AN ASSESSMENT OF THE RUSSIAN JET DOWNED BY TURKEY FROM THE PERSPECTIVE OF INTERNATIONAL LAW.

• Author: Dogru, Sami

1. Introduction

   The downing of the Russian SU-24-M fighter jet, violating the Turkish airspace, by the Turkish F-16 fighter jet on 24 November 2015 (Taking Stock 2020, Bishara 2015) not only created a major break in Turkish-Russian relations (Kubicek 2021: 217), but also set the agenda of the international public opinion. This incident severing the relations (Kostem 2021: 797) between the two states in the last 20 years occurred as a result of the fact that operations carried out by Russia in Syria have created discontent for Turkey (Tasci 2015: 16).

   In the new world order established with the Charter of the United Nations (UN) of 1945 after World War II, it was envisaged that the disputes between the states should be settled by peaceful means and therefore, the use of force was prohibited with some exceptions (UN Charter Art. 2/4). The aforementioned Charter recognized the sovereign equality of states and adopted respect for territorial integrity as the basic principle. The objective of this regulation brought by the UN Charter is undoubtedly to maintain international peace. The basis of these fundamental principles is the idea or the experience that war will not settle the disputes among states but is a method that will escalate these problems. Turkey's downing of Russian jet is based on the violation of air space which is a part of its own territory and sovereignty accordingly.

   The aim of this study is to examine the downing of the Russian jet by Turkey within the realm of compliance with international law. In this regard, first of all, information will be provided about the status of the airspace, which is a part of the territory of the states, the jurisdictions that the states may exercise in case of violation of the airspace and the rules of engagement in this context. Then, compatibility of Turkey's downing of the Russian jet in accordance with international law is going to be discussed.

2. The legal status of the airspace, state's jurisdictions against airspace violation

   2.1. Overall perspective

   The 'state' is a supreme entity created by the nation that has dominated a certain territory. When analyzed within the framework of this definition, four elements of the state stand out. A state, according to the Montevideo Convention of 1933 is defined as having the following characteristics: a permanent population, a defined territory, a government, and a capacity to enter into relations with other States (Montevideo Convention). In this regard, the states in the international community are sovereign and equal, regardless of their size, according to the UN Charter. The sovereignty of states indicates their independence in the international community. In other words, while each state holds the highest power within itself, it is independent in the international arena. In this sense, international law has given the state jurisdictions that both protect its territory against possible attacks and ensure the safety of its citizens. The state is able use these jurisdictions at sea and air territories, especially in the land territory. It is the fundamental duty of a state to ensure the security of its territory in land, sea and air spaces, provided that it abides by the rules of international law.

   2.2. National airspace and its status

   Rules regarding aviation are 20th century products (Pazarci 2018: 319). Since aviation law is a new concept compared to maritime law, it has been regulated by international conventions from the beginning (Aust 2005: 588). Apart from the various agreements signed until 1944, the first of them is the Paris Convention for the Regulation of Aerial Navigation (1919 Paris Convention) signed at the Paris Peace Conference on 13 October 1919, the relevant basic rules of the applied international law relating to aviation laid down by the Chicago Convention on International Civil Aviation signed on 7 December 1944 (1944 Chicago Convention). Airspace is divided into two as 'national airspace' and 'international airspace' according to the applied international law rules determined by the terms of the conventions summarized above. National airspace is defined as the airspace above the land territory of a state, including its territorial waters adjacent to it. International airspace, on the other hand, is the airspace outside of the national airspace (Pazarci 2018: 321). In other words, the airspace that is not above a state's territory, including its territorial waters (Aust 2005: 347).

   The status of international airspace is based on the principle of 'freedoms of the air' (Glahn and Taulbee 2017: 407). All states have the right to freely use international airspace, namely freedom of the flight. In contrast, the legal status of national airspace is based on the principle of the complete and exclusive sovereignty of a state. According to the 1944 Chicago Convention (Art. 1), every state has complete and exclusive sovereignty over the airspace above its territory and that the territory of a state is the land and territorial waters (but not the contiguous or exclusive economic zones) under the sovereignty (Air Law 2020: 1-2). Similarly, according to Article 1 of the 1919 Paris Convention, every state has complete and exclusive sovereignty over its own airspace. In this respect, no scheduled international air service may operate over or into the territory of a state without that state's previous consent (1944 Chicago Convention, Art. 6).

   However, with the 1944 Chicago Convention, the vast majority of states have declared their consent for 'civil aircraft' to fly over their territories, depending on different forms and conditions. Accordingly, contracting states recognize the right of other contracting states to fly over their own territory without prior authorization (Pazarci 2018: 321). It is possible for civil aircraft to enter a foreign country in accordance with the law, only with special permission except for the agreement conditions stated above (Shaw 2021: 404). Entries made without the consent of the state of the territory are described as 'trespassing' (Sar and Meray: 11).

   In response to these rights that states correspondingly give to each other's civil aircraft, 'state aircraft' can fly over a foreign state territory subject to permission. The first convention regulating this principle is the 1944 Chicago Convention. According to the convention, state aircraft cannot fly over any other state's territory, except under special agreements or in case of permission (1944 Chicago Convention, Art.3). The second convention on the subject is the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) (Glahn and Toulbe 2017: 420). According to the UNCLOS the sovereignty of a coastal State extends to the air space over the land territory including its territorial waters adjacent to it (Art. 2). Under these two conventions, 'the right of a civil aircraft or state aircraft to fly in the airspace of a state is subject to the permission of the sovereign state.' (Bilsel 1948: 199, Glahn and Toulbe 2017: 408). Otherwise, when a state's national airspace is violated by another state's aircraft, the relevant state has the right to take the necessary action and intervene to prevent the violation.

   2.3. Inspection of aircrafts entering the state s airspace

   States' sovereignty over its airspace is the fundamental principle of international air law (Abeyratne 2012: 3). International law sets different rules for inspections over airspace against aircraft that violate the state's sovereignty, depending on the type of aircraft. In this context, aircrafts are divided into two as 'civil aircraft' and 'state aircrafft' (1944 Chicago Convention Art. 3/b).

   This distinction is essential to determining the rules to which aircraft will be subject. In this context, civil aircrafts are subject to civil aviation regulations, 1944 Chicago Convention in particular. Accordingly, as stated above, states have already given their consent for civil aircraft to fly over their territory within the framework of the relevant conventions. For situations other than these provisions, they must definitely obtain permission from the state of the territory. Otherwise, it constitutes a violation of the airspace of the state. Flying over the territories of the state without permission may be 'unintentional' or 'intentional' depending on the compulsory circumstances.

   The unauthorized entry of aircrafts into the airspace of foreign states began to be seen in the development years of aviation just before World War I, and these violations increased day by day with the development of aviation (Sar and Meray: 26). Over time, the states took various measures against these violations, and from time to time they even shot down many aircrafts, both military and civil, that entered the airspace of other states without permission (Ata 2012: 2, Kaya 2012: 2). As a result, airspace violations, sometimes accidentally, have led to the end of the lives of many innocent people.

   Upon this, the International Civil Aviation Organization (ICAO) made a call in 1981 and recommended that the state, whose airspace was violated, should not use weapons against unauthorized aircraft. Later on, the rules to be applied in case a civil aircraft enters another state's airspace without permission were added to the 1944 Chicago Convention as article 3bis with an amendment made in 1984, after the shooting down a Korean Airlines flight KAL007 on 1 September 1983 by the Soviet Union (Aust 2005: 352).

   Accordingly, the states refrain from using weapons against civil aircraft and may request aircraft flying over their own territory to land at an airport they have determined. Considering the terminology used, it is understood that the prohibition is not absolute. After all, it is accepted in international practice that when a civil aircraft enters a foreign state's air space due to its 'in distress' situation (Article 25 of the 1944 Chicago Convention) or within the...