Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world. In international aviation the concept of sovereignty is the fundamental postulate upon which other norms and virtually all air law is based.
by Dr. Ruwantissa Abeyratne
(March 31, Quebec, Sri Lanka Guardian) President Mahinda Rajapaksa, referring to the attacks on Libya by coalition forces in his recent briefing to the foreign press, had said Sri Lanka cannot accept the violation of sovereignty of any country and it is against the killing of civilians. Both premises of the President reflect entrenched rules of international law that are followed by any democratic nation and which cannot be questioned.
The Libyan crisis concerns the enforcement of a no fly zone over Libyan airspace and military strikes by allied forces over ground targets. Therefore both sovereignty of airspace and principles of intervention are issues.
The Permanent Court of International Justice, when requested for a definition of “air space” in the 1933 Eastern Greenland’s Case, was of the view that the natural meaning of the term was its geographical meaning. The most fundamental assumption that one could reach from this conclusion is that air space is essentially geo-physical, meaning that it is space where air is found. Simplistically put, “air space” has been considered as going upwards into space from the territorial boundaries of a State and downwards to the centre of the Earth, in the shape of an inverted cone. This theory, advanced mathematically, in terms of space where air is found, would encompass the atmosphere, which has is layered into components starting from the troposphere (from sea level to about 10 kilometres); the stratosphere ( from about 10 to 40 kilometres up); the ionosphere ( from about 40 to 375 kilometres); and the exosphere ( from 375 to 20,000 kilometres). Based on this methodology, a recent development in aerospace – the sub-orbital flight, which goes up to about 62.5 miles (100 kilometres) above the landmass of the Earth, would hover somewhere in the lower level of the ionosphere, has prompted the conclusion that it is a space flight traversing outer space, while others would maintain that the vehicle does not leave the Earth’s atmosphere and therefore is airborne.
The doctrine of sovereignty was introduced to the Western world by the French philosopher Bodin. At a time when political attitudes were in transition from the dominance of the universal church to a universal legal order, Bodin introduced sovereignty as a supreme power over citizens and subjects that was not itself bound by laws. Bodin elaborated that every independent community had to consider that while acknowledging the authority of the law, a State was above the law if it wished to govern successfully. Other jurists who supported the theory of exclusive sovereignty were Hugo Grotius, who maintained that sovereign States were independent of foreign control, and Thomas Hobbes, who said that sovereignty was absolute and its misuse was unthinkable. John Locke attempted to compromise the absolute quality of sovereignty by opining that sovereignty was not absolute and unquestionable in that it was an exchange of social trust between the government and the people. Accordingly, there was an inarticulate premise that a breach of the social trust between the two parties would erode the concept of sovereignty.
The important question is how is sovereignty determined? Both juristic and judicial opinion favor the view that sovereignty of airspace should be determined on the role played by the importance of subjacent airspace in its relation to land and sea. In other words, a symbolic possession of the airspace is necessary in order that States can claim sovereignty over their airspace. Therefore, the concept of sovereignty becomes compatible with the concept of ownership of property with possession by the owner, to the exclusion of others. To determine sovereignty in airspace, three elements would have to be resolved: the use of airspace; the nature of its possession; and the nature of its control to the exclusion of others.
The use of airspace is inextricably linked to the social needs that the airspace in question would subserve. Roscoe Pound envisaged that one of the fundamental bases for the control and use of property was its sociological importance. There is no difficulty in establishing a nexus between the sociological value of territorial land and sea and the protection offered to them by the subjacent air space of a country. Weber and Erlich both contended that the law is not a formal set of rules but a prime method of establishing order in society and accordingly required a person merely to show incontrovertible reason for the need to possess property. The final element - the nature of control of airspace - can be subsumed in modern juristic thought; that the modern interpretation of the concept of sovereignty is not the ability to make war or to exploit others, but to legislate over a given State or community.
Perhaps the most convincing justification for the acceptance of sovereignty in as the fundamental legal norm in air law is seen in Hans Kelsen's pure theory of the law. Kelsen considered that all international laws derived their basis from a grundnorm or a basic legal postulate derived purely from law and not from morality. This basic norm was international custom. In this context, the philosophy of air law is founded on the concept of sovereignty in airspace and territorial land and sea and would sustain its credibility through this customary concept. The basic idea of sovereignty is then taken to its final conclusion and ultimate justification by Pound when he states :that “Men must be able to assume in civilized society that they may control, for purposes beneficial to themselves, what they have created by their own labor and what they have acquired under existing social and economic order. This is a final postulate of civilized society”
By the end of the nineteenth century, the private law concept of absolute ownership of airspace over land was antiquated. The beginning of the twentieth century saw the emergence of States' sovereignty in airspace. The impetus for public international law to take over the issue of rights over airspace was given by the August 1904 aerial incident where Russian guards shot down the German balloon Tschudi when it was flying outside Russian territory and two unrelated but similar incidents that occurred in 1908 and 1910 respectively. The French Government hastened to call a conference of European powers in 1910. For the first time, participating States at this conference recognized airspace as belonging to individual States.
Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world. In international aviation the concept of sovereignty is the fundamental postulate upon which other norms and virtually all air law is based. Post world war II attitudes towards the concept of sovereignty in airspace and the philosophy of air law range between the unlimited public law right of a State to exercise sovereignty over its airspace and the idea of free movement of air traffic. . Professor O.J. Lissitzyn analyses the concept of sovereignty in its modern development as having three basic principles : that each State has exclusive sovereignty over its airspace; each State has complete discretion as to the admission of any aircraft into its airspace; and, that airspace over the high seas and other areas not subject to a State's jurisdiction is res nullius and is free to the aircraft of all States.
A more modern view is that which is taken by Ian Brownlie, Professor of International Law at Oxford University who, in his book Principles of Public International Law states that the term sovereignty is synonymous with independence. Article 2.4 of the United Nations Charter exhorts all members of the United Nations to to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. In keeping with this fundamental premise, the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasized that no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The Declaration went on to say that consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or its political, economic and cultural elements, are condemned.
This principle was reaffirmed in the 1970 Declaration on Principles of International Law contained in United Nations General Assembly Resolution 2625.
The Principle of non-intervention enunciated in the Declaration can be seen in a much earlier pronouncement, made by the International Court of Justice in the Corfu Channel Case where the Court, referring to a claim by the British Government that it acted in accordance with the right of intervention in mine-sweeping the Channel, said “the alleged right of intervention was the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot…find a place in international law”.
The principle of non-intervention is part of international law and is based on the recognition of the territorial sovereignty and integrity of States. Intervention is not permitted at international law if such adversely affects the free choice of States made by virtue of State sovereignty. Intervention becomes unacceptable when it restricts free choice of a State.
The above notwithstanding, it is incontrovertible that sovereignty is no longer an absolute concept that would shield States against any internal acts of aggression or irrationality against its citizens. sovereignty can therefore no longer be accepted in the international for a as seen an absolute protection against interference. It is no longer an absolute right but a charge of responsibility on a State where it e is accountable to both domestic and external constituencies. A Brookings Institute study has recently revealed that In internal conflicts in Africa, sovereign states have often failed to take responsibility for their own citizens' welfare and for the humanitarian consequences of conflict, leaving the victims with no assistance. Therefore, what is needed is a delicate balance between respect for State sovereignty and protection of the citizenry against arbitrary and capricious acts of States. That is what the United Nations Security Council hopes to accomplish.
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