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US Spy Drone and Violation of International Aviation Law

By Farzad Piltan, Mellat Online Website; translated by Iran Review

International aviation law is a collection of rules and regulations which govern the situation of the aerial territories of each and every country. There are various theories about legal nature of the aerial territory three of which have gained more prominence. The theory of “complete sovereign right of states” over the aerial space of their countries has been taken from the private law. According to this theory, countries not only own their territories on the ground, but also the aerial space above it.

Iran has displayed the captured U.S. drone

The second theory is the right of “free traffic of aircraft” over all countries, which has been derived from the principle that “the air belongs to all.” The third theory has taken a “moderate approach” to this issue by dividing aerial territory of countries in two parts. The first part is immediately over the land with the second part being the airspace above it. According to this theory, every country governs the airspace which is immediately above its land while the second level is free to be used by all countries.

The first theory was originally accepted by most countries before the beginning of the World War I. It was on that theory which most European countries based their air traffic rules and regulations. Even a neutral country like Switzerland had forbidden other countries’ aircraft from crossing its air space during the World War I. However, even at that time, all countries were allowed to use free waters as well as territories which were not claimed by any other country.

Formulation of a legal system to govern the airspace came into focus after the end of the World War I which subsequently led to the formulation and adoption of the Paris Treaty in 1919 and its additional protocol in 1929. It originally applied to the state-run aviation. In fact, the Paris Treaty was the first such international treaty on aviation and introduced a few principles including complete sovereign right of countries over their airspace, freedom of air traffic over free seas, the principle of peacetime safe passage for civilian aircrafts and the prohibition on member states to sign independent treaties with non-member countries.

Adoption of the treaty was followed by a lot of criticism because it was practically limited to member states in peacetime and had considered great privileges for the conquering powers of the war. As a result, the additional protocol was formulated and adopted in 1929 according to which all countries were free to accede to the treaty and member states could sign independent pacts with non-member countries provided that such pacts did not contravene the rights of member states of the Paris Treaty. Major privileges considered for big powers were also deleted and all countries were supposed to be treated on an equal basis.

The main issue here is about recent violation of Iran's airspace by a US spy drone which was subsequently downed by the armed forces of the Islamic Republic of Iran. There is no doubt that infringement of reconnaissance planes into another country’s airspace for espionage purposes without asking for permission of the subject country will amount to violation of that country’s sovereign rights over its airspace. The entry of the US spy drone into Iran's airspace is a blatant case of violation of Iran's airspace according to the Paris Treaty, especially in line with the principle of the sovereign right of countries over their airspace. It is also a clear breach of respective regulations of international law.

In fact, they have violated Iran's airspace without asking for permission to enter the country’s airspace. As a result, this is a hostile act against Iran as well as violation of international rules and regulations, especially basic principles of the Charter of the United Nations with regard to exclusive rights of countries and their national sovereignty.

On the other hand, any act which aims to gain classified information without permission and awareness of the party to whom the information belongs is considered an act of espionage. This is also a clear case of acting against a country’s national security. Since espionage is usually an organized crime of a transnational nature through which vital information of a country are made available to another country (or countries) by an organized network, the entry of the US spy drone into Iran's airspace and conducting espionage operations is an act against the national security of Iran.

In fact, since entry of the US spy drone has taken place without asking for Iran's permission, since this has been a spy plane, and since espionage has not been clearly defined in international law and no international treaty or convention has ever focused on this issue, governments like Iran can resort to any measure in accordance with Paragraph 4, Article 2 of the Charter of the United Nations in dealing with such cases. The aforesaid article underlines the necessity for respecting territorial integrity and political independence of countries and prohibits breach of any country’s national sovereign rights. Iran, as a result, may even file a lawsuit with the International Court of Justice as the authority endowed with the power to probe into differences among countries with regard to all forms of violation of international law.

Iran can also resort to diplomatic means and draw attention of the violating country (the United States) to its responsibility for respecting the principle of good neighborly relations. Washington should be also advised to avoid of using Afghanistan’s soil to act against sovereignty and national interests of Iran.

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