ICAO has no jurisdiction over military activities per se in the context of a State’s decision on its military activities.
by Ruwantissa Abeyratne
We live in a world of guided missiles and misguided men. — Martin Luther King, Jr.
A grave concern confronting the civil aviation community is that, with the proliferation of military activity will inevitably come the endangerment of air routes.
While the 41st Session of the Assembly of the International Civil Aviation Organization (ICAO) was going on last week, The Democratic Peoples’ Republic of Korea (DPRK, which is a member of ICAO), launched, without prior notification to the international community, two short-range ballistic missiles 22 minutes apart on a trajectory over its eastern waters, seemingly in defiance of the redeployment of an aircraft carrier by the United States near the Korean Peninsula, which had been in response to Pyongyang’s previous launch of a nuclear-capable missile over Japan.
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| A North Korean missile test fire in January. [ Image taken from kcna.kp ] |
A missile is “a guided airborne ranged weapon capable of self-propelled flight usually by a jet engine or rocket motor”. Missiles are also known as guided missiles or guided rockets. Missile launching by North Korea has been conducted in recent times with contumacious disregard of sanctions already imposed on the country, prompting some to say that North Korea might be aiming at international recognition of its might as a nuclear State, and coercing the international community to lift sanctions imposed against it. The recent launches were ominous in that they landed between the Korean Peninsula and Japan. The first missile flew 350 kilometers (217 miles) and reached a maximum altitude of 80 kilometers (50 miles) and the second flew 800 kilometers (497 miles) on an apogee of 60 kilometers (37 miles). Japanese Prime Minister Fumio Kishida called the launches “absolutely intolerable”.
The History
This contentious issue has a long history which can be traced back to nearly 24 years. The consequences of the nuclear missile firings of 5 July 2006 by DPRK brought to bear the hazards and grave dangers such activities pose to civil aviation. In this instance, missiles launched by DPRK crossed several international air routes over the high seas. It was revealed that, when extrapolating the projected paths of some of the missiles, it appeared that they could have interfered with many air routes, both over Japan and the air space of the North Pacific Ocean. This is not the first instance of its kind. A similar incident took place on 31 August 1998 in the same vicinity in which the North Korean missiles were fired in July 2006. An object propelled by rockets was launched by North Korea and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in north-eastern Japan.
The impact area of the object was in the vicinity of the international airway A590 which is known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day. The member States of ICAO at the 32nd Session of the Assembly (Montreal 22 September–2 October 1998) adopted Resolution A32-6 (Safety of Navigation) which considered that, on August 31, 1998, an object propelled by rockets was launched by a certain Contracting State and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in North-eastern Japan and that the impact area of the object was in the vicinity of the international airway A590 which was known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day and concluded that the launching of such an object vehicle was done in a way not compatible with the fundamental principles, standards and recommended practices of the Convention on International Civil Aviation (Chicago Convention) and noted that it was necessary that international aviation should be developed in a safe and orderly manner, and that the Member States of ICAO will take appropriate measures to enhance further the safety of international civil aviation.
The ICAO Response
ICAO’s response at the currently ongoing Assembly – which concludes on 7 October of this year – was to consider a draft resolution titled Unannounced missile launches by the Democratic People’s Republic of Korea anchored on earlier United Nations Security Council Resolutions 1718 (2006), 2087 (2013), 2270 which demanded that the Democratic People’s Republic of Korea not conduct any launch using ballistic missile technology and strongly condemning the Democratic People’s Republic of Korea when doing so, in violation and flagrant disregard of the Security Council’s Resolutions. In adopting these resolutions, the United Nations Security Council cited Chapter VII of the United Nations Charter which sets out the UN Security Council ‘s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and nonmilitary action to “restore international peace and security”.
The ICAO Assembly recalled that on an earlier occasion the ICAO Council had, on 6 October 2017, expressed its strong condemnation of the continued launching of ballistic missiles by the Democratic People’s Republic of Korea over or near international routes without advance notification, which seriously threatens the safety of international civil aviation and represents a serious risk to international civil aviation, affirmed that the ICAO Secretariat should avoid all technical activities with the Democratic People’s Republic of Korea, of a direct or indirect nature The Assembly also noted that the ICAO Council, on 1 June 2022, had condemned in the strongest possible terms the recent spate of unannounced missile launches and urged the Democratic People’s Republic of Korea to act in accordance with and respect for the Chicago Convention , and to comply with applicable ICAO Standards and Recommended Practices.
Aeronautical Consequences
Mention of the Chicago Convention brings to bear many facts. The ICAO Assembly noted the matter of unannounced missile launches had been brought to its attention by the Council of ICAO under Article 54 k) of the Chicago Convention, which provides that the Council had a mandatory duty to Report to the Assembly any infraction of the Convention where a contracting State has failed to take appropriate action within a reasonable time after notice of the infraction.
From an aeronautical perspective, Annex 11 (Air Traffic Services) to the Chicago Convention, which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft. Annex 2 to the Convention (on rules of the air) contain provisions for co-ordination between military authorities and air traffic services and co-ordination of activities potentially hazardous to civil aircraft. These provisions specify that air traffic services authorities must establish and maintain close co-operation with military authorities responsible for activities that may affect flights of civil aircraft. The provisions also prescribe that the arrangements for activities potentially hazardous to civil aircraft must be coordinated with the appropriate air traffic services authorities and that the objective of this co-ordination must be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft.
Annex 2 also stipulates those arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, must be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention. Standard Annex 11 explains that the objective of the coordination referred to in the earlier provision must be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft.
Conclusion
ICAO has no jurisdiction over military activities per se in the context of a State’s decision on its military activities. What is discussed above pertains solely to dangers posed to civil aviation by uncoordinated military activities in the air. In this context what is relevant is coordination between civil and military activities. Article 3 c) of the Chicago Convention states that no state aircraft of a contracting State must fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. Of course, this applies to military aircraft and not to guided missiles which are by definition guided military weapons that are stabilized in altitude either by remote control or by a mechanism within themselves.
Although ICAO Resolutions are nothing more than the outcome of political compromises and no legal legitimacy can be ascribed to them, it must be admitted that the Resolution of the 41st Session of ICAO’s Assembly is at least a condemnation of the missile launching by North Korea. What is needed in addition is a concentrated effort by the members of the United Nations (which are also ICAO member States) to enter into a concrete and effective agreement that would protect civil air transport from pernicious military activities in the air.
On October 2009 ICAO took a proactive step by convening, in collaboration inter alia with NATO and EUROCONTROL (European Organization for the Safety of Air Navigation), The Global Air Traffic Management Forum On Civil/Military Cooperation which discussed subjects such as understanding common requirements and diverse operating needs; the need to move toward a more interoperable and seamless Global Air Navigation System; security and sovereignty considerations; Unmanned Aircraft Systems (UAS): Needs and challenges; and regional and national airspace planning.
It might be worthwhile to expand this event at a global level with the military authorities of ICAO member States.
Dr. Abeyratne is the author of Aviation and the Carbon Trade, Aviation and the Environment, and Aviation and Climate Change: In Search of a Global Market Based Option.
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