NATIONAL AIRSPACEstatus & regulation

Agus Susanto SH.MM.

NATIONAL AIRSPACE

Vertical LimitsAirspace :

- Extends From Surface Upwards- No Defined Upper Limit

Outer Space:- Exists Above Airspace- No Defined Lower Limit- Probably Lowest Point Of

Sustainable Orbit

NATIONAL AIRSPACE

Vertical LimitsAirspace :

- Extends From Surface Upwards- No Defined Upper Limit

Outer Space:- Exists Above Airspace- No Defined Lower Limit- Probably Lowest Point Of

Sustainable Orbit

NATIONAL AIRSPACE

Status Of Airspace – Early Theories :

1. Freedom Of Airspace : - Airspace a free medium for communication by all

i.e. just like the high seas

2. Strata of territorial airspace-Vertical application of territorial sea concept

I.e. zone of territorial airspace with free airspace above

NATIONAL AIRSPACE

Status Of Airspace – Early Theories :

3. Total airspace sovereignty with right of innocent passage : - adapting law of the sea concept allowing innocent passage through territorial waters

4. Unqualified airspace sovereignty:-states enjoy complete and exclusive sovereignty over their territorial airspace

NATIONAL AIRSPACE

Lateral limits of territorial airspace

Chicago Conventionstate have complete and exclusive sovereignty

in the airspace above their “territory”

“territory” = land areas & territorial sea

i.e. lateral territorial airspace boundary =outer limit of territorial sea

UNCLOS : United Nations Convention on the Law of the Sea 1982

territorial sea width – valid up to 12 nautical miles

NATIONAL AIRSPACE

Lateral limits of archipelagic airspace -

UNCLOS

- archipelagic state sovereignty extends to waters enclosed within archipelagic baselines- territorial sea extends up to 12 nautical miles

beyond archipelagic baselines- sovereignty extends to airspace above

archipelagic waters and adjacent territorial sea

NATIONAL AIRSPACE

Contiguous zone -

UNCLOS :

- contiguous zone extends outwards up to 24 miles from baselines

- state jurisdiction to apply customs, fiscal, immigration and sanitary (health) laws

NATIONAL AIRSPACE

Exclusive economic zone -

UNCLOS : - EEZ extends outwards up to 200 miles from baselines

- EEZ state has sovereign right to exploit natural resources

- all states have freedom of flight over EEZ- states may also establish artificial islands

or structures :- with exclusive jurisdiction over island or

structure- and right to declare 500 meter safety

zones

NATIONAL AIRSPACE

High seas –

UNCLOS

- High seas are all seas not part of EEZ (i.e. beyond EEZ) and not part of a state’s archipelagic waters- High seas are not subject top sovereign claims- all states enjoy freedom of over flight above high seas- over flight freedom must be exercised with due regard for the interests of other states

NATIONAL AIRSPACE

Stateless territories -

- no state sovereignty over surface or airspace above

- all states enjoy freedom overflight

Antartica :- sovereign claims suspended- airspace safety regulated by state

consensusper Antartic Treaty 1959

NATIONAL AIRSPACE

International straits regime –

UNCLOS :

- applies where territorial waters cover the full width of an international strait

- grants all ship & aircraft unimpeded transit passage rights through strait – thus qualifying sovereign airspace rights

- straits transit passage must be continuous & expeditious

- aircraft must observe ICAO Rules of the Air & monitor assigned radio frequencies

NATIONAL AIRSPACE

Archipelagic sea lanes passage regime -

UNCLOS :

- applies to archipelagic waters traditionally used for international navigation between parts of EEZ & High Seas

- grants all ship & aircraft unimpeded transit passage rights through & above

state designated sea lanes

- UNCLOS prescribes sea lanes where state fails to do so

NATIONAL AIRSPACE

Archipelagic sea lanes passage regime –

UNCLOS :

- sea lanes passage must be continuous & expeditious

- aircraft must observe ICAO Rules of the Air & monitor assigned radio

frequencies

- regime has more significance for military flights than commercial airline service

NATIONAL AIRSPACE

Airspace control –

- legal controls : flight imposed by State civil aviation laws (regulations)

- common approach : flight generally prohibited – except where regulations are observed

- enforcement : required by Chicago Convention Art. 12

NATIONAL AIRSPACE

Airspace control –Required ICAO-based areas of

regulation included:

- aircraft nationality & registration markings;- aircraft airworthiness certification;- aircraft maintenance releases;- personnel licensing (eg. air crew,

engineers);- operator licenses & certificates (eg. AOC);- rules of the air.

NATIONAL AIRSPACE

Airspace control –

- flight & maneuver:

- classifications of operations

eg. Private, commercial, airline etc.- classifications of airspace

eg. Controlled / uncontrolled

- air routes :

Chicago Convention permits states to prescribe air routes for international flights

NATIONAL AIRSPACE

Airspace control –

prohibited & restricted areas :

- prohibited areas : military reasons make flight totally prohibited- restricted areas : public safety permits

flight only on special conditions

- danger areas : danger to aircraft permits flight only on special

conditions

NATIONAL AIRSPACE

Use of force –

forms of provocationby foreign military or civil aircraft

-

- unauthorized instructions into national airspace

- deviating from authorized air routes

- entering prohibited areas

NATIONAL AIRSPACE

Use of force

forms of response -

- radio directions to land or change course

- aerial interception- close surveillance & further

directions- warning with weapons fire- use of weapons against straying

aircraft

NATIONAL AIRSPACE

Use of force against straying airliners..

1952 : Air France – by Soviet fighters1955 : El Al – by Bulgarian fighters1973 : Libyan Airlines – by Israeli

fighter1978 : Korean Airlines – by Soviet

fighters1983 : Korean Airlines – by Soviet

fighters

NATIONAL AIRSPACE

Use of force customary international lawpermissible responses to

unauthorized instructions by :

- military attack aircraft : no prior warning

- military non – attack aircraft : possible warning

- civil aircraft : utmost restraint unless self defence

NATIONAL AIRSPACE

Use of force customary international law

UN Security Council Resolution, 1983

(1) Reaffirming the rules of international law that prohibit acts of violence which pose a threat to the safety of international civil aviation

(2) Declares that such use of armed force against international civil is incompatible with norms governing international behavior and elementary considerations of humanity

NATIONAL AIRSPACE

Use of force

treaty law – Chicago Convention

Art 3(d) : regulations for state aircraft..

Art 4 : no uses inconsistent with Chicago aims

Art 9(c) : right to require landing..Art 25 : assistance to aircraft in

distress

NATIONAL AIRSPACE

Use of force treaty law – Chicago ConventionAnnex 2 : Rules of the Air

International standards :

3.8.1 Contracting states must issue regulations governing

interception of civil aircraft3.8.2 Pilot in command must

comply with directions from intercepting aircraft

NATIONAL AIRSPACE

Use of force

treaty law – Chicago ConventionArticle 3 bis :

(a) The contracting States recognize that every State must refrain from resorting to the use of weapons

against civil aircraft in flight and that, in case of interception, the lives of person on board and the safety of aircraft must not be endangered….

NATIONAL AIRSPACE

Use of force

treaty law – Chicago ConventionArticle 3 bis :

(b) ..every state is entitled to require a landing (by an authorized aircraft) & must publish its regulations on interception(c) every civil aircraft must comply with

directions…and violations to be punished by severe penalties(d) states to prohibit deliberate use of civil aircraft for purposes inconsistent with Convention….