Dear Aleathea,

Again you raise a very important point and one I dare say does not have an easy answer. At any rate any answer must navigate the between law, ideology and politics. While it remains true that every state has complete sovereignty over the airspace above its territory, the question frequently arises as to the standard of treatment, which may be meted out to aircraft, which enter a state’s territory without its permission. Since the first incident in 1904 when Russian soldiers shot down a German balloon there have been scores of such incidents some of which have threatened international peace and stability. Hundreds of lives mostly innocent have been lost in these incidents. Yet there has been no consensus in international law either in treaty or among opinio juris as to how exactly to deal with aerial trespass.

 

When unauthorised entry into foreign airspace is deliberately made, this is a clear violation of the complete and exclusive sovereignty granted to states by Article 1 of the Chicago Convention (1944). Such an act constitutes an affront on the territorial sovereignty and jurisdiction of the underlying state. Such trespass also raises the question of the extent of the right of self-defence under contemporary international law. An example of such violation of airspace rights which was of great political significance occurred in the U-2 incident. On May 1, 1960 a U-2 aircraft, which is a U.S. high altitude reconnaissance aircraft, was shot down at a height of 20,000 metres above the territory of the erstwhile Soviet Union. The USSR promptly protested the flight and the US did not justify its action in terms of seeking a defence under any principle of international law. Neither was there protest at the shooting down or the subsequent trial of the pilot. Indeed, after some hesitation, the United States (US) government and even President Eisenhower himself accepted responsibility for the flight. When the Soviet Union brought up the matter in the Security Council to seek redress, the only justification advanced by the US was one totally unknown to law. Its defence was that it was necessary to effect that flight for the ‘free world’ to protect itself against a government “well known for its expansionist activities and armed to the teeth”.

 

The Brazil and Colombia agreement you refer to however is unique on many grounds. The recognition of the right to engage in hot pursuit of criminals across national borders although also rare already exists in EU practice as enshrined in the Schengen agreement. I am sure more of these kinds of agreement will shape up in the future.  Aerial hot pursuit appears to belong to a very restricted instance of state practice. That a state allows aircraft from another state (and very significantly a state aircraft (police, airforce, naval or army aircraft) not only to enter but to operate within its own territory is epoch making. I do think this is sui generis but I stand to be corrected. It may have happened before but it is likely to be one of those things that take place under the counter (you know like the infamous American rendition arrangements).

 

To this extent Brazil and Colombia must be commended for bringing things to the surface and to be regulated by law. Yet there may be serious issues ahead. Although it is definitely within the sovereignty and jurisdiction of a state to by agreement derogate from the complete and exclusive sovereignty it possesses under Article 1 of the Chicago Convention (1944) that state may soon find out why traditionally states guard their aerial sovereignty jealously. Incalculable damage can be done to a state’s security interests in one sweeping and fleeting illegal flight over its territory.

 

There is also much room for intrigues. It is not too difficult to envisage camouflaged aircraft and the quick decisions as to whether this is a genuine and legitimate aircraft or not. The annals of state practice in this area are already fraught with too many instances of accidental shootings. Hence we have the downing of Iran Air Flight 655 by the US over the Persian Gulf with the resultant loss of 290 innocent lives. The problem is accentuated where as the report you sent shows that there may already be an aerial shoot at sight policy in operation in Brazilian and Colombian security practice. It is one thing for a state to accidentally shoot an aircraft down in its own airspace. It is another thing entirely for another state to do that. This is the time to worry about these things.

 

In the year 2525 when I am fictionally in decision making capacity in a fictional state. I will refrain from such an agreement. But as I said if it must be done, then it is better done publicly as they have done here. There is the saying good fences make good neighbours. This perhaps has more significance in the airspace. We just have to look at what the leading military and economic jurisdictions have done. They hold firmly to keeping any body out of their airspace who is not coming in under the Chicago Conventions rules including the air transit agreements. Sometimes they even require notification before you enter their maritime territories. Thus, the US Air Defence Identification Zones (ADIZ), the Canadian Air Defence Identification Zones (CADIZ), the United Kingdom Maritime Exclusion Zone (MEZ) and the Total Exclusion Zone (TEZ) (both established in the wake of the Falkland War and some aspects of which are still in operation at least in relation to Argentina) and the U.S. five mile Notice to Airmen (NOTAM) zones established around US naval ships during the Iran-Iraq war. Some of us will argue that these are all products of international real politic rather than international law but hey! that’s what we have as State practice.

 

Returning to the Brazil –Columbia arrangement ,another pit fall is that this new practice may just about raise the possibility of evidence of state practice especially if one accepts Bin Cheng’s theory of instant customary international law in relation to air and outer space issues. We may suddenly have other neighbours claiming such rights under vastly different circumstances. Theoretical examples are numerous (Turkey/Greece; Pakistan/India; Eritrea/Ethiopia??? I am sure we can all think of a few examples). A new doctrine of aerial hot pursuit will be for a long time dangerous thing because it will be devoid of the carefully arranged and understood conception of the doctrine of hot pursuit we have in the law. The doctrine of hot pursuit developed from customary international law and has been codified under Article 111 of the LOSC (1982). It means in essence that if there are reasonable grounds to believe that a foreign ship or one of its boats in internal waters, territorial sea, exclusive economic zone, continental shelf, has violated the laws or regulations of the coastal state or infringed on rights conferred on it under international law, such a ship may be pursued by the coastal state by any of its state vessels well into the high seas. The principle of hot pursuit is designed to ensure that an erring vehicle cannot escape jurisdiction by making a fleeting dash for the high seas. If it does so, the doctrine of hot pursuit will operate to allow an extension of the jurisdiction of the coastal state even on to the high seas in order to pursue and seize the escaping ship. If apprehended, the ship may be escorted back to port for investigation and trial.

The strict conditions are that pursuit must be continuous and unbroken. (intermittent pursuit or abandonment of pursuit and subsequent resumption will no longer be "Hot Pursuit")  pursuit even if continuous and unbroken must end upon entry into the territorial waters of the flag state or any other state. Where facts later on reveal that the circumstances did not warrant hot pursuit and seizure, due compensation must be paid for loss or damage. Article 22(3) of the (1958) High Seas Convention regulates such an eventuality and lays down severe penalties. In fact in jurisdictions such as Nigeria where a ship is pursued and arrested in a manner not justifiable in the circumstance, at least by private persons the wronged person or state would be entitled to substantial relief under the pertinent Admiralty rules.

To sum my missive up -in international relations and international law CONTRACT IS KING. Whatever states want to do and they willingly enter into as long as it is not against jus cogens it appears they can do.  Brazil and Columbia can not only do what they have done but they have done it. We can only point out a few dangers including reports about the need perhaps to soft pedal since it is becoming increasingly recognised that the U.S.-led war on drug crime in Latin America has failed and should be replaced by more humane and efficient ways of dealing with the problem. Not my opinion but that of former presidents from the region and the respected Economists Magazine

 See http://www.bloomberg.com/apps/news?pid=20601086&sid=ads6sZX3Moy8&refer=latin_america.

See also http://www.economist.com/printedition/displayStory.cfm?story_id=13237193

 

----- Original Message -----
From: aletheia kallos <[log in to unmask]>
Date: Friday, March 13, 2009 6:09 am
Subject: [INT-BOUNDARIES] an apparently new wrinkle in hot pursuit across borders
To: [log in to unmask]

> newsbreak lifted from
> http://uk.reuters.com/article/worldNews/idUKTRE52B6QV20090312?sp=true
>
> Brazil and Colombia agree on anti-drug border defence
> Thu Mar 12, 2009 8:09pm GMT
>
> By Raymond Colitt
>
> BRASILIA (Reuters) - Brazil and Colombia have agreed to develop
> military equipment together, conduct joint manoeuvres in the
> jungle and monitor airspace used by drug smugglers, officials
> from both nations said on Thursday.
>
> The agreement, which would go into effect after technical
> details were worked out and will ultimately include Peru as
> well, marks a shift for Colombia, which has tended to focus on
> military cooperation with the United States.
>
> "We want to build a strategic alliance with Brazil to improve
> the security of Colombians, the same way we are perfecting our
> strategic alliance with the United States," Colombian Defence
> Minister Juan Manuel Santos told reporters after meeting
> Brazilian Foreign Minister Celso Amorim.
>
> "For Colombia, the south as much as the north is important."
>
> Both countries agreed to monitor each others' airspace within 50
> km (31 miles) of their common border, a spokesman for the
> Brazilian defence ministry said.
>
> They will use Brazil's Sipam surveillance system, which is a
> network of radars and satellites, to monitor the Amazon.
>
> Brazil's Air Force, which since 2004 has had a policy of
> shooting down aircraft suspected of drug smuggling, currently
> gets little advance warning of traffickers flying in from
> Colombia, the world's leading cocaine producer.
>
> "What we want is for them to be able to monitor our airspace and
> we theirs, so we can control the region better," Santos said.
>
> In response to drug traffickers' increased use of rivers in the
> dense Amazon jungle, Brazil and Colombia also are looking to
> conduct joint manoeuvres on the region's major waterways.
>
> JOINT ARMS INDUSTRY
>
> South American countries last year created a regional defence
> council, which was proposed by Brazil and intended to help
> defuse potential conflicts and encourage a common defence industry.
>
> Colombia plans to help finance the development of the KC-390
> transport plane by Brazil's aircraft manufacturer Embraer,
> Brazil's defence ministry said. It also offered expertise in
> manufacturing river patrol boats.
>
> Both countries are considering the development of unmanned
> airplanes, Santos said.
>
> Colombia's government has close ties with Brazilian President
> Luiz Inacio Lula da Silva, a moderate leftist. That contrasts
> sharply with Bogota's tense relationship with the socialist
> leaders of Venezuela and Ecuador.
>
> Colombian President Alvaro Uribe, whose U.S.-backed military
> offensive has weakened the FARC guerrilla group, often accuses
> the leftist guerrillas of taking refuge in the two neighbouring
> nations.
> Ecuador broke off relations with Bogota last year after
> Colombian troops attacked a FARC rebel camp in Ecuador.
>
>
> &
> the following analysis
> lifted from
> http://www.stratfor.com/analysis/20090312_brazil_colombia_deal_signals_strategic_cooperation
> suggests such a hot pursuit overflight agreement may not be
> unprecedented
> yet the analyst appears hard pressed to cite any truly similar example
> & mentions rather only a maritime precedent
> which is of course a case of oranges & apples
>
> still it does all seem to follow
> logically so to say
> from the recent unilateral drone takeouts in pakistan somalia & yemen
> & the new shooting fish in a barrel laws for failed states etc
>
> but i wonder if anyone can think of any prior agreement
> welcoming overflight of this sort
> or have we just entered a bold new world & aera incognitum
>
>
> Brazil, Colombia: A Deal Signals Strategic Cooperation
> March 12, 2009 | 1739 GMT
>
> Summary
> Colombia and Brazil have signed an agreement granting mutual
> overflight privileges in border areas during hot pursuit
> operations. The move signals a significant increase in strategic
> cooperation between two of South America’s most powerful countries
>
> Analysis
> Colombia and Brazil signed an agreement March 11 allowing mutual
> overflight privileges by about 30 miles over the border during
> hot pursuits. The agreement, signed by Colombian Defense
> Minister Juan Manuel Santos and his Brazilian counterpart,
> Nelson Jobim, will permit Colombia to chase Colombian militants
> — who frequently cross international boundaries to avoid capture
> — into Brazil.
>
> The move is a concrete sign that Brazil is getting serious about
> border security and South American security cooperation.
>
> The issue of hot pursuit in South America has been extremely
> delicate politically over the past year since a March 1, 2008,
> Colombian military operation. During that incident, Colombian
> soldiers and aircraft crossed into Ecuador to kill Revolutionary
> Armed Forces of Colombia (FARC) second-in-command Luis Edgar
> Devia Silva (better known as Raul Reyes). The raid raised
> tensions with Ecuador, but also with Colombia’s eastern
> neighbor, Venezuela, prompting both countries to move troops to
> their respective borders with Colombia. Since the raid,
> relations between Venezuela and Colombia have been volatile,
> while Colombia and Ecuador severed diplomatic ties.
>
> The agreement between Colombia and Brazil is thus an important
> precedent for the two countries, which have been working
> together under the framework of in the newly formed Union of
> South American Nations (UNASUR) and on the South American
> Defense Council.
>
> For Bogota, the benefits of a deal that allows it to legitimize
> its pursuit of FARC rebels more effectively are relatively
> obvious. Colombia appears to have turned the tide against FARC
> over the past year. A hostage-rescue operation in July 2008
> secured the release of FARC’s highest-profile hostages,
> including former Colombian presidential candidate and dual
> French citizen Ingrid Betancourt. Although FARC is still
> estimated to hold thousands of hostages, the operation deprived
> the rebel group of its most valuable bargaining chips.
>
> Since then, individuals ranging from FARC foot soldiers to high-
> level FARC leaders have been defecting, sometimes bringing
> hostages with them in a bid for better treatment by the
> government. This is not to say that FARC has been completely
> routed — FARC attack campaigns against military forces are
> ongoing — but there is no question that the militant
> organization’s power has dropped dramatically. Now that Colombia
> has come this far, the next logical step is to ensure that FARC
> cannot find a safe haven in neighboring countries.
>
> For Brasilia, an agreement like this is a great way to ensure
> that Brazil never becomes a safe haven for FARC. It will also
> boost Brazilian efforts to coordinate South American policy-
> making under UNASUR. Perhaps most important, it also offers a
> chance to make progress on a prime strategic imperative for
> Brazil, namely, control of the immense South American country’s
> borders. Because enormous swaths of Brazilian territory are
> blanketed by dense jungle, Brazil has very little control over
> many (if not most) of its borders. And the border with Colombia
> is unquestionably the most remote and difficult to reach for the
> Brazilian military. Now however, it may well become one of its
> most secure borders thanks to the battle-hardened Colombians
> bearing most of the security burden.
>
> Rising concerns about drug trafficking and militancy throughout
> South America (coupled with economic stabilization and increased
> resources) has made it increasingly more important and possible
> for Brazil to try to exert more control over its territory.
> Though the Brazilian military has reoriented its forces away
> from its traditional rivals to the south (namely Paraguay and
> Argentina) toward exerting influence over its jungle-covered
> northern territories, it still has a long way to go. Perhaps the
> biggest challenge will be to project military power across
> territory with very little transportation infrastructure, as the
> Amazon rainforest presents very difficult operating and troop-
> maintenance challenges.
>
> But despite the obvious benefits to both countries, this kind of
> agreement is no small matter. There are very few true hot
> pursuit agreements between countries. (One notable example is a
> deal between Indonesia, Malaysia, and Singapore for naval
> patrols in the Strait of Malacca.) For two countries to allow
> one another to send troops across their borders indicates a high
> level of trust, and requires a high level of cooperation. Brazil
> is unquestionably South America’s rising power, and Colombia
> boasts South America’s best-trained and best-equipped military
> (particularly for counterinsurgency jungle warfare operations).
> For the two of them to agree to this level of military and
> political cooperation sends a very clear signal to South
> America, and particularly to Colombia’s other neighbors.
>
>
>      
>

Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.

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