combat operations. Examples include fighters; bombers; command and control; combat search and rescue; and intelligence, surveillance, and reconnaissance aircraft." U.S. DEP'T OF THE AIR FORCE, INSTR. 10-420, COMBAT AIR FORCES AVIATION SCHEDULING 19 (9 Jul. 2010) [hereinafter AF1 10-420].
(10) See, e.g., Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Feb. 17, 1923, art. 13, 16, and 22, reprinted in THE LAWS OF ARMED CONFLICT: in COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 317 (Dietrich Schindler & Jiri Toman eds., 4th ed.) (2004); see generally Richard H. Wyman, The First Rules of Air Warfare, AIR U. REV. 94 (1984).
(11) JOINT PUB. 3-17, supra note 5, at VII-1.
(12) Aeromedical Evacuation is defined as the "movement of patients under medical supervision to and between medical treatment facilities by air transportation. Also called AE." DoD DICTIONARY, supra note 2, at 7.
(13) See, e.g., AFI 10-420, supra note 9, at 5-6 (noting how proper force management is needed to make the most efficient use of MAF air refueling aircraft when sending squadrons of CAF aircraft into a Combatant Command Area of Responsibility (AOR) (i.e., theater of operations)).
(14) U.S. DEP'T OF DEFENSE, OFFICE OF the EXECUTIVE SECRETARY, ANNUAL REPORT TO THE PRESIDENT AND THE CONGRESS, ch. 21 (1996), at http://www.dod.mil/execsec/adr96/index.html.
(15) U.S. DEP'T OF THE AIR FORCE, FACTSHEET: CIVIL RESERVE AIR FLEET (2007), http://www.af.mil/factsheets/ factsheet.asp?id=173 [hereinafter CRAF FACT SHEET]; The US Military's International Airlift Contracts, DEFENSE INDUSTRY DAILY, Sep. 11, 2008, at http://www.defenseindustrydaily.com/ The-US-Militarys-International-Airlift-Contracts05066; see also Peter A. Buxbaum, A Lift for CRAF?, MILITARY LOGISTICS FORUM, Jan.-Feb. 2008, at 2 (noting that from 1996 to 2000, DoD spent more than $700 million per year for military airlift requirements with CRAF carriers), available at http://www.kmimediagroup.com/mlf-archives/ 41-mlf-2008-volume-2-issue-l.html.
(16) National Defense Authorization Act for Fiscal Year 2008, Pub. L. No.ll0-181, [section] 1081, 122 Stat. 3, 335-36 (2008) (directing the Secretary of the Air Force to assess the feasibility and advisability of using commercial fee-for-service air refueling tanker aircraft for Air Force operations).
(17) Convention on International Civil Aviation, Dec. 7, 1944, 61 Star. 1180, 15 U.N.T.S. 295 [hereinafter Chicago Convention].
(18) Julian Thomka-Gazdik, The Right to Fly--Review at Random, in ESSAYS IN AIR LAW 287 (1982).
(19) Michael Milde, The Chicago Convention--Are Major Amendments Necessary or Desirable 50 Years Later?, 19 ANNALS OF AIR & SPACE L. 401-02 (1994).
(20) The International Civil Aviation Conference was held in Chicago from November 1 to December 7, 1944.
(21) Chicago Convention, supra note 17, art. 91, 61 Stat. at 1206 ("[T]his Convention ... shall come into force ... after deposit of the twenty-sixth [ratification in the archives of the Government of the United States of America].").
(22) An official list of states parties to the Chicago Convention is available at http://www.icao.int/cgi/statesDB4.pl?en.
(23) PAUL S. DEMPSEY, PUBLIC INTERNATIONAL AIR LAW 43 (2008); see also Chicago Convention, supra note 17, art. 44, 61 Star. at 1193.
(24) Chicago Convention, supra note 17, art. 3(a)-(b), 61 Star. at 1181. Compare Secretariat Study on "Civil/State Aircraft," Report of the Secretariat, ICAO Legal Committee, 29th Sess., Agenda Item 2, at 5, ICAO Doc. LC/29-WP/2-1 (1994) ("Currently, there are no clear generally accepted international rules, whether conventional or customary, as to what constitute state aircraft and what constitute civil aircraft in the field of air law.") [hereinafter ICAO Study on Civil/State Aircraft]; Michel Bourbonniere & Louis Haeck, Military Aircraft and International Law: Chicago Opus 3, 66 J. AIR L. & COM. 885, 896 (2001) ("Article 3 does not establish a definition of either the concept of state or civil aircraft ... [but] edicts that 'aircraft used in military, customs and police services shall be deemed to be state aircraft.' This is not a definition, but only a presumption since the word 'deemed' is used."); and NICOLAS M. MATTE, TREATISE ON AIR-AERONAUTICAL LAW 139 (1981) ("There is no definition of the term 'civil aircraft' and 'state aircraft' given in the Convention. However, art. 3(b) stipulates that 'aircraft used in military, customs and police services shall be deemed to be state aircraft.' This paragraph is regarded as exhaustive.").
(25) DEMPSEY, supra note 23, at 48.
(26) Id.; see infra notes 44-45 and accompanying text.
(27) Chicago Convention, supra note 17, art. 3(d), 61 Stat. at 1181.
(28) See U.S. DEP'T OF DEFENSE, DEPARTMENT OF DEFENSE INSTR. 4540.01, USE OF INTERNATIONAL AIRSPACE BY O.S. MILITARY AIRCRAFT AND FOR MISSILE/PROJECTILE FIRINGS, para. 6.3.2 (28 Mar. 2007) [hereinafter DoDI 4540.01]; see also U.S. DEP'T OF DEFENSE, NAT'L GEOSPATIAL-INTELLIGENCE AGENCY, DOD FLIGHT INFORMATION PUBLICATION, GENERAL PLANNING, para. 8-7 (2009) [hereinafter FLIP]; U.S. DEP'T OF DEFENSE, DEPARTMENT OF DEFENSE MANUAL 4500.54, FOREIGN CLEARANCE MANUAL, para. C2.2 (2009) [hereinafter FOREIGN CLEARANCE MANUAL].
(29) For flights conducted under the "due regard" prerogative, aircraft must be operated in visual meteorological conditions; within range of a surface or airborne surveillance or communications facility; equipped with airborne radar capable of providing aircraft separation; and/or outside of controlled airspace. DoDI 4540.01, supra note 28, para. 6.3.2; see also FLIP, supra note 28, para. 8-8; FOREIGN CLEARANCE MANUAL, supra note 28, para. C2.2.
(30) Cf. MATTE, supra note 24, at 31-32 (describing aviation's international character).
(31) Cf. Milde, supra note 19, at 402 (describing the legal and historical significance of the 1944 Chicago Convention).
(32) DEMPSEY, supra note 23, at 43 (quoting John Cobb Cooper, Backgrounds of International Public Air Law, 1 Y.B. AIR & SPACE L. 3 (1967)).
(35) PETER P.C. HAANAPPEL, THE LAW AND POLICY OF AIR SPACE AND OUTER SPACE: A COMPARATIVE APPROACH 2-3 (2003); but see John Cobb Cooper, Roman Law and the Maxim "Cujus est solum" in International Air Law, in EXPLORATIONS IN AEROSPACE LAW 54, 54-102 (Ivan A. Vlasic ed., 1968) (arguing that States have asserted sovereignty in national airspace since Roman times by legislating with respect to the private rights of landowners in airspace; hence the Latin maxim cujus est solum, ejus est usque ad coelum (he who owns the land, owns it up to heaven)).
(36) John Cobb Cooper, The International Air Navigation Conference, Paris 1910, 19 J. AIR L. & COM. 127 (1952).
(37) MATTE, supra note 24, at 79, 96; HAANAPPEL, supra note 35, at 3.
(38) Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, art. 1, 11 L.N.T.S. 173, reprinted in Maria Buzdugan, ed., "Chicago" Acts and Related Protocols, 30-1 ANNALS OF AIR & SPACE LAW 5 (2005) [hereinafter Paris Convention].
(39) MICHAEL MILDE, INTERNATIONAL LAW AND ICAO 11 (2008). Article I of the Paris Convention categorically stated: "Every Power has complete and exclusive sovereignty over the air space above its territory." Professor Milde notes that "the Convention does not create the principle of air sovereignty but recognizes it" and concludes.
[I]n the light of the practice of States protecting their air space and in the light of the war time experience as belligerents or as neutrals[,] the Paris Conference considered the principle to be a firm part of the customary international law that was to be only formally recognized by a codified instrument.
However, Milde proffers that it is doubtful this formulation of the sovereignty principle, an observable practice of States for less than two decades, constituted "usus logaevus" (a long observed rule), as required for it to have gained the status of customary international law. Id.; see also DAVID J. BEDERMAN, GLOBALIZATION AND INTERNATIONAL LAW 56 (2008) ("The legal status of air space was thus bound up with national sovereignty (especially during wartime), and the prevailing idiom of regulation for air transport was aer clausum, or 'closed skies.'").
(40) MILDE, supra note 39, at 11; see also MATTE, supra note 24, at 96; DEMPSEY, supra note 23, at 15-17.
(41) DEMPSEY, supra note 23, at 44; Chicago Convention, supra note 17, art. 1, 61 Stat. at 1180.
(42) "Freedom of the high seas" equates to complete freedom of movement and operation for all ships and aircraft over the high seas. U.S. DEP'T OF THE NAVY, NAVAL WARFARE PUB. 1-14M, THE COMMANDER'S HANDBOOK ON the LAW OF NAVAL OPERATIONS, para. 2.6.3 (2007) [hereinafter NAVAL WARFARE PUB. 1-14M].
(43) See BEDERMAN, supra note 39, at 56; DEMPSEY, supra note 23, at 30.
(44) See, e.g., FOREIGN CLEARANCE MANUAL, supra note 28, para. DL. 1.3. The manual defines "aircraft diplomatic clearance" as:
Permission by a foreign government for a United States aircraft to overfly or land in its territory. An aircraft diplomatic clearance permits the movement into or through the territory of a foreign country of military aircraft, cargo, equipment, and aircrew members performing aircrew duties only, including the related activities necessarily involved in such entry or transit, subject to whatever restrictions the clearance specifies. Acceptance of a flight plan and the issuance of a flight clearance by a foreign air traffic control (ATC) unit does not constitute official approval to enter the airspace of any country that requires either prior permission or aircraft diplomatic clearance.
(45) Chicago Convention, supra note 17, art. 3(c), 61 Stat. at 1181.
(46) Id. The "Five Freedoms of the Air" were spelled out in the International Air Transport Agreement, December 7, 1944, art. 1, [section] 1, 59 Stat. 1701, 171 U.N.T.S. 387 [hereinafter Transport Agreement], as follows:
(1) The privilege to fly across territory without landing; (2) The privilege to land for non-traffic purposes; (3) The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses; (4) The privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses; (5) The privilege to take on passengers, mail and cargo destined for the territory of any other Contracting State and the privilege to put down passengers, mail and cargo coming from any such territory.
See generally DEMPSEY, supra note 23, at 18-31 (discussing the "five freedoms" of the air which the U.S. delegation advanced at the 1944 Chicago Conference, as well as other freedoms of the air that have since been identified).
(47) Chicago Convention, supra note 17, art. 6, 61 Stat. at 1182.
(48) Id., art. 5, 61 Stat. at 1181.
(49) MATTE, supra note 24, at 148 n.86 (citing H.A. WASSENBERGH, POST-WAR INTERNATIONAL CIVIL AVIATION POLICY AND the LAW OF THE AIR (1962)).
(50) E.g., Nonscheduled air transport and private, non-commercial traffic. MARTIN BARTLIK, THE IMPACT OF EU LAW ON THE REGULATION OF INTERNATIONAL AIR TRANSPORTATION 6 (2007).
(51) MATTE, supra note 24, at 148-149; but see DEMPSEY, supra note 23, at 44 ("There is no corresponding right in Air Law to the Maritime Law concept of 'freedom of the seas' or the fight of innocent passage"); cf. MATTE, supra note 24, at 149-150 (noting that Article 5, paragraph 2, also grants "third, fourth and fifth freedom rights" for commercial nonscheduled services subject to "such 'regulations, conditions or limitations' as [the State] may consider desirable," (emphasis in original) but that, despite pleas from the ICAO Secretariat to the contrary, most States have imposed a prior permission requirement, thus rendering this provision "non-effective."); see also HAANAPPEL, supra note 35, at 110 (noting that because most States require prior permission for all commercial nonscheduled air services, Article 5, paragraph 2, is "a virtually dead provision in international air law").
(52) International Air Services Transit Agreement, Dec. 7, 1944, art. 1, [section] 1, 59 Stat. 1693, 84 U.N.T.S. 389 [hereinafter Transit Agreement]. Under Article 1, Section 1, of the Transit Agreement "[e]ach contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air services: 1. The privilege to fly across its territory without landing; 2. The privilege to land for non-traffic purposes." The Transport Agreement, supra note 46, which was also concluded at the Chicago Convention, provided for a multilateral exchange of all five freedoms of the air for international air services. As Professor Dempsey notes, however, "in the ensuing half century, fewer than a dozen nations ratified this agreement, and even the United States--its principal proponent withdrew after ratification." DEMPSEY, supra note 23, at 29.
(53) See MATTE, supra note 24, at 148; HAANAPPEL, supra note 35, at 110.
(54) MILDE, supra note 39, at 104. Dr. Milde distinguishes the "special case" of Canada, the second largest land territory in the world, which withdrew from the Transit Agreement in 1988 because of a dispute with the United Kingdom over traffic rights to and slots at London-Heathrow airport. Milde argues that Canada remains an active supporter of liberalized attitudes in international aviation and continues to offer to the United Kingdom and any other State the "two freedoms" on a bilateral reciprocal basis, whereas Russia, in contrast, "unlawfully" requires cash payments from foreign countries for using Russian air space. Id. at 104 n.9.
(55) Id. at 43; see generally id. at 107-113 (discussing bilateral agreements on air services).
(56) Agreement between the Government of the United Kingdom and the Government of the United States relating to Air Services between their Respective Territories, Feb. 11, 1946, U.S.-U.K., 60 Stat. 1499 253. Over time, the United Kingdom became disenchanted with Bermuda I, which it viewed as unfairly favoring U.S. carriers, and so, on June 22, 1976, denounced the accord and sought a more restrictive arrangement. Despite derisive cries of "protectionism" and calls for deregulation of the air transport industry from the United States, the two sides concluded a new agreement about a year later. It increased restrictions on routes, capacity, frequency, and designation, and virtually abolished fifth-freedom opportunities enjoyed by U.S. carriers under Bermuda I; consequently, it contributed little to the development of international air transport or aeronautical law. See ISABELLA H. DIEDERIKS-VERSCHOOR, AN INTRODUCTION TO AIR LAW 63 (2006). This latter agreement, known as the Agreement between the Government of the United States of America and Government of the United Kingdom of Great Britain and Northern Ireland concerning Air Services, Jul. 23, 1977, U.S.-U.K., 28 U.S.T 5367, is commonly referred to as Bermuda II.
(57) DEMPSEY, supra note 23, at 80-81; see also DIEDERIKS-VERSCHOOR, supra note 56, at 60-61.
(58) E.g., Multilateral Agreement on the Liberalization of International Air Transportation, May 1, 2001, 2001 U.S.T. LEXIS 69; see also HAANAPPEL, supra note 35, at 281 ("U.S. Model Open Skies Agreement"); U.S. DEP'T OF STATE, OFFICE OF THE SPOKESMAN, FACT SHEET: U.S.-EUROPEAN UNION AIR TRANSPORT AGREEMENT (2007), at http://useu.usmission.gov/Dossiers/Open_Skies/default.asp.
(59) Air Transport Agreement, Apr. 30, 2007, 2007 U.S.T. LEXIS 85; U.S. DEP'T OF STATE, OFFICE OF THE SPOKESMAN, MEDIA NOTE: U.S.-EU AIR TRANSPORT AGREEMENT BECOMES EFEECTIVE MARCH 30 (2008), at http://useu.usmission.gov/Dossiers/Open_Skies/default.asp.
(60) MILDE, supra note 39, at 110.
(61) Chicago Convention, supra note 17, art. 5, 61 Stat. at 1181 (defining "nonscheduled flight" as "aircraft not engaged in scheduled air services"); cf. id., at 1206 (Article 92 defines "air services" as "any scheduled air service performed by aircraft for the public transport of passengers, mail and cargo," and "international air services" as "an air service which passes through the airspace over the territory of more than one State"); See also MATTE, supra note 24, at 148-166 (discussing Article 5 of the Chicago Convention and the distinction between scheduled and nonscheduled services); and BARTLIK, supra note 50, at 6 (noting that the difference between scheduled and nonscheduled services arises from characteristics of "planned" and "public" inherent in the definition of scheduled services).
(62) The Council is the 36-member governing body of ICAO, chosen by the representatives of all member nations that make up the ICAO Assembly. INTERNATIONAL CIVIL AVIATION ORGANIZATION, HOW IT WORKS [hereinafter ICAO: How IT WORKS], at http://www.icao.int/icao/en/howworks.htm.
(63) Definition of Scheduled International Air Service, ICAO Doc. 7278-C/841 (1952) (adopted pursuant to ICAO Assembly Resolution A2-18).
(64) MATTE, supra note 24, at 151 n.98, 162; but see MILDE, supra note 39, at 101 ("This definition is just an interpretation ... and need not be taken as rigid or definitive."); see also BARTLIK, supra note 50, at 6 (stating that a nonscheduled flight includes "taxi flights, sightseeing flights, medical flights, advertisement flights or flights as part of holiday packages"); Prasert Pompongsuk, Transit Rights over Territorial Airspace." Reflection on the Practice of Thailand, THAILAND L. FORUM (2002), available at http://www.thailawforum.com/articles/transit2.html#7 (noting that nonscheduled flights may include, for example, "charter flights, maintenance flights or positioning flights").
(65) MATTE, supra note 24, at 162-163 & 163 n.157.
(66) Uniform System of Accounts and Reports for Large Certified Air Carriers, 14 C.F.R. [section] 241 (2009) (includes "extra sections and related nonrevenue flights"); see also 14 C.F.R. [section] 170.3 ("Scheduled commercial service means the carriage by aircraft in air commerce under parts 121 and 135 of persons or property for compensation or hire based on published flight schedules").
(67) 14 C.F.R. [section] 241 (2009). U.S. air carriers desiring to provide foreign air transportation must hold a Certificate of Public Convenience and Necessity issued by the DoT pursuant to 49 U.S.C. [section] 41102. The certificate must specify, to the extent practicable, the places between which the air carrier is authorized to provide the transportation; otherwise it identifies only the general routes to be followed. 49 U.S.C. [section][section] 41101-41113 (2007); see also 14 C.F.R. [section] 298.61 (2009) ("Nonscheduled services include all traffic and capacity elements applicable to the performance of nonscheduled aircraft charters, and other air transportation services not constituting an integral part of the services performed pursuant to published flight schedules."); 14 C.F.R. [section] 170.3 ("Nonscheduled commercial service means the carriage by aircraft in air commerce of persons or property for compensation or hire that are not operated in regularly scheduled service such as charter flights.").
(68) 14 C.F.R. [section] 241 (2009).
(69) See supra note 63.
(70) See DoD DICTIONARY, supra note 2, at 185 (defining "force projection" as "[t]he ability to project the military instrument of national power from the United States or another theater, in response to requirements for military operations").
(71) See generally DAVID A SHLAPAK ET AL., A GLOBAL ACCESS STRATEGY FOR THE U.S. AIR FORCE (2002) (on the importance to the U.S. Air Force of access to overseas installations, foreign territory, and foreign airspace).
(72) Id. at 6.
(73) MAF "engagement" missions include, for example, special assignment air missions (SAAMs), the delivery of peacekeeping forces and humanitarian relief (HUMRO), transportation of the President and other senior U.S. officials (BANNER missions), support of military operations in small-scale contingencies (SSCs), and participation in a myriad of small and large regional exercises with other militaries. TIMOTHY M. BONDS, ET AL., MEASURING THE TEMPO OF THE MOBILITY AIR FORCES 3 (2005).
(74) See e.g., Justin Brockhoff, Air Mobility Command Officials Set All-Time Sortie Record, A.F. PRINT NEWS TODAY (Dec. 3, 2008), http://www.618tacc.amc.af.mil/news/story_print.asp?id=123130466.
(75) See Current and Future Department of Defense Aircraft Programs (TACAIR): Hearing before the H. Subcomm. on Air and Land Forces, 110th Cong. 2 (2007) (combined statement of Lieutenant General Donald J. Hoffman, Military Deputy, Office of the Assistant Secretary of the Air Force for Acquisition (SAF/AQ) and Lieutenant General Carrol H. Chandler, Deputy Chief of Staff, Air and Space Operations (AF/A3/5)); see also Cheyenne A. Griffin, Total Force, Joint, Coalition Team Create New Synergy in CAOC, A. F. PRINT NEWS TODAY (Aug. 2, 2005), http://www.af.mil/news/story_print.asp?id=123011211.
(76) See HAANAPPEL, supra note 35, at 44 (stating that fighter planes, even when being flown for training or demonstration purposes (e.g., air shows), are nonetheless military aircraft); but see MILDE, supra note 39, at 71 (proposing that an unarmed F-18 fighter plane piloted by a military officer cleared for a civil flight plan for a flight to another countries' civil airport to deliver serum to a critically ill person could claim civil status).
(77) Memorandum from Williams J. Haynes, General Counsel of the Department of Defense, to Richard B. Cheney, President of the Senate, and J. Dennis Hastert, Speaker of the House of Representatives 7 (Jul. 11, 2001), available at http://www.dod.mil/dodgc/olc/docs/July12-Second.pdf [hereinafter DOD/GC Memo].
(78) See supra note 24 and accompanying text.
(79) See ICAO Study on Civil/State Aircraft, supra note 24, at 6-8.
(80) Bourbonniere & Haeck, supra note 24, at 891 (emphasis added); see also supra note 38.
(81) DoD/GC Memo, supra note 77, at 7.
(82) United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 29, 21 I.L.M. 1261, 1833 U.N.T.S. 397 (1982) [hereinafter UNCLOS].
(83) DoD/GC Memo, supra note 77, at 8; LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 174 (2008); see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.1; U.S. AIR FORCE JUDGE ADVOCATE GENERAL'S DEP'T, AIR FORCE OPERATIONS & THE LAW 6 (2002) [hereinafter USAF Ops LAW HANDBOOK] ("As a general rule military aircraft include all aircraft operated by commissioned units of the armed forces of a nation beating the military markings of that nation, commanded by a member of the armed forces, and manned by a crew subject to regular armed forces discipline.").
(84) 49 U.S.C. [section] 40102(a)(41) (2009), see also 49 U.S.C. [section] 40125(c)(1)(A) (2009) ("an aircraft described in section 40102(a)(41)(E) qualifies as a public aircraft if ... the aircraft is operated in accordance with title 10").
(85) See Bourbonniere & Haeck, supra note 24, at 901-902.
(86) See DoD/GC Memo, supra note 77, at 7; compare 49 U.S.C. [section] 40102(a)(41)(A)-(D) with 49 U.S.C. [section] 40125(b). The latter states that an aircraft used only for the U.S. Government; owned and operated by the Government for crew training, equipment development, or demonstration; owned and operated by the government of a State, the District of Columbia, or a U.S. territory or possession or a political subdivision thereof; or exclusively leased for at least 90 continuous days by government of a State, the District of Columbia, or a U.S. territory or possession or a political subdivision thereof "does not qualify as a public aircraft ... when the aircraft is used for commercial purposes."
(87) As of May 2007, 37 carriers and 13,764 aircraft were enrolled in the CRAF. CRAF FACT SHEET, supra note 15; see generally ROBERT M. KANE, AIR TRANSPORTATION 14-26 (2002) (describing the CRAF program).
(88) Aircraft are assigned to a segment based on the nature of the requirement and the performance characteristics required. CRAF FACT SHEET, supra note 15; see also CHRISTOPHER BOLKOM, CIVIL RESERVE AIR FLEET (CRAF), U.S. CONGRESSIONAL RESEARCH SERVICE REPORT RL33692, at 3 (2006):
CRAF has been formally activated on two separate occasions over the program's 54 year history. The first activation was during Operations Desert Shield/Desert Storm from August 18, 1990 through May 24, 1991. The level of activation included long range international passenger and cargo up to Stage II. The second activation was during Iraqi Freedom from February 8, 2003 through June 18, 2003. The level of activation included long range international passenger up to Stage 1; long cargo was not required.
(89) See supra note 15. CRAF participants must be U.S. carriers fully certified by the Federal Aviation Administration (FAA) and meet the stringent standards of Federal Aviation Regulations pertaining to commercial airlines, 14 C.F.R. [section] 121, and all aircraft committed must be U.S. registered. BOLKOM, supra note 88, at 1.
(90) E.g., Milde, supra note 19, at 418 (arguing for a functional approach to the determination of whether an aircraft is civil or State whereby a commercial airliner ferrying troops might be classified as a military aircraft and a fighter plane carrying emergency vaccine to arrest an outbreak of disease might be considered a civil aircraft); MILDE, supra note 39, at 71-74; HAANAPPEL, supra note 35, at 44 (asserting that state aircraft should include aircraft "normally used for the commercial carriage of passengers, baggage, mail and/or cargo, but that are sometimes used exclusively for state purposes"); Bourbonniere & Haeck, supra note 24, at 887-888 ("[W]ithin the corpus of international public air law, the rights and duties, which affect the flight of an aircraft, are contingent upon its function"). See also Message from the Secretary of State, U.S. Government Policy on Aviation-Related Fees 2 (Aug. 1, 2007) (on file with author) [hereinafter Secretary of State Message (Aug 07)].
(91) Secretary of State Message (Aug 07), supra note 90, at 2; USAF OPS LAW HANDBOOK, supra note 83, at 6; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.3.
(92) 49 U.S.C. [section] 40125(c)(1)(C).
(93) Secretary of State Message (Aug 07), supra note 90, at 2; USAF OPS LAW HANDBOOK, supra note 83, at 6; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.3; see, e.g., Agreement Between the Government of the United States and the Government of the Republic of Korea Concerning Mutual Airlift Support Utilizing Aircraft Operated by/for the Military Forces of the Parties in Case of Military Hostilities in the Republic of Korea, Jul. 6, 2004, U.S.-S. Korea, Jul. 6, 2004, T.I.A.S., art. 8, available at http://www.state.gov/documents/organization/96202.pdf.
(94) Performance Work Statement for International Airlift Services in Support of DoD and the Civil Reserve Air Fleet, app. 4 para. 2.0 (Aug. 27, 2008), (on file with author) [hereinafter PWS for Int'l Airlift]; see Roditis v. United States, 122 F.3d 108, 111 (2d Cir. 1997):
Consent of the United States to be sued "cannot be implied, but must be unequivocally expressed." United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)). In the FTCA, Congress waived the United States' sovereign immunity for suits arising from any injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. [section] 1346(b)(1). "Employee" under the FTCA, however, specifically excludes "any contractor with the United States." 28 U.S.C. [section] 2671; United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 526-27, 93 S.Ct. 2215, 2218-19, 37 L.Ed.2d 121 (1973). Thus, as a general rule, sovereign immunity precludes suits against the United States for injuries caused by its independent contractors.
(95) See U.N. INT'L LAW COMM'N, THE INTERNATIONAL LAW COMMISSION'S DRAFT ARTICLES ON STATE RESPONSIBILITY 329-330 (Shabtai Rosenne ed., 1991); see also Margaret K. Lewis, An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident, 77 N.Y.U.L. REV. 1404 (2002).
(96) PWS for Int'l Airlift, supra note 94, app. 4, para. 2.0.
(97) ICAO Study on Civil/State Aircraft, supra note 24, at 8; see Chicago Convention, supra note 17, art. 3(c), 61 Stat. at 1181; PWS for Int'l Airlift, supra note 94, app. 4, para. 2.1.
(98) Secretary of State Message (Aug 07), supra note 90, at 2.
(99) See PWS for Int'l Airlift, supra note 94, app. 4, para. 2.0; see also supra note 68.
(100) PWS for Int'l Airlift, supra note 94, app. 4, para. 3.0. The FAA publishes the International Flight Information Manual (IFIM) (at http://www.faa.gov/air_traffic/ publications/ifim/) as a preflight and planning guide for use by U.S. nonscheduled operators, business, and private aviators flying outside the United States; it outlines appropriate civil aviation responsibilities and points of contacts for diplomatic clearance via civilian channels to assist DoD contractors in obtaining their own clearances.
(101) As of May 2007, 37 carriers and 1364 aircraft were enrolled in the CRAF. This includes 1273 aircraft in the international segment (990 in the long-range international section and 283 in the short-range international section), and 37 and 50 aircraft, respectively, in the national and aeromedical evacuation segments and 4 aircraft in the Alaskan segment. CRAF FACT SHEET, supra note 15.
(102) Chicago Convention, supra note 17, art. 35, 61 Stat. at 1190.
(104) PWS for Int'l Airlift, supra note 94, app. 4, para. 2.1.
(105) Chicago Convention, supra note 17, arts. 1, 3, 6, 61 Stat. at 1180-82; see supra notes 40-47 and accompanying text; BOLESLAW A. BOCZEK, INTERNATIONAL LAW: A DICTIONARY 203 (2005).
(106) MATTE, supra note 24, at 175.
(107) See BOCZEK, supra note 105, at 203 (discussing States' responses to airspace incursions by foreign aircraft); see also Bourbonniere & Haeck, supra note 24, at 946; CATHAL J. NOLAN, 2 GREENWOOD ENCYCLOPEDIA OF INTERNATIONAL RELATIONS: F-L 814 (2002).
(108) "The Assembly, composed of representatives from all Contracting States, is the sovereign body of ICAO. It meets every three years, reviewing in detail the work of the Organization and setting policy for the coming years. It also votes a triennial budget." ICAO: How IT WORKS, supra note 62.
(109) "Under Article 94(b) of the Convention, the amendment came into force on 1 October 1998 in respect of those States which have ratified it." Maria Buzdugan, ed., "Chicago" Acts and Related Protocols, 30-1 ANNALS OF AIR & SPACE LAW 20 n. 1 (2005).
(110) Id. (emphasis added). Article 3 bis explicitly states that it should "not be interpreted as modifying in any way the rights and obligation of States" under the U.N. Charter. By implication, therefore, States may still lawfully use weapons in self-defense against civilian aircraft clearly involved in an act of aggression or terrorism. BOCZEK, supra note 105, at 203-04.
(111) See BOCZEK, supra note 105, at 204; see also generally Marco Gestri, The Chicago Convention and Civilian Aircraft in Time of War, in THE LAW OF AIR WARFARE: CONTEMPORARY ISSUES 129, 143-49 (Natalino Ronzitti & Gabriella Venturini eds., 2006) (discussing the impact of the Chicago Convention on the status of civilian aircraft in time of armed conflict).
(112) See John T. Phelps, Aerial Intrusions by Civil and Military Aircraft in Time of Peace, 107 MIL. L. REV. 255, 291-94 (1985); see also Bourbonniere & Haeck, supra note 24, at 946; BOCZEK, supra note 105, at 204.
(113) BOCZEK, supra note 105, at 204; see also Scott R. Morris, America's Most Recent Prisoners of War: The Warrant Officer Bobby Hall Incident, ARMY LAW., at 3, 15 (Sep. 1996).
(114) BOCZEK, supra note 105, at 203; Bourbonniere & Haeck, supra note 24, at 947; see also Andrew S. Williams, The Interception of Civil Aircraft over the High Seas in the Global War on Terror, 59 A.F.L. REV. 73, 114 (2007).
(115) BOCZEK, SUpra note 105, at 203; Phelps, supra note 112, at 276; Morris, supra note 113, at 15.
(116) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.1, cited with approval in Bourbonniere & Haeck, supra note 24, at 947-48 ("The overflight of sovereign territory by a state aircraft can be justified by reasons of distress or force majeure as an exception to the principle edicted in Article 3 of the Chicago Convention.").
(117) See Phelps, supra note 112, at 275-76.
(118) Compare Facts Relating to Flights of American Planes over Yugoslav Territory (Reply from Acting Secretary Clayton to the Yugoslav Charge D'Affaires), Sep. 3, 1946, DEP'T ST. BULL., Sep. 1946, 501-05 [hereinafter Flights of American Planes over Yugoslav Territory] (William I . Clayton served as U.S. Undersecretary of State for Economic Affairs from 1945 to 1947); with Protest Against Yugoslav Attack on American Plane and Detention of American Personnel, Aug. 22, 1946, DEP'T ST. BULL., Sep. 1946, 418 (quoting a letter from Yugoslav President Josip Broz Tito to the U.S. Ambassador to Yugoslavia).
(119) Flights of American Planes over Yugoslav Territory, supra note 118, at 505.
(121) See Phelps, supra note 112, at 292; cf. supra note 112 and accompanying text; see also generally Andrew Hurrell, Notes and Ethics in International Relations, in HANDBOOK OF INT'L RELATIONS 143-44 (Walter Carlsnaes et al. eds., 2002) (discussing the meaning and legal significance of international norms).
(122) See, e.g., Phelps, supra note 115, at 287-88. During a U.N. Security Council debate on one of several Soviet attacks on American military aircraft in the 1960s, a Soviet representative stated: "[T]he Soviet Government is known to have given the order to its armed forces to shoot down American military aircraft, and any other aircraft, forthwith in the event [of] their violation of the airspace of the Soviet Union...." Id. at 88. Phelps further notes, "it was clear that the Soviet Union [would] meet all aerial intruders with force." Id. See also BOCZF, K, supra note 105, at 203 ("[F]oreign military aircraft disobeying orders to change course or land may ultimately be attacked.").
(123) Short for "opinio juris sive necessitates," or "the belief that a particular practice is obligatory." See Dispute Concerning Navigational and Related Rights (Costa Rica v. Nicar.), 2007 I.C.J. LEXIS 4, 293-94: Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. LEXIS 4, 228-29; North Sea Continental Shelf (F.R.G. v. Den. & F.R.G. v. Neth.), 1969 I.C.J. 3, 44.
(124) See 37 REIN A. MULLERSON, DEVELOPMENTS IN INTERNATIONAL LAW: ORDERING ANARCHY (INTERNATIONAL LAW IN INTERNATIONAL SOCIETY) 217-29 (2000) (discussing the significance of opinio juris as an element of state practice).
(125) Texts of the 1949 Geneva Conventions and Additional Protocols are available on the International Committee of the Red Cross (ICRC) website at http://www.icrc.org/ihl.nsf/CONVPRES?OpenView.
(126) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (ratified by the U.S. on Aug. 2, 1955) [hereinafter Geneva I].
(127) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, (ratified by the U.S. on Aug. 2, 1955) [hereinafter Geneva II].
(128) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, (ratified by the U.S. on Aug. 2, 1955) [hereinafter Geneva IV].
(129) Natalino Ronzitti, The Codification o[the Law of Warfare, in THE LAW OF AIR WARFARE: CONTEMPORARY ISSUES 3, l0 (Natalino Ronzitti & Gabriella Venturini eds., 2006); see Geneva I, supra note 126, art. 36 ("Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment, shall not be attacked...."); Geneva II, supra note 127, art. 39 ("Medical aircraft, that is to say, aircraft exclusively employed for the removal of the wounded, sick and shipwrecked, and for the transport of medical personnel and equipment, may not be the object of attack...."); Geneva IV, supra note 128, art. 22 ("Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm and maternity cases, or for the transport of medical personnel and equipment, shall not be attacked....").
(130) Geneva I, supra note 126, art. 2; Geneva II, supra note 127, art. 2; Geneva IV, supra note 128, art. 2.
(131) Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39; Geneva IV, supra note 128, art. 22.
(132) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Jun 8, 1977, arts. 25, 29, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. The U.S. is not a party to Additional Protocol l but views much of it as reflecting customary international law. See Michael Matheson, Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 419-31 (1987); see also Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT'L L. 811, 818 (2005).
(133) 1 JEAN S. PICTET ET AL., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949--GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD 291-92 (Jean S. Pictet ed., Ronald Griffin & C.W. Dumbleton trans., 1952) [hereinafter 1 COMMENTARY]; 2 JEAN S. PICTET ET AL., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949--GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED, SICK AND SHIPWRECKED MEMBERS OF ARMED FORCES AT SEA 220 (Jean S. Pictet ed., A.P. de Heney trans., 1960) [hereinafter 2 COMMENTARY]; 4 OSCAR M. UHLER ET AL., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949--GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 176 (Jean S. Pictet ed., Ronald Griffin & C.W. Dumbleton trans., 1958) [hereinafter 4 COMMENTARY].
(134) Geneva I, supra note 126, arts. 36, 38; Geneva II, supra note 127, art. 39, 41; Geneva IV, supra note 128, art. 22. Protocol III to the Geneva Conventions recognized a third distinctive emblem: "a red frame in the shape of a square on edge with a white background," commonly referred to as the "red crystal." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), Dec. 8, 2005, S. TREATY DOC. NO. 109-10 (2006), 2005 WL 4701955, at 14 (ratified by the U.S. on Mar. 8, 2007) [hereinafter Additional Protocol III].
(135) The Nightingale, "a modified DC-9 that entered service in 1971 as an aeromedical aircraft," had been in line for retirement since 2003 and was finally retired in 2005, due, in part, to its short range and inability to meet modern standards for noise restriction at many airports. Historic C-9 Heads to Andrews for Retirement, AIR FORCE PRINT NEWS TODAY (Sep. 24, 2005), http://www.af.mil/news/story_print.asp?id=123011872.
(136) The PSP is built on a standard cargo pallet and provides support for six litters or a combination of three airline seats and three stretchers. It is employed on KC-135 Stratotanker and KC-10 Extender air refueling aircraft, as well as on the C-17 Globemaster III transport aircraft. Id.
(137) See 1 COMMENTARY, supra note 133, at 290 (on the need to improve methods for identifying medical aircraft): 2 COMMENTARY, supra note 133, at 218-19.
(138) Additional Protocol I, supra note 132, Annex I, art. 6.
(139) Id., arts. 7-12.
(140) 1 COMMENTARY, supra note 133, at 288-89:2 COMMENTARY, supra note 133, at 217; 4 COMMENTARY, supra note 133, at 174.
(141) Additional Protocol III, supra note 134, Preambula, para. 4. "[T]he red cross and red crescent are simply a useful tool, a practical means of seeking to ensure respect for a preexisting international legal right of protection." Jean-Francois Queguiner, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 89 INT'L REV. RED CROSS 175, 181 (2007) (citing Michael Meyer, The Proposed New Neutral Protective Emblem: A Long-Term Solution to a Longstanding Problem, in INTERNATIONAL CONFLICT AND SECURITY LAW: ESSAYS IN MEMORY OF HILAIRE McCOUBREY 88 (Richard Burchill et al. eds., 2005)).
(142) See supra note 136.
(143) 1 COMMENTARY, supra note 133, at 289:2 COMMENTARY, supra note 133, at 217; 4 COMMENTARY, supra note 133, at 174.
(144) Queguiner, supra note 141, at 181.
(145) Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39; Geneva IV, supra note 128, art. 22.
(146) See 1 COMMENTARY, supra note 133, at 292; 2 COMMENTARY, supra note 133, at 220; 4 COMMENTARY, supra note 133, at 176.
(147) Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39; Geneva IV, supra note 128, art. 22; see also 1 COMMENTARY, supra note 133, at 292-93; 2 COMMENTARY, supra note 133, at 221; 4 COMMENTARY, supra note 133, at 177.
(148) Geneva I, supra note 126, art. 21 ("The protection to which fixed establishments and mobile medical traits of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy."); Geneva IV, supra note 128, art. 22.
(149) "[W]ounded and sick who are being carried in the aircraft, will not lose their right under the Convention to the respect and medical care they need, subject to any punitive measures which may be taken in their case if they are personally guilty or guilty as accessories." 4 COMMENTARY, supra note 133, at 177.
(150) 1 COMMENTARY, supra note 133, at 293:2 COMMENTARY, supra note 133, at 221; 4 COMMENTARY, supra note 133, at 177.
(151) Geneva IV, supra note 128, art. 5; 4 COMMENTARY, supra note 133, at 177.
(152) "An involuntary or forced landing occurs when a medical aircraft, without receiving a summons, is obliged by weather conditions, engine trouble or any other cause to land in enemy or enemy-controlled territory." 1 COMMENTARY, supra note 133, at 293; 2 COMMENTARY, supra note 133, at 222.
(153) 1 COMMENTARY, supra note 133, at 293; 2 COMMENTARY, supra note 133, at 222. "If, however, [the aircraft] belongs to a relief society protected by the Convention, it will be regarded as private property." Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39; see also Additional Protocol I, supra note 132, art. 30 ("Any aircraft seized which had been assigned as a permanent medical aircraft may be used thereafter only as a medical aircraft."); CLAUDE PILLOUD ET AL., COMMENTARY ON THE PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I) 322 (Yves Sandoz et al. eds., 1987) (stating that an aircraft is "assigned as a permanent medical aircraft" if it is "assigned exclusively to medical purposes for an indeterminate period.").
(154) Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39. See Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (ratified by the U.S. on Aug. 2, 1955) [hereinafter Genew III]; see also 3 JEAN DE PREUX ET AL., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949: GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR (Jean S. Pictet ed., A.P. de Heney trans., 1960).
(155) Geneva I, supra note 126, art. 36; Geneva II, supra note 127, art. 39; see 1 COMMENTARY, supra note 133, at 293; 2 COMMENTARY, supra note 133, at 222; see also Geneva I, supra note 126, arts. 24-32; Geneva II, supra note 127, arts. 36-37; Geneva III, supra note 154, art. 33.
(156) "Even though Article 39 does not actually say so, the equipment will be governed by the provisions of Articles 33 and 34" of Geneva I. 1 COMMENTARY, supra note 133, at 293; 2 COMMENTARY, supra note 133, at 222; see also Geneva l, supra note 126, art. 33; 1 COMMENTARY, supra note 133, at 272-76 (stating that the medical equipment of captured "mobile units" is to be "used for the care of the wounded and the sick--in the first instance, those cared for in the captured unit").
(157) 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224; see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 7.3.9 ("Medical aircraft ... may land [in neutral territory] in case of necessity, and may use neutral airfield facilities as ports of call ...").
(158) Geneva 1, supra note 126, art. 37; Geneva II, supra note 127, art. 40; cf. 1 COMMENTARY, supra note 133, at 295 n.1:
This formula is based on the one which appears in [Article 36]. Here the word "attack" is surely inappropriate; such attacks could only be made by the armed forces of the neutral country. Belligerents have obviously no right to pursue or attack over neutral territory.
But see NAVAL WARFARE. PUB. 1-14M, supra note 42, para. 7.3.9 ("Should a neutral nation be unable or unwilling to prevent the unlawful entry or use of its airspace by belligerent military aircraft, belligerent forces of the other side may undertake such self-help enforcement measures as the circumstances may require.").
(159) Geneva I, supra note 126, art. 37; Geneva II, supra note 127, art. 40; see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 7.3.9 ("Medical aircraft may, with prior notice, overfly neutral territory."); but see Additional Protocol 1, supra note 132, art. 31 ("Except by prior agreement, medical aircraft shall not fly over or land in the territory of a neutral or other State not a Party to the conflict."); PILLOUD ET AL., supra note 153, at 327:
[W]hether they merely want to fly over the States not a Party to the conflict or whether they wish to land or alight on water in its territory, medical aircraft can lawfully do so only if there is prior agreement, as in the case of flights over areas under the control of the adverse Party.
Cf. 2 COMMENTARY, supra note 133, at 223 n.2 ("In time of war, a neutral State has absolute sovereignty over its airspace." (citing 2 LASSA F.L. OPPENHEIM, INTERNATIONAL LAW 725 (Hersch Lauterpacht ed., 7th ed. 1952))).
(160) Geneva I, supra note 126, art. 37; Geneva II, supra note 127, art. 40; see also 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 7.3.9 (noting that the neutral nation may "subject [medical aircraft] to such restrictions and regulations as the neutral nation may see fit to apply equally to all belligerents").
(161) See NAVAL WARFARE PUB. 1-14M, supra note 42, para. 7.3.9 ("Neutral nations have an affirmative duty to prevent violation of neutral airspace by belligerent military aircraft, to compel offending aircraft to land, and to intern both offending aircraft and crew."); see also Bourbonniere & Haeck, supra note 24, at 968.
(162) Geneva I, supra note 126, art. 37; Geneva II, supra note 127, art. 40.
(163) 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 7.3.9; cf. Additional Protocol I, supra note 132, art. 31 ("If a medical aircraft ... lands ... in the territory of a neutral or other State not Party to the conflict ... it shall be subject to inspection for purposes of determining whether it is in fact a medical aircraft.").
(164) "[Medical aircraft] may be retained only if it is discovered that acts incompatible with the humane role of such an aircraft have been committed." 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224.
(165) "The cost of their accommodation and internment is to be borne by the Power on which they depend." 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224.
(166) "Although these considerations have not been mentioned explicitly in the Convention, they follow from the text of [Article 37] and from the general principles of international law." 1 COMMENTARY, supra note 133, at 295; 2 COMMENTARY, supra note 133, at 224; cf. Additional Protocol I, supra note 132, art. 31 (stating that if "inspection discloses that the aircraft is not a medical aircraft, it shall be seized and the occupants" detained in such a manner that they cannot again take part in hostilities).
(167) See supra note 42.
(168) Chicago Convention, supra note 17, arts. 1, 2, 61 Stat. at 1180-81.
(169) UNCLOS, supra note 82, art. 29, 21 I.L.M. at 1275.
(170) BOCZEK, supra note 105, at 315-316; Williams, supra note 114, at 95; compare Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, art. 6, 516 U.N.T.S. 205; with UNCLOS, supra note 82, art. 3, 21 I.L.M. at 1272. The concept of territorial seas originated in the 16th century and was expounded by Dutch scholars Grotius and Bynkershoek. See HUGO GROTIUS, THE FREEDOM OF THE SEAS (Ralph Magoffin trans., James Scott ed., 1916); CORNELIUS VAN BYNKERSHOEK, DE DOMINIO MARIS [ON THE RULE OF THE SEAS], (Ralph Magoffin trans., 1923). In Grotius' 1609 work Mare Liberum (Freedom of the Seas), he argued that a coastal nation could not claim sovereignty over seas beyond the range of its control from shore). In the early 1700s, Bynkershoek proposed that the width of the territorial sea that could be claimed by a coastal state should be limited to the effective range of a canon fired from shore (or about three miles); this view was adopted and developed into the customary three-mile limit). ROBIN R. CHURCHILL & ALAN V. LOWE, THE LAW OF THE SEA 65 (2d ed. 1988).
(171) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.3, Figure 1.1.
(172) In May 2009, Sandalow, a Brookings Institute senior fellow (2004 to 2009), was confirmed as Assistant Secretary of Energy for Policy and International Affairs. Press Release, U.S. Department of Energy, Senate Confirms DOE Nominees Daniel Poneman, David Sandalow, Kristina Johnson, Steve Koonin, Scott Harris, and Ines Triay (May 21, 2009), available at http://www.energy.gov/news/7418.htm.
(173) David B. Sandalow, Law of the Sea Convention: Should the U.S. Join? 2 (The Brookings Inst., Policy Brief No. 137, 2004), available at http://www.brookings.edu/papers/2004/08energy-sandalow.apx.
(174) See President Ronald W. Reagan, Statement on United States Oceans Policy (Mar. 10, 1983), available at http://www.reagan.utexas.edu/archives/speeches/publicpapers.html [hereinafter U.S. Oceans Policy Statement].
(175) MARJORIE ANN BROWNE, THE LAW OF THE SEA CONVENTION AND U.S. POLICY, U.S. CONGRESSIONAL RESEARCH SERVICE ISSUE BRIEF IB95010, at 2 (2001) (updated Feb. 10, 2005), available at http://www.fas.org/sgp/crs/row/IB95010.pdf
(176) U.S. Oceans Policy Statement, supra note 174, at 1.
(177) Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, Jul. 28, 1994, 33 I.L.M. 1309 [hereinafter Part XI Agreement].
(178) On October 7, 1994, President William J. Clinton signed and submitted the Law of the Sea Convention and the Part XI Agreement reforming its deep seabed mining provisions to the U.S. Senate for advice and consent to accession. NAVAL WARFARE PUB. 1-14M, sttpra note 42, para. 1.1. More than a decade later, on May 15, 2007, President George W. Bush issued a statement urging the Senate to act favorably on U.S. accession to the Convention. Shortly thereafter, on October 31, 2007, the Senate Committee on Foreign Relations voted in favor of Senate advice and consent; however, consideration of the matter by the full Senate was denied. MARJORIE ANN BROWNE, THE U.N. LAW OF THE SEA CONVENTION AND THE UNITED STATES: DEVELOPMENTS SINCE OCTOBER 2003, U.S. CONGRESSIONAL RESEARCH SERVICE REPORT RS21890 (2007). More recently, then Secretary of State-designate Hillary Clinton identified the Law of the Sea Convention as a priority during Senate Confirmation Hearings, Transcript of the Senate Confirmation Hearing Nominating Senator Hillary Clinton as Secretary of State, N.Y. TIMES. Jan. 13, 2009, at 32. And, since taking office, Secretary Clinton has continued to tout the Obama Administration's commitment to U.S. ratification. Secretary of State Hillary Rodham Clinton, Remarks at The Joint Session of the Antarctic Treaty Consultative Meeting and the Arctic Council 50th Anniversary of the Antarctic Treaty (Apr. 6, 2009), available at http://www.state.gov/secretary/rm/2009a/04/121314.htm.
(179) U.S. Oceans Policy Statement, supra note 174, at 1.
(180) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.5.
(183) See DOUGLAS m. JOHNSTON, THE THEORY AND HISTORY OF OCEAN BOUNDARY-MAKING 59 (1988) ("Fundamental confusion arises not just from the multiplicity of zones, but from their diversity."); see also Oxman, supra note 3, at 836.
(184) U.S. DEP'T OF THE AIR FORCE, FACTSHEET: 618TH TANKER AIRLIFT CONTROL CENTER (2008), at http://www.amc.af.mil/library/factsheets/factsheet.asp?fsID=239; see also BRIAN G. CHOW, THE PEACETIME TEMPO OF AIR MOBILITY OPERATIONS: MEETING DEMAND AND MAINTAINING READINESS (2003), available at http://www.rand.org/pubs/monograph_reports/MR 1506/.
(185) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.5; see also UNCLOS, supra note 82, art. 2, 21 I.L.M. at 1272.
(186) Chicago Convention, supra note 17, art. 1, 61 Stat. at 1180.
(187) See sources cited supra note 51.
(188) "The right of innocent passage is the right of ships of all states, whether coastal or landlocked, to pass through another state's territorial sea." BOCZEK, supra note 105, at 287 (citations omitted).
(189) UNCLOS, supra note 82, arts. 2, 3, 21 I.L.M at 1272; see also Chicago Convention, supra note 17, art. 2, 61 Stat. at 1181 ("[T]he territory of a state shall be deemed to be the land areas and territorial waters adjacent thereto under sovereignty, suzerainty, protection or mandate of such State.").
(190) Chicago Convention, supra note 17, art. 2, 61 Slat. at 1181.
(191) See supra notes 40-63 and accompanying text.
(192) International straights are those international waterways capable of use by international maritime navigation, which join bodies of international waters. See Rear Admiral William L. Schachte, Jr., Judge Advocate General's Corps, U.S. Navy, Remarks to the 26th Law of the Sea Institute Annual Conference, Genoa, Italy 13 (Jun. 22-26, 1992) [hereinafter Remarks of Rear Admiral Schachte] (transcript available at http://www.state.gov/documents/organization/65946.pdf); Sam Bateman, The Regime of Straits Transit Passage in the Asia Pacific: Political and Strategic Issues, in NAVIGATIONAL RIGHTS AND FREEDOMS, AND THE NEW LAW OF THE SEA 94, 97 (Donald R. Rothwell & Sam Bateman eds., 2000) ("While some nations have taken the view that substantial international use over an appreciable period of time is required to meet the functional criterion that the right of passage applies to a strait, the US has placed less emphasis on this historical view and considered simply 'the susceptibility of the strait to international navigation.'"). Ships and aircraft transiting through or above international straits that are not completely overlapped by territorial seas and through which there is a high seas or exclusive economic zone corridor suitable for such navigation enjoy the high seas freedoms of navigation and overflight while operating in and over such a corridor. NAVAL WARFARE PUB. 1-14M, supra note 42, para. 126.96.36.199; Remarks of Rear Admiral Schachte, supra, at 15; see also UNCLOS, supra note 82, art. 35, 21 I.L.M. at 1276 ("Nothing in this part affects ... the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas").
(193) MILDE, supra note 39, at 39; W. Michael Reisman, The Regime of Straits and National Security: An Appraisal of International Law Making, 74 AM J. INT'L L. 48, 68-69 (1980) (discussing the negotiating text of the Law of the Sea Convention); see generally 4 SCOTT C. TRUVER, THE STRAIT OF GILBRATAR AND THE MEDITERRANEAN, INTERNATIONAL STRAITS OF THE WORLD SERIES 185-189 (Gerard J. Mangone ed., 1980) (on international negotiations to establish the right of free transit through straits).
(194) Remarks of Rear Admiral Schachte, supra note 192, at 13; CHURCHILL & LOWE, supra note 170, at 93.
(195) Remarks of Rear Admiral Schachte, supra note 192, at 16-17; Bateman, supra note 192, at 102; CHURCHILL & LOWE, supra note 170, at 93; see also TRUVER, supra note 193, at 187 ("Washington regarded the right of free transit as 'an inseparable adjunct of the freedoms of navigation and overflight of the high seas themselves."); see also USAF OPS LAW HANDBOOK, supra note 83, at 11.
(196) See, e.g., Kim Young Koo, Transit Passage Regime Controversy Revisited." An Appraisal and Analysis on the Legal Ambiguities and Recent Trends, 37 KOREAN J. INT'L L. 79, 79-80 (1992) ("[T]his U.S. view still does not seem to have been shared by all nations." (citing Satya N. Nandan, U.N. Under-Secretary-General for the Law of the Sea, Remarks at the 13th Annual Virginia Law of the Sea Conference: Contemporary Issues in the U.S. Law of the Sea Policy (Mar. 31, 1989))); and CHURCHILL & LOWE, supra note 170, at 93-94 ("[A] general right of transit passage has not yet become established in international law.").
(197) "The regime of transit passage has been widely accepted in general terms by the international community and has become part of the practice of States, both of States boarding straits as well as of shipping States." Progress made in the implementation of the comprehensive legal regime embodied in the United Nations Convention on the Law of the Sea, Report of the Secretary General, U.N. General Assembly, 47th Sess., Agenda Item 32, at 8, U.N. Doc. A/47/512 (1992) [hereinafter UNCLOS Implementation]; see also WILLIAM V. DUNLAP, TRANSIT PASSAGE IN THE RUSSIAN ARCTIC STRAITS 53-55 (Int'l Boundaries Research Unit, Maritime Briefing, Vol. 1, No. 7, 1996) (noting that "the vast majority of the world's straits have enjoyed a reasonably stable regime for years," and questions about the application of transit passage to foreign warships, submarines, and aircraft "are largely irrelevant"); Bateman, supra note 192, at 98 (asserting that the U.S. view of transit passage as allowing submarines to pass through straits submerged, naval task forces to conduct formation streaming, aircraft carriers to conduct flight operations, and military aircraft to transit unannounced and unchallenged, has not been controversial in the Asia Pacific).
(198) UNCLOS, supra note 82, arts. 25, 38, 42, 44, 21 I.L.M. at 1275, 1277-78. However, the right of transit passage does not preclude coastal State action based on the right of self-defense. CHURCHILL & LOWE, supra note 170, at 91; Kay Hailbronner, Freedom of the Air and the Convention on the Law of the Sea, 77 AM. J. INT'L L. 490, 500 (1983) ("Sovereignty over international straits and their airspace implies enforcement rights with respect to a coastal State's vital security interests."); see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 188.8.131.52 & 184.108.40.206; BOCZEK, supra note 105, at 313.
(199) UNCLOS, supra note 82, art. 39, 21 I.L.M. at 1277; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 220.127.116.11; CHURCHILL & LOWE, supra note 170, at 91; see also JOSE ANTONIO DE YTURRIAGA, STRAITS USED FOR INTERNATIONAL NAVIGATION: A SPANISH PERSPECTIVE 226 (1991).
(200) "[S]tate aircraft will normally comply with such procedures and will at all times operate with due regard for the safety of navigation." UNCLOS, supra note 82, art. 39, 21 I.L.M. at 1277; see also FOREIGN CLEARANCE MANUAL, supra note 28, para. DE. 1.31:
As a matter of U.S. policy, aircrews flying due regard shall not provide any prior notification to coastal states when exercising the right of transit. If flying in accordance with ICAO rules and procedures when exercising the right of transit, U.S. aircrews may file an ICAO flight plan with coastal state CAAs. Whether flying due regard or ICAO rules and procedures, DoD aircrews and mission planners shall not obtain diplomatic clearance from a coastal state to transit an international strait.
(201) "[Aircraft shall] at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency." Id. See also MILDE, supra note 39, at 39 ("The 'international distress radio frequency' is the VHF emergency frequency 121.5 MHz referred to in Annex 10--Aeronautical Communications--to the Chicago Convention and also in other Annexes.").
(202) UNCLOS, supra note 82, art. 39, 21 I.L.M. at 1277.
(203) 2 MYRON H. NORDQUIST ET AL., UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 342 (1985); DE YTURRIAGA, supra note 199, at 224.
(204) Activities expressly prohibited during innocent passage include:
[A]ny exercise or practice with weapons of any kind; ... any act aimed at collecting information to the prejudice of the defense or security of the coastal state; ... any act of propaganda aimed at affecting the defense or security of the coastal state; ... the launching, landing or taking on board of any aircraft; ... the launching, landing or taking on board of any military device; ... any act aimed at interfering with the any systems of communication or any other facilities or installations of the coastal State; ... [or] any other act not having a direct bearing on passage.
UNCLOS, supra note 82, art. 19, 21 I.L.M. at 1274.
(205) See COUNCIL FOR SECURITY COOPERATION IN THE ASIA-PACIFIC, WORKING GROUP ON MARITIME COOPERATION, MEMORANDUM 6--THE PRACTICE OF THE LAW OF THE SEA IN THE ASIA PACIFIC 2 (2002), at http://www.cscap.org/index.php?page=cscap-memoranda; see also DE YTURRIAGA, supra note 199, at 226 ("Activities such as practicing [sic] with weapons, collection information or making propaganda or launching or landing aircraft and military device not only are not expressly prohibited here, but they might even be permitted by implication."); NORDQUIST ET AL., supra note 203, at 342 ("[The Law of the Sea Convention] does not specify what activities are incidental to the normal mode of transit.").
(206) BOCZEK, supra note 105, at 313; CHURCHILL & LOWE, supra note 170, at 90.
(207) TRUVER, supra note 193, at 187 (quoting Law of the Sea and the Peaceful Uses of Seabeds: Hearings before a Subcommittee of the Committee on Foreign Affairs, 92nd Cong. 11 (1971) (statement of John R. Stevenson, Legal Advisor of the State Department):
[W]e are urging a more limited right of transit through the straights where previously there was a right of freedom of navigation which would have permitted activities other than just transiting.... We are talking about freedom solely for the limited purpose of transit....
See also U.S. President's Transmittal of the United Nations Convention on the Law of the Sea and the Agreement Related to Implementation of Part XI to the U.S. Senate with Commentary, 6 DEP'T ST. DISPATCH (Supp. 1, Feb. 1995); 34 I.L.M. 1393, 1407-08 (1995) [hereinafter President's Transmittal]; Bateman, supra note 192, at 94-95; Erik J. Molenaar, Navigational Rights and Freedoms in a European Regional Context, in NAVIGATIONAL RIGHTS AND FREEDOMS, AND THE NEW LAW OF THE SEA 22, 33 (Donald R. Rothwell & Sam Bateman eds., 2000).
(208) See Dispute Concerning Navigational and Related Rights (Costa Rica v. Nicar.), 2007 I.C.J. LEXUS 4, at 203-204 (May 2007) (recognizing sovereign rights as a basis for restrictive interpretation of a State's right of passage through the territorial sea of another State); see also Case of S.S. Wimbledon, 1923 P.C.I.J. (ser A) No. 1, at 24-25 (Aug. 1923); Case of the Free Zones of Upper Savoy and the District of Gex, 1932 P.C.I.J. (ser. A/B) No. 24, at 167 (June 7); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 289-290 (7th ed. 2008).
(209) Compare DE YTURRIAGA, supra note 199, at 223-224 (arguing that the Conference's refusal to accept Morocco's proposals to expand the list of prohibited activities "may be interpreted contrario sensu as allowing such activities in straits"); and Hailbronner, supra note 198, at 496 (proposing that Article 39 may embrace even more duties than those proposed by Morocco, as the concept of transit passage provided for by subparagraph (l)(c) excludes any activity that is not "a constituent part of the transit flight.") (emphasis added); see also Reisman, supra note 193, at 70, 72 ("[T]he word 'solely' in Article 38(2) ... add[s] conditions [to transit passage] that never burdened 'freedom of navigation.... That qualification was apparently introduced in order to deny ships transiting straits all other components of freedom of navigation, such as overt military exercises and weapons testing, surveillance and intelligence gathering and refueling.").
(210) NORDQUIST ET AL., supra note 203, at 343; see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 18.104.22.168.
(211) See Hailbronner, supra note 198, at 496; Reisman, supra note 193, at 70; see also CHURCHILL & LOWE, supra note 170, at 91 ("Any activity threatening a coastal State would bring the ship or aircraft under the general regime of innocent passage, in which case passage could be denied for want of innocence."); DE YTURRIAGA, supra note 199, at 226 ("[Such] activities imply threat or use of force, which is forbidden under paragraph l(b) of article 39. In addition they cannot be considered as activities incident to the 'normal modes of continuous and expeditious transit' by aircraft...."); but cf. notes 217-226 and accompanying text.
(212) Compare NAVAL WARFARE PUB. 1-14M, supra note 42, para. 22.214.171.124 (noting that the launch and recovery of aircraft and formation steaming are consistent with sound navigational practices and the secure transit of surface warships through straits); and DE YTURRIAGA, supra note 199, at 224 (arguing that despite the Law of the Sea Convention Conference's rejection of a proposal to include the innocent passage prohibition on the "launching, landing, and taking on board any aircraft" (Article 19, subparagraph 2(e)) in the transit passage regime, such activities should still be considered forbidden pursuant to prohibition on the threat or use of force (Article 39, subparagraph 1 (b)).
(213) See Bourbonniere & Haeck, supra note 24, at 961:
Flight in combat formation is not necessarily, or even by itself, a threat of the use of force as articulated within article 39(b).... It must be remembered that a threat has several composite elements, not only in capacity. Intention to use force is a necessary component of a threat. The illegitimacy of a threat lies in its attempt to use force to effect the sovereignty, territorial integrity, or political independence of a coastal state. Nonetheless, a threat used as deterrence in conformity to Article 51 of the U.N. Charter is certainly legitimate. Furthermore, combat flight formation can be seen as incidental to the normal mode of flight permitted in article 39(c)....
(214) DE YTURRIAGA, supra note 199, at 224; Hailbronner, supra note 198, at 495.
(215) See Reisman, supra note 193, at 72; and Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, in 5 RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 1987, at 9, 144 (Academic de Droit International de la Haye ed., 1989):
This phrase effectively qualifies the freedoms of navigation associated with the high seas by allowing ships and aircraft to navigate an international straight for no purpose other than as a link between one part of the high seas or exclusive economic zone and another part of the high seas or exclusive economic zone.
See also Ruth Lapidoth, The Strait of Tiran, the Gulf of Aqaba, and the 1979 Treaty of Peace Between Egypt and Israel, 77 AM. J. INT'L L. 84, 100 (1983) (noting that "freedom of navigation" on the high seas includes, inter alia. "refueling operations" (quoting William T. Burke, Submerged Passage Through Straits: lnterpretations of the Proposed Law of the Sea Treaty Text, 52 WASH. L. REV. 193, 201 n.28 (1977))); NATALIE S. KLEIN, DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE LAW OF THE SEA 302 (2005) (characterizing transit passage as "somewhere between "freedom of navigation,' on the one hand, and 'innocent passage' on the other": that is, "a compromise" imposed to prevent the exercise of high seas freedoms such as "'military exercises and weapons testing, surveillance and intelligence gathering, and refueling in international straits" (citing Reisman, supra note 193, at 72)).
(216) See DE YTURRIAGA, supra note 199, at 224; see also ROYAL AUSTRALIAN AIR FORCE, AUSTRALIAN AIR PUBLICATION (AAP) 1003, OPERATIONS LAW FOR RAAF COMMANDERS 17 (2004) ("Any transit must be continuous and expeditious, though aircraft are able to conduct air-to-air refueling.") [hereinafter RAAF PUB. 1003].
(217) Id.; NORDQUIST ET AL., supra note 203, at 342; sources cited supra note 199.
(218) UNCLOS, supra note 82, art. 39, 21 I.L.M. at 1277: see also supra note 213 and accompanying text.
(219) "An appropriate test [is] one of reasonableness under the circumstances." NORDQUIST ET AL., supra note 203, at 342; see also DE YTURRIAGA, supra note 199, at 224 ("[Normal mode"] was intended to mean that mode which is normal or usual for navigation by the particular type of aircraft making passage.... [T]he appropriate interpretation would be one of "reasonableness" under the circumstances.)
(220) Reisman, supra note 193, at 73-74: NORDQUIST ET AL., supra note 203, at 343; TRUVER, supra note 193, at 187; see also, e.g., President's Transmittal, supra note 207, at 1408 (interpreting "transit passage" as including the right of military aircraft to overfly straits "in combat formation and with normal equipment operation").
(221) Reisman, supra note 193, at 74.
(222) Captain Mike Butler, Coronet Planning, FLYING SAFETY, Mar. 1, 2001, at 16, available at http://www.afsc.af.mil/shared/media/document/AFD-071016-093.PDF.
(223) Coronets are typically conducted "in support of Air Expeditionary Force (AEF) swapouts, exercises, and wartime deployments. A single Coronet mission ... can involve several tankers escorting anywhere from two to six fighters each." Id.
(224) "An appropriate test [is] one of reasonableness under the circumstances." NORDQUIST ET AL., supra note 203, at 342; see also DE YTURRIAGA, supra note 199, at 224 ("[Normal mode] was intended to mean that mode which is normal or usual for navigation by the particular type of aircraft making passage.... [T]he appropriate interpretation would be one of 'reasonableness' under the circumstances.")
(225) Cf. supra note 213 (explaining how flight in combat formation is not a threat of the use of force as articulated in Article 39(b) of the Law of the Sea Convention).
(226) Compare supra note 215; with supra notes 218-220.
(227) See U.S. DEP'T OF THE AIR FORCE, AIR FORCE DOCTRINE DOCUMENT 2-6: AIR MOBILITY OPERATIONS 53 (2008) [hereinafter AFDD 2-6].
(228) U.S. DEP'T OF DEFENSE, NAT'L GEOSPATIAL-INTELLIGENCE AGENCY, DoD FLIGHT INFORMATION PUBLICATION AP/1B, AREA PLANNING: MILITARY TRAINING ROUTES (NORTH AND SOUTH AMERICA) at 5-3 (May 7, 2009).
(229) AFDD 2-6, supra note 227, at 53 (Refueling track is the preferred method for inter-theater refueling).
(231) See id. at 53:
The choice of track or anchor depends on several factors such as number of tankers, offload required, receiver number/type, weather, time available to accomplish rendezvous and refueling, and availability of air space.... For example, pre-strike refueling may be accomplished in an anchor to facilitate package formation, and post strike refueling may be accomplished along a track to facilitate recovery of receiver aircraft.
(232) Hailbronner, supra note 198, at 496; DE YTURRIAGA, supra note 199, at 224.
(233) See UNCLOS, supra note 82, art. 38, 21 I.L.M. at 1277.
(234) See Caminos, supra note 215, at 144-46; see also DE YTURRIAGA, supra note 199, at 222, 227.
(235) See UNCLOS, supra note 82, arts. 38, 42, 21 I.L.M at 1277; see also NORDQUIST ET AL., supra note 203, at 378 ("[The treaty] confirms that the normal principle of state responsibility applies to such situations."); CHURCHILL & LOWE, supra note 170, at 91 (asserting that absent a threat of force, "the only remedy" available to coastal States for non-transit passage would be "to pursue the matter as a breach of international law through diplomatic channels and dispute settlement procedures"); Caminos, supra note 215, at 147 (arguing that the treaty's provisions "corroborate the proposition that in the absence of an express norm, passage through international straits which does not comply with the definition of transit passage, cannot be prevented, hampered, or suspended"); BING BING JIA, THE REGIME OF STRAIGHTS IN INTERNATIONAL LAW 149 n.171, 156 (1998) (noting that activities other than transit do not fall within the scope of the Convention apart from application of Article 42(5)); Kim Young Koo, supra note 196, at 79 (stating that no explicit provision gives coastal States a right to take steps to prevent "non-transit" passage in straits); but see DE YTURRIAGA, supra note 199, at 222, 227:
If the transit of an aircraft does not fall under the conditions of transit passage pursuant to article 38 ... [t]he coastal State may resort by analogy to article 25(1) in order to justify interfering with the aircraft's non-transit passage ... when an aircraft engages in any activity that is not transit passage, the right of innocent passage ... would not automatically apply; such "non-transit" passage ... would require the prior consent of the State overflown.
CHURCHILL & LOWE, supra note 170, at 91 ("Of course, in extreme cases coastal State action might be justifiable on the basis of the right of self defense.").
(236) See AFDD 2-6, supra note 227, at 53.
(237) Thirteenth Meeting of the ICAO Asia Pacific Air Navigation Planning and Implementation Regional Group, Bangkok, Thailand, Jun. 23-27, 2003, Altitude Reservations: Working Paper presented by the United States of America to encourage States to consider the need for developing an Altitude Reservation Memorandum of Understanding with the Pacific Military Altitude Reservation Function (PACMARF), at 1, available at http://www.icao.int/icao/en/ro/apac/ats_ais_sar_sg13/wp29.pdf [hereinafter U.S. Working Paper on Altitude Reservations]. The FAA defines "Altitude Reservation" as an "airspace utilization under prescribed conditions normally employed for the mass movement of aircraft which cannot otherwise be accomplished within the normal air traffic control framework." U.S. DEP'T OF TRANS., FED. AVIATION ADMIN., PILOT/CONTROLLER GLOSSARY at A-10 (2009), available at http://www.faa.gov/air_traffic/publications.
(238) U.S. Working Paper on Altitude Reservations, supra note 237, at 1.
(240) See, e.g., U.S. DEP'T OF TRANS., FED. AVIATION ADMIN., ORDER 7610.4K: SPECIAL MILITARY OPERATIONS at 3-1-1 (2004).
(241) See infra note 251.
(242) See generally CHURCHILL & LOWE, supra note 170, at 98-111 (on the development of a special legal regime for archipelagos).
(243) UNCLOS, supra note 82, arts. 46, 47, 21 I.L.M. at 1278. Article 46 defines "archipelago" as
a group of islands, including pans of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.
(244) Id., art. 48, 21 I.L.M. at 1279.
(245) Id., art. 49, 21 I.L.M. at 1279; but see id., art. 50, 21 I.L.M. at 1279 ("Within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters [e.g., across river mouths, bays and ports on individual islands], in accordance with articles 9, 10 and 11."); see also CHURCHILL & LOWE, supra note 170, at 103.
(246) NORDQUIST ET AL., supra note 203, at 401.
(247) UNCLOS, supra note 82, art. 52, 21 I.L.M. at 1279.
(248) Id., art. 53, 21 I.L.M. at 1279.
(250) CHURCHILL & LOWE, supra note 170, at 105.
(251) Compare UNCLOS, supra note 82, art. 41, 21 I.L.M. at 1277; and id., art. 53, 21 I.L.M. at 1279; see also Hailbronner, supra note 198, at 496-97 (arguing that both the wording and negotiating context of the treaty support the conclusion that the authority of the coastal state to regulate transit passage is limited to the powers expressly granted with respect to the transit passage of ships in Article 42); DE YTURRIAGA, supra note 199, at 221, 222 (noting that the Law of the Sea Convention does not grant States bordering straits the competence to adopt laws and regulations in respect of air navigation); but see CHURCHILL & LOWE, supra note 170, at 92 (proposing that in accordance with Article 42, coastal States may regulate aircraft exercising their right of overflight, but may only apply internationally agreed standards).
(252) UNCLOS, supra note 82, art. 53, 21 I.L.M. at 1279; see also NAVAL WARFARE PUB. 1- 14M, supra note 42, para. 126.96.36.199, Figure 2-1.
(253) See UNCLOS, supra note 82, art. 54, 21 I.L.M. at 1279; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 188.8.131.52 (The right of archipelagic sea lanes passage, through designated sea lanes as well as through all normal routes, "is substantially identical to the right of transit passage through international straits" and "cannot be hampered or suspended by the archipelagic nation for any purpose."); NORDQUIST ET AL., supra note 203, at 404; CHURCHILL & LOWE, supra note 170, at 105; see also discussion supra notes 192-205; FOREIGN CLEARANCE MANUAL, supra note 28, para. C184.108.40.206.2:
U.S. military aircrews flying due regard shall not provide prior notification to archipelagic states through the U.S. Embassy or appropriate DoD delegates when exercising the right of archipelagic sea lane passage. If flying in accordance with ICAO rules and procedures when exercising the right of archipelagic sea lane passage, they may file an ICAO flight plan with archipelagic nation civil aviation authorities. However, whether flying due regard or ICAO rules and procedures, they shall not obtain diplomatic clearance from an archipelagic nation to transit archipelagic sea lanes.
(254) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 220.127.116.11.
(255) Id. para. 2.6.3.
(256) JOHNSTON, supra note 183, at 59.
(257) Oxman, supra note 3, at 836.
(258) See JOHNSTON, supra note supra note 183, at 59.
(259) Bernard H. Oxman, Law of the Sea, in THE UNITED NATIONS AND INTERNATIONAL LAW 309, 326 (Christopher C. Joyner ed., 2d ed. 1997).
(260) CHURCHILL & LOWE, supra note 170, at 112; see also JAMES C. F. WANG, HANDBOOK ON OCEANS POLITICS AND LAW 52 (1992); and BOCZEK, supra note 105, at 264 (noting that Great Britain repealed the hovering acts legislation in 1876, after the three-mile-wide territorial sea under the coastal state's sovereignty became established).
(261) UNCLOS, supra note 82, art. 33, 21 I.L.M. at 1276; see also id., arts. 5, 7, 21 I.L.M. at 1272.
(262) UNCLOS, supra note 82, art. 33, 21 I.L.M. at 1276. See also U.S. COMM'N ON OCEANS POLICY, AN OCEAN BLUEPRINT FOR THE 21 ST CENTURY, FINAL REPORT 72 (2004) (noting that in 1999 the United States proclaimed a contiguous zone from twelve to twenty-four miles offshore), available at http://oceancommission.gov/documents/welcome.html [hereinafter U.S. OCEANS POL'Y RPT].
(263) UNCLOS, supra note 82, art. 111, 21 I.L.M. at 1290; see NORDQUIST ET AL., supra note 203, at 275; see also NICHOLAS M. POULANTZAS, THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW 158-167 (2d. ed. 2002).
(264) See WANG, supra note 260, at 53-54; BOCZEK, supra note 105, at 264-65; see also MILDE, supra note 39, at 38 (noting that the practical meaning of the contiguous zone provisions has not been addressed in theory or practice).
(265) UNCLOS, supra note 82, art. 57, 21 I.L.M. at 1279.
(266) WANG, supra note 260, at 56; see also 1 A HANDBOOK ON THE NEW LAW OF THE SEA 269 (Rene-Jean Dupuy & Daniel Vignes eds., 1991) (noting that the contiguous zone is of interest only in certain geographical circumstances; e.g., "in semi-enclosed seas, where various characteristics, relating in particular to the presence of islands under different sovereignties, make the existence of an [EEZ] impossible") [hereinafter LAW OF THE SEA HANDBOOK].
(267) NORDQUIST ET AL., supra note 203, at 275; LAW OF THE SEA HANDBOOK, supra note 266, at 269.
(268) WANG, supra note 260, at 56.
(269) NORDQUIST ET AL., supra note 203, at 267.
(270) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.9; CHURCHILL & LOWE, supra note 170, at 116.
(271) See MILDE, supra note 39, at 38.
(272) Id. at 40; see also Hailbronner, supra note 198, at 504-05; LAW OF THE SEA HANDBOOK, supra note 266, at 276.
(273) UNCLOS, supra note 82, arts. 55, 57, 21 I.L.M. at 1279; see also CHURCHILL & LOWE, supra note 170, at 137 ("[T]he EEZ must be regarded as a separate functional zone of a sui generis character, situated between the territorial sea and the high seas."); EDWARD L. MILES, GLOBAL OCEAN POLITICS: THE DECISION-PROCESS AT THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA 373-374 (1998) (on the status of the EEZ) (asserting that Article 55 of the Law of the Sea Convention "is the 'sui generis' solution, though those words are never used"); but see WANG, supra note 260, at 70 ("[T]he EEZ is still part of the high seas.").
(274) U.S. OCEANS POL'Y RPT, supra note 262, at iii.
(275) UNCLOS, supra note 82, art. 56, 21 I.L.M. at 1279.
(277) Id., art. 55, 21 I.L.M. at 1279.
(278) Id., art. 58, 21 I.L.M. at 1279; see also J. ASHLEY ROACH & ROBERT W. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS 163, 407 (2d ed. 1996); 2 RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 514(2) (1987) (discussing the rights of other States in the exclusive economic zone) [hereinafter RESTATEMENT 3D, FOREIGN RELATIONS LAW]:
All states enjoy, as on the high seas, the freedoms of navigation and overflight, freedom to lay submarine cables and pipelines, and the right to engage in other internationally lawful uses of the sea related to these freedoms, such as those associated with the operations of ships and aircraft.
(279) President's Transmittal, supra note 207, at 1411, quoted in ROACH & SMITH, supra note 278, at 407.
(280) UNCLOS, supra note 82, art. 58, 21 I.L.M. at 1279: see also President's Transmittal, supra note 207, at 1411.
(281) President's Transmittal, supra note 207, at 1411; see also Lewis, supra note 95, at 1422 ("This language does not grant coastal State exclusive rights but rather demands reciprocity.").
(282) LAW OF THE SEA HANDBOOK, supra note 266, at 278.
(283) See, e.g., UNCLOS Implementation, supra note 197, at 10 (noting that several States, including India, Mauritius, Myanmar, and Pakistan, have asserted "exclusive jurisdiction" or "exclusive rights" with respect to non-resource activities); see also, e.g., John M. Van Dyke, Military Ships and Planes Operating in the EEZ of Another Country, 28 MARINE POLICY 29, 30 (2004) (noting that Brazil issued a declaration upon signing UNCLOS on December 10, 1982, stating that it "understands the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone military exercises or maneuvers ... without consent of the coastal State," and since then similar declarations have been filed by Cape Verde, India, Malaysia, Pakistan, and Uruguay); Lewis, supra note 95, at 1418-19 (Bangladesh, Brazil, India, Malaysia, Pakistan, and Uruguay have all made statements asserting that UNCLOS does not permit other States to carry out military maneuvers in an EEZ without coastal State consent.).
(284) See Lewis, supra note 95, at 1412.
(285) See Robert Karniol, Chinese Pilot to Blame for Mid-Air Collision, US Report Says, JANE'S DEFENCE WEEKLY, Sep. 15, 2003, at http://www.janes.com/defence/air_force/news/jdw/jdw030915_1_n.shtml.
(286) China detained the aircrew for 11 days, releasing them only after Washington issued the formal "apology" demanded by Beijing. This face-saving gesture saw the US express "sincere regret" over the missing pilot and aircraft, without acknowledging responsibility. Id.
(287) Lewis, supra note 95, at 1426 n. 132.
(288) Id. at 1424 nn.120-21.
(289) Press Release, Ministry of Foreign Affairs of the People's Republic of China, Spokesman Zhu Bangzao Gives Full Account of the Collision between US and Chinese Military Planes (Apr. 4, 2001), available at http://www.fmprc.gov.cn/eng/topics/3755/3756/3778/t19301.htm [hereinafter P.R.C. Press Release].
(290) Id.; see also Moritaka Hayashi, Military and Intelligence Gathering Activities in the EEZ: Definition of Key Terms, 29 MARINE POLICY 123, 133 (2005):
China appears to interpret Article 58 to require foreign users of the EEZ to refrain from any activities "which endanger the sovereignty, security and national interests of the coastal states".... Thus, according to China, the 'due regard' rule of Article 58 involves not only rights of the coastal State under Article 56 but also its interest relating to security.
(291) See CHURCHILL & LOWE, supra note 170, at 137; Hailbronner, supra note 198, at 503-04 (noting that the sui generis status of the EEZ has mostly been used to "de-link" freedoms granted to third States in the EEZ from the concept of freedom of the high seas); see also Ren Xiaofeng, A Chinese Perspective, 29 MARINE POLICY 139 (2005) (explaining China's view that freedoms of navigation and overflight in the EEZ are not freedoms of the high seas in the traditional sense).
(292) President's Transmittal, supra note 207, at 1411 ("A claim of sovereignty in the EEZ would be contradicted by the language of articles 55 and 56 and precluded by article 58 and the provisions it incorporates by reference."); see also LAW OF THE SEA HANDBOOK, supra note 266, at 277 ("[I]n order to win acceptance of the 200-mile [EEZ] limit, the area it enclosed was 'deterritorialized.'").
(293) LAW OF THE SEA HANDBOOK, supra note 266, at 279-80, 290-91; see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.6.2; Lewis, supra note 95, at 1421 ("[T]he EEZ is by name an economic zone: The article setting forth the fights, jurisdiction, and duties of the coastal State in its EEZ does not mention military or security interests.") (emphasis in original).
(294) LAW OF THE SEA HANDBOOK, supra note 266, at 279, 281; Hailbronner, supra note 198, at 506; see also MILDE, supra note 39, at 41 ("The 'sovereign rights' of the coastal state relate only to the natural resources of the sea and the coastal state cannot interfere with the traditional freedoms of the high seas, in particular the right of navigation and overflight."); MILES, supra note 273, at 374 ("[Article 56] define[s] the rights, jurisdictions and duties of the coastal states in the EEZ in relation to specific activities ... [and Article 58] protects the high seas freedoms of other states in the EEZ.") (emphasis in original).
(295) See Hailbronner, supra note 198, at 506 (quoting Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 AM. J. INT'L L. 57, 72 (1978)).
(296) Id.; ROACH & SMITH, supra note 278, at 408 (citing RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 514 cmt. d); see also NAVAL WARFARE PUB. 1-14M, supra note 42, para. 1.6.2; MILES, supra note 273, at 374.
(297) Hailbronner, supra note 198, at 505; see also LAW OF THE SEA HANDBOOK, supra note 266, at 285; NORDQUIST ET AL., supra note 203, at 503 (noting that the high seas freedoms enjoyed by States other than the coastal State in the EEZ in respect of activities which are not resource related remain unabridged); Mark J. Valencia & Kazumine Akimoto, Report of the Tokyo Meeting and Progress to Date, 29 MARINE POLICY 101 (2005):
[T]here is agreement that the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with or endanger the rights of the coastal State to protect and manage its own resources and its environment, and should not be for the purpose of marine scientific research. And the exercise of such freedoms of navigation and overflight should not interfere with the rights of the coastal States with regard to their establishment and use of artificial islands, installations and structures in the EEZ.
Cf. CHURCHILL & LOWE, supra note 170, at 141-42:
Article 58 provides that all States enjoy freedom of overflight in the EEZ, and "other internationally lawful uses of the sea related to" this freedom compatible with the provisions of the Convention. This freedom is subject to the two explicit limitations to which the freedom of navigation is subject, namely due regard for other States and articles 88-115, etc.... In addition, the freedom is implicitly subject to two possible limitations. First, the coastal State's right to construct artificial islands and installations might effectively prevent low flying in the vicinity of such structures. Secondly, aircraft are subject to the coastal State's competence to regulate the dumping of waste.
(298) Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea 203 (Publications on Ocean Dev., Vol. 14, 1989); see also Hayashi, supra note 290, at 128 ("Traditionally, intelligence gathering activities have been regarded as part of the exercise of freedom of the high seas and therefore, through Article 58(1), lawful in the EEZ as well."); supra notes 278-279, 295-296 and accompanying text.
(299) Hayashi, supra note 290, at 128 nn.27, 28 (noting that a comprehensive study of the subject found that the vast weight of authority confirmed that the freedom referred to in Article 87 includes high seas freedoms of navigation and overflight, and internationally lawful uses of the sea related to such high seas freedoms and historically included military operations (citing George V. Galdorisi & Alan G. Kaufman, Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflicts, 32 CAL. W. INT'L L.J. 272 (2002))); see also Lewis, supra note 95, at 1420-23 (discussing the legal authorities favoring the view that the U.S. Navy EP-3's flight over China's EEZ was permitted under international law); Hailbronner, supra note 198, at 506:
Article 58 freedoms include, inter alia, use of the airspace above the high seas for military and civil purposes.... [Article 58's "due regard" provision] neither enlarges the regulatory authority of the coastal state under the Convention nor limits the other states' freedoms. Its sole purpose is to make clear that the freedoms under Article 58(1), just like any other right, must not be exercised without taking into account the rights of the coastal state.
(300) CHURCHILL & LOWE, supra note 170, at 314; LAW OF THE SEA HANDBOOK, supra note 266, at 904; Havashi, supra note 290, at 125.
(301) See The Implications of China's Naval Modernization for the United States: Hearing Before the United States-China Economic and Security Review Comm 'n, 111th Cong. 25-28 (2009) (statement of Peter Dutton, Associate Professor, U.S. Naval War College) (noting that China's "unique legal interpretations of UNCLOS'" regarding foreign military activities in its EEZ "are outside widely accepted international law and norms"), available at http://www.uscc.gov/hearings/hearingsarchive.php; see also Lewis, supra note 95, at 1423; Hayashi, supra note 290, at 125-26.
(302) Mark J. Valencia, Conclusions and the Way Forward, 29 MARINE POLICY 185 (2005).
(303) For a detailed analysis of the Law of the Sea Convention's continental shelf definitional provisions, including a flowchart detailing the procedure for a coastal State to establish the outer limits of its continental shelf, see Robert W. Smith & George Taft, Legal Aspects of the Continental Shelf, in CONTINENTAL SHELF LIMITS: THE SCIENTIFIC AND LEGAL INTERFACE 17, 17-24 (Peter J. Cook & Chris M. Carleton eds., 2000).
(304) UNCLOS, supra note 82, art. 76, 21 I.L.M. at 1305.
(305) Id., art. 76, 21 I.L.M. at 1305.
(306) CHURCHILL & LOWE, supra note 170, at 123.
(308) Id. at 127-28 ("This position has been modified by the establishment of the EEZ as an area of maritime jurisdiction.").
(309) UNCLOS, supra note 82, art. 78, 21 I.L.M. at 1305.
(310) MILDE, supra note 39, at 41.
(311) Sources cited supra note 32.
(312) DEMPSEY, supra note 23, at 43.
(313) Chicago Convention, supra note 17, art. 17, 61 Stat. at 1185; see also DEMPSEY, supra note 23, at 45; Gestri, supra note 111, at 141 ("Even in wartime, the nationality of an aircraft is determined by the State of registry.").
(314) Chicago Convention, supra note 17, art. 20, 61 Stat. at 1185.
(315) See generally ISABELLE LELIEUR, LAW AND POLICY OF SUBSTANTIAL OWNERSHIP AND EFFECTIVE CONTROL OF AIRLINES: PROSPECTS FOR CHANGE (2003).
(316) DEMPSEY, supra note 23, at 47.
(317) See Merriam-Webster's Collegiate Dictionary 441 (10th ed. 1997); Black's Law Dictionary 652 (7th ed. 1999) (defining "flag of convenience" as "[a] national flag flown by a ship not because the ship or its crew has an affiliation with the nation, but because the lax controls and modest fees and taxes imposed by that nation have attracted the owner to register it there."); see also SAMI SHUBBER, JURISDICTION OVER CRIMES ON BOARD AIRCRAFT 126-27 (discussing the definition of "flags of convenience" as it relates to civil aviation and the question of jurisdiction); SONNY R. TOLOFARI, OPEN REGISTRY SHIPPING: A COMPARATIVE STUDY OF COSTS AND FREIGHT RATES 14-15 (1989) (discussing the origins of the term "flag of convenience" and attempts to define it).
(318) See discussion supra Part III.A.
(319) See, e.g., Chicago Convention, supra note 17, arts. 20 (display of marks), 21 (report of registrations), 29 (documents carried in aircraft), 30 (aircraft radio equipment requirements), 31 (certificates of airworthiness), 32 (licenses of personnel), 33 (recognition of certificates and licenses), 61 Stat. at 1185, 1188-89.
(320) See sources cited supra note 83; but cf. NORTH ATLANTIC TREATY ORGANIZATION, NATO AIRBORNE EARLY WARNING & CONTROL FORCE, FREQUENTLY ASKED QUESTIONS, A14 (discussing the difficulty NATO officials had determining which flag E-3A AWACS aircraft would operate under and the decision to register them in Luxembourg).
(321) Chicago Convention, supra note 17, art. 3(c), 61 Star. at 1181.
(322) See, e.g., USAF OPS LAW HANDBOOK, supra note 83, at 34 (noting that military aircraft may not bear enemy or neutral markings while engaged in combat activities); see also Additional Protocol I, supra note 132, art. 37, 1125 U.N.T.S. at 21.
(323) Chicago Convention, supra note 17, art. 3(d), 61 Stat. at 1181.
(324) MILDE, supra note 39, at 44-45.
(325) See id. at 45.
(326) See Chicago Convention, supra note 17, art. 3(d), 61 Stat. at 1181.
(327) Id., art. 9, 61 Stat. at 1182.
(328) Id., art. 12, 61 Stat. at 1183; see also DEMPSEY, supra note 23, at 52 (noting that ICAO standards are binding on states parties to the Chicago Convention absent notification to the ICAO Council of the State's inability to comply in accordance with Article 38, while recommended practices are merely desirable and do not trigger mandatory ICAO council notification of noncompliance).
(329) U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., AERONAUTICAL INFORMATION MANUAL, para. 3-1-1 (2009), at http://www.faa.gov/air_traffic/publications/ ATpubs/AIM [hereinafter AERONAUTICAL INFORMATION MANUAL].
(331) U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., PILOT'S HANDBOOK OF AERONAUTICAL KNOWLEDGE 14-2 to 14-3 (2009), at http://www.faa.gov/library/manuals/aviation/pilot_handbook [hereinafter PILOT'S HANDBOOK]. The FAA generally describes each airspace category as follows:
* Class A airspace is airspace from 18,000 feet mean sea level (MSL) up to 60,000 feet MSL, wherein all aircraft operations are conducted under instrument flight rules (IFR).
* Class B airspace is airspace around the nation's busiest airports from the surface up to 10,000 feet MSL, wherein aircraft must have an ATC clearance to operate and all aircraft so cleared receive "separation services" (i.e., ATC facilitates separation of aircraft "vertically by assigning different altitudes; longitudinally by providing an interval expressed in time or distance between aircraft on the same, converging, or crossing courses, and laterally by assigning different flight paths." AERONAUTICAL INFORMATION MANUAL, supra note 329, para. 4-4-11 (emphasis added)).
* Class C airspace is airspace around airports with an operational control tower, radar approach control, and IFR operations capability, from the surface up to 4,000 feet above ground level (AGL), wherein aircraft must establish two-way radio communications with ATC before entry and maintain those communications while within the airspace.
* Class D airspace is airspace around airports with an operational control tower from the surface up to 2,500 feet MSL, wherein aircraft must establish two-way radio communications with ATC before entry and maintain those communications while within the airspace.
* Class E airspace is controlled airspace that is not Class A, B, C, or D airspace from 14,500 feet MSL (unless designated at a lower altitude) up to 18,000 feet MSL (may be lowered to start at 700 or 1,200 feet AGL).
* Airspace that has not been designated as Class A, B, C, D, or E airspace is designated "uncontrolled" (or Class G) airspace.
(332) AERONAUTICAL INFORMATION MANUAL, supra note 329, para. 3-2-1, Figure 3-2-l.
(333) PILOT'S HANDBOOK, supra note 331, at 14-2.
(334) ICAO Class F ("Air traffic advisory service") airspace is not used in the United States. See INT'L CIVIL AVIATION ORG., AIR TRAFFIC SERVICES, ANNEX 11 TO THE CONVENTION ON INT'L CIVIL AVIATION at 2-3, ICAO Doc. ICAO/ANX/11, Order No. AN 11 (13th ed. 2001) [hereinafter CHICAGO CONVENTION, ANNEX 11]; see also id. at App. 4 (setting forth the requirements for flights within each class of airspace).
(335) PILOT'S HANDBOOK, supra note 331, at 14-3.
(336) AERONAUTICAL INFORMATION MANUAL, supra note 329, para. 3-4-2.
(337) Id. at para. 3-4-3.
(338) Id. at para. 3-4-4.
(339) Id. at para. 3-4-5.
(340) Id. at para. 3-4-6.
(341) Id. at para. 3-4-7.
(342) Id. at para. 3-4-4; see also Definition of Special Use Airspace, 61 Fed. Reg. 2080 (Jan. 24, 1996) (to be codified at 14 C.F.R. pt. 1); and U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., AIR TRAFFIC BULLETIN, ISSUE 99-3, at 5-12 (1999), available at http://www.faa.gov/airtraffic/publications/atpubs/atbarc/atbhme.HTM [hereinafter AIR TRAFFIC BULLETIN 99-3].
(343) PILOT'S HANDBOOK, supra note 331, at 14-3 to 14-4.
(344) Id. at 14-4.
(345) Annex 2 defines "restricted area" as "[a]n airspace of defined dimeosions, above the land areas or territorial waters of a State, within which the flight of aircraft is restricted in accordance with certain specified conditions," and "prohibited area" as "[a]n airspace of defined dimensions, above the land areas or territorial waters of a State, within which the flight of aircraft is prohibited." INT'L. CIVIL AVIATION ORG., RULES OF THE AIR, ANNEX 2 TO THE CONVENTION ON INT'L CIVIL AVIATION at 4-5, ICAO Doc. ICAO/ANX/2, Order No. AN 2 (10th ed. 2005) [hereinafter CHICAGO CONVENTION, ANNEX 2].
(346) See CHICAGO CONVENTION, supra note 17, art. 54, 61 Stat. at 1197.
(347) See DEMPSEY, supra note 23, at 51-53 (listing the Chicago Convention Annexes).
(348) CHICAGO CONVENTION, ANNEX 2, supra note 345, at 7-8.
(349) Id. at 3; see also supra notes 345,347.
(350) See MILDE, supra note 39, at 43; sources cited supra notes 345,348.
(351) See AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8: see also Bourbonniere & Haeck, supra note 24, at 891.
(352) AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8-9.
(353) See 1NT'L CIVIL AVIATION ORG., BOOKLET ON THE ANNEXES TO THE CONVENTION ON INTERNATIONAL CIVIL AVIATION, Annex 2--Rules of the Air (undated) [hereinafter ICAO, BOOKLET ON THE ANNEXES], at http://www.icao.int/icaonet/anx/info/annexes_booklet en.pdf; see also, e.g., 14 C.F.R. [section] 99.27 (2003).
(354) CHICAGO CONVENTION, ANNEX 2, supra note 345, at 6; see, e.g., PILOT'S HANDBOOK, supra note 331, at 14-3 ("If the [warning] area is active and has not been released to the FAA, the ATC issues a clearance which ensures the aircraft avoids the restricted airspace."); and AIR TRAFFIC BULLETIN 99-3, supra note 342, at 9-10:
It is FAA policy that all SUA, including warning areas, should be made available for use by nonparticipating aircraft when all or part of the airspace is not needed by the using agency[;] ... [however], the FAA will not route nonparticipating IFR aircraft through an active warning area.
(355) CHICAGO CONVENTION, ANNEX 2, supra note 345, App. 2, at 30.
(356) Chicago Convention, supra note 17, art. 3, 61 Stat. at 1181; see also AIR TRAFFIC BULLETIN 99-3, supra note 342, at 6.
(357) FOREIGN CLEARANCE MANUAL, supra note 28, para. C18.104.22.168; AIR TRAFFIC BULLETIN 99 3, supra note 342, at 8. DoD policies regarding the use of ICAO procedures and military operations in international airspace are stated in Chapter 7 (International Civil Aviation Organization) and Chapter 8 (Operations and Firings Over the High Seas) of DoD Flight Information Publication, General Planning. See supra note 28.
(358) DoDI 4540.01, supra note 28, para. 6.3.1; FLIP, supra note 28, para. 8-14.
(359) FLIP, supra note 28, para. 8-4; see also AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8.
(360) This includes, for example, military contingencies, classified missions, politically sensitive missions, routine aircraft carrier operations, and some training activities. DoDI 4540.01, supra note 28, para. 6.3.2; see also FLIP, supra note 28, para. 8-8.
(361) DoDI 4540.01, supra note 28, para. 6.3.2; FLIP, supra note 28, para. 8-8.
(362) DoDI 4540.01, supra note 28, para. 6.3.2; FLIP, supra note 28, para. 8-8.
(363) The U.S. has four designated ADIZ: the Contiguous U.S. ADIZ, Alaska ADIZ; Guam ADIZ; and Hawaii ADIZ. 14 C.F.R. [section][section] 99.41 99.47 (2003). All airspace above the contiguous U.S. not within the ADIZ is designated a "Defense Area." Id. [section] 99.48; see also id. [section] 99.3 ("Defense area means any airspace over the contiguous United States that is not an ADIZ in which control of aircraft is required for reasons of national security.") (emphasis in original). Other States with standing ADIZ include Canada, France, Indonesia, and Japan. RAAF PUB. 1003, supra note 216, at 19; cf. Bourbonniere & Haeck, supra note 24, at 954 n.253 (noting that twelve States presently maintain ADIZ (citing BARRY E CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 1028 (3d ed. 1999))).
(364) AERONAUTICAL INFORMATION MANUAL, supra note 329, Figure 5-6-2.
(365) Id. para. 5-6-1; see also 14 C.F.R. [section] 99.3 (2003) ("Air defense identification zone (ADIZ) means an area of airspace over land or water in which ready identification, location, and control of civil aircraft is required in the interest of national security.") (emphasis in original).
(366) See AERONAUTICAL INFORMATION MANUAL, supra note 329, para. 5-6-1.
(367) Id. para. 5-6-2.
(368) HAANAPPEL, supra note 35, at 18-19; see also Bourbonniere & Haeck, supra note 24, at 954 (arguing that ADIZ "are not based upon any specific treaty dispositions, [but] ... are nonetheless consistent with the Chicago Convention" (citing JOHN T. MURCHISON, THE CONTIGUOUS AIR SPACE ZONE IN INTERNATIONAL LAW 12-18 (1955))); Williams, supra note 114, at 96 ("International law permits states to establish reasonable conditions of entry into their territorial airspace, ... [provided] the conditions are applied to the aircraft of all contracting states 'without distinction' as to their nationality."); NAVAL WARFARE PUB. 114M, supra note 42, para. 22.214.171.124 ("The legal basis for ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory."); DIEDERIKS-VERSCHOOR, supra note 56, at 38 (noting that while air law jurisdiction above the high seas is governed by Article 12 of the Chicago Convention, "[d]isputes concerning the use of airspace above the high seas may ... occur in respect of Air Defense Identification Zones"). Cf Chicago Convention, supra note 17, arts. 3, 8, 11, 61 Stat. at 1181-83 (absent a prior agreement to the contrary, civil aircraft of contracting States are required to submit to rules for admission to or departure from the territory of another State).
(369) See MYRES S. McDOUGAL, ET AL., LAW AND PUBLIC ORDER IN OUTER SPACE, 306-11 (1963) (noting that establishment of the U.S. ADIZ in 1950 was dictated by security concerns and that other States promulgated similar regulations--"[a]ll of these claims by states, as long as they are reasonable, are commonly regarded as being in accord with international law"); see also RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 521 n.2 (noting that the United States and other states have established AD1Z and similar zones and "[t]hese zones have been generally accepted"); DEMPSEY, supra note 23, at 35 (noting that States have claimed authority to impose AD1Z "relying upon the customary international law principle of self defense, and Article 51 of the U.N. Charter"); HAANAPPEL, supra note 35, at 18-19 (arguing that ADIZ "can be legally based upon the general right of self-defense under Article 51 of the Charter of the United Nations"); Bourbonniere & Haeck, supra note 24, at 954 (arguing that ADIZ have been legitimized by State practice); see also, e.g., McDOUGAL, ET AL., supra, at 310 ("[A]fter over a decade of the enforcement of the ADIZ and CADIZ, as far as is known, no protests [were] made to the governments of the United States and Canada."); Ivan L. Head, ADIZ, International Law, and Contiguous Airspace, 3 ALBERTA L. REV. 182, 182 (1964) (noting that in 1950 the attitude of most States affected by establishment of the U.S. ADIZ "was not one of protest; it was one of quiet compliance"); Romana Sadurska, Threats of Force, 82 AM. J. INT'L L. 239, 261 (1988) (noting that the United Kingdom's creation of a 150-nautical-mile "protection zone" around the Falklands after the cessation of hostilities with Argentina in July 1982 did not evoke international concern outside of Latin America); id. at 260 n. 116 (noting that no State has ever challenged the validity of the Australian ADIZ); but see NIELS VAN ANTWERPEN, CROSS-BORDER PROVISION OF AIR NAVIGATION SERVICES 100 (2008) ("The legality of ADIZ and CADIZ rest much more on comity and tolerance by other States than on strict law."); BOCZEK, supra note 105, at 202 ("The so-called air defense identification zones ... and similar zones extending off the coasts hundreds of miles beyond the territorial sea are of dubious validity in international law."); Hailbronner, supra note 198, at 500 ("The legality of establishing large defense zones in which foreign aircraft not complying with certain identification requirements could be intercepted is still doubtful under customary international law.").
(370) See RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 521 cmt. d; Williams, supra note 114, at 95; George K. Walker, Information Warfare and Neutrality, 33 VAND. J. TRANSNAT'L L. 1079, 1155-56 (2000); see also RAAF PUB. 1003, supra note 216, at 19 ("Declaration of an ADIZ does not constitute a claim of any sovereign rights.").
(371) See Williams, supra note 114, at 95-96; see also Hailbronner, supra note 198, at 500; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 126.96.36.199 ("The United States does not recognize the right of a costal state to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace."); compare MCDOUGAL, ET AL., supra note 369, at 30809 ( stating that CADIZ rules "'prescribe that position reports be made by foreign aircraft within defense zones whether or not they are bound for Canada or its territorial waters"); and Bourbonniere & Haeck, supra note 24, at 954 ("[A]pplication of AD1Z rules to the flight of an aircraft whose flight path would be from one area of the high seas to another simply transiting through an ADIZ could be problematic.").
(372) 14 C.F.R. [section][section] 99.41 99.47 (2003); see also supra note 363.
(373) See 14 C.F.R. [section] 99.23 (2003); see also USAF OPS LAW HANDBOOK, supra note 83, at 13; NAVAL WARFARE PUB. 1-14M, supra note 42, pars. 188.8.131.52.
(374) DoDI 4540.01, supra note 28, pars. 6.4; see also USAF Ops LAW HANDBOOK, supra note 83, at 13; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 184.108.40.206.
(375) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 220.127.116.11; see also USAF OPS LAW HANDBOOK, supra note 83, at 13. For procedures applicable to U.S. military aircraft penetrating a foreign ADIZ on a flight plan or intending to penetrate the sovereign airspace of the ADIZ country, see FLIP, supra note 28, pars. 8-9.
(376) But see Mark Franklin, Sovereignty and Functional Airspace Blocks, 32 AIR & SPACE L. 425,426 (2007) (arguing that per Annex 11 to the Chicago Convention, States may delegate responsibility for the provision of ATC services over their territory to other States and/or entities domiciled in other States "without derogation of ... national sovereignty" ) (emphasis in original).
(377) DEMPSEY, supra note 23, at 36; see also DIEDERIKS-VERSCHOOR, supra note 56, at xxxvii (defining FIR as "an airspace of defined dimensions within which air traffic services are
(378) provided by the named centre/country"). 8 U.S. DEP'T OF COMMERCE, NAT'L OCEANIC & ATMOSPHERIC ADMINISTRATION, WASHINGTON, DC VAAC [VOLCANIC ASH ADVISORY CENTER] INTRODUCTION (2009), at http://www'ssd.noaa.gov/VAAC/intro.html.
(379) MILDE, supra note 39, at 202.
(380) ICAO, BOOKLET ON THE ANNEXES, supra note 353, Annex 11--Air Traffic Service; AIR TRAFFIC BULLETIN 99-3, supra note 342, at 7.
(381) Chicago Convention, supra note 17, art. 12, 61 Sial. at 1183.
(382) See supra note 356; ICAO MIDDLE EASY OFEI('E, REPORT OF THE SPECIAL CIVIL/MILITARY COORDINATION MEETING (SCMCM) 3-2 (2006) [hereinafter SCMCM REPORT], at http://www.icao,intlicao/en/ro/mid/2006/SCMCM/SCMCMFinalReport.pdf; see also generally MILDE, supra note 39, at 67-69 (on the applicability of ICAO SARPs to military aircraft).
(383) AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8; see also RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 514 cml. d (stating that over the high seas, civil aircraft "are obliged to observe ... the [ICAO] Rules of the Air").
(384) FOREIGN CLEARANCE MANUAL, supra note 28, para. C2.2. 1.1 ; AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8; DENIZ BOLUKBASI, TURKEY AND GREECE: THE AEGEAN DISPUTES (A UNIQUE CASE IN INTERNATIONAL LAW) 111 (2004); see also MILDE, supra note 39, at 202-03 (questioning the legal status of the Regional Air Navigation Plans (RANPs) drafted by the Regional Air Navigation Conferences and approved by the ICAO council, which assign States authority over the designated FIRs); NAVAL WARFARE PUB. 1-14M, supra note 42, para. 18.104.22.168:
Some nations ... purport to require all military aircraft in international airspace within their FIRs to comply with FIR procedures, whether or not they utilize FIR services or intend to enter national airspace.... The United States does not recognize the fight of a coastal nation to apply its FIR procedures to foreign military aircraft in such circumstances.
cf 1999 SECRETARY OF DEF. ANN. REP. TO THE PRESIDENT AND THE CONGRESS, APP. I, at 1 (1999) (noting that U.S. armed forces conducted "Freedom of Navigation" program operations to challenge Cuba's claim that state aircraft flying in its FIR must comply with ATC directions), at http://www.dod.mil/execsec/adr1999/index.html; MONTEAGLE STEARNS, ENTANGLED ALLIES: U.S. POLICY TOWARD GREECE, TURKEY, AND CYPRUS 140 (1992) (noting that in 1974, Turkey withdrew its recognition of the Athens FIR after Greece claimed ten miles of national airspace around its islands on the Aegean Shelf (in contrast to a six mile territorial sea) and asserted the right to oversee all Turkish military flights in international airspace above the Aegean Sea based on its FIR authority).
(385) See NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.7.1; see also SCMCM REPORT, supra note 382, para. 3.11 (noting the concerns of Iran regarding the continuous presence of uncoordinated/military flights over the Gulf area within the Tehran FIR, "[t]he meeting recognized that sovereignty is not observed over the high seas.").
(386) BOLOKBASI, supra note 384, at 111; cf Sung Hwan Shin, Legal Aspects of the Peaceful Use of the Far East Airspace, in THE UTILIZATION OF THE WORLD'S AIR SPACE AND FREE OUTER SPACE IN THE 21ST CENTURY 251,252 (Chia-Jui Cheng & Doo Hwan Kim eds., 2000) (noting that N. Korea's de facto expansion of its FIR through creation of a "security zone" extending beyond its territorial sea and denial of overflight rights to all foreign military aircraft, as well as civil aircraft absent prior approval, had no precedent or recognition in international law).
(387) DoDI 4540.01, supra note 28, para. 6.5 ("The airspace beyond the territorial sea is considered international airspace where the permission of the coastal State is not required for overflight or related military operations.... Flight operations in international airspace are exempt from diplomatic clearance requirements."); see also BOLOKBA$1, supra note 384, at 111; cf U.S. DEP'T OF STATE, BUREAU OF OCEANS AND INT'L ENVTL. & SCIENTIFIC AFFAIRS, LIMITS IN THE SEAS (No. 112): U.S. RESPONSES TO EXCESSIVE NATIONAL MARITIME CLAIMS 76 (1992) (discussing the United States' 1986 protest of Cuba's claim that U.S. military aircraft were required to have Cuba's permission to operate in the Cuban FIR), available at http://www.state.gov/documents/organization/58381 .pdf.
(388) Chicago Convention, supra note 17, art. 3, 61 Star. at 1181; RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 514 cmt. d ("State aircraft, while not formally subject to ICAO rules, must operate at all times with due regard for the safety of navigation."); see also AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8 ("It is the policy of the DoD that all United States military aircraft ... shall operate with due regard for the safety of all air and surface traffic.").
(389) See supra note 357.
(390) See DoDI 4540.01, supra note 28, para. 6.3 & 6.5; FLIP, supra note 28, para. 8-14; see also BOLUKBASI, supra note 384, at 111.
(391) AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8; see MILDE, supra note 39, at 67-69.
(392) See supra note 28 and accompanying text.
(393) See FOREIGN CLEARANCE MANUAL, supra note 28, para. C2.2.
(394) See supra note 360 and accompanying text; see generally U.S. DEP'T OF TRANS., FED. AVIATION ADMIN., ORDER JO 7110.65T: AIR TRAFFIC CONTROL 1-2-1 (2010) (discussing pilot responsibilities when flying "due regard"), at http://www.faa.gov/documentLibrary/media/Order/7110.65TBasic.pdf; FLIP, supra note 28, para. 8-8.
(355) FLIP, supra note 28, para. 8-8; see also AIR TRAFFIC BULLETIN 99-3, supra note 342, at 8; see also DoDI 4540.01, supra note 28, para. 6.3.2.
(396) FLIP, supra note 28, para. 8-8; see also id. para. 8-11 (noting that combat operations in time of war, armed conflict, national emergencies, situations requiring self-defense, or similar military contingencies, may require departure from SARPs).
(397) FLIP, supra note 28, para. 8-11.
(398) See Paris Convention, supra note 38, art. 32, 11 L.N.T.S. at 195.
(399) Williams, supra note 114, at 104; see also FOREIGN CLEARANCIZ MANUAL, supra note 28, para. C2.1.5; NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.2.
(400) Williams, supra note 114, at 105 (quoting John Cobb Cooper, A Study on the Legal Status of Aircraft, in EXPLORATIONS IN AEROSPACE LAW 205,243 (Ivan A. Vlasic ed., 1968)).
(401) See ROACH & SMITH, supra note 278, at 466-67; see also MILDE, supra note 39, at 61 ("The status of military aircraft is not clearly determined by positive rules of international law.... The identifiable rules are mostly negative--stating what does not apply to military aircraft or what such aircraft are not permitted to do.").
(402) Chicago Convention, supra note 17, arts. 3, 12, 61 Star. at 1181, 1183.
(403) Id., art. 16,61 Stat. at 1185.
(404) ROACH & SMITH, supra note 278, at 466 (citing RESTATEMENT 3D, FOREIGN RELATIONS LAW, supra note 278, [section] 457 n.7); see also The Schooner Exchange v. McFaddon & Others, 11 U.S. 116; 3 L. Ed. 287; 1812 U.S. LEXIS 377 (1812) (holding that a public vessel of war of a sovereign is exempt from the jurisdiction of a foreign country).
(405) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.2; see also U.S. DEP'T OF DEFENSE, DEPARTMENT OF DEFENSE DIRECTIVE 4500.54E, DoD FOREIGN CLEARANCE PROGRAM (FCP), 2 (2009) ("DoD aircraft commanders shall not consent to the exercise of jurisdiction by foreign government authorities over U.S. military aircraft, except at the direction of the appropriate DoD Component headquarters.") [hereinafter DoDD 4500.54E].
(406) See NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.2.2; see also DoDD 4500.54E, supra note 405, at 2.
(407) See NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.2.2; see also DoDD 4500.54E, supra note 405, at 2.
(408) See DoDD 4500.54E, supra note 405, at 2; see also MILDE, supra note 39, at 72 ("Reasonable charges for services requested and received at foreign airports shall be payable."); DoDD 4500.54E, supra note 405, at 2; see also MILDE, supra note 39, at 72 ("[I]t is mostly recognized, as a matter of natural justice, that even military aircraft cannot be exempted from payment for service made available or actually rendered.").
(409) See supra notes 33-39 and accompanying text; Chicago Convention, supra note 17, art. 3(c), 61 Stat. at 1181.
(410) FOREIGN CLEARANCE MANUAL, supra note 28, para. DL1.6 (defining "blanket clearance" as a "prearranged clearance for special categories of flights or personnel travel, usually granted on a periodic basis for a specified purpose and/or period of time").
(411) See Secretary General's" Report under Article 52 ECHR on the Question of Secret Detention and Transport of Detainees" Suspected of Terrorist Acts, Notably by or at the Instigation of Foreign Agencies, Council of Europe, para. 45, Doc. SG/Inf(2006)5 (2006) [hereinafter Sec. Gen. Report (Art. 52 ECHR)]. In accordance with ICAO regulations, all flights into foreign airspace generally require an ATC clearance. Such clearance is given on the basis of the aircraft's flight plan, which contains general information on the aircraft, its route and the number of persons on board but does not require details about cargo or passenger list. The type of flight is indicated according to standardized categories (scheduled air service, nonscheduled air transport operations, general aviation, military or other). Id. para 48; see also FOREIGN CLEARANCE MANUAL, supra note 28, para. C2.2.2-C2.2.3.
(412) Chicago Convention, supra note 17, art. 1, 61 Stat. at 1180.
(413) See, e.g., AUSTL. QUARANTINE & INSP. SERV. (AQIS), AQIS Arrangements for Aircraft Invoking Sovereign Immunity (May 8, 2008) (discussing "disinection" requirements, or treatment to destroy insects), at http://www.daff.gov.au/aqis/avm/aircraft/sovereign-immunity; Sec. Gen. Report (Art. 52 ECHR), supra note 411, para. 45 ("States applying for overflight permissions are not systematically requested to provide passenger lists or information about cargo, even though this would be possible"); see infra notes 420-423.
(414) NAVAL WARFARE PUB. 1-14M, supra note 42, para. 2.4.2; see also Chicago Convention, supra note 17, art. 3(c), 61 Star. at 1181.
(415) Established in 1949, the Council of Europe is a purely intergovernmental organization whose stated aims include "the protection of human rights and the promotion of democracy and the rule of law." It is perhaps best known for producing the European Convention on Human Rights, which was signed in 1950 and established the European Court of Human Rights to enforce the obligations of contracting States. Today, Council of Europe has 47 member States. The U.S. holds "observer status" within the Council. Generally http://www.coe.int/aboutCoe/default.asp.
(416) See Sec. Gen. Report (Art. 52 ECHR), supra note 411; see also Secretary General's Supplementary Report under Article 52 ECHR on the Question o[ Secret Detention and Transport of Detainees Suspected of Terrorist Acts, Notably by or at the Instigation of Foreign Agencies, Council of Europe, Doc. SG/Inf(2006)13 (2006) [hereinafter Sec. Gen. Supp. Report (Art. 52 ECHR)]; Follow-Up to the Secretary General's Reports under Article 52 ECHR on the Question of Secret Detention and Transport of Detainees Suspected of Terrorist Acts, Notably by or at the Instigation of Foreign Agencies (SG/Inf(2006)5 and SG/Inf(2006)13), Council of Europe, Doc. SG(2006)01 (2006) [hereinafter Follow-Up to Sec. Gen. Report (Art. 52 ECHR)].
(417) Sec. Gen. Supp. Report (Art. 52 ECHR), supra note 416, para. 51 & 63.
(418) See. Gen. Report (Art. 52 ECHR),supra note 411, para. 54.
(419) See id. para. 9 ("The fundamental rights and freedoms enshrined in the Convention include positive obligations for the States Parties ... to take action through protective measures to prevent violations from taking place and, where such violations have taken place, to conduct prompt and effective investigations.... ").
(420) Follow-Up to Sec. Gen. Report (Art. 52 ECHR), supra note 416, para. 12.
(421) Id.; see also Sec. Gen. Report (Art. 52 ECHR),supra note 411, para. 101 ("Mere assurances that the activities of foreign agents comply with international and national law are not enough. We need effective guarantees and mechanisms to enforce, if necessary, the rights and freedoms enshrined in the Convention. Such guarantees should be set out in international or bilateral agreements and in domestic law.").
(422) Follow-Up to Sec. Gen. Report (Art. 52 ECHR), supra note 416, para. 12.
(424) See Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Report of the Committee on Legal Affairs and Human Rights, Eur. Parl. Ass., Doc. No. 1126 rev. (Jun. 11, 2007), available at http://assembly.coe.int/main.asp?Link=/documents/ workingdocs/docO7/edoc11302.htm; see also NORA BENSAHEL, THE COUNTERTERROR COALITIONS: COOPERATION WITH EUROPE, NATO, AND THE EUROPEAN UNION 6-8 (2003) (discussing NATO support to ease U.S. planning for counter-terrorism activities), available at http://www.rand.org/pubs/monograph reports/MR1746/MR1746.pdf; Stephen Grey, Flight Logs Reveal Secret Rendition THE SUNDAY TIMES, Nov. 25, 2007, (discussing the controversy surrounding NATO and other European countries' support to detainee transport flights, including "blanket overflight clearances for the United States and other allies' aircraft for military flights related to operations against terrorism"), at http://www.timesonline.co.uk/tol/news/world/europe/article2936782.ece.
(425) Cf supra notes 145-151, 157-166, and accompanying text.
(426) See THE NEW YORK TIMES GUIDE TO ESSENTIAL KNOWLEDGE 589 (John W. Wright ed., 2nd ed.) (2007) (noting that the European continent comprises 6.7 percent of the world's total land area); 2 HELMUT GEIST, OUR EARTH'S CHANGING LAND: AN ENCYCLOPEDIA OF LAND-USE AND LAND-COVER CHANGE (L-Y) 515 (2006) (noting that Russia is "[t]he largest country in the world, comprising 13.1 percent of the earth's land surface.").
(427) See supra notes 399, 404-407.
(428) U.S. DEP'T OF DEFENSE, U.S. TRANS. COMMAND, AIR MOBILITY COMMAND ... PROVIDING AMERICA'S GLOBAL REACH (2009), at http://www.transcom.mil/missions/amc.cfm; see supra note 30 and accompanying text.
(429) BENSAHEL, supra note 424, at ix.
(430) Id. at 54.
(431) See William Wallace, The Sharing of Sovereignty: the European Paradox, in SOVEREIGNTY AT THE MILLENNIUM 81, 85-86 (Robert Jackson ed., 1999), available at http://courses.essex.ac.uk/gv/gv546/Wal lace%20sovereignty.pdf.
(432) Id, at 81, 84.
(433) BENSAHEL, supra note 424, at 54.
(434) Id. at ix.
(435) See supra note 409.
(436) Major General Charles J. Dunlap, Lawfare--Decisive Element of 21st Century Conflicts?, JOINT FORCE Q., 3rd Quarter 2009, Issue 54, at 34, 39, available at http://www.dtic.mil/doctrine/jel/jfq_pubs/.
(437) See ICAO Provisions Related to Access to the High Sects, European Air Navigation Planning Group (EANPG) Flexible Use of Airspace (FUA) Task Force (FUA-TF/I), 1st Meeting, Agenda Item 1, at 1, ICAO Doc. FUA TF/I-1P/03 (2008), available at http://www.paris.icao'int/documents-open_meetings/subcategory.php?id-89.
(438) Lieutenant Colonel Robert C. Owen, The Airlift System, AIR POWER J., Fall 1995. at 1, 3; see also John T. Correll, Anything, Anywhere, Anytime, AIR FORCE MAC., Feb. 1996, at http://www.airforcemagazine.com/MagazineArchive/Pages/1996/ February%201996/0296edit.aspx ("Lt. Gen. William H. Tunner, who commanded the airlift over the Himalayan Hump in World War II and the Berlin Airlift after the war, said in his memoirs that 'I have been convinced that we can carry anything, anywhere, anytime.'").
(439) U.S. DEP'T OF THE AIR FORCE, AIR MOBILITY COMMAND, FACTSHEET: AIR MOBILITY COMMAND (2008), at http://www.amc.af.mil/library/factsheets/factsheet.asp?id=229.
(440) "Soft power" is a State's ability to achieve a preferred end state using cultural, ideological, and institutional influences to shape others' views so they independently come to desire the same end state, as opposed to "hard power," which is a State's ability to achieve a preferred end state using military and economic strength to coerce or induce others act in a manner consistent with that end state. See JOSEPH S. NYE, BOUND TO LEAD: THE CHANGING NATURE OF AMERICAN POWER 31-33, 32 n. 11 (1990).
(441) Admiral Mike Mullen, Landon Lecture Series Remarks, Kansas State University, Manhattan, Kansas (Mar. 3, 2010), at http://www.jcs.mil/speech.aspx?ID=1336 (Adm. Mullen is currently chairman of the Joint Chiefs of Staff).
(442) John W. Bellflower, The Soft Side of Airpower, SMALL WARS J. (2008), at 4 n.18, at http://smallwarsjournal.com/blog/journal/docs-temp/161--bellflower.pdf ("Human security traditionally consists of seven distinct elements of security: economic, environmental, political, community, personal, food, and health." (citing Dan Henk, Human Security: Relevance and Implications, PARAMETERS, Summer 2005, at 91)).
(443) U.S. DEP'T OF THE AIR FORCE, AIR MOBILITY COMMAND, RAPID, PRECISE GLOBAL MOBILITY, at http://airforcelive.dodlive.mil/ index.php/2009/01/soft-power-includes-airlift/.
(444) See Bellflower, supra note 442, passim: David G. Estep, Air Mobility: The Strategic Use of Nonlethal Airpower (1994) (unpublished Master's thesis, Air University, Maxwell Air Force Base, Alabama), at http://www.dtic.mil/ cgibin/GetTRDoc?AD-ADA425680&Location U2&doc GetTRDoc.pdf: see also Roger Drinnon, Air Mobility Builds, Sustains Partner Nation Capacity in Era of Irregular warfare, A.F. PRINT NEWS TODAY (Jul. 20, 20091, http://www.al:mil/news/story.asp?id-123159427.
LIEUTENANT COLONEL CHRISTOPHER M. PETRAS *
With a Foreword by
Major General Steven J. Lepper **
The Deputy Judge Advocate General, Headquarters U.S. Air Force
* Lieutenant Colonel Petras (B.A., University of Dayton; J.D., Samford University; LL.M., McGill University) wrote this article while Chief of Operations & International Law, Office of the Staff Judge Advocate, Headquarters Air Mobility Command (AMC), Scott AFB, Illinois. He currently is assigned as Legal Advisor to the 618th Tanker Airlift Control Center--AMC's global air operations center--which is collocated at Scott. He is a member of the Bar in the state of Alabama.
** At the time he wrote this foreword, then-Brigadier General Steven J. Lepper was the Staff Judge Advocate, Headquarters, Air Mobility Command. He is now a major general and The Deputy Judge Advocate General of the Air Force.
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|Author:||Petras, Christopher M.|
|Publication:||Air Force Law Review|
|Date:||Dec 22, 2010|
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