This article has been written by Mr. Omkar Tamhane, a first-year student at Maharashtra National Law University, Mumbai.
ABSTRACT
This article delves into the tragic Aerial Incident of 27th July 1955, wherein a Lockheed Constellation aircraft belonging to an Israeli airline was attacked and destroyed by Bulgarian MiG-15 jet fighters. The incident, resulting in the loss of all 58 lives on board, triggered diplomatic tensions and legal disputes between Israel, the United States, the United Kingdom, and Bulgaria.
The article unpacks fundamental legal principles, including the Chicago Convention’s regulations on civilian aviation safety, Article 2(4) of the United Nations Charter prohibiting the use of force, and Article 3(a) of the Convention on International Civil Aviation. The complexities surrounding the interpretation of the purposes of the United Nations are discussed, acknowledging the challenges faced by Secretaries-General in upholding the non-use of force principle.
Addressing practical considerations, the article highlights legal issues arising not only from a state’s direct use of force but also from assisting another state. It explores questions of legal basis, burden of proof, and the distinction between legitimacy and lawfulness in the use of force.
The discussion extends to the concept of international responsibility, drawing attention to Resolution 56/83 adopted by the UN General Assembly. The article also elaborates on the elements of an internationally wrongful act, emphasizing the attribution of conduct to the state under international law and the breach of international obligations. The final intent of the article is enlightenment and to spread knowledge.
KEY-WORDS: International Law, Use of Force, International Responsibility of a State, Civil Aviation, Jurisdiction of ICJ.
INTRODUCTION
The Aerial Incident which occurred on 27th July 1955 on a doomed Wednesday. The incident included an Israeli commercial flight being attacked and destroyed by Bulgarian anti-aircraft defence forces. It was an international passenger flight from London to Tel Aviv via Vienna and Istanbul, operated by a Lockheed Constellation aircraft belonging to an Israeli airline. The flight strayed into then-Communist Bulgarian airspace and was attacked by two Bulgarian MiG-15 jet fighters, crashing near Petrich. All the crew and the 51 passengers were killed instantaneously. It was a great loss to the company and it is declared to be the worst accident involving the L-149 aircraft.
This terrible accident gave rise to tensions across the international community and a sudden upsurge to have an informed discussion to resolve the aftermath effects. The incident proved to act as a spark which would ignite various diplomatic disputes and legal actions primarily between Israel and Bulgaria. The state whose nationals were passengers on the unfortunate aircraft, also proceeded to take respective actions in supplement to the original state of Israel. These states who initiated action were United States of America along with the United Kingdom and its several colonies at that time. It is quite interesting to observe that the cases presented by both United States of America and the United Kingdom were later withdrawn. It was stated that the after careful consideration, the parties had decided not to move further with their applications in the International Court of Justice.
BACKGROUND
An Israeli commercial aircraft, flown by El Al, was traveling from London to Tel Aviv on July 27, 1955. The national airline El Al was flying a Lockheed Constellation L-049, an Israeli aircraft, on a scheduled international passenger voyage. The aircraft was making a layover in Vienna before proceeding on its way from London to Tel Aviv.
Fighter planes from Bulgaria shot down the aircraft as it entered their area. The catastrophe claimed the lives of all 58 passengers and staff members on board the airplane. During that period of elevated political tensions, Bulgaria was under the sway of the Soviet Union and was a member of the Eastern Bloc. As such, the airspace was deemed vulnerable to illegal incursion and susceptible to damages of a larger substance to the so-called intruders.
ANALYSIS
The case raised significant issues concerning the use of force and international responsibility especially in the airspace of a nation-state. It is fundamental for one to study the proceedings of this case even though there was no judgement made by the International Court of Justice. The proceedings themselves are quite fascinating and may be understood as follows.
Israel brought the case to the International Court of Justice, alleging that Bulgaria had violated international law by using military force against a civilian aircraft. Israel argued that the attack was an unlawful act and that Bulgaria was responsible for making reparations for the loss of life and property. Similar claims were made by United States of America and United Kingdom, on the grounds that the passengers in the aircraft were their nationals, which were later revoked their application after reconsideration.
Bulgaria defended its actions by contending that the aircraft had violated its airspace, and they had acted within their sovereign rights to defend their territorial integrity. Moreover, Bulgaria raised preliminary objections regarding the jurisdiction of the Court, questioning whether the ICJ had the authority to adjudicate the dispute. This struck a very important question of the court’s jurisdiction in the matter. Bulgaria argued that Article 36, paragraph 5, of the Statute of the International Court of Justice is inapplicable in regard to the People’s Republic of Bulgaria.
Article 36, paragraph 5 of the Statute of the International Court of Justice states that, “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”
With the dissolution of the Permanent Court, announced by the League of Nations Assembly on April 18, 1946, the Declaration of August 12th, 1921 that the Kingdom of Bulgaria had accepted the mandatory jurisdiction of the Permanent Court of International Justice, and that was included in the Protocol of Signature of the Statute of that Court, ceased to be in effect.
Since the People’s Republic of Bulgaria became a party to the International Court of Justice’s Statute on 14th December, 1955; that Declaration was no longer in effect; additionally, by virtue of Article 36, paragraph 5 of that Court’s Statute, it cannot be interpreted as constituting an acceptance of the Court’s mandatory jurisdiction. Hence on these grounds the International Court of Justice found itself without any jurisdiction to adjudicate the case and stated that on the contrary, the matter of the case falls within the exclusive jurisdiction of People’s Republic of Bulgaria.
To understand the case, one must foremost implore the legal principles involved in the happenings of the case. The main principles of law at play were as follows:
- The Chicago Convention of 1944, to which both Israel and Bulgaria were parties, is one of several international treaties that outline the regulations pertaining to the safety and protection of civilian aviation.
- Article 2(4) of the United Nations Charter prohibits the use of force against the political independence or territorial integrity of any state.
Article 3 (a) of the Convention on International Civil Aviation also known as Chicago convention of 1944 states that, “the contracting States recognize that every State must refrain from resorting to the use of weapons against civil flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.”
This is the specific provision which would have been applicable to the aerial incident. It is the provision of which stems the legal issue or violation around which the case might have revolved, had it proceeded with the applications.
Article 2(4) of the United Nations Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
The provision clearly directs all those nation states which constitute a membership under the United Nations to dissuades the use of any kind of force to make have a coercive impact on any international relations the state is entitled to. The provision further also clarifies the situations for which threat or use of force is advised against. They are to threaten the territorial integrity of another state or secondly, to interfere and convulse in the matters of political independence of such mentioned state. The part of the provision which may constitute some ambiguity in different scenarios is the clause, “…or in any other manner inconsistent with the Purposes of the United Nations.” This brings in a plethora of arguments questioning the purposes of the United Nations, both of primary as well as secondary importance.
It is rather important to note that Kofi Annan, the Secretary-General of the United Nations at the time of 2003 Iraq conflict also wrote, “No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4 …. Secretaries-General confront many challenges in the course of their tenures but the challenge that tests them and defines them inevitably involves the use of force.”
Governments should be cognizant of at least five practical issues, although international lawyers in general don’t commonly address them. First, the contrast between the public international law’s guidelines about the use of force and the constitutional law conventions or guidelines governing whether a government may use force or engage in other conflict-related activities.
A second practical point, for governments, is that legal issues arise not only when a State uses force itself, but also when it aids or assists another State to use force. This is can be easily understood with the Qui facit per alium, facit per se. The Latin Maxim translates as follows ‘he who acts through another is deemed in law to act for himself’. Hence it is evident and but logical that one who aids in doing a wrong is also responsible the effects of the deed as is the doer.
A third point is the question how strong the legal basis has to be before a State embarks upon a use of armed force – or assists another State to use force. This can be crucial, though it is often overlooked in matters of international proceedings. The question of how firm a legal foundation must exist before a State uses armed forces is ultimately one of administration rather than the law.
A fourth practical point, also little discussed, is the issue of proof of the relevant facts. A State that has used military force may be obligated to at least after the fact, to prove that the information available to it before the use of force was sufficient for it to endorse under international law, the use of military in the given situation.
And the fifth point is about the ‘legitimacy’ of use of force. It is imperative to understand the difference between the legitimate and lawful. These are two different questions posed when armed forces are used against a state or a state aids another in performance of such an act of issue of use of force.
It has also been observed that there exist some exceptions which may justify the use of force by one state unto another. These exceptions are the defence of self-defence and the defence that the use of such force was authorized by the United Nation Security Council with proper procedure.
Thereby, the exercise of armed forces by a state is urged against by the Internal Laws along with the treaties it may be a part of. In a situation where a state does use force without any lawful justification, it will have said to violate the International Law and will be subject to the verdict of the International Court and any sanction recommended for implementation of the said violation. The lawful justifications which may be regarded as defence are as above-stated, ie. Defence of self-defence and the defence of authorization to use force as granted by the UNSC.
To evaluate the scope of perspective we just gained about use of force, it is facile to understand with reference to the case of matter in the article ie. The Aerial Incident of 27 July 1955. The People’s Republic of Bulgaria has taken the defence of self-defence under the consideration of vulnerability and the susceptibility of threat as it was at the end a protrusion into the airspace of the then-communist Bulgaria.
The second item for discussion in this article is the International Responsibility of the state. It refers to the responsibility of a state for the actions performed by its actions which may be performed via agents like the military or the diplomatic forces, etc. In terms of establishing international responsibility when a state commits an internationally wrongful act—that is, when it violates an obligation made with a treaty while causing loss or damage to another state—it represents the constraints placed on external state sovereignty.
Resolution 56/83 is a resolution approved by the General Assembly of the United Nations on December 12, 2001. The resolution acknowledged countries on their attention and took notice of the draft paragraphs on states’ liability for internationally unlawful conduct that were appended to the resolution. The International Law Commission received accolades in the resolution for its contributions to the codification and forward-thinking advancement of international law. The International Law Commission submitted this draft as a part of the report of its 53rd session. The 59 draft articles on state responsibility cover a range of topics related to state responsibility, including what constitutes an internationally wrongful act, what conditions must be met for an act to be considered wrongful, what constitutes compensation and how it should be provided, how responsibility is invoked and carried out, and what countermeasures and dispute resolution procedures are available.
Article 2 of the resolution 56/83 adopted by the UNGA clearly states the elements of internationally wrongful acts of the state as follows,
“There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.”
In the concerned case of this article ie. The Aerial Incident of 27 July 1955, the arguments made about the responsibility of The People’s Republic of Bulgaria would have stood in regards to its International Responsibility as a State in this Global Community. For the proving the allegations made by the Israel, it would have had to prove the breach of international responsibility as above-mentioned under the International Law not withstanding any exception of defences being presented in the court.
CONCLUSION
The case of 1955 proved to be a significant benchmark to evaluate various concepts in the field of International Law with special reference to those discussed in an elaborative manner in the article- Use of force by a State and the International responsibility of the State. To summarize the above article, it can be facilitated as further-stated. Use of force by a state would constitute a breach of international law keeping in mind that there exists no lawful justification for such force of action or no defences are taken by the concerned state. Furthermore, International Responsibility of a state is quite an intricate area for consideration. It refers to the responsibility a state must undertake for the acts performed by it or its agents which constituted as a wrongful act or the omission of an obligation it was supposed to fulfill under the ambit of the International Law.
As a denouement, it is critical to analyse how the workings of International Law are undertaken. Hence to understand the perplexities of the said provisions, an ideal legal practitioner must understand the legal complexities like those of liability and how to establish them under the International Law.
REFERENCES:
- https://english.dipublico.org/1513/aerial-incident-of-27-july-1955-israel-v-bulgaria-international-court-of-justice/
- http://opil-ouplaw com.mnlum.remotlog.com/display/10.1093/law:icgj/169icj59.case.1/law-icgj-169icj59?prd=OPIL
- Statute of The International Court of Justice
- Charter of the United Nations
- Jurisdiction of the International Court of Justice
https://www.icj-cij.org/jurisdiction - MacChesney, B. (1959). Case Concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections. The American Journal of International Law, 53(4), 923–937. https://doi.org/10.2307/2195764
- Aerial Incident of July 27, 1955: Israel v. Bulgaria. (1960). Duke Law Journal, 1960(2), 240–251. https://doi.org/10.2307/1370973
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- Milka Dimitrovska. The Concept Of International Responsibility Of State In The International Public Law System. Journal of Liberty and International Affairs | Vol. 1, No. 2, 2015 https://e-jlia.com/papers/v2_1.pdf
- Responsibility of States for Internationally Wrongful Acts, 2001. Yearbook of the International Law Commission. Vol. 2, 2001 https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf