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solely the result of international agreement. 145 tion? Does a state have a right to shoot down any plane
(3) Another question often posed is whether a right that enters its airspace? In 1955 an El A1 Israel Airlines
) of "entry in distress' exists for aircraft. Article 25 of the Ltd. commercial airplane, with passengers aboard, en-
Convention on International Civil Aviation provides: tered the airspace of Bulgaria for "some unknown
"Each contracting State undertakes to provide such reason." Bulgarian fighter aircraft frred at the plane; it ex-
measures of assistance to aircraft in distress in its territory ploded in flight and crashed in Bulgarian territory. All 58
as it may find practicable. . . ." Whether the foregoing persons aboard were killed, including American and Brit-
provision imposes any obligation with respect to state ish passengers. Proceedings were instituted against
aircraft, or whether states not parties to the Chicago Con- Bulgaria in the International Court of Justice by Israel, the
vention are under any similar obligation with respect to United States and the United Kingdom, protesting the in-
aircraft of any type, are still open questions. The ad hoe human and excessive use of force by the Bulgarians, the
committee of the General Assembly on the peaceful uses lack of adequate warning, the failure of Bulgaria to recog-
of outer space, however, "considered that certain sub- nize the right of entry in distress. The cases did not
stantive rules of international law already exist concerning proceed to the merits because of Bulgaria's having failed
rights and duties with respect to aircraft and airmen land- to consent to the jurisdiction of the Court. 150
ing on foreign territory through accident, mistake or dis- (1) In May 1960 a United States U-2 reconnaissance
tress. The opinion was expressed that such rules might be plane was shot do* while flying over the Soviet Union at
applied in the event of similar landings of space vehi- an altitude of approximately 60,000 to 68,000 feet. The
cles." 146 United States did not protest the Soviet action; nor did it
(4) A problem related to that of landing rights is protest the trial, conviction and imprisonment for es-
raised when an aircraft enters another state's air space pionage of the American pilot. However, issues other
because of either navigational error or because it is forced than "technical" trespass of Soviet airspace were involved
by bad weather to do so. In 1946 five United States air- in the U-2 incident. The criminal charge against the
men were killed when their unarmed transport was shot American pilot in the Soviet Union was espionage, as
down over Yugoslavia. The United States claimed that the defined in the domestic law of that state. In the tradition of
plane had been forced by bad weather to deviate from its the international spy, fictional and real, the espionage
course. Yugoslavia, however, denied that there was bad agent is " out in the cold." 151 When Soviet fire brought
weather in the vicinity of the incident and alleged that the down a United States RB-47 two months later, however,
aircraft had ignored landing signals. In paying an indem- the United States made vigorous protests on the ground
nity, "inspired by human feelings," to the United States that the aircraft had been over the high seas at the time of
on behalf of the families of the airmen, Yugoslavia its interception. The Soviet Union claimed that the Amer-
reserved its position on the facts. 147 Numerous subse- ican plane had deliberately intruded into Soviet airspace
quent disputes involving a number of Western and and had disobeyed an order to land. 152
Soviet-bloc states were characterized by disagreement (2) It is an accepted principle of international law
over factual issues, such as the location of aircraft, the that aircraft of one nation are not permitted to fly over
reason for their presence in foreign territory, and whether another without the other's consent and that they may be
they had been warned to land. 148 The conclusion has obliged to land if' they stray. But, the degree of force which
been offered, however, that: a country may use to enforce an order to land would de-
. . . there is a right of entry for all foreign aircraft, state or civil, when pend on the facts of any s@~c incident and the
such entry is due to distress not deliberately caused by persons in control reasonableness of the belief that the intruder aircraft con-
of the aircraft and there is no reasonably safe alternative. . . . Foreign
aircraft and their occupants may not be subjected to penalties or to un- stituted a threat. Subsequent to the 1967 conflict in the
necessary detention by the territorial sovereign for entry under. such cir- Middle East, Israel claimed sovereignty over the Sinai and
cumstances or for entry caused by a mistake, at least when the distress the airspace above it. On February 21, 1973, a Libyan
or mistake has not been due to negligence chargeable to the persons in Arab Airlines passenger plane flying from Tripoli to Cairo
control of the aircraft. 149
apparently experienced navigational diff~culties, wandered
6. Sanctions Against Aircraft Entering Airspace. Does 100 miles east of its normal track and was intercepted by
the fact that a state has jurisdiction to prescribe law two F-4 fighters of the Israeli Air Force over the Sinai.
governing the airspace above it mean that it has freedom The Libyan airliner was visually signaled by the intercep-
of choice in the methods used to exercise that jurisdic- tors to follow them and the airliner lowered its landing
gear but shortly thereafter retracted the landing gear and
145. See, e.g.,3 U.N.Conf. on the Law of the Sea, Of$ Rec. 8, 104
(United Kingdom), 26 (United States), 90-91 (Canada) (1958); 1 Id. continued straight ahead. The lead interceptor then fired a
336 (comments by International Civil Aviation Organization) (1958).
14-5. U.N.Doc.A/4141, at 67 (1959). 150. 9 k Whiteman, Digest of International Law 326-340 (1968).
14'. See Lissitzyn, The Treatment of Aerial Intruders in Recent 151. See Wright, Legal Aspects of the U-2Incident, 54 Am. J. Int7
Practice and International Law, 47 Am. J. Int7 L. 559, 569-73 (1953). L. 836, 838 (1960).
148. Id. at 573-85. 152. See Liitzyn, Some Legal Implications of the U-2and RB-47
149. Id. at 588-89. Incidents, 56 Am. J. Int7 L. 135 (1962).