The Chicago Convention and Civilian Aircraft in Times of War

Abstract

Airspace used for civil aviation is also used for military purposes. Military activities undoubtedly present safety implications for civil aviation. Generally, the greatest risk posed by military activities to civil aviation has been demonstrated by occurrences of civil aircraft being shot down deliberately or by mistake, causing numerous fatalities.

This paper undertook a doctrinal analysis of civilian aircraft in times of war; beginning with a conceptual analysis of terms vital to this research work such as a general overview of the Chicago Convention, civilian aircraft, and war. From an established understanding of the conceptual analysis, we considered the conflicting interplay of article 3bis and article 89 of the Chicago Convention while making recommendatory comments intermittently within the text.

In the course of this study, it is discovered that the situation in the first paragraph is usually escalated in times of war or national emergency. This is so, especially with the provision of article 89 of the Chicago Convention which states that in case of war or national emergency, the Chicago Convention does not affect the freedom of action of any of the contracting States affected. How much freedom this provision actually afford a state engaged in war or a national emergency in light of the provision against the use of force against civilian aircraft reaffirmed in article 3bis is basically the focal point of this research work. Similarly, this work finds that the effect of Article 89 is limited, and its provisions should not be invoked to exclude the application of Article 3bis(a), although it would have been clearer had the drafters of Article 3bis inserted a clause of ‘notwithstanding article 89’ in the text.