Preempting and Preventing Air Attacks

Following the events of 11 September 2001, where civilian commercial aircraft were used as weapons of mass destruction, Air Defence Identification Zones (ADIZ) gained prominence as a tool with which a State could control and be prepared for aircraft approaching their territory. An Air Defence Identification Zone (ADIZ) is an area in airspace over land or water which may not be over the sovereign territory of a State in which ready identification, location and control of all aircraft is required in the interest of national security.

l by Dr. Ruwantissa Abeyratne

(April 12, 2012, Montreal, Sri Lanka Guardian) Following the events of 11 September 2001, where civilian commercial aircraft were used as weapons of mass destruction, Air Defence Identification Zones (ADIZ) gained prominence as a tool with which a State could control and be prepared for aircraft approaching their territory. An Air Defence Identification Zone (ADIZ) is an area in airspace over land or water which may not be over the sovereign territory of a State in which ready identification, location and control of all aircraft is required in the interest of national security. ADIZ must not be confused with Flight Information Regions (FIRs) which are areas established for the facilitation of airspace and air traffic management. FIRs generally involve a subjacent State which has undertaken responsibility for providing air traffic control services. The main purpose of establishing an ADIZ is to properly identify all approaching aircraft for security purposes so that they could, prior to entry into national airspace, satisfy certain local entry requirements. Although there is no overwhelming evidence, either from a scholastic or legislative perspective that lends legal legitimacy to the establishment of ADIZs, such a concept has never been challenged as being inconsistent with existing law.
It has been reported that the Sri Lanka Government has created ADIZs in 11 key areas of the Island. The country’s Air Navigation Act of 2007 requires that no aircraft will be permitted nor be expected to operate within, into or out of a Sri Lankan ADIZ without a valid Air Defence Clearance (ADC) and that any aircraft flying without an ADIZ is liable for interception by the Sri Lanka Air Force under the interception procedures applicable in the country.
It has been argued that ADIZs came into prominence as a security tool in air navigation as a corollary to the events of 11 September 2001 where aircraft were used as weapons of mass destruction. Norway and the United Kingdom, India, Pakistan and Canada (CADIZ) are some countries which maintain ADIZs as well as the United States. If an analogy from maritime law and practice were to be applied to ADIZ, one could cite the United Nations Convention on the Law of the Sea (UNCLOS) which was signed by the Parties on December 10, 1982 and entered into force on November 16, 1994 after receiving 60 ratifications or accessions. UNCLOS divides the seas into zones over which States have varying degrees of rights and controls. The territorial sea, which is exclusively controlled by the State, is the first zone which extends 12 nautical miles from the coast or coastal baselines. The territorial sea is open to all vessels to enjoy the right of innocent passage. Beyond the territorial zone comes the contiguous zone of another 12 nautical miles followed by the exclusive economic zone of 200 nautical miles from the coastal baseline. In Article 76 titled “Definition of the Continental Shelf” UNCLOS provides that a States Party may extend its continental margin beyond the 200 nautical mile Exclusive Economic Zone (EEZ) if certain criteria are fulfilled.
It is an incontrovertible principle of international maritime law that international navigation, however founded and whatever the right of innocent passage may be, often conflicts with a State’s desire to protect itself from activities that infringe its sovereignty, resource rights or more importantly, internal security. In such instances jurisdiction inevitably vests with the coastal State. Turning to ADIZs, it must be emphasized that a State can by no means arrogate to itself territorial sovereignty over an ADIZ ipso facto. Neither can a State interfere with a State’s exercise of legitimate rights of navigation over the high seas.
Generally under legal theory, each State is sovereign and equal and the term sovereignty may be used as a synonym for independence. However, in modern parlance, with the rapid growth in telecommunications and global competition and rivalries, no State can be entirely sovereign to the exclusion of others. In the ADIZ context, one must look at this issue from an aviation perspective. The Chicago Convention of 1944, which is the basic Charter of international civil aviation in Article 1 provides that the contracting States to the Convention recognize that every State has complete and exclusive sovereignty over the airspace above its territory. This provision is clear that the exercise of sovereignty by a State extends only to the airspace over its territory which is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection and mandate of such State.
Broadly speaking, ADIZ requirements are those that sovereign States require aircraft to comply with if they are to be permitted to enter sovereign airspace. Therefore ADIZs requirements act as conditions precedent that are calculated to ensure the protection of that State. The justification for ADIZ lies theoretically in the precautionary principle which asserts that the absence of empirical or scientific evidence should not preclude States from taking action to prevent a harm before it occurs. The evolution of the principle in international law, particularly in the field of environmental protection, began in the early 1980s although there is evidence that it was domestically popular in Europe in the 1930s in the German socio-legal tradition, centering on the concept of good household management. In German the concept is Vorsorgeprinzip, which translates into English as precaution principle. One commentator has added the thought provoking comment that in today’s political sphere, the precautionary principle enjoys a wide, unprecedented recognition. The precautionary principle has become of such tremendous importance because in many cases, the scientific establishment of cause and effect is a difficult task sometimes approaching a fruitless investigation of infinite series of events.
For the precautionary principle to apply, States must take measures according to their capabilities and they must be cost effective. Also, threats that are responded to must be both serious and irreversible. The precautionary principle is usually applied through a structured approach to the analysis of risk, which comprises three elements: risk assessment; risk management; and risk communication. The principle is particularly relevant to the management of risk. It is based on the presupposition that potentially dangerous effects from a particular process or phenomenon have been identified and that scientific evaluation does not guarantee that the risk could be averted.
There are instances where a State can be defended for invoking preventive action based on the overarching principle of social contract by which the citizens charge the State with the responsibility of ensuring their security. Social Contract describes a broad class of philosophical theories whose subject is the implied agreements by which people form nations and maintain social order. Social contract theory provides the rationale behind the historically important notion that legitimate state authority must be derived from the consent of the governed, which, in other words means that a democratic State is precluded from enacting draconian laws against the civil liberty of citizens unless with the consent of the people. The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588-1679), who contended that people in a state of nature ceded their individual rights to create sovereignty, retained by the state, in return for their protection and a more functional society, so social contract evolves out of pragmatic self-interest. Hobbes named the state Leviathan, thus pointing to the artifice involved in the social contract.
Alan Dershowitz, Professor of Law at Harvard University, asserts that “ there is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defence and defence of others” . Of course, here Dershowitz is referring to the international scene, but it would not be wrong to ascribe this principle to the national level when there is a dire need to control anarchy and insecurity of a nation. However, the bottom line for any preventive jurisprudence in the domestic context is the social contract theory where State authority must be derived from the people. There must be a preventive jurisprudence in place governing the acts of the executive and law enforcement officers. Preventive acts must never be ad hoc, or decided at the whim of the law enforcer.
Preemption (preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action) and prevention (prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action are necessary elements in today’s political and military fabric, where legal legitimacy is ascribed to actions of States which act swiftly to avoid harm and protect its citizenry. This is often accomplished bypassing rigid dogma and entrenched rules based on the precautionary principle and on the maxim necessitat non habet legem (necessity has no law or rules). Another is Inter arma enim silent leges is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good and the role of the judiciary as the guardian of the rule of law.

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Author: Sri Lanka Guardian

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