Bijdrage – Beschouwing
Military aircraft as a third category of aircraft
Major A.E. Siemensma LL.M. 1
1. Introduction
Should military aircraft be introduced as a third category of aircraft? To answer the main research question, to determine if military aircraft should constitute a third category of aircraft besides the already existing categories of civil aircraft and State aircraft, this paper will shortly delve into the history of aircraft in the introductory section. In the second section it will dissect the different definitions and interpretations regarding civil aircraft and military aircraft to answer the question what the distinction is between both categories of aircraft and why this distinction is made. The third section will deal with the question whether or what are the differences and similarities between State aircraft and military aircraft. This paper will conclude with an answer to the main research question in the fourth and final section.
During both world wars military aircraft were being used increasingly. For example, Germany started to use zeppelins to observe and conduct air raids on British and French cities.2 With the rise of (the use of) military aircraft during both world wars, there also arose a need for 'strict control' of aircraft in general, during the same period in time civil aviation proved its usefulness and necessity.3 An aircraft has been defined by the Convention Relating to the Regulation of Aerial Navigation of 1919, also known as the Paris Convention (hereafter: the PC19), which 'included aircraft, airships, gliders, free balloons, barrage balloons and helicopters.4 The Convention on International Civil Aviation, also known as the Chicago Convention (hereafter: the CC44) reused this definition and amended it in 1967 to '[t]out appareil qui peut se soutenir dans l'atmosphère grâce à des réactions de l'air autres que les réactions de l'air sur la surface de la terre', to exclude hovercraft.5 Article 3 of the CC44 then makes a distinction between civil and State aircraft for the purposes of delineating the scope of application of the convention, which includes civil aircraft and excludes State aircraft. The concept of 'State aircraft' is, however, not further defined in international law, which creates problems for a specific category of State aircraft, namely aircraft used in 'military services' or 'military aircraft'.6 The Legal Committee of the International Civil Aviation Organization (hereafter: the Legal Committee) asserts that
'[t]he definition of Civil/State aircrafts or Civil/State flight is of basic importance not only within the Chicago system, but also may have some relevance in the context of the Tokyo / Hague / Montreal / Beijing system of Aviation criminal law (taking apart the conventions of private Air Law), in confrontation with State Aviation regime subject to national regulations'.7
At the time of drafting the CC44 it was believed that there was a clear enough distinction between civil and State aircraft, that with the exercise of sovereignty there was no need for further regulation and that State aircraft had hardly anything to do with international navigation.8 One of the problems, as acknowledged by the Legal Committee, for the category of military aircraft is
'the proper qualification of aircraft used for unusual purposes and in particular […] when an otherwise civil aircraft with civil crew is used for military purposes; when an aircraft is chartered, either in whole or in part, to carry military […] personnel and/or cargo, is used in part for carriage of persons or cargo for remuneration; and when an aircraft which could otherwise be considered a State aircraft (possibly with a military crew) is used to carry passengers, cargo or mail for remuneration'.9
In addition to the lack of definition, several differences exist between State aircraft and military aircraft, with some of those differences being, for example, both aircraft respectively having to register in different registers and another being that only military aircraft are allowed to 'exercise belligerent rights, especially that of conducting attacks against lawful targets'.10 Besides a missing definition and the differences between both types of aircraft, with the drafting of the CC44 it thus had been thought State aircraft, and more specifically military aircraft, would hardly partake in international navigation with the opposite turning out to be true.11 That thought was the reasoning for not including State aircraft in the scope of the CC44, which does not reflect the current State of the international airspace.
The distinction between civil, State and military aircraft, and further study thereof, is specifically relevant for the armed forces of a State and the respective national civil and military aviation authorities. Due to an ever-growing and increasing international need within the armed forces to keep up with the required operational readiness and thus having to meet the necessary training requirements a trend arises in the form of 'contract air'.12 Contract air entails enlisting the use of a commercial air carrier, in principle a civil registered aircraft, for an air carrier operation, for example, hiring an air carrier to transport goods or passengers for a customer. Another, more relevant example, is having a civil air carrier perform a task that a government is unable to perform, and thereby switching the label of the aircraft from civil aircraft to State aircraft. This trend poses a problem if, for example, a non-European Union (hereafter: the EU) civil experimental registered aircraft is being used for military means within an EU State, and thus in the context of the European Aviation Safety Agency (EASA), where the local Civil Aviation Authority is authorized to perform oversight for all civil, and including State, aircraft, except for military registered aircraft. Military registered aircraft fall within the oversight scope of the Military Aviation Authority, which – in principle – does not have the authority to oversee civil registered aircraft or non-military State aircraft. However, the use of a contract air commercial aircraft for military means, thus qualifying as civil registered State aircraft, creates a problem with regard to determining the authorized and responsible Aviation Authority. The use of contract air thus muddles the air domain and the corresponding legislation, since the aircraft that are used for contract air are always civil registered aircraft used for military means. A factual black hole for these civil aircraft to get lost in the tangle of civil and military legislation proves another reason to make a clear distinction between the different categories of aircraft.
2. Current situation regarding distinction between aircraft
2.1 In general
The general and current definition of an aircraft, is that of the previously introduced CC44, an 'aircraft is any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface'.13 With that definition the International Civil Aviation Organization (hereafter: the ICAO) determined a broad scope of air faring vehicles, that is still growing and blooming with all ongoing technical developments. A distinction has always been made between public and private aircraft, which is used interchangeably with the distinction between civil and State aircraft.14 As mentioned, the successive world wars gave rise to a need for regulation. The PC19 was the first international aviation law treaty addressing that distinction in Article 30, stating that
The following shall be deemed to be State aircraft:
(a) Military aircraft.
(b) Aircraft exclusively employed in State service, such as Posts, Customs, Police.
Every other aircraft shall be deemed to be private aircraft.
All State aircraft other than military, customs and police aircraft shall be treated as private aircraft and as such shall be subject to all the provisions of the present Convention.
Article 30 thus provided that State aircraft are military aircraft and all 'aircraft exclusively employed in State service', with all other aircraft qualifying as private aircraft and being treated accordingly. Article 31 of the PC19 added that '[e]very aircraft commanded by a person in military service detailed for the purpose shall be deemed to be a military aircraft', and with that formulation paving the way to the 'purpose-based approach' or as part of the third approach as proposed by Hornik, covered hereafter. The PC19 left the position of the categories of aircraft mentioned in article 30 unclear, which called for – unrealized – clarification.15 The expiration date of the PC19 did not surpass World War II, with therefore the CC44 making its appearance before the end of that war. The CC44 provided in article 3, that
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This Convention shall be applicable only to civil aircraft, and shall not be applicable to State aircraft.
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Aircraft used in military, customs and police services shall be deemed to be State aircraft.
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No State aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.
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The contracting States undertake, when issuing regulations for their State aircraft, that they will have due regard for the safety of navigation of civil aircraft.
As both the PC19 and the CC44 do not offer definitions of either civil or State aircraft, Hornik proposes – among others – to look at different approaches to determine the category of aircraft and identifies three approaches; the ownership of the aircraft, the functional approach and the third being a combination of the first two approaches.16 The first approach is quite straightforward, simply looking at the ownership of the aircraft, with an aircraft either classifying as private or public aircraft. The second approach can also be dubbed the purpose-based approach. It looks at 'the purpose of their utilization, that is, whether they have a 'civil' or a 'State' use'.17 The classification of the aircraft can thus change through usage or, for example, due to who is in command of the aircraft, in line with Article 31 of the PC19. This approach does provide some uncertainty towards third parties with regards to the legal status, either public or private, being open to change and thus giving room for confusion. Hornik campaigns for a third approach being compiled of the following aspects:
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the basic distinction between civil and State aircraft lies in the ownership;
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State aircraft involved in certain (commercial) activities inherent to the private sector are treated as civil aircraft;
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these certain (commercial) activities are defined as those activities in the performance of which the State does not exercise its sovereign powers;
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aircraft concerned have to perform these certain activities on an exclusive basis.
Although several attempts have been made to easily classify an aircraft as either civil or State aircraft, the current view, in line with the approaches as introduced by Hornik, appears to determine the category of aircraft, through assessing the aircraft with a combination of looking at the ownership, the performed activities and an (non-) exclusive basis. Even though there was a call for clarification, the CC44 is more of a facelift of the PC19 than the called for clarification or modernization.18 Article 3 gives the scope of application of the CC44 and also provides for an opening for the 'purpose-based approach' or as part of the third approach. Hereafter this paper will look into the characteristics of civil, State and specifically military aircraft.
2.2 Civil aircraft
Civil aviation has to adhere to the relevant international treaties applicable, to the Standards and Recommended Practices of the ICAO, to a code of commercial conduct and to a predetermined flight path, whereas State aircraft can sail along on the sovereignty of a State.19
A general definition of civil aircraft is more easily given than one for State aircraft, videlicet for example, 'an aircraft, excluding government and military aircraft, used for the carriage of passengers, baggage, cargo and mail'.20 De Oliveira, together with – amongst others – Abeyratne, dissects three categories of civil aviation, which are commercial air transport, private flights and a 'wide spectrum of specialized services'.21 Another category of civil aircraft of quite some importance, is that of contracted aircraft. One example of contract aircraft is the United States Civil Reserve Air Fleet (hereafter: the US CRAF), where the US CRAF supplements the military airlift capability of the US Department of Defense 'during national emergencies and times of war.'22
There is not much disagreement on what aircraft qualify as civil aircraft, together with the three categories it seems easy enough to classify an aircraft as a civil aircraft based upon the activities undertaken by that aircraft.
2.3 State aircraft
Predating the PC19 was the International Air Navigation Conference in 1910, also known as the Paris Conference, which provided a definition of a public aircraft, 'as an aircraft that is employed in the service of a contracting State, and placed under the orders of a duly commissioned official of that particular State'.23 With the PC19 laying down the basis for all air law, it gives the following description of State aircraft in Article 30, videlicet that State aircraft encompass 'military aircraft' and 'aircraft exclusively employed in State service, such as Posts, Customs, Police' and all other aircraft 'shall be deemed to be private aircraft'. It is, however, understood, as also mentioned through the phrase 'exclusively employed in State service' in Article 30 of the PC19, that aircraft are meant that are 'owned or used by a State for exclusively non-commercial purposes'.24 Just as with the CC44, the scope of application of the PC19 was limited to private aircraft. The thought behind this limited scope was that State aircraft are 'believed […] to be proxies of [the State's] sovereignty or a State's tangible sovereignty and as such, should not be obligated to follow the same rules that private aircraft are obligated to follow'.25 However, as PC19 determines in Article 5 all aircraft are subject to obtain 'special and temporary authorization' and thus – although exempt from its scope – ensures respect for the sovereignty of each State.
With the arrival of the CC44 State aircraft are again labeled, in Article 3(b), as '[a]ircraft used in military, customs and police services shall be deemed to be State aircraft'. However, it is agreed that the description in the CC44 is not exhaustive and offers room for other types of State aircraft.26 For example, Mendes de Leon offers several other types of possible State aircraft; the coast guard, search and rescue, emergency assistance, humanitarian flights and the carriage of heads of States and official personalities in special aircraft.27 Apart from a few examples of types of State aircraft given, there are currently no definitions or requirements given in international law.28 To resolve the quest for a definition, several authors vote for implementing the – earlier mentioned – purpose-based approach, versus trying to achieve a definition for either civil and State aircraft, or for implementing the third approach, the cocktail of the first and second approach, as campaigned for by Hornik and in line with the possibilities mentioned by the Legal Committee.29 An example to illustrate the need for (a mixture of) the purpose-based approach, is the earlier mentioned example of US CRAF.
Although State aircraft are, in contrast to civil aircraft, not subject to the treaties applicable to civil aircraft, nor to the Standards and Recommended Practices of the ICAO, nor to a code of commercial conduct or a predetermined flight path, States shall, as laid down in Article 3(d) of the CC44, 'when issuing regulations for their State aircraft, […] have due regard for the safety of navigation of civil aircraft'. This follows, aside from the due regard obligation in Article 3(d), from Article 44(a) and from additional ICAO documentation, in which ICAO mentions that States should have 'due regard for the safety of navigation of civil aircraft' and be
'[…] fully informed, and conversant with, the following in respect of the area of activity
a) the type(s) of civil aircraft operations;
b) the ATS airspace organization and responsible ATS unit(s);
c) ATS routes and their dimensions; and
d) relevant regulations and special rules, including airspace restrictions'.30
Whereas civil aircraft can be easily defined with a quite simple phrase with three categories of activities, to fit all shades of State aircraft into one sentence proves more of a problem. Again, suggested approaches are to use either the purpose-based approach or the 'cocktail-approach' instead of trying to define State aircraft. To summarize, that State aircraft seem to be exclusively used to perform non-commercial activities in the service of a State.
2.3.1 Military
'Military aviation […] can be identified as the use of aircraft and other flying machines for the purposes of conducting or enabling warfare, which could include the carriage of military personnel and cargo used in military activities […]. Usually these aircraft include bombers, fighters, fighter bombers and reconnaissance and unmanned attack aircraft such as drones'.31
With Abeyratne focusing on the more practical aspects of military aviation, Gill States that military aircraft are those aircraft 'operated under the command of members of the armed forces and marked as such'.32 More specifically, Gill offers that 'military aircraft are those operated by the armed forces of a State; bearing the markings of that State; commanded by a member of the armed forces; and controlled or manned by a crew subject to regular armed forces discipline'.33 In addition, military aircraft are registered in a military registry of the State of nationality of the aircraft. Although these statements are correct for purely 'military aircraft', when, in the example of the US CRAF, civil aircraft are used - through a contract air construction – as 'aircraft used in military services', one encounters the problem of contracted civil aircraft providing military services, not being under command of members of the armed forces and with no military markings. Hornik offers here that military services should be understood as either 'an activity directly subordinated to a respective authority', with a 'certain degree of discipline' or as 'certain activities […] performed for specific purposes [with] the direct subordination and discipline […] usually lacking and the relationship between the aircraft operator and the State is based on a contract, for instance, a charter contract'.34 These specific characteristics, i.e. operated by and under command of the armed forces, registered in a military registry, make that the placement of the military aircraft category within the current category of State aircraft does not align with the undefined category of State aircraft.
Although the aspects of 'aircraft used in military services' seem somewhat less clear than the aspects of military aircraft, with detaching the category of military aircraft from the State aircraft category these characteristics can be judged within a clearly framed military scope and thus assure a clear scope for each respective aviation authority. To leave 'military aircraft' and 'aircraft used in military services' within the State aircraft category only ensures the existence of the continuing grey area.
3. Military aircraft as/or State aircraft?
This chapter briefly dives into the question what distinctions and/or similarities exist between State and military aircraft. As determined in the previous section, State aircraft are aircraft that exclusively perform non-commercial activities in the service of a State. Military aircraft are characterized partly through command, markings, crew and registration and partly through 'aircraft used in military services'. Hereafter the differences and similarities between both aircraft are shortly touched upon and will be determined if a distinction should be made between both aircraft versus retaining the status quo.
One of the aspects differentiating military aircraft from other State aircraft is the fact that they 'more than any other kind of aircraft including customs and police aircraft, [personify] the public or sovereign power of a State', which follows the train of thoughts originating from the Paris Conference. However, that train got derailed by the PC19 and CC44, which determined that all aircraft should request prior permission to enter national airspace of another State and, thus, a difference turns into a similarity.
Another aspect differentiating military aircraft from other State aircraft is the fact that military aircraft are lawful targets 'when there are reasons to believe that the intruder has hostile intentions' and during times of armed conflict, whereas other State aircraft 'normally may not be attacked, although warning shots may be fired if these aircraft do not comply with reasonable orders'.35 This aspect does differentiate between military and State aircraft.
With regards to the registration of an aircraft, a clear difference exists. Military aircraft are registered in the national military register with – usually – the respective national military aviation authority and not in the national civil register of that State. This aspect refers back to the sovereignty aspect, since States are not obligated to publish their military register and registered military aircraft. Other State aircraft are registered in the national civil aviation register, which is public in most instances.36
Currently, military aircraft are still classified as part of the category of State aircraft, however they differ in various ways. Videlicet they have more clear characterizations compared to State aircraft, their status during situations with possible hostile intentions and armed conflict as a lawful target, and with regards to the registrations of the aircraft. Although the aspect of personification of sovereignty appeared to be a similarity instead of a difference, there remains a need to pull military aircraft from the State aircraft category. Both civil and military aviation authorities struggle with determining the scope for 'aircraft used for military services', thus as part of contract air, since these aircraft are registered in a civil register and thus fall within the scope of a civil aviation authority. However, when such aircraft are occupied with 'military services' a civil aviation authority often does not have the required knowledge to perform oversight over such operations performed by a civil aircraft and will usually look towards the military aviation authority. A military aviation authority does often not have the required knowledge of civil aircraft to perform oversight over civil aircraft nor is it equipped with sufficient personnel to provide such 'extra' oversight.
4. Conclusion
Due to the assumed clarity during the adoption of the CC44 the distinction between civil and State aircraft was not further elaborated on, which turned cloudy in the current times. The Legal Committee acknowledged the importance of definitions for both civil and State aircraft and in addition acknowledged the problem with regards to the status of military aircraft, since
'the proper qualification of aircraft used for unusual purposes and in particular […] when an otherwise civil aircraft with civil crew is used for military purposes; when an aircraft is chartered, either in whole or in part, to carry military […] personnel and/or cargo, is used in part for carriage of persons or cargo for remuneration; and when an aircraft which could otherwise be considered a State aircraft (possibly with a military crew) is used to carry passengers, cargo or mail for remuneration'.37
This paper then asked if it would be wise to make a distinction between State aircraft and military aircraft, as main research question, and with two sub questions aimed to answer that main research question. The first sub question was what distinction was made between aircraft and why was this distinction made. A distinction is made between civil and State aircraft, with an apparent lack of definition for State aircraft. Military aircraft are partially easy to define, however, the aspect of 'aircraft in military services' adds another grey area. A call thus echoes throughout the paper not for a definition, but to adopt either a purpose-based approach or a mixture of looking at the ownership, the performed activities and an (non-) exclusive basis. An additional call echoes for pulling military aircraft outside of the State aircraft category to end the continuing grey area within that category and pull these aircraft within the military scope. This gives additional clarity regarding the scope of aviation authorities, pulling 'aircraft used for military services' within their scope of authority.
Section 3 tried answering the second sub-question with regards to the differences and similarities between State and military aircraft. At the moment military aircraft are still classified as State aircraft, however they differ vastly from State aircraft due to their characterizations, their status during situations with possible hostile intentions and during armed conflict, and with regards to the registration of aircraft.
Following through to the main research question, this paper wants to make the following proposition. That is to make a distinction between State aircraft and military aircraft, and thus pull military aircraft from the category of State aircraft. This paper would argue to pursue that proposed distinction. State aircraft are not and cannot be clearly defined, whereas military aircraft and 'aircraft used in military services' can be pinpointed more exactly due to their characteristics, their status as lawful targets and means of registration. With regards to legislation and regulation, not much would change since the main international treaties do not apply to military aircraft and a lot of countries already have separate legislation and regulation for military aircraft due to their special nature. One point of change might lie within those States who have framed the scope of their respective aviation authorities, the scope of the military aviation authority needs broadening when the distinction would be implemented in national legislation and regulation.
Even though this would not lead to much change in the national legislation and regulation, this change would provide the much-needed clarity for civil and military aviation authorities. Struggling with the grey area of, on the one side, State aircraft, and, on the other side, the civil aircraft used for contract air for military services, this would provide for a clear scope for each respective aviation authority.