Chapter 14 - Air and Space Warfare

XIV Air and Space Warfare
Chapter Contents
14.1 Introduction
14.2 Legal Boundaries of Airspace
14.3 Aircraft Status
14.4 Status of Aircrew on Military Aircraft
14.5 Measures Short of Attack: Interception, Diversion, and Capture
14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities
14.7 Airspace Zones
14.8 Attacks Against Military Objectives in the Air
14.9 Air Attacks Against Military Objectives on the Ground
14.10 International Law And Warfare in Outer Space
14.1 INTRODUCTION
This Chapter addresses the international law applicable to U.S. air and space operations
during international armed conflict. This Chapter also discusses the application to air operations
of some of the law of war rules discussed elsewhere in this manual.
Air Force publications have provided discussion of other aspects of public international
law relating to air operations, including discussion of rules applicable during peacetime. 1
14.1.1 Application of the 1944 Chicago Convention With Respect to Military Aircraft
and With Respect to States Rights During Armed Conflict. The 1944 Chicago Convention
primarily addresses States obligations regarding international civil aviation. 2 The 1944 Chicago
Convention does not restrict State action during war. 3 In addition, the 1944 Chicago Convention
generally is not applicable to State aircraft. 4 However, the 1944 Chicago Convention imposes
requirements with respect to entry by State aircraft into foreign airspace and with respect to the
issue of due regard for the safety of navigation of civil aircraft. 5
14.1.1.1 1944 Chicago Convention and Freedom of Action of States During
Armed Conflict. According to Article 89 of the 1944 Chicago Convention, [i]n case of war, the
provisions of this Convention shall not affect the freedom of action of any of the contracting
1
See, e.g., Department of the Air Force, The Judge Advocate Generals School, Air Force Operations and The Law
(3rd ed., 2014); 1976 AIR FORCE PAMPHLET 110-31.
2
1944 CHICAGO CONVENTION preamble (THEREFORE, the undersigned governments having agreed on certain
principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner
and that international air transport services may be established on the basis of equality of opportunity and operated
soundly and economically; Have accordingly concluded this Convention to that end.).
3
Refer to 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).
Refer to 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).
Refer to 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); 14.1.1.4 (Due
Regard for the Safety of Navigation of Civil Aircraft).
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States affected, whether as belligerents or as neutrals. 6 Article 89 may be understood as an

example, reflected in this case in the Convention, of the application of the general principle that
the law of war, as a body of law specially adapted to the circumstances of armed conflict, is the
controlling body of law with respect to armed conflict. 7 Under Article 89, a States rights under
the law of war (and the law of neutrality) would prevail in the event of conflict with obligations
under the 1944 Chicago Convention.
The provisions of the 1944 Chicago Convention may be relevant during armed conflict
insofar as they articulate restrictions that continue to apply to civil aircraft. For example, neutral
civil aircraft engaged in international navigation would still be required to seek permission from
a foreign neutral State before carrying munitions of war or implements of war through that
neutral States airspace. 8
The 1944 Chicago Conventions requirements with respect to entry by State aircraft into
foreign airspace and with respect to the issue of due regard for the safety of navigation of civil
aircraft are discussed below. 9
14.1.1.2 1944 Chicago Convention and Military Aircraft or Other State Aircraft.
The 1944 Chicago Convention provides generally that the Convention shall be applicable only
to civil aircraft, and shall not be applicable to state aircraft. 10 State aircraft include aircraft used
in military service. 11 The United States has made statements interpreting this provision of the
1944 Chicago Convention. 12
1944 CHICAGO CONVENTION art. 89 (In case of war, the provisions of this Convention shall not affect the freedom
of action of any of the contracting States affected, whether as belligerents or as neutrals.).
7
Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law).
See, e.g., 1944 CHICAGO CONVENTION art. 35(a) ((a) No munitions of war or implements of war may be carried in
or above the territory of a State in aircraft engaged in international navigation, except by permission of such State.
Each State shall determine by regulations what constitutes munitions of war or implements of war for the purposes
of this Article, giving due consideration, for the purposes of uniformity, to such recommendations as the
International Civil Aviation Organization may from time to time make.).
10
1944 CHICAGO CONVENTION art. 3(a) (This Convention shall be applicable only to civil aircraft, and shall not be
applicable to state aircraft.).
11
Refer to 14.3.1 (State Versus Civil Aircraft).
12
See, e.g., Department of State Airgram CA-8085, Feb. 13, 1964, quoting U.S. Inter-Agency Group on
International Aviation (IGIA) Doc. 88/1/1C, MS, Department of State, file POL 31 U.S., IX WHITEMANS DIGEST
430-31 (The Chicago Convention expressly excludes state aircraft from its scope and thus from the scope of ICAO
[International Civil Aviation Organization] responsibility. The United States intends that its state aircraft will
follow the ICAO procedures set forth in Annex 2 [Rules of the Air] to the greatest extent practicable; however, the
United States considers that state aircraft of any nation are subject to control and regulation exclusively by that
nation (unless operating within airspace over which another nation has sovereignty). With respect to State aircraft,
contracting States need not undertake any commitment, and the United States does not undertake any commitment,
to other nations as to the rules and regulations which any specific state aircraft or class of state aircraft will follow,
except when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of
civil aircraft (Article 3(d), Chicago Convention).).
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The 1944 Chicago Convention, however, imposes obligations with respect to entry into
foreign airspace by State aircraft and an obligation with respect to State aircraft and the safety of
navigation of civil aircraft. 13
14.1.1.3 Requirement for State Consent Prior to Entry by Foreign State Aircraft.
The 1944 Chicago Convention provides that State aircraft (which include military aircraft) are
not permitted to enter the airspace of another State without that States consent. 14
During armed conflict, the requirement for a States consent to entry into its airspace
would generally continue to apply with respect to neutral military aircraft seeking to enter the
airspace of foreign States.
This requirement, however, clearly would not apply to belligerent military aircraft
conducting operations in enemy airspace.
The requirement for a States consent to entry into its airspace may be characterized as
applicable with respect to belligerent military aircraft and a neutral States airspace; however,
even if belligerent military aircraft enter neutral airspace with that neutral States consent, such
entry may involve violations of neutrality. 15
There are exceptions to the requirement for State consent to entry into its airspace by
State aircraft in certain cases of violations of neutrality. 16
There is an exception during peacetime to the requirement for a States consent to entry
into its airspace by foreign State aircraft when such entry is due to distress and there is no
reasonable safe alternative. 17
14.1.1.4 Due Regard for the Safety of Navigation of Civil Aircraft. The 1944
Chicago Convention also provides that [t]he contracting States undertake, when issuing
regulations for their state aircraft, that they will have due regard for the safety of navigation of
13
14
1944 CHICAGO CONVENTION art. 3(c) (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.).
15
Refer to 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).
16
Refer to 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
17
U.S. Response to Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703,
708 (Although we recognize that military aircraft normally require permission to enter the territorial airspace of
another nation, international law recognizes a right of entry for foreign aircraft, state or civil, in circumstances such
as these when such entry is due to distress and there is no reasonable safe alternative (Footnote 3 below).
Notwithstanding the ordinary rules requiring consent, a peacetime right to enter in distress for military aircraft is
consistent with established international practice. Such a right is clearly inferable both from analogous situations
in which such a right exists (e.g., for civil aircraft under Article 25 of the Chicago Convention) and from basic
humanitarian considerations.).
902
civil aircraft. 18 Assuming that an obligation to exercise due regard would be applicable during
armed conflict, what regard would be due in any particular set of circumstances would depend on
military necessity, and other principles and rules of the law of war, which are specially adapted
to the circumstances of armed conflict. For example, the use of force against enemy civil aircraft
that constitute military objectives and thus may be made the object of attack under the law of war
would not be prohibited. 19
As reflected in Article 89 of the 1944 Chicago Convention, the Convention does not
restrict the freedom of action of States as belligerents or neutrals. 20 Nonetheless, as a practical
matter, modern air warfare is often conducted in complex airspace, and U.S. forces have
routinely and intensively coordinated flight operations with national civil aviation authorities.
This coordination is important for a variety of purposes, including ensuring mission
accomplishment, avoiding fratricide and mid-air collisions, and ensuring the safety of
international civil aviation. DoD policy has required that, in the event of combat operations
during armed conflict, aircraft commanders, consistent with military necessity, take measures to
minimize hazards to civil air or surface traffic. 21
Similarly, under the law of the sea, military operations must be conducted with due
regard for the high seas freedom of overflight in international airspace. 22
14.1.2 Past Attempts to Conclude Treaties About Air Warfare. Initial attempts to
conclude agreements on the law of war governing means and methods in the air context were
made during the 1899 and 1907 Hague Peace Conferences, before air power had become a
significant factor in warfare. Extensive efforts were made in 1922-23 to adopt a code of laws
specifically applicable only to air warfare; however, the proposed rules were not ratified by any
State. 23 The United States has not ratified a treaty applicable solely to air operations during
armed conflict, although the United States has ratified treaties that have included specific
18
1944 CHICAGO CONVENTION art. 3(d) (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.).
19
Refer to 14.8.3 (Attacks Against Civil Aircraft).
20
Refer to 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).
21
DOD INSTRUCTION 4540.01, Use of International Airspace by U.S. Military Aircraft and for Missile/Projectile
Firings, 4.2.3 (Mar. 28, 2007) (In the event of combat operations in time of war, armed conflict, national
emergency, situations requiring self-defense, or similar military contingencies, aircraft commanders shall, consistent
with military necessity, take measures to minimize hazards to civil air or surface traffic. Such actions shall be of no
greater extent or duration than required by military necessity.); DOD DIRECTIVE 4540.1, Use of Airspace by U.S.
Military Aircraft and Firings Over the High Seas, 6b (Jan. 13, 1981) (In the event of combat operations in time of
war, armed conflict, national emergency, situations requiring self-defense, or similar military contingencies,
departure from the operating procedures in this Directive may be required. In all such instances, however, all
possible precautions shall be taken to minimize any hazard to the safety of other air and surface traffic and departure
from procedures set forth in this Directive shall be of no greater extent or duration than is required to meet the
contingency.).
22
Refer to 13.1.1 (The Law of the Sea During Armed Conflict).
23
Refer to 19.11 (1923 Hague Air and Radio Rules).
903
references to aspects of war in the air, such as protection for medical aircraft in the 1949 Geneva
Conventions. 24
14.2 LEGAL BOUNDARIES OF AIRSPACE
The legal classifications of airspace may be relevant to the application of the law of war
and therefore may affect military operations during armed conflict by:
determining whether airspace is neutral airspace; 25
determining the authority that a belligerent State has with respect to neutral aircraft in an
area; or
determining the authority that a neutral State has with respect to belligerent aircraft in an
area.
14.2.1 Lateral Boundaries of Airspace. The lateral boundaries of the airspace are
determined by the status of the land or water directly beneath them.
Airspace is often divided between national airspace (i.e., airspace over a States land
territory, internal waters, territorial seas, and archipelagic waters), which is subject to the
sovereignty of a State, and international airspace, which is not subject to the sovereignty of any
State. 26 In addition, special rules apply to international straits and archipelagic sea lanes. 27
The division between national airspace and international airspace is similar to the
division between national waters and international waters. 28 One notable distinction, however,
is that aircraft do not enjoy the same right of innocent passage over territorial seas that ships
enjoy through territorial seas. 29
14.2.1.1 National Airspace. Every State has complete and exclusive sovereignty
over the airspace above its territory. 30 In other words, a State has sovereignty over the airspace
that is above land or waters that are subject to its sovereignty. 31 Thus, a States national airspace
includes:
24
Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft).
25
Refer to 15.10 (Neutral Airspace).
26
Refer to 14.2.1.1 (National Airspace); 14.2.1.2 (International Airspace).
27
Refer to 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
28
Refer to 13.2.2 (National Waters); 13.2.3 (International Waters).
29
Refer to 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).
30
1944 CHICAGO CONVENTION art. 1 (The contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory.). Cf. 49 U.S.C. 40103 (a)(1) (The United States Government
has exclusive sovereignty of airspace of the United States.).
31
See, e.g., 1944 CHICAGO CONVENTION art. 2 (For the purposes of this Convention the territory of a State shall be
deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or
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airspace over that States land territory, including its internal waters; 32
airspace over that States territorial sea; 33 and
airspace over that States archipelagic sea. 34
14.2.1.2 International Airspace. International airspace may be understood as all

airspace that is not subject to the sovereignty of any State, including: 35
airspace over States contiguous zones; 36
airspace over States Exclusive Economic Zones; 37 and
airspace over the high seas. 38
14.2.2 Vertical Boundary Between Airspace and Outer Space. A States sovereignty over
its airspace does not extend to outer space, which is not subject to the sovereignty of any State. 39
It is generally accepted that orbiting objects are in outer space. 40 The United States has
expressed the view that there is no legal or practical need to delimit or otherwise define a
specific boundary between airspace and outer space. 41
mandate of such State.); Convention on the Territorial Sea and Contiguous Zone, art. 2, Apr. 29, 1958, 516 UNTS
205, 208 (The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and
subsoil.). Consider LOS CONVENTION art. 2(2) (This sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil.); LOS CONVENTION art. 49(2) (This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.).
32
Refer to 13.2.2.1 (Internal Waters).
33
Refer to 13.2.2.2 (Territorial Seas).
34
Refer to 13.2.2.3 (Archipelagic Waters).
35
See, e.g., DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009)
(international airspace. All airspace seaward of coastal states national airspace, including airspace over
contiguous zones, exclusive economic zones, and the high seas. International airspace is open to all aircraft of all
nations. Military aircraft may operate in such areas free of interference or control by the coastal state.).
36
Refer to 13.2.3.2 (Contiguous Zones).
37
Refer to 13.2.3.3 (Exclusive Economic Zones (EEZs)).
38
Refer to 13.2.3.4 (High Seas).
39
Refer to 14.10.1 (Classification of Outer Space).
40
See, e.g., Department of the Air Force, The Judge Advocate Generals School, Air Force Operations and The
Law, 85 (3rd ed., 2014) (According to this approach, the upper limit to airspace is above the highest altitude at
which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. The result is that
anything in orbit or beyond can safely be regarded as being in outer space.); 2007 NWP 1-14M 1.10, 2.11.1
(The upper limit of airspace subject to national jurisdiction has not been authoritatively defined by international
law. International practice has established that airspace terminates at some point below the point at which artificial
satellites can be placed in orbit without free-falling to earth. Outer space begins at that undefined point.
Although there is no legally defined boundary between the upper limit of national airspace and the lower limit of
outer space, international law recognizes freedom of transit by man-made space objects at earth orbiting altitude and
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14.2.3 Flight Information Regions. Flight Information Regions (FIRs) are areas of
airspace allocated by the International Civil Aviation Organization (ICAO). Every portion of
airspace belongs to a defined flight information region. Within each flight information region, a
flight information service and an alerting service are provided by the national authorities
responsible for air traffic control. These services are the most basic levels of air traffic service,
and they provide information to aviators necessary for the safe and efficient conduct of flights. 42
A flight information region normally encompasses substantial areas of international
airspace and does not necessarily reflect international or national airspace borders. 43
beyond. A generally acceptable definition is that outer space begins at the undefined upper limit of the earths
airspace and extends to infinity.); 2006 AUSTRALIAN MANUAL 8-2 (While views differ as to the precise vertical
and horizontal extent of airspace, for practical purposes, it can be said that the upper limit to a states rights in
airspace is above the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth
satellite in orbit. The result is that anything in orbit or beyond can safely be regarded as in outer space.); 2004 UK
MANUAL 12.13 (Views differ as to the precise vertical and horizontal extent of airspace. For practical purposes, it
can be said that the upper limit to a states rights in airspace is above the highest altitude of what an aircraft can fly
and below the lowest possible perigee of an earth satellite in orbit. The result is that anything in orbit or beyond can
safely be regarded as in outer space.).
41
Kenneth Hodgkins, U.S. Advisor to the United Nations, Legal Subcommittee (LSC) of the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS) 719th Meeting [unedited transcript] (Apr. 8, 2005) (As
we have stated on previous occasions, the United States is firmly of the view that there is no need to seek a legal
definition or delimitation for outer space. The current framework has presented no practical difficulties and, indeed,
activities in outer space are flourishing. Given this situation, an attempt to define or delimit outer space would be an
unnecessary theoretical exercise that could potentially complicate existing activities and that might not be able to
anticipate continuing technological developments. The current framework has served us well and we should
continue to operate under this framework until there is a demonstrated need and a practical basis for developing a
definition or delimitation.); Stephen Mathias, U.S. Advisor to the United Nations, U.S. Statements on Specific
Agenda Items before the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (2003) (At this
time, the United States remains convinced that there is no need to seek a legal definition of delimitation for outer
space. Activities in outer space and in airspace are flourishing and have raised no practical need for a definition or
limitation between the spheres. In the absence of a real need, any attempt to develop a definition would be illadvised as there would be no experience to call upon in agreeing upon any particular definition or delimitation.);
U.S. Statement before the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer
Space regarding the Definition and Delimitation of Outer Space and the Character and Utilization of the
Geostationary Orbit, Apr. 4, 2001, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 721 (Our
position continues to be that defining or delimiting outer space is not necessary. No legal or practical problems have
arisen in the absence of such a definition. On the contrary, the differing legal regimes applicable in respect of
airspace and outer space have operated well in their respective spheres. The lack of a definition or delimitation of
outer space has not impeded the development of activities in either sphere. It would be dangerous for the Legal
Subcommittee to agree to an artificial line between air space and outer space, when it cannot predict the
consequences of such a line.).
42
Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight
Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 635, 636 (A Flight Information Region, or FIR, is simply an area over which a civil aviation
authority has responsibility for provision of flight information services. FIRs are allocated to coastal states by the
International Civil Aviation Organization (ICAO) to facilitate the safety of civil aviation. Some FIRs encompass
both national and international airspace. Civil aviation authorities may confuse responsibility for and authority over
civil aviation in a FIR for sovereignty over the area.).
43
DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (flight
information region. An airspace of defined dimensions within which flight information service and alerting service
906
Under Article 3 of the 1944 Chicago Convention, flight information region rules do not
apply to State aircraft, including military aircraft, and military aircraft are free to operate in
international airspace without the consent of or notice to coastal State authorities. 44 Thus, for
example, a flight information region could not limit the rights of belligerent military aircraft
during armed conflict.
14.2.4 Air Defense Identification Zone (ADIZ). In general terms, an ADIZ is an area of
airspace over land or water in which the ready identification, location, and control of aircraft
may be required in the interests of national security. 45 The United States has established
ADIZs. 46
14.2.4.1 Establishment of an ADIZ. The legal basis for a State to establish an
ADIZ is its right to establish conditions and procedures for entry into its national airspace. 47
are provided. A flight information region normally encompasses substantial areas of international airspace and does
not reflect international or national airspace borders. Responsibility for flight information region management is not
the same as territorial authority; therefore, state aircraft are not to request aircraft diplomatic clearance to enter a
flight information region if the aircraft will not enter national airspace. The International Civil Aviation
Organization establishes flight information regions in accordance with the Convention on International Civil
Aviation. Civil aviation authorities of designated nations administer them pursuant to International Civil Aviation
Organization authority, rules, and procedures.).
44
Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight
Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 635-36 (A coastal state may establish a FIR in international airspace consistent with the
requirements of the 1944 Convention on International Civil Aviation (Chicago Convention), to which your country
is a party; however, under Article 3 of that convention, FIR rules do not apply to state aircraft, including military
aircraft. State aircraft, including military aircraft, operating in international airspace (whether within or outside a
FIR) are free to operate without the consent of or notice to coastal state authorities and are not subject to the
jurisdiction or control of the ATC authorities of those states. No notice to, clearance from, or approval of a coastal
state is required to exercise such freedoms of navigation and overflight. The United States reaffirms its navigation
and overflight rights in international airspace.).
45
14 CODE OF FEDERAL REGULATIONS 99.3 (Air defense identification zone (ADIZ) means an area of airspace
over land or water in which the ready identification, location, and control of all aircraft (except for Department of
Defense and law enforcement aircraft) is required in the interest of national security.).
46
See, e.g., Ian E. Rinehart & Bart Elias, Chinas Air Defense Identification Zone (ADIZ), 2 (Congressional
Research Service, Jan. 30, 2015) (In 1948, the U.S. Air Force designated several offshore areas as active defense
areas or defense zones. From these, the first ADIZs in the world were established in 1950, under an Executive
order directing the Secretary of Commerce to exercise security control over aircraft. Various defense zones were
redesignated as ADIZs (over Atlantic, Pacific, and Gulf of Mexico waters[)] the Alaska ADIZ, the Guam ADIZ, and
the Hawaii ADIZ, are codified in Title 14, Part 99, of the Code of Federal Regulations, along with the procedural
requirements for flights operating in these designated areas. They are predominantly located over water and
typically do not extend to the shore, leaving a narrow strip of sovereign airspace parallel to the coastline that is not
within the ADIZ.); 1955 NWIP 10-2 422c endnote 16 (It is apparent that the potential threat to the security of
states presented by aircraft is considerably greater than the potential threat presented by vessels. However, there has
not yet emerged a recognized practice of contiguous air space zones, analogous to contiguous zones established on
the high seas (see paragraph 413d), enabling states to exercise certain legal controls over aircraft flying outside
territorial air space. The present system of Air Defense Identification Zones (ADIZ) employed by the United States
extends to the air space above the open sea, and is limited to the purpose of identifying aircraft.).
47
See, e.g., 2007 NWP 1-14M 2.7.2.3 (International law does not prohibit nations from establishing air defense
identification zones (ADIZ) in the international airspace adjacent to their territorial airspace. The legal basis for
907
The establishment of an ADIZ by a State does not constitute a claim to international

airspace as its own. The ADIZ is merely a reference point for the initiation of identification
procedures for aircraft on a course to enter national airspace. 48
Because the establishment of an ADIZ by a State that extends to international airspace
does not confer sovereignty over that airspace, the ADIZ, and its implementing regulations and
operational practices, must respect the rights of other States to use international airspace.
The United States does not recognize the right of a State to apply its ADIZ laws and
regulations to foreign aircraft, either civil aircraft or State aircraft, if those aircraft do not intend
to enter the national airspace of that State. 49
14.2.4.2 Failure to Comply With Identification Requirements. Failure by an
aircraft to identify itself once it enters an ADIZ does not, of itself, entitle the declaring State to
use force against that aircraft, although it may subject the aircraft to interception. 50 Depending
on the circumstances, a persistent failure to comply with instructions may be evidence that the
aircraft, in fact, poses a threat to the declaring State. 51
Establishment of an ADIZ, like other warning zones, does not relieve the proclaiming
State of its obligations under applicable international law, such as its obligation under the law of
war to refrain from attacking aircraft that do not constitute lawful military objectives, or its
obligation to refrain from attacks against civil aircraft under peacetime international law. 52
ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory. Accordingly,
an aircraft approaching national airspace can be required to identify itself while in international airspace as a
condition of entry approval.); 1976 AIR FORCE PAMPHLET 110-31 2-1g (Civil aircraft on a course to penetrate
United States airspace are required to identify themselves upon entry into the [Air Defense Identification] zone.
This requirement is based on the right of every state to establish conditions and procedures for entry into its
airspace.). See also 1944 CHICAGO CONVENTION art. 11 (Subject to the provisions of this Convention, the laws
and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged
in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be
applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by
such aircraft upon entering or departing from or while within the territory of that State.).
48
1976 AIR FORCE PAMPHLET 110-31 2-1g (An air defense identification zone does not constitute a claim of
sovereignty over airspace above the high seas. Such a zone is merely a reference point for initiation of identification
procedures for aircraft on a course to penetrate national airspace.).
49
See, e.g., John Kerry, Secretary of State, Press Statement (Nov. 23, 2013) (We dont support efforts by any State
to apply its ADIZ procedures to foreign aircraft not intending to enter its national airspace. The United States does
not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace.); U.S. Response to
Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703, 707 (The U.S. does
not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter
national airspace, and does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.).
50
1976 AIR FORCE PAMPHLET 110-31 2-1g (State aircraft on a course to penetrate United States airspace may be
requested to identify themselves, and failing voluntary identification may be identified by intercept aircraft or
otherwise as appropriate.).
51
Compare 14.5.2.1 (Failure to Comply by Civil Aircraft).
52
Refer to 13.9.2 (Use of Zones to Warn Vessels or Aircraft War, Operational, Warning, and Safety Zones);
14.8.3.1 (Protection of Civil Aircraft in Peacetime).
908
14.3 AIRCRAFT STATUS

14.3.1 State Versus Civil Aircraft. The 1944 Chicago Convention distinguishes between
State aircraft and civil aircraft. 53
Aircraft used in military, customs, and police services are deemed to be State aircraft for
the purposes of the 1944 Chicago Convention. 54 More generally, State aircraft may be
understood to include other aircraft operated by a government for sovereign, non-commercial
purposes. 55 In U.S. practice, DoD contract aircraft have not qualified as State aircraft, unless
specifically designated as such by the United States. 56
The distinction between State aircraft and civil aircraft may be important for a variety of
reasons. For example, the 1944 Chicago Convention generally does not apply to State aircraft. 57
In addition, enemy State aircraft are subject to seizure as war booty. 58 As another example,
neutral State aircraft are not subject to visit and search or diversion. 59 And, although not
53
1944 CHICAGO CONVENTION art. 3(a) (This Convention shall be applicable only to civil aircraft, and shall not be
applicable to state aircraft.). Consider Commission of Jurists to Consider and Report Upon the Revision of the
Rules of Warfare, General Report, Part II: Rules of Arial Warfare, art. 2, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 12, 12 (1938) (The following shall be deemed to be public aircraft: (a)
Military aircraft. (b) Non-military aircraft exclusively employed in the public service. All other aircraft shall be
deemed to be private aircraft.).
54
1944 CHICAGO CONVENTION art. 3(b) (Aircraft used in military, customs and police services shall be deemed to
be state aircraft.).
55
DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (state aircraft.
Aircraft, including U.S. military aircraft, operated by a government for sovereign, non-commercial purposes.).
56
See, e.g., Secretary of State Cable 22631, USG Policy Regarding Status of DOD Commercial Contract Aircraft
(Mar. 10, 2010) (The U.S. Government has consistently taken the position that Department of Defense (DoD)
commercial contract aircraft and other USG contract aircraft are not state aircraft unless the particular aircraft is
specifically designated as such by the USG. The normal practice of the USG is not to designate contract aircraft as
state aircraft.); 2007 NWP 1-14M 2.4.3 (Auxiliary aircraft are State aircraft, other than military aircraft, that are
owned by or under the exclusive control of the armed forces. Civilian owned and operated aircraft, the full capacity
of which has been contracted by the DOD and used in the military service of the United States, qualify as auxiliary
aircraft if they are designated as State aircraft by the United States. In those circumstances they too enjoy
sovereign immunity from foreign search and inspection. As a matter of policy, however, the United States normally
does not designate Air Mobility Command-charter aircraft as State aircraft.); Department of the Army, Office of
the Judge Advocate General, International and Operations Law: Payment of Fees Charged to State Aircraft, 21
THE REPORTER 19, 20 (June 1994) (The US government consistently has taken the position that Department of
Defense contract aircraft do not qualify as state aircraft unless the particular aircraft is specifically designated as
such by the US government. Although many SOFAs, base rights, and other agreements grant DoD contract aircraft
the same rights of access, exit, and freedom from landing fees and similar charges enjoyed by US military aircraft,
such agreements do not have the effect of declaring DoD contract aircraft to be military aircraft or any form of state
aircraft.).
57
Refer to 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).
58
Refer to 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).
59
Refer to 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); 14.5.2 (Diversion
of Aircraft).
909
necessary for an aircraft to constitute a military objective, the status of an aircraft as State aircraft
may also be an important factor in determining that an aircraft constitutes a military objective. 60
14.3.2 Nationality of Aircraft. State aircraft possess the nationality of the State that
operates them. Civil aircraft possess the nationality of the State in which they are registered. 61
The nationality of an aircraft may be important in assessing whether it constitutes an
enemy or neutral aircraft. 62
14.3.3 Status of Military Aircraft. Military aircraft may be understood as aircraft that are
designated as such by a State that operates them. The United States has not ratified a treaty that
requires certain qualifications before an aircraft may be designated as military aircraft.
In general, military aircraft are operated by commissioned units of the armed forces of a
State, bearing the military markings of that State, and commanded by a member of the armed
forces of that State.
In addition to combat aircraft such as fighters and bombers, other types of aircraft
operated by the armed forces of a State may also be designated as military aircraft, such as
transport, reconnaissance, and meteorological aircraft. Unmanned aircraft, i.e., aircraft that are
remotely piloted or controlled, may also be designated as military aircraft.
14.3.3.1 Military Aircraft Rights and Liabilities. Of all aircraft, only military
aircraft are entitled to engage in attacks in armed conflict. 63 Likewise, during armed conflict,
enemy military aircraft generally constitute military objectives and, thus, may be made the object
of attack, whether in the air or on the ground. 64 There may be exceptions to the general rule that
enemy military aircraft are liable to being made the object of attack, such as in the case of enemy
military medical aircraft or enemy military aircraft that have surrendered. 65
60
Refer to 14.8.3 (Attacks Against Civil Aircraft); 5.7 (Military Objectives).
61
1944 CHICAGO CONVENTION art. 17 (Aircraft have the nationality of the State in which they are registered.).
62
Refer to 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
63
See, e.g., 2013 GERMAN MANUAL 1103 (Only military aircraft are entitled to exercise belligerent rights and use
military force in fighting military objectives of an adversary (14 13, 16 para.1).); 2006 AUSTRALIAN MANUAL 814 ([O]nly military aircraft can exercise the combat rights of a belligerent. Examples of such rights include
attacking military objectives and overflying enemy territory.); 2004 UK MANUAL 12.34 (Only military aircraft
may carry out attacks.); 2001 CANADIAN MANUAL 704(3) (Civil aircraft and state aircraft that are not military
aircraft (for example, police or customs officials) may not engage in hostilities ... .); 1976 AIR FORCE PAMPHLET
110-31 2-6d (Only military aircraft may exercise such rights of belligerents as attacking and destroying military
objectives or transporting troops in the adversarys national airspace or behind its lines.). Consider Commission of
Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Arial
Warfare, art. 16, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 19 (1938) (No
aircraft other than a belligerent military aircraft shall engage in hostilities in any form.).
64
Refer to 5.7.4.1 (Military Equipment and Bases).
65
Refer to 7.14 (Military Medical Aircraft); 14.8.2 (Protection of Persons Who Surrender or Who Are Otherwise
Hors De Combat on Board Enemy Aircraft).
910
Belligerent military aircraft generally may not enter neutral airspace. 66

As State aircraft, military aircraft, like warships, are customarily accorded certain
privileges and immunities by friendly foreign States. 67
14.3.3.2 Military Aircraft Markings. Military aircraft are customarily marked to
signify both their nationality and military character. 68 Markings may help distinguish friend
from foe and help preclude misidentification of aircraft as neutral or as civil. 69 However,
circumstances may exist where such markings are superfluous. 70
A single marking may be used to signify both an aircrafts nationality and its military
character. 71
66
Refer to 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).
67
DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), 4 (Dec. 28, 2009) (b. Consistent with
U.S. Government policy, DoD aircraft shall not be subject to air navigation, overflight, or similar fees for transit
through the national airspace of another country or through Flight Information Regions in international airspace.
This policy is based upon the unique status of state aircraft, including U.S. military aircraft, in international law as
instruments of a sovereign, and is consistent with international custom and practice. c. DoD aircraft shall not be
subject to search, seizure, and inspection (including customs, safety, and agriculture inspections) or any other
exercise of jurisdiction by a foreign government over such aircraft, or the personnel, equipment, or cargo on board.
DoD aircraft commanders shall not consent to the exercise of jurisdiction by foreign government authorities over
U.S. military aircraft, except at the direction of the appropriate DoD Component headquarters.). Consider
Convention Relating to the Regulation of Aerial Navigation, art. 32, Oct. 13, 1919, 11 LNTS 173, 195 (No military
aircraft of a contracting State shall fly over the territory of another contracting State nor land thereon without special
authorisation. In case of such authorisation the military aircraft shall enjoy, in principle, in the absence of special
stipulation, the privileges which are customarily accorded to foreign ships of war. A military aircraft which is
forced to land or which is requested or summoned to land shall by reason thereof acquire no right to the privileges
referred to in the above paragraph.); John Cobb Cooper, A Study on the Legal Status of Aircraft, in IVAN A.
VLASIC, EXPLORATIONS IN AEROSPACE LAW 205, 243 (1968) (It is felt that the rule stated in the Paris Convention
that aircraft engaged in military services should, in the absence of stipulation to the contrary, be given the privileges
of foreign warships when in national port is sound and may be considered as still part of international air law even
though not restated in the Chicago Convention.).
68
Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Arial Warfare, art. 3, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL
DOCUMENTS 12, 13 (1938) (A military aircraft shall bear an external mark indicating its nationality and military
character.).
69
For example, SPAIGHT, AIR POWER AND WAR RIGHTS 82 (Again and again one finds the fighting airmen of
1914-18 stating in their memoirs or diaries that they have been saved from attacking a friend or have been put on
guard against a foe by seeing the distinguishing marks on the wings of the machines.).
70
1976 AIR FORCE PAMPHLET 110-31 7-4 (Military aircraft, as entities of combat in aerial warfare, are also
required to be marked with appropriate signs of their nationality and military character. However, circumstances
may exist where such markings are superfluous and are not required. An example is when no other aircraft except
those belonging to a single state are flown. Such markings serve to distinguish friend from foe and serve to preclude
misidentification as neutral or civilian aircraft. Accordingly, military aircraft may not bear markings of the enemy
or markings of neutral aircraft while engaging in combat. Combatant markings should be prominently affixed to the
exterior aircraft surfaces and be recognizable at a reasonable distance from any direction.).
71
For example, 2004 UK MANUAL 12.10.4 (In most air forces, the same marking indicates both nationality and
military character, for example, the Royal Air Force roundel.).
911
14.3.3.3 Military Aircraft Command and Crew. Military aircraft are

commanded by members of the armed forces of that State. 72 The crew, however, may include
civilian members, and such personnel are expressly entitled to POW status under the GPW. 73
14.4 STATUS OF AIRCREW ON MILITARY AIRCRAFT
14.4.1 Military Aircrew. Aircrew who are members of the armed forces of a State have
the rights, duties, and liabilities of combatants. 74 For example, they are entitled to POW status if
they fall into the power of the enemy during international armed conflict, and they have legal
immunity from domestic law for acts done under military authority and in accordance with the
law of war.
14.4.1.1 Wearing of Uniform by Military Aircrew. Military aircrew are required
to distinguish themselves from the civilian population in the same manner as other combatants. 75
The wearing of flying clothing distinctive to the armed forces satisfies this requirement. In
particular, military aircrew should wear military uniforms (including distinctive flying clothing)
in case they become separated from the aircraft. 76
14.4.2 Civilian Members of Military Aircrew and Other Persons Authorized to
Accompany the Armed Forces. Civilian members of military aircrew fall into the category of
persons authorized to accompany the armed forces. 77 Other civilians who are present on military
aircraft or who support the operations of military aircraft may also fall into the category of
persons authorized to accompany the armed forces, provided they have received such
authorization.
As persons authorized to accompany the armed forces, civilian members of military
aircrews are entitled to POW status if they fall into the power of the enemy during international
armed conflict, and they have legal immunity from the enemys domestic law for providing
authorized support services to the armed forces. Civilians who work in or on military objectives,
such as military aircraft, assume the risk of harm from attacks against military objectives. 78
72
DOCUMENTS 12, 18 (1938) (A military aircraft shall be under the command of a person duly commissioned or
enlisted in the military service of the state;).
73
Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).
74
Refer to 4.5 (Armed Forces of a State); 4.4 (Rights, Duties, and Liabilities of Combatants).
75
Refer to 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to
Distinguish Themselves From the Civilian Population).
76
DOCUMENTS 12, 18 (1938) (Members of the crew of a military aircraft shall wear a fixed distinctive emblem of
such character as to be recognizable at a distance in case they become separated from their aircraft.).
77
Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).
78
Refer to 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives).
912
14.4.3 Downed Aircrew. There are a number of law of war issues related to downed
aircrew.
14.4.3.1 Protection of Aircrew While Parachuting From an Aircraft in Distress.
In general, aircrew parachuting from an aircraft in distress are treated as though they are hors de
combat, i.e., they must not be made the object of attack. 79 Aircrew parachuting from an aircraft
in distress who engage in hostile acts or attempt to evade capture, either while descending or
after reaching the ground, forfeit any protection from being made the object of attack. 80
14.4.3.2 Protection of Downed Aircrew at Sea. Downed aircrew at sea are
generally to be regarded as shipwrecked, as the definition of shipwrecked includes forced
landings at sea by or from aircraft. 81 As shipwrecked persons, they must not be made the object
of attack, and there are obligations to search for and collect them. 82
14.4.3.3 Rescue of Downed Aircrew. The rescue of downed aircrew to prevent
their capture by the adversary is generally regarded as a combat activity that enemy military
forces may legitimately oppose. 83 Medical personnel, ships, or aircraft engaged in the rescue of
downed aircrew must not hamper or interfere with the efforts of opposing military forces to
capture downed aircrew or they will forfeit protection from being made the object of attack as a
result. 84
The United States has understood the prohibition against the use of riot control agents as
a method of warfare not to prohibit the use of riot control agents to rescue downed aircrew in
certain circumstances. 85
14.4.3.4 Downed Aircrew Evasion From, and Capture by, the Enemy. Downed
aircrew may use enemy uniforms to evade capture by the enemy, but, in some cases, such use
may risk liability to treatment as a spy. 86 Likewise, downed aircrew may use civilian clothes to
evade capture by the enemy. 87
79
Refer to 5.10.5 (Persons Parachuting From an Aircraft in Distress).
80
Refer to 5.10.5.1 (No Hostile Acts or Attempts to Evade Capture).
81
Refer to 7.3.1.2 (Shipwrecked).
82
Refer to 7.3.3 (Meaning of Respect and Protection of the Wounded, Sick, and Shipwrecked); 7.4.1 (GWSSea Obligation Regarding the Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked,
and Dead).
83
2004 UK MANUAL 12.70.1 (The use of, for example, military assets to rescue aircrew who have been downed
on territory under the control of the enemy is a combat activity. It is therefore legitimate for an enemy in such
circumstances to attack the rescuers or by some other means to impede or prevent the rescue activity.).
84
Refer to 4.9.2.3 (Exclusively Engaged in Humanitarian Duties); 7.12.2.3 (No Hampering the Movement of
Combatants ); 7.14.2.2 (Search, Rescue, or Other Recovery Excluded).
85
Refer to 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).
86
Refer to 5.23.1.4 (Use of Enemy Uniforms to Evade Capture or Escape).
87
Refer to 5.25.3 (Examples of Other Deceptions That Are Not Prohibited). Compare 9.25.2.2 (Only
Disciplinary Punishments in Respect of an Act of Escape).
913
If downed aircrew fall into the power of the enemy during international armed conflict,
they are entitled to POW status. 88 Downed aircrew remain entitled to POW status even if they
unsuccessfully attempt to escape capture by enemy forces or if they attack enemy forces upon
reaching the ground. As POWs, downed aircrew are entitled to protection from violence from
the civilian population and others. 89
14.4.3.5 Downed Aircrew in Neutral Territory. Military aircrew forced to land in
neutral territory due to navigational failure, combat damage, mechanical failure, or other
emergencies are subject to internment by the neutral State for the duration of the conflict. 90
14.5 MEASURES SHORT OF ATTACK: INTERCEPTION, DIVERSION, AND CAPTURE
14.5.1 Interception. During armed conflict, a party may choose to intercept an aircraft
through a variety of ways, including closing to visual range or to a distance where the target
aircraft is within the range of weapons systems. Interception of civil aircraft that are not military
objectives should be exercised with due regard for the safety of such aircraft. 91
14.5.1.1 Purposes for Conducting Interception. Interception may have a variety
of purposes, including, for example:
to assist in the obligation to distinguish between military objectives and civilian objects
and the obligation to protect the civilian population, 92 such as by
o warning a civil aircraft to refrain from entering an area of active operations; or
o helping identify whether the aircraft constitutes a military objective;
as part of the belligerent right of visit and search, including the belligerent right to
enforce a blockade, 93 such as by
o facilitating identification of an aircraft (e.g., enemy or neutral);
o forcing an aircraft to divert and land at a specific airfield for search or capture; or
to be in a position to attack the aircraft.
14.5.1.2 Airspace Where Interception May Be Conducted. As a general rule,

belligerent military aircraft may not intercept aircraft in neutral airspace. 94
88
Refer to 9.3 (POW Status).
89
Refer to 9.5.2.2 (Protection Against Violence by the Civilian Population or Others).
90
Refer to 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).
91
Refer to 14.1.1.4 (Due Regard for the Safety of Navigation of Civil Aircraft).
92
Refer to 2.5 (Distinction).
93
Refer to 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).
94
Refer to 15.10 (Neutral Airspace).
914
In addition, interception may not be conducted during passage through neutral

international straits or neutral archipelagic sea lanes. 95
14.5.2 Diversion of Aircraft. Diversion and search of civil aircraft may be conducted
outside neutral airspace as part of the belligerent right of visit and search (e.g., to help determine
whether aircraft are liable to capture for carriage of contraband or for breach of blockade). 96
Interference with civil aircraft of neutral States must be justified by military necessity.
If, upon interception outside of neutral airspace, reasonable grounds exist for suspecting
that the intercepted civil aircraft, its cargo, or its personnel are liable to capture, 97 then it may be
directed to proceed to a belligerent airfield that is both reasonably accessible and suitable for the
type of aircraft involved for visit and search. 98 Should such an airfield not be available, the
intercepted civil aircraft may be diverted from its declared destination. 99
Certain aircraft are exempt from the belligerent right to divert aircraft for purposes of
visit and search: (1) neutral military aircraft; and (2) neutral civil aircraft accompanied by
neutral military aircraft of the same nationality. 100
14.5.2.1 Failure to Comply by Civil Aircraft. An enemy civil aircraft that
persistently fails to comply with military instructions becomes a military objective subject to
attack. 101
Failure to comply with military instructions from intercepting aircraft does not in itself
render a neutral or non-belligerent civil aircraft a military objective. However, it may provide
strong evidence that the civil aircraft is in fact being used for a military or hostile purpose.
14.5.3 Capture of Aircraft and Goods on Board Aircraft. Enemy civil aircraft and goods
on board such aircraft may be captured outside neutral airspace. 102
95
Refer to 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
96
Refer to 15.13.4.3 (Visit and Search of Civil Aircraft by Military Aircraft).
97
Refer to 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).
98
DOCUMENTS 12, 44 (1938) (Belligerent military aircraft have the right to order public non-military and private
aircraft to alight in or proceed for visit and search to a suitable locality reasonably accessible. Refusal, after
warning, to obey such orders to alight or to proceed to such a locality for examination exposes an aircraft to the risk
of being fired upon.).
99
2007 NWP 1-14M 7.6.3 (If, upon interception outside of neutral airspace, reasonable grounds exist for
suspecting that the intercepted civilian aircraft is carrying contraband cargo or that, despite its neutral markings, it is,
in fact, enemy, it may be directed to proceed for visit and search to a belligerent airfield that is both reasonably
accessible and suitable for the type of aircraft involved. Should such an airfield not be available, the intercepted
civilian aircraft may be diverted from its declared destination.).
100
Refer to 15.13.2 (Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search).
101
Refer to 14.8.3.2 (Forfeiture of Protection From Being Made the Object of Attack During Armed Conflict).
915
Any enemy State aircraft (including military, law enforcement, and customs aircraft), as
public movable property, is subject to capture as war booty with ownership passing immediately
to the captor government. 103 Similarly, prize procedure is not used for captured enemy
warships. 104
Neutral civil aircraft engaged in certain activity in violation of their neutral status are
liable to capture. 105 Even if not liable to capture, neutral civil aircraft are subject to visit and
search. 106
14.6 BELLIGERENT CONTROL OF AVIATION IN THE IMMEDIATE VICINITY OF HOSTILITIES
Belligerents may prohibit or establish special restrictions upon flight activities in the
immediate vicinity of hostilities to prevent such activities from jeopardizing military operations.
In some cases, this right may be distinct from a belligerent States right to establish airspace
zones during armed conflict. 107
As with the belligerent right to control the immediate area of naval operations, this right
is based on a belligerent States right to ensure the security of its forces and its right to conduct
hostilities without interference from neutrals. 108 However, belligerent control of aviation in the
immediate vicinity of hostilities may be applicable in the national airspace of belligerents. 109
14.7 AIRSPACE ZONES
During armed conflict, States may establish airspace zones and associated procedures
intended to prohibit aircraft from entering or flying in designated areas, including areas in
102
DOCUMENTS 12, 40 (1938) (Private aircraft are liable to visit and search and to capture by belligerent military
aircraft.); Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
DOCUMENTS 12, 45 (1938) (Enemy private aircraft are liable to capture in all circumstances.).
103
Refer to 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)). Consider Commission of Jurists to
Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Arial Warfare,
art. 32, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 30 (1938) (Enemy public
aircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize
proceedings.); Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the
HPCR Manual on International Law Applicable to Air and Missile Warfare, 275 (U.I.136(a)) (2010) (Enemy
military, law-enforcement and customs aircraft are booty of war. Prize procedures do not apply to captured enemy
military aircraft and other State aircraft, inasmuch as their ownership immediately passes to the captor government
by virtue of capture.).
104
Refer to 13.4.3 (Captured Enemy Warships No Prize Procedure).
105
Refer to 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).
106
Refer to 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).
107
Refer to 14.7 (Airspace Zones).
108
Refer to 13.8 (Belligerent Control of the Immediate Area of Naval Operations).
109
Refer to 14.2.1.1 (National Airspace).
916
international airspace. Such zones may be established for a variety of purposes, including to
decrease the risk of inadvertent attack of civil or neutral aircraft, to control the scope of the
conflict, or to enhance the predictability and effectiveness of ongoing operations.
The legal rules that apply to the establishment and enforcement of a zone are discussed in
connection with the establishment and enforcement of maritime zones. 110
In some cases, such as with Air Defense Identification Zones, the zone may be
established during peacetime. 111
14.8 ATTACKS AGAINST MILITARY OBJECTIVES IN THE AIR
The general rules on conducting attacks also apply to attacks against military objectives
in the air. 112 In general, enemy military aircraft may be made the object of attack.
14.8.1 Medical Aircraft. Specific rules found in the 1949 Geneva Conventions address
the protection of aircraft that are engaged exclusively in specified medical functions. 113
14.8.2 Protection of Persons Who Surrender or Who Are Otherwise Hors De Combat on
Board Enemy Aircraft. The general rules on the protection of persons who are hors de combat
(such as those who have been incapacitated and those who have effectively surrendered) also
apply to persons on board enemy aircraft. 114
Although the capture of enemy military aircraft and aircrew may be of significant
intelligence value, there are often significant practical obstacles to identifying when persons on
board an aircraft are hors de combat and to accepting their surrender. Despite these practical
difficulties, if surrender is offered in good faith and circumstances do not preclude enforcement,
then surrender must be respected. 115 Persons who are conducting attacks against enemy military
aircraft must assess in good faith whether surrender is offered in good faith and can feasibly be
accepted based on the information that is available to them at the time. 116
14.8.2.1 Difficulty in Identifying Persons on Board Aircraft as Hors De Combat.
As a practical matter, it may be quite difficult to establish that persons on board enemy aircraft
are hors de combat and may no longer be made the object of attack.
First, it is very difficult, if not impossible, to assess whether the enemy aircraft has
actually been disabled and does not pose any threat. For example, aircraft may feign symptoms
110
Refer to 13.9 (Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and Safety).
111
Refer to 14.2.4 (Air Defense Identification Zone (ADIZ)).
112
Refer to 5.5.2 (Overview of Rules in Conducting Attacks).
113
Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft).
114
Refer to 5.10 (Persons Placed Hors de Combat).
115
1976 AIR FORCE PAMPHLET 110-31 4-2d (If surrender is offered in good faith so that circumstances do not
preclude enforcement, then surrender must be respected.).
116
Refer to 5.4.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).
917
of distress to evade enemy attacks. 117 Moreover, even if an aircraft has been disabled in some
respects, the aircraft may not have lost its means of combat, and weapons on board the aircraft
may still pose a threat.
As a practical matter, it may also be difficult for the pilot of an attacking aircraft to know
when an adversary is attempting to surrender or has surrendered. Broadcasting on the
international GUARD frequency (aircraft emergency frequency), rocking the aircrafts wings,
lowering the landing gear, and other signals (such as the flashing of navigational lights) are
sometimes cited as indications of a pilot or aircrews desire to surrender, but they are not
recognized in law as signals of surrender. Consequently, absent an explicit message of offering
surrender, an intention to surrender cannot be presumed from the conduct of the aircraft.
14.8.2.2 Feasibility of Accepting Surrender by Enemy Aircraft. In many
circumstances, it may not be feasible to accept the surrender of enemy aircraft. 118 For example,
it may not be possible to enforce surrender when the engagement takes place over enemy
territory. 119
14.8.3 Attacks Against Civil Aircraft. During armed conflict, civil aircraft are generally
considered civilian objects, but may be made the object of attack, outside neutral territory, if they
constitute a military objective.
14.8.3.1 Protection of Civil Aircraft in Peacetime. Under customary international
law applicable during peacetime, States have an obligation to refrain from resorting to the use of
weapons against civil aircraft in flight. 120 However, this obligation does not modify in any way
117
Refer to 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).
118
1976 AIR FORCE PAMPHLET 110-31 4-2d (Surrenders in air combat are generally not offered. If surrender is
offered, usually no way exists to enforce the surrender.).
119
2004 UK MANUAL 12.64 (Although it is forbidden to kill or wound an enemy who, having laid down his arms,
or having no longer means of defence, has surrendered at discretion in air-to-air combat, surrender is usually
impracticable and occurs very infrequently.); 2004 UK MANUAL 12.64.1 (In the special circumstances of air-toair combat the continuation of an attack after an indication by the opponent of a wish to surrender is not inconsistent
with the rule in paragraph 12.64, as the enemy pilot who remains in his aircraft cannot be said to have laid down his
arms or to have no longer a means of defence. However, if the surrender is offered in good faith and in
circumstances that do not prevent enforcement, for example, when the engagement has not taken place over enemy
territory, it must be respected and accepted.).
120
See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down
Civil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 14950 ([T]he United States argued that the Soviet Union had violated both Article 3(d) and customary international
legal norms in shooting down KAL 007. We understand that the United States has not yet ratified Article 3 bis.
There is, however, support for the view that the principle it announced is declaratory of customary international
law.); U.N. SECURITY COUNCIL RESOLUTION 1067, U.N. Doc. S/RES/1067 (1996) (6. Condemns the use of
weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rules
of customary international law as codified in article 3 bis of the Chicago Convention, .). Consider Protocol
Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), May 10, 1984, 2122
UNTS 346-47 (The contracting States recognize that every State must refrain from resorting to the use of weapons
against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft
must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations
of States set forth in the Charter of the United Nations.).
918
the rights and obligations of States set forth in the Charter of the United Nations. 121 Thus, a
States use of force against civil aircraft in the exercise of the inherent right of self-defense
would be permitted.
14.8.3.2 Forfeiture of Protection From Being Made the Object of Attack During
Armed Conflict. Civil aircraft may be made the object of attack, outside neutral territory, if the
aircraft constitutes a military objective. 122
In particular, civil aircraft forfeit any protection from being made the object of attack if
they acquire the character of enemy military aircraft by:
taking a direct part in the hostilities on the side of the enemy; or
acting in any capacity as a naval or military auxiliary to the enemys armed forces. 123
In addition, enemy civil aircraft forfeit protection from being made the object of
attack:
124
when persistently refusing to comply with directions from intercepting aircraft; 125
when flying under convoy of enemy warships or military aircraft;
when armed with systems or weapons beyond that required for self-defense against
terrorism, piracy, or like threats;
when incorporated into or assisting the enemys military intelligence system; 126 or
121
Consider Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis),
May 10, 1984, 2122 UNTS 346-47 (The contracting States recognize that every State must refrain from resorting to
the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and
the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the
rights and obligations of States set forth in the Charter of the United Nations.) (emphasis added). Compare
13.1.1 (The Law of the Sea During Armed Conflict).
122
Refer to 5.7 (Military Objectives).
123
Refer to 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).
124
2007 NWP 1-14M 8.8 (Enemy merchant vessels and civil aircraft may be attacked and destroyed by military
aircraft only under the following circumstances: 1. When persistently refusing to comply with directions from the
intercepting aircraft 2. When sailing under convoy of enemy warships or military aircraft 3. When armed with
systems or weapons beyond that required for self-defense against terrorism, piracy, or like threats 4. When
incorporated into or assisting in any way the enemys military intelligence system 5. When acting in any capacity as
a naval or military auxiliary to an enemys armed forces 6. When otherwise integrated into the enemys war-fighting
or war-sustaining effort.); 1989 NWP 9 8.4 (Enemy merchant vessels and civil aircraft may be attacked and
destroyed by military aircraft only under the following circumstances: 1. When refusing to comply with directions
from the intercepting aircraft 2. When assisting in any way the enemys military intelligence system or acting in any
capacity as auxiliaries to the enemys armed forces 3. When sailing under convoy of enemy warships, escorted by
enemy military aircraft, or armed 4. When otherwise integrated into the enemys war-fighting or war-sustaining
effort.).
125
Refer to 14.5.2.1 (Failure to Comply by Civil Aircraft).
919
when otherwise integrated into the enemys war-fighting or war-sustaining effort.
14.8.3.3 Attack of Civilian Passenger Aircraft. If a civilian passenger aircraft

constitutes a military objective and thus is liable to attack, any attack must comply with other
applicable rules related to attacks. 127
In particular, attacks against civilian passenger aircraft engaged in passenger service must
comply with the requirement that the expected loss of life or injury to civilians, and damage to
civilian objects incidental to the attack, must not be excessive in relation to the concrete and
direct military advantage expected to be gained. 128
14.9 AIR ATTACKS AGAINST MILITARY OBJECTIVES ON THE GROUND
The general rules on conducting attacks also apply to air attacks against military
objectives on the ground. 129
14.9.1 Prohibition Against Bombardment of Undefended Cities, Towns, and Villages.
The aerial bombardment of towns, villages, dwellings, or buildings that are undefended is
prohibited. 130 The phrase by whatever means was inserted in the Hague IV Regulations to
clarify that bombing attacks by air were included in this rule. 131
An undefended city, town, or village in this sense is a term of art. For example, a city
may only be declared undefended if it is open for immediate physical occupation by opposing
military ground forces. 132
14.9.2 Selection of Weapons in Conducting Attacks From the Air Against Ground
Military Objectives. It may be the case that commanders will have a variety of weapons with
which to conduct a potential aerial bombardment.
Certain weapons are prohibited per se, and it is specifically provided that feasible
precautions be taken in connection with certain weapons. 133 It must be emphasized, however,
that the selection of the appropriate weapon for conducting an aerial bombardment remains
primarily a military judgment rather than a legal one. In particular, there is no law of war
126
Report, Part I: Rules for the Control of Radio in Time of War, art. 6, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (1. The transmission by radio by a vessel or an aircraft, whether
enemy or neutral, when on or over the high seas of military intelligence for the immediate use of a belligerent is to
be deemed a hostile act and will render the vessel or aircraft liable to be fired upon.).
127
Refer to 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks).
128
Refer to 5.12 (Proportionality in Conducting Attacks).
129
Refer to 5.5.2 (Overview of Rules in Conducting Attacks).
130
Refer to 5.15 (Undefended Cities, Towns, and Villages).
131
Refer to 5.15.2 (By Whatever Means).
132
Refer to 5.15.3 (Declaration of a City as Undefended).
133
Refer to 6.4 (Prohibited Weapons); 5.3.3.3 (Requirements to Take Precautions Regarding Specific Weapons).
920
requirement to use precision-guided weapons when non-precision-guided weapons may be used

in compliance with the law of war. 134
Commanders have a general obligation to take feasible precautions in conducting attacks
in order to reduce the risk of harm to the civilian population. 135 The selection of weapons may
be among the available precautions that a commander could take in order to reduce the risk of
harm to the civilian population.
14.9.3 Protection of Enemy Ground Forces Who Are Hors de Combat. When aircrew or
aircraft operators assess that an enemy combatant has been placed hors de combat, they must
refrain from making such persons the object of attack. 136
In order to place a person hors de combat, the persons surrender must be (1) genuine; (2)
clear and unconditional; and (3) under circumstances where it is feasible for the opposing party
to accept the surrender. 137
In many cases, it would not be feasible for a party that is conducting air operations to
accept the surrender of an enemy person. In some cases, however, it may be appropriate, in
order to facilitate such surrender, to communicate steps for enemy units to take to communicate
clearly their intention to surrender. 138
14.9.3.1 Difficulty in Identifying Persons Placed Hors De Combat. The
identification by aircraft of an enemy combatant on the ground placed hors de combat may pose
a particular challenge. It may be difficult for aircrew or aircraft operators to determine whether
an enemy combatant is dead, injured, merely taking cover, or feigning injury or surrender to
avoid attack. 139 On the other hand, it may be difficult for enemy combatants on the ground to
134
Refer to 5.11.3 (Selecting Weapons (Weaponeering)).
135
Refer to 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
136
Refer to 5.10 (Persons Placed Hors de Combat).
137
Refer to 5.10.3 (Persons Who Have Surrendered).
138
Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 561,
566-67 (2003) (In August 2002, I met with Commander Kenneth ORourke, the Chief of Operational Law at
CENTCOM, and Lieutenant Commander Gregory Bart, the Special Operations Command Central (SOCCENT)
Staff Judge Advocate to develop legally supportable concepts that would achieve the commanders intent to either
have Iraqi units assist Coalition forces or indicate a desire not to fight and remain in place, preferably in their
barracks. Consequently, we sketched an outline for an operational plan to encourage units to capitulate.
Coalition forces would contact Iraqi units through various means including leaflet drops, radio broadcasts, and
surrogates who would inform the commander of his opportunity to surrender with honor and preserve his unit. Iraqi
units would receive these messages shortly before the air campaign started to give them time to perform the required
actions, but not so much time that they would be subject to regime reprisals. If the unit performed certain
observable actions, such as forming their vehicles in a square, then Special Forces would approach the unit and offer
articles of capitulation for the surrender of the unit.).
139
See SPAIGHT, AIR POWER AND WAR RIGHTS 132 (In the second world war also there were one or two instances
in which ground forces showed the white flag to aircraft. Other circumstances are conceivable in which there
could be no assurance that the display of a white flag was not a ruse to enable the enemy troops to escape after the
immediate danger was past. In such circumstances it could he [sic] held that the airmen were under no obligation to
discontinue their attack.).
921
communicate clearly to aircraft that they wish genuinely to surrender unconditionally or that they
have been incapacitated.
Aircrew or aircraft operators must assess in good faith whether persons have been placed
hors de combat based on the information that is available to them at the time. 140
14.9.3.2 Feasibility of Air Units to Accept the Surrender of Ground Forces. For a
communication of surrender to place a person hors de combat, the person must make the
surrender under circumstances where it is feasible for the opposing party to accept the
surrender. 141 For example, it must be possible for the opposing party to take that person into
custody. 142
In many cases, it would not be feasible for the aircraft to land and take the person into
custody or for nearby ground forces to take the person into custody. 143
14.10 INTERNATIONAL LAW AND WARFARE IN OUTER SPACE
14.10.1 Classification of Outer Space. Outer space is governed by a separate legal
regime than that for airspace. 144
140
Refer to 5.4.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).
141
Refer to 5.10.3.3 (Under Circumstances in Which It Is Feasible to Accept).
142
For example, FINAL REPORT ON THE PERSIAN GULF WAR 381 (During this attack, the two companies of 3/1
Attack Helicopter Battalion encountered minimal resistance in the form of T-55 tanks and BMPs, which they
destroyed. The surprising aspect of this operation was that it was the first of many instances where hundreds of Iraqi
soldiers ran out of their bunkers and attempted to surrender after seeing Army helicopters in their midst. Without
the means to hold them, the aeroscout pilots played cowboys to the herd of Iraqi soldiers, hovering them into a
tight circle until the lead ground elements of the Division's 1st Brigade arrived and secured them.); FINAL REPORT
ON THE PERSIAN GULF WAR 212 (In addition to direct support of NGFS missions, UAVs also were used to gather
intelligence on Faylaka Island when national sensors were not available and weather prevented aircraft
reconnaissance. Over Faylaka Island, USS Wisconsins UAV recorded hundreds of Iraqi soldiers waving white flags
the first-ever surrender of enemy troops to an unmanned aircraft. After the cease-fire, UAVs monitored the
coastline and outlying islands in reconnaissance support of occupying Coalition forces. Because UAVs were under
direct tactical control of combat forces, they could respond quickly in dynamic situations. On one occasion, USS
Wisconsins UAV located two Iraqi patrol boats, which were sunk by aircraft directed to investigate.).
143
For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERALS LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (3.
Facts: An armed soldier sees you and throws his hands up to surrender. Response: Take the soldier prisoner, and
treat as an EPW. (Note: aircraft are not in the position to accept surrender, in the foregoing scenario, a 101st ABD
aircraft could fire upon the enemy soldier).); SPAIGHT, AIR POWER AND WAR RIGHTS 131-32 (Usually it is
impossible for attacking airmen to take ground troops prisoners, and such a situation as that described by Lieut.-Col.
Tennant as arising in Iraq in February, 1917, is probably more typical and normal than the cases quoted above.
Lieut.-Col. Tennant describes how in the Turkish retreat towards Azizieh, after the forcing by General Maudes
army of the Shumran Bend in the Tigris on 23 February, 1917, many of the waggons had hoisted the white flag,
while some of the flying Turks waved in token of surrender, when the British aeroplanes attacked them with
machine-guns. Flying along about 10 feet from the road I mowed down seven with one burst of machine-gun fire.
In such circumstances it is impossible to recognise the white flag. To try to do so would be to sacrifice the
advantage of the destruction of a routed and demoralised foe.).
144
Refer to 14.2.2 (Vertical Boundary Between Airspace and Outer Space).
922
Outer space may be viewed as analogous to the high seas in certain respects. 145 For
example, no State may claim sovereignty over outer space. 146 In addition, the space systems of
all nations have rights of passage through space without interference. 147
14.10.2 Application of International Law to Activities in Space.
14.10.2.1 Treaties Specifically Addressing Space Activities. The United States is
a Party to certain treaties that address space activities. The Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies (Outer Space Treaty), imposes restrictions on certain military operations in
outer space (i.e., it does not exempt military spacecraft or military space activities from its
purview). 148 The Outer Space Treaty provides for State responsibility for the activities of nongovernmental entities in outer space, including the moon and other celestial bodies. 149
Other treaties that specifically address space activities include:
Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of
Objects Launched into Outer Space; 150
Convention on International Liability for Damage Caused by Space Objects; 151 and
Convention on Registration of Objects Launched into Outer Space. 152
145
Arthur J. Goldberg, U.S. Ambassador to the United Nations, Treaty on Outer Space: Hearings Before the
Committee on Foreign Relations, U.S. Senate, 90th Congress, First Session, 63 (Mar. 13, 1967) (This is an attempt,
once we leave airspace, and get to outer space, however you define the limits, this is an attempt to create in outer
space the closest analogy and that is the high seas.).
146
OUTER SPACE TREATY art. II (Outer space, including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.).
147
See, e.g., OUTER SPACE TREATY art. I (Outer space, including the moon and other celestial bodies, shall be free
for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance
with international law, and there shall be free access to all areas of celestial bodies.); National Space Policy of the
United States of America, 3 (Jun. 28, 2010) (The United States considers the space systems of all nations to have
the rights of passage through, and conduct of operations in, space without interference. Purposeful interference with
space systems, including supporting infrastructure, will be considered an infringement of a nations rights.);
Presidential Directive/NSC-37, National Space Policy, 1.d (May 11, 1978) (The space systems of any nation are
national property and have the right of passage through and operations in space without interference. Purposeful
interference with operational space systems shall be viewed as an infringement upon sovereign rights.).
148
Refer to 14.10.3 (Outer Space Treaty Restrictions on Military Activities).
149
OUTER SPACE TREATY art. VI (States Parties to the Treaty shall bear international responsibility for national
activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by
governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in
conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer
space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the
appropriate State Party to the Treaty.).
150
Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into
Outer Space, Apr. 22, 1968, 672 UNTS 119.
151
Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 UNTS 187.
923
Certain provisions of these treaties may not be applicable as between belligerents during
international armed conflict. 153
14.10.2.2 Application of General International Law to Activities and Use of Outer
Space. The Outer Space Treaty reaffirms the duty of States Parties to comply with existing
international law in carrying out activities in outer space. Article III of the Outer Space Treaty
provides that States Parties to the Treaty shall carry on activities in the exploration and use of
outer space, including the moon and other celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of maintaining international peace and
security and promoting international cooperation and understanding. 154
Although existing international law, such as the Charter of the United Nations, generally
applies to States Parties activities in outer space, international law that prescribes certain
conditions for national claims of sovereignty does not apply to outer space because outer space is
not subject to national appropriation. 155
Certain treaties apply only in certain geographical locations (such as a States own
territory), and thus might not create obligations applicable to a States activities in outer space.
However, law of war treaties and the customary law of war are understood to regulate the
conduct of hostilities, regardless of where they are conducted, which would include the conduct
of hostilities in outer space. In this way, the application of the law of war to activities in outer
152
Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 1023 UNTS 15.
153
Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in
Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW
STUDIES 459, 494 (2002) (During an international armed conflict between the two nations concerned, however, the
law of armed conflict would apply unless it was trumped by the principle of noninterference with space systems.
Resolution of this issue depends largely on whether the four space treaties will be considered to apply during an
armed conflict. None of them has any specific provision that indicates whether the parties intended that the
agreement apply in wartime. There appears to be a strong argument that the principle of noninterference established
by these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such high
military value that there is a strong military imperative for the adversary to be free to interfere with them, even to the
extent of destroying the satellites in the system. As indicated in the discussion of treaty law in the introduction to
this paper, the outcome of this debate may depend on the circumstances in which it first arises in practice.).
154
OUTER SPACE TREATY art. III. See also Staff Report prepared for the use of the Committee on Aeronautical and
Space Sciences, United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar.
1967) (This article makes clear that those nations which ratify the treaty will observe international lawand this
includes the Charter of the United Nationsin order to promote international cooperation and peace. Thus that
body of law, which has developed on the Earth in order to bring about harmonious relations between nations and
settle disputes without resort to violence, would become applicable to outer space, the Moon, and other celestial
bodies.).
155
Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate,
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar. 1967) (An exception would be
international law which provides certain conditions for national claims of sovereignty, this exception having been
set forth in Article II.); OUTER SPACE TREATY art. II (Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other
means.).
924
space is the same as its application to activities in other environments, such as the land, sea, air,
or cyber domains.
14.10.3 Outer Space Treaty Restrictions on Military Activities. The Outer Space Treaty
imposes restrictions on certain military operations in outer space.
Other treaties may also impose restrictions on military activities in outer space. For
example, the Treaty Banning Nuclear Testing in the Atmosphere, Oceans, and Outer Space
(Limited Test Ban Treaty) prohibits nuclear weapon test explosions in outer space. 156
14.10.3.1 Restriction on Nuclear Weapons and Other Kinds of Weapons of Mass
Destruction in Outer Space. Article IV of the Outer Space Treaty provides that States Parties to
the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons
or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or
station such weapons in outer space in any other manner. 157
The prohibition on placing weapons of mass destruction in orbit around the earth refers
only to their placement in full orbit around the Earth; thus, the Outer Space Treaty does not ban
the use of nuclear or other weapons of mass destruction that go into a fractional orbit or engage
in suborbital flight. 158 For example, intercontinental ballistic missiles (ICBMs) will travel a
portion of their trajectory in outer space; but because ICBMs would enter outer space only
temporarily, their entry into outer space with nuclear warheads would not violate this
prohibition. 159 By contrast, some arms control treaties have prohibited the production, testing, or
deployment of systems, including missiles, that place nuclear weapons or other weapons of mass
destruction into either full earth orbit or a fraction of an earth orbit. 160
156
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, art. 1, Aug. 5, 1963,
480 UNTS 43, 45 (Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any
nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in
the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas;).
157
OUTER SPACE TREATY art. IV (States Parties to the Treaty undertake not to place in orbit around the Earth any
objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on
celestial bodies, or station such weapons in outer space in any other manner.).
158
See I NANDASIRI JASENTULIYANA & ROY S. LEE, MANUAL ON SPACE LAW 13-14 (1979) (The phrase orbit
around the earth in the first paragraph of this Article means that an object must be placed in a full orbit around the
earth before it comes within the prohibition of the Treaty. Therefore an object in a fractional orbit or suborbital
flight is not intended to be covered. This was the clear intention of the drafters of this Article.).
159
Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate,
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies: Analysis and Background Data, 26 (Mar. 1967) (The treaty does not change the
earthly situation with regard to ICBMs, but seeks to achieve on celestial bodies a form of demilitarization which is
deemed feasible from military and political viewpoints.).
160
For example, Treaty Between the United States of America and the Union of Soviet Socialist Republics on the
Reduction and Limitation of Strategic Offensive Arms, Jul. 31, 1991, U.S.-USSR, Article V(18)(c), S. TREATY DOC.
NO. 102-20, which expired December 5, 2009.
925
In addition, this rule in Article IV of the Outer Space Treaty does not establish any
prohibitions with respect to weapons that are not weapons of mass destruction (e.g., anti-satellite
laser weapons or other conventional weapons). 161
14.10.3.2 Restrictions on Military Activities on the Moon and Other Celestial
Bodies. Article IV of the Outer Space Treaty places certain prohibitions on military activities on
the moon and other celestial bodies: (1) the establishment of military bases, installations, and
fortifications; and (2) the testing of any type of weapons; and (3) the conduct of military
maneuvers. 162
These activities are prohibited only on the moon and other celestial bodies, not in outer
space itself.
Article IV also recognizes the unimpeded right to: (1) the use of military personnel for
scientific research or other peaceful purposes on outer space missions; and (2) the use of any
equipment or facility necessary for the peaceful exploration of the moon and other celestial
bodies. 163
14.10.4 General Use of Outer Space for Peaceful Purposes. The United States has
expressed the view that outer space should be used only for peaceful purposes. 164 This view is
consistent with the Preamble to the Outer Space Treaty. 165
The United States has interpreted use of outer space for peaceful purposes to mean
non-aggressive and beneficial purposes consistent with the Charter of the United Nations and
161
David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons,
30 MICHIGAN JOURNAL OF INTERNATIONAL LAW 1187, 1198 (2009) (This provision does not impede the stationing
of non-nuclear weapons (including conventional ASAT weapons) in space, nor does it affect a nuclear weapon that
makes only a temporary transit of outer space, as when propelled by an intercontinental ballistic missile (ICBM)
toward its target, rather than being stationed in space.).
162
OUTER SPACE TREATY art. IV (The moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the
testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.).
163
OUTER SPACE TREATY art. IV (The use of military personnel for scientific research or for any other peaceful
purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the
moon and other celestial bodies shall also not be prohibited.).
164
See, e.g., National Space Policy of the United States of America 3 (Jun. 28, 2010) (All nations have the right to
explore and use space for peaceful purposes, and for the benefit of all humanity, in accordance with international
law. Consistent with this principle, peaceful purposes allows for space to be used for national and homeland
security activities.); Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th
Sess., 1289th Mtg., U.N. Doc. A/C.1/PV.1289 (1962) (It is the view of the United States that outer space should be
used only for peaceful that is non-aggressive and beneficial purposes. The question of military activities in
space cannot be divorced from the question of military activities on Earth. To banish these activities in both
environments we must continue our efforts for general and complete disarmament with adequate safeguards. Until
this is achieved, the test of any space activities must not be whether it is military or non-military, but whether or not
it is consistent with the United Nations Charter and other obligations of law.).
165
OUTER SPACE TREATY preamble (Recognizing the common interest of all mankind in the progress of the
exploration and use of outer space for peaceful purposes,).
926
other international law. 166 This interpretation of peaceful purposes is similar to the
interpretation given to the reservation of the high seas for peaceful purposes in the LOS
Convention. 167
For example, observation or information-gathering from satellites in space is not an act of
aggression under the Charter of the United Nations and, thus, would be a use of space for
peaceful purposes. 168 Similarly, lawful military activities in self-defense (e.g., missile early
warning, use of weapon systems) would be consistent with the use of space for peaceful
purposes, but aggressive activities that violate the Charter of the United Nations would not be
permissible. 169
Article IV of the Outer Space Treaty provides that [t]he moon and other celestial bodies
shall be used by all States Parties to the Treaty exclusively for peaceful purposes. 170 Article IV
specifies restrictions on military operations on the moon and other celestial bodies. 171
14.10.5 Outer Space Treaty Provisions on Cooperation, Mutual Assistance, and
Potentially Harmful Interference. Article IX of the Outer Space Treaty provides that in the
exploration and use of outer space, States Parties shall be guided by the principle of cooperation
and mutual assistance and shall conduct all their activities in outer space with due regard to the
166
Senator Albert Gore, Sr., Treaty on Outer Space: Hearings Before the Committee on Foreign Relations, U.S.
Senate, 90th Congress, First Session, 59 (Mar. 13, 1967) (We interpret peaceful purposes as being non-aggressive
and beneficial.). See also Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences,
United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 11 (Mar. 1967) (In
Russian, the word for military essentially means warlike rather than pertaining to the armed services of a country;
in the United States, peaceful is not regarded as the opposite of militarywe think of peaceful as not
aggressive.); CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 22 (1982) (The
expression peaceful purposes is a legal term of art. At the beginning of the Space age several views were
advanced as to its meaning, with one view being that military activities in the space environment could not be and
were not peaceful. The opposing position, which today has gained general acceptance, is that nonaggressive
military uses are peaceful. Thus, peaceful has come to mean general space activity that is beneficial to and in the
interests of all countries.).
167
Refer to 13.1.1 (The Law of the Sea During Armed Conflict).
168
See Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th Sess., 1289th
Mtg., U.N. Doc. A/C.1/PV.1289 13 (1962) ([A]ny nation may use space satellites for such purposes as observation
and information-gathering. Observation from space is consistent with international law, just as is observation from
the high seas.); Report by the Committee on Satellite Reconnaissance Policy, attached to Jul. 2, 1962 memorandum
from Secretary Rusk to President Kennedy, excerpted in XXV FOREIGN RELATIONS OF THE UNITED STATES (19611963), 951-59 (2001) ((b) It is well established that areas subject to the jurisdiction of a state may be observed from
points outside that jurisdiction, e.g., from a ship on the high seas. Observation from outer space, which is not
subject to territorial claims, also cannot be considered to constitute a violation of international law.).
169
CARL Q. CHRISTOL, THE INTERNATIONAL LAW OF OUTER SPACE 114 (1966) (It may be concluded that both
ballistic missiles, directly, and satellites, indirectly, have military utility. This does not automatically exclude them
from the category of peaceful uses, since defensive and deterrent capabilities serve the cause of peace. It is only
when such devices are intentionally used for aggressive purposes that they lose their peaceful status.).
170
OUTER SPACE TREATY art. IV (The moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes.).
171
Refer to 14.10.3.2 (Restrictions on Military Activities on the Moon and Other Celestial Bodies).
927
corresponding interests of all other States Parties. 172 For example, States should conduct their
activities in space with due regard for the rights of other States to have their space systems pass
through, and conduct operations in, space without interference.
Article IX of the Outer Space Treaty also requires States Parties to undertake
appropriate international consultations before proceeding with any activity or experiment
planned by it or its nationals in outer space if that State Party has reason to believe that its
activity or experiment would cause potentially harmful interference with the activities of other
States Parties in the peaceful exploration and use of outer space. 173 Conversely, a State Party
that has reason to believe that an activity or experiment planned by another State Party in outer
space would cause potentially harmful interference with its activities in the peaceful exploration
and use of outer space may request consultation concerning the activity or experiment. 174
172
OUTER SPACE TREATY art. IX (In the exploration and use of outer space, including the moon and other celestial
bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall
conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the
corresponding interests of all other States Parties to the Treaty.).
173
OUTER SPACE TREATY art. IX (If a State Party to the Treaty has reason to believe that an activity or experiment
planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially
harmful interference with activities of other States Parties in the peaceful exploration and use of outer space,
including the moon and other celestial bodies, it shall undertake appropriate international consultations before
proceeding with any such activity or experiment.).
174
OUTER SPACE TREATY art. IX (A State Party to the Treaty which has reason to believe that an activity or
experiment planned by another State Party in outer space, including the moon and other celestial bodies, would
cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including
the moon and other celestial bodies, may request consultation concerning the activity or experiment.).
928

Chapter 14 - Air and Space Warfare

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XIV Air and Space Warfare

States affected, whether as belligerents or as neutrals. 6 Article 89 may be understood as an

Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law).

Refer to 14.3.1 (State Versus Civil Aircraft).

Refer to 14.8.3 (Attacks Against Civil Aircraft).

Refer to 13.1.1 (The Law of the Sea During Armed Conflict).

Refer to 19.11 (1923 Hague Air and Radio Rules).

determining whether airspace is neutral airspace; 25

Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft).

Refer to 15.10 (Neutral Airspace).

Refer to 14.2.1.1 (National Airspace); 14.2.1.2 (International Airspace).

Refer to 13.2.2 (National Waters); 13.2.3 (International Waters).

airspace over that States territorial sea; 33 and

airspace over that States archipelagic sea. 34

14.2.1.2 International Airspace. International airspace may be understood as all

airspace over States contiguous zones; 36

airspace over States Exclusive Economic Zones; 37 and

airspace over the high seas. 38

Refer to 13.2.2.1 (Internal Waters).

Refer to 13.2.2.2 (Territorial Seas).

Refer to 13.2.2.3 (Archipelagic Waters).

Refer to 13.2.3.2 (Contiguous Zones).

Refer to 13.2.3.3 (Exclusive Economic Zones (EEZs)).

Refer to 13.2.3.4 (High Seas).

Refer to 14.10.1 (Classification of Outer Space).

The establishment of an ADIZ by a State does not constitute a claim to international

Compare 14.5.2.1 (Failure to Comply by Civil Aircraft).

14.3 AIRCRAFT STATUS

Refer to 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).

Refer to 14.8.3 (Attacks Against Civil Aircraft); 5.7 (Military Objectives).

Refer to 5.7.4.1 (Military Equipment and Bases).

Belligerent military aircraft generally may not enter neutral airspace. 66

14.3.3.3 Military Aircraft Command and Crew. Military aircraft are

Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).

Refer to 4.15 (Persons Authorized to Accompany the Armed Forces).

Refer to 5.10.5 (Persons Parachuting From an Aircraft in Distress).

Refer to 5.10.5.1 (No Hostile Acts or Attempts to Evade Capture).

Refer to 7.3.1.2 (Shipwrecked).

Refer to 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

Refer to 5.23.1.4 (Use of Enemy Uniforms to Evade Capture or Escape).

to be in a position to attack the aircraft.

14.5.1.2 Airspace Where Interception May Be Conducted. As a general rule,

Refer to 9.3 (POW Status).

Refer to 9.5.2.2 (Protection Against Violence by the Civilian Population or Others).

Refer to 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

Refer to 2.5 (Distinction).

Refer to 15.10 (Neutral Airspace).

In addition, interception may not be conducted during passage through neutral

Refer to 15.13.4.3 (Visit and Search of Civil Aircraft by Military Aircraft).

Refer to 13.4.3 (Captured Enemy Warships No Prize Procedure).

Refer to 14.7 (Airspace Zones).

Refer to 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

Refer to 14.2.1.1 (National Airspace).

Refer to 14.2.4 (Air Defense Identification Zone (ADIZ)).

Refer to 5.5.2 (Overview of Rules in Conducting Attacks).

Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft).

Refer to 5.10 (Persons Placed Hors de Combat).

Refer to 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).

taking a direct part in the hostilities on the side of the enemy; or

when flying under convoy of enemy warships or military aircraft;

Refer to 5.7 (Military Objectives).

Refer to 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).