Should a Belligerent Party establish an “exclusion zone” in international airspace:
- The same rules of the law of international armed conflict will apply both inside and out-side the “exclusion zone”.
- The extent, location and duration of the “exclusion zone” and the measures imposed must not exceed what is reasonably required by military necessity.
- The commencement, duration, location and extent of the “exclusion zone”, as well as the restrictions imposed, must be appropriately notified to all concerned.
- The establishment of an “exclusion zone” must neither encompass nor completely bar ac-cess to the airspace of Neutrals.
- Due regard must be given to the lawful use by Neutrals of their Exclusive Economic Zones and continental shelf, in particular artificial islands, installations, structures and safety zones.
- This Rule specifies the criteria that are constitutive for the legality of an “exclusion zone”. The preconditions spelled out in Rule 107 (a) − (e) must be fulfilled cumulatively.
- The expression “international airspace”, as used in Rule 107, has been understood by the Group of Experts not to be applicable to any parts of the airspace above Antarctica, and this notwithstanding paragraph 8 of the Commentary on Rule 1 (a). Although some parts of Antarctica are considered “territory not subject to the sovereignty of any State”, there is no right for a Belligerent Party to establish an exclusion zone in the airspace above Antarctica.
- Rule 107 (a) re-emphasizes the general Rule set out in Rule 105 (a) that a Belligerent Party, by establishing an “exclusion zone”, neither acquires additional rights nor becomes absolved from its obligations under the law of international armed conflict. Laws concerning neutrality and targeting, in particular, still apply within an “exclusion zone” (see the Commentary on Rule 105).
- A Belligerent Party may, as a matter of policy, decide to limit the hostilities to the area covered by the “exclusion zone”.
- There are no specific limits on the extent, location and duration of an “exclusion zone” or the measures imposed within it on international aviation. All this will depend upon the circumstances of each case. There must, however, be a reasonable and proportionate nexus between the zone and considerations of military necessity. The weight of the latter must be established in light of the specific purpose pursued with the establishment of the “exclusion zone”.
- Moreover, the nature of the respective area in which the zone is established ought to be taken into con-sideration. For instance, the location of major civil aviation routes within the zone and subsequent impact on neutral trade may be a factor in assessing what is “reasonably required by military necessity”.
- Since an “exclusion zone” is established and enforced in international airspace, it necessarily impacts on international civil aviation (and navigation). A Belligerent Party cannot expect international civil aviation (and navigation) to observe the restrictions imposed if neutral aircraft (and vessels) are unaware of the zone, its location, extent and duration.
- Therefore, based on Rule 107 (c), the Belligerent Party establishing an “exclusion zone” is obliged to publicize these details as well as the restrictive measures it purports to apply within the “exclusion zone”. The term “notify” is to be understood in a non-technical manner. It is not necessary to communicate the information via diplomatic channels. In most cases it will be appropriate to make use of a NOTAM.
- Neutral territory, including neutral airspace, is inviolable under the law of international armed conflict (see Rule 166). Moreover, the existence of an international armed conflict does not deprive a Neutral of its right to use its national airspace for all lawful purposes, such as egress from and entry into international airspace, as well as military exercises and operations. Based on Rule 107 (d), Belligerent Parties are under an affirmative obligation to respect these neutral rights.
- One ought to distinguish between (i) what is impermissible (i.e. the establishment of an “exclusion zone” encompassing neutral airspace within the zone); and (ii) what is permissible (i.e. the establishment of an “exclusion zone” in areas of the high seas, including for this purpose the EEZ, provided that adequate access / exit routes are established). While an “exclusion zone” encompassing neutral airspace within the zone will always be illegal, the mere fact that access to neutral airspace on certain routes is no longer possible, or has become restricted, is not sufficient to render an “exclusion zone” illegal. However, a partial barring of access to neutral airspace may be a violation of the Neutral’s rights if other access routes of similar safety and convenience are unavailable.
- The obligation of Belligerent Parties to pay due regard to the rights of Neutrals is not limited to areas in which Neutrals enjoy territorial sovereignty. According to Rule 107 (e), which is derived from Art. 58 and Art. 87 of UNCLOS, Belligerent Parties are obliged to pay due regard to installations and other structures Neutrals have established in accordance with the respective provisions of the law of the sea. As long as they are paying such due regard to artificial islands, installations, structures and safety zones, Belligerent Parties are free to conduct military activities within the EEZ of Neutrals (see also paragraph 8 of the Commentary on Rule 1 (b)) and the third paragraph of the Commentary on Rule 166).
- The “due regard” principle is a concept of the law of the sea and therefore established in peacetime international law. In the relations between Belligerent Parties and Neutrals, the law of the sea — to the extent it does not conflict with the law of neutrality — continues to apply. It needs to be stressed that the “due regard” principle imposes no absolute and affirmative obligation. According to that principle, Belligerent Parties are called upon to balance the military advantages anticipated with the negative impact on the Neutral’s rights in the respective airspace and sea areas.
- Members of the Group of Experts disagreed over whether Rule 107 (e) reflects customary international law. Some members of the Group of Experts felt that there was no established State practice with regard to this principle.
- Art. 58 UNCLOS (“Rights and duties of other states in the exclusive economic zone”): “(1) In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. (2) Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone insofar as they are not incompatible with this Part. (3) In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law insofar as they are not incompatible with this Part.”
- Art. 87 UNCLOS (“Freedom of the high seas”): “(1) The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. (2) These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.”
- Para. 34 of SRM/ACS: “If hostile actions are conducted within the exclusive economic zone or on the continental shelf of a neutral state, belligerent states shall, in addition to observing the other applicable rules of the law of armed conflict at sea, have due regard for the rights and duties of the coastal state, inter alia, for the exploration and exploitation of the economic resources of the exclusive economic zone and the continental shelf and the protection and preservation of the marine environment. They shall, in particular, have due regard for artificial islands, installations, structures, and safety zones established by neutral states in the exclusive economic zone and on the continental shelf.” Similar language is also used in Para. 13.21 of the UK Manual.
Categories: P: No-Fly Zones in Belligerent Airspace