Humanitarian Considerations in International Air Law

Abstract

The downing of civil aircraft over conflict zones presents serious challenges for current international air law, especially regarding powers and responsibilities of public and private entities. Considering the extensiveness of areas experiencing current hostilities, the question of whether public or private entities should take responsibility following such accidents has become a highly topical issue. Under Article 9 of the Chicago Convention, States exercising complete and exclusive sovereignty over their territory are allowed the right to close their flight-paths. Consequently, a critical question arises as to whether States are obliged to close their airspace during times when their territories endure ongoing armed conflicts. In this author's view, the problem results from the varying perceptions concerning fragmentation within the international law system. To protect the safety of civilians in the sky, this article scrutinises the legality of allowing open airspace over conflict zones. It questions the role of ‘elementary considerations of humanity’ in order to draw closer towards a potential harmonisation between the secondary rules of special regimes—air law and humanitarian law.