key: cord-0037159-urrxplf2
authors: Abeyratne, Ruwantissa
title: Aviation and Intervention
date: 2015-02-28
journal: Aviation and International Cooperation
DOI: 10.1007/978-3-319-17022-0_2
sha: 0555a67c1f14b4c712fee94cb29d6b97d349179c
doc_id: 37159
cord_uid: urrxplf2

In October 2013, CNN reported that 400 civilians had been killed in Pakistan by unmanned aircraft (UA) since President Obama took office in 2009. Transnational legal theory suggests that such attacks are illegal and, in 2009, the United Nations special rapporteur on extra judicial killings suggested that the use of drones by the Obama administration in Afghanistan and Pakistan was untenable and contrary to international law.

premeditated murder. In many jurisdictions around the world premeditated murder is a crime, as it is in all 50 States of the United States. Additionally, political killings, which drone attacks often accomplish, are outlawed in the United States. 3 The crime is made more heinous when it is committed in foreign lands without the consent of the State concerned, and with callous disregard to the sovereignty of that State. The only exception to the use of drones in a foreign land (and this does not extend to arbitrary attacks that might involve non combatants) is in authorized armed conflict such as in instances where the international community, through the United Nations Security Council, authorizes such use in battle zones.

From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. They should be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering should be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.

Certain circumstances over the past decade have made the world more cautious, leading it to guide its philosophy of mutual trust along a path which is now called "the precautionary approach". The world would no longer sit and wait, reacting only when a crisis causes massive human suffering and loss of lives. A new doctrine, propounded by a group of scholars at the behest of the United Nations Secretary General Kofi Annan in 2001 has come into being. Called "the responsibility to protect", this doctrine embraces the principle that all member States of the United Nations have a responsibility to protect the lives, liberty and basic human rights of their citizens, and that if they fail or are unable to carry it out, the international community has a responsibility to step in.

UAs. Initially flown in the 1970s, it was modified to deliver payloads and flew its first flight test as an armed UA on December 20, 2002. 3 Executive Order 11905 [in Section 5(g)] issued by President Ford in 1976 explicitly provides that no employee of the United States shall engage in, or conspire to engage in political assassination. Later, President Reagan issued Executive Order 12333 which, by Section 2.11 provides that no person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination. The Order goes on to state that no agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by the Order.

Unmanned Aircraft [UA] is a pilotless aircraft capable of flying autonomously or semi-autonomously with some pilot assistance from a remote station and hence the term 'Remotely Piloted Aircraft' [RPA] . 4 The United States Department of Defense defines UA as "a powered aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and carry a lethal or non-lethal payload." 5 In contrast, the ICAO circular has a simple definition of UA i.e. "An aircraft which is intended to operate with no pilot on board." 6 Unmanned Aircraft is one of the main components of the many sub-systems of Unmanned Aircraft system which includes an aircraft [unmanned air vehicle], payloads [dispensable or non-dispensable], communication and control systems, launching systems, transport systems etc. 7 Modern UA contain varying levels of autonomous decision making algorithms which enables UA to exchange data with its control base and to transfer thermal images along with its positioning, speed, altitude and other information it was designed for. 8 UA is also commonly known as 'Drone'. The leading aeronautical consultant Reg Austin reasons that UA is technically different than drone. 9 Another extension of UA is the Unmanned Combat Air Vehicles [UCAV] which is armed and specifically assigned to attack each target. 10 However, since the term drone has been popularized in the mainstream media, for the purposes of this paper the term UA will be interchangeably used with drones.

From the humble beginnings of 'Aerial Torpedo', an unpiloted bomber plane made of wood, in the early twentieth century to the contemporary 'Predators' with the capability of high resolution video cameras and payload weapons guided by the precision lasers, the metamorphosis of UA has come a long way. 11 UA come in various shapes, sizes, and capabilities' ranging from High altitude long endurance [HALE] which can fly up to 24 h and over 15,000 m altitude to Mini UAV [MUAV] which weigh less than 20 kg and is capable of flying up to 30 km range when handlaunched. 12 The history of UA changed forever when Predator made it first successful flight in 1994. Richard Newman notes that "Predator became an instant hit because it could transmit live video footage of enemy actions to commanders on the ground and aircrews above the battlefield. It illuminated targets for precision weapons fired from afar. It even, on occasion, fired its own weapons, a rarity for a UAV." 13 At present, Global Hawk is widely regarded to have taken over the Predator and has been flown over the Afghanistan, Bosnia, Iraq, Kosovo, Pakistan and Yemen. As one writer put it "Global Hawk does much broader surveillance. It flies at elevations of 60,000 feet or more, like the U-2, and has higher resolution cameras than the Predator. Global Hawk can fly for nearly day and a half without being refueled, meaning it can take off from a base 1,200 miles away, loiter for 24 hours, then fly back." 14 Today, the sky is no longer the exclusive domain of the birds or jumbo jets as thousands of UA are hovering all over the skies.

UA are primarily used for military purposes but their commercial use in on the rise. UA's are often used for 3D's i.e. 'dull, dirty, and dangerous jobs.' 15 Besides, UA are used in research and development of the aeronautical areas such as airborne testing under the real conditions. 16 There are many advantages of UA as compared to its counterpart manned aircrafts. Less operating costs, low fuel and maintenance costs, cheaper insurance and low salaries for the ground based personnel all translate into a lucrative monetary benefits to pursue UA for commercial purposes. Due to financial benefits associated with the UA, it is likely that UA rental business will soon sell their services. 17 Manned helicopters have been used in South Africa and Australia to monitor herds during hot weather and difficult terrains but it may save time and money if UA are used to keep track of these herds. 18 UA could be in hands of news channels and broadcasting companies for covering emergency events, real-time sports events, monitoring traffic accidents and war zones. 19 For the first time, the United Nations has ordered surveillance drones from an Italian firm for its peacekeeping missions in Congo and diplomats hope that if successful the drones could be deployed for missions in Ivory Coast and South Sudan. 20 The advertisement line for drones is catchy, who wants to buy an expensive three million police helicopter when a much cheaper drone can do the same job more effectively. UAs have the potential of hunting down the suspects, criminals, and law-offenders. With the Global Positioning System [GPS] auto-pilot and a live video feed, one cannot hide from these omnipresent drones.

Approximately 70 countries now possess the UA however, only few possess the armed UA notably the US, UK, Israel, Italy, and China. 21 Although, the US is the leader when it comes to armed UA, it no longer has the monopoly over the expansion of drones. The militaries of various nations are quickly learning to develop UA capable of delivering lethal blow to the enemy taking advantage of the loopholes in the current international legal framework on the legitimate use of drones. 22 In 2001, a Predator evolved into a UCAV from a reconnaissance UA when it fired a Hellfire-C laser guided missile at a tank. 23 Meanwhile, the Israeli Defence Forces [IDF] have been using the UA for multiple intelligence and data gathering programs from 1980s. 24 Japan has been developing the UA for dual purposes i.e. both civilian and military uses since World War II. 25 The South Korean government has developed a smart vertical take-off and landing UA and is on the verge of developing an upgraded version of the US Eagle Eye tiltrotor UA. 26 The Italian Air Force has its hands on a precision strike UA and Rome is negotiating a "black" medium-altitude, long-endurance [MALE] project that would 19 Ibid. 20 The U.N. spokesman Martin Nesirky told reporters that "Unarmed UAVs (unmanned aerial vehicles) will allow our peacekeepers in the Democratic Republic of Congo to monitor the movements of armed groups and protect the civilian population more efficiently. The selected vendor is the Italian company Selex ES. The UAV is known as the Falco and is designed to be a medium altitude, medium endurance surveillance platform capable of carrying a range of payloads including several types of high resolution sensors." See Nichols (2013) . 21 Roberts (2013) . 22 Ibid. 23 Lazarski (2002) . 24 Bone and Bolkcom (2003) be flying in 2017-2018 told the Air Force Lt. Gen. Claudio Debertolis, Italy's secretary general of defence and national armaments director. 27 The Russian military has long collaborated with France's Dassault for manufacturing UAVs and is now acquiring the so-called mini-class of the drones. 28 Germany is in negotiations with Israel over the Heron UAV and with the U.S. for the Reaper UAV. "A Government spokesman told AFP: 'The intention is that we acquire 16 such devices in future and that the armed forces have them at their disposal from 2016, three years from now.'" 29 France made a $1.5 billion foreign military sales agreement with the US to buy 16 Reapers (UAVs) developed by General Atomics. 30 "Britain bought US Predator drones and rented Israeli drones for use in Britain's wars in Iraq and Afghanistan. . .the Watch keeper system for surveillance, and two separate BAE armed drones." 31 Besides conventional reconnaissance and surveillance the UCAVs can perform multiple offensive and defensive tasks such as "suppression of enemy air defenses [SEAD] , close air support [CAS] , defensive counter air [DCA] , offensive counter air [OCA] , and air interdiction [AI] ." 32 UA are increasingly used from reconnaissance to surveillance to security to border patrolling to law and order operations and every possible imaginable task. It is only a matter of time that drones will become a modern military necessity for each state. 33 One better pay heed to the words of General Petraeus, former head of the US Central Command, "[w]e can't get enough drones". 34 UA importance resonated with former CIA Director Leon Panetta affirming that the unmanned aerial vehicles are "[t]he only game in town" 35 when it comes to tackling Al-Qaeda. 27 Butler (2013). 28 Denis Fedutinov, a UAV expert described these new state of the art UAVs, "These are the shortrange systems, with a range measuring from 5 kilometres to 25 kilometres, Denis Fedutinov says. These are small devices that are comparable to a model aero-plane. But they are very effective in ensuring the transmission of video-and photo-images in real time, and they can also reconnoitre over by the hill, in the close-in zone. These devices make it possible for the lowest-echelon units to quickly obtain intelligence and operational information and depend in no way on higher-echelon air-reconnaissance systems." See Nekhai (2013). 29 Evans (2013) . 30 Harthy (2013) . 31 Cole and Wright (2010a) . 32 Peterson (2005) , Published at 18. 33 See Friedman (2010), p. 33, Friedman notes, "Militaries adopt revolutionary technology and tactics because they cannot go on the way they have been operating. In some cases, such as ours, circumstances make the existing way of war either literally impossible or unaffordable-or there are new requirements that existing forces cannot meet. In others the general adoption of some new technology makes it impossible to go on as before." 34 See Capaccio (2010) . " [t] he new aviation plan projects spending for all aircraft to increase to $29 billion by 2020 from about $22 billion in fiscal 2011, an average of 3 percent annual growth adjusted for inflation." 35 Shachtman (2009). foreign UA the fear of repercussions of shooting down a drone would make them think twice. But recently in May 2013, the Al-Shabaab militants shot a US drone in Somalia and posted pictures on the Twitter. The US officials confirmed the incident but did not provide any specifications to drone model believed to be one of Schiebel UAVs. 42 In an another case, the Russians in collaborations with Iranians observed the US drone's routes and its surveillance of Iranian skies, hacked into the drone system and forced it to land in Iran on 4 December 2011. 43 The Russians helped decode American drone RQ170s intercepted by the Iranians in exchange for antidefense air system S300. 44 Despite the request by the US government to return it back, the Iranians have refused to comply and diplomatic tensions have escalated since then. Nonetheless, State reserves the right to regulate or prohibit the carriage in or above its territory in the interests of public order, safety, and above all its sovereignty.

In accordance with Article 12 of the Chicago Convention, states cannot deviate from the rules of flight over the high seas which comprises for 70 % of airspace. Article 87 of the United Nations Convention on the Law of the Sea 45 of 1982 grants unrestricted freedom for the aircraft of all States to fly over the high seas. Abeyratne notes that "an important consideration in delineating territorial sovereignty lies in the expansion of Flight Information Regions [FIR] and the provision of air traffic management services by States particularly when such measures are influenced by the revenue generating capabilities." 46 Prof. Bin Cheng agrees that States must comply with the rules pertaining to the flight and maneuver of all aircrafts over the high seas as laid out in the Article 12 of the Chicago Convention. 47 Annex 2 of the Chicago Convention, further solidifies that State aircrafts over the high seas "[s]hall 42 Laing (2013). 43 Kahlili (2013) . "A Russian military team from its air and space division had secretly entered Iran days after a strategic agreement between the two countries in 2007 and was stationed at Revolutionary Guard bases to help the Guards with its weapons program and access to modern U.S. technology. With this collaboration, all the information of the stealth drone is now in the hands of the Russians, and much has been given to Iran's Defense Ministry." 44 Ibid. 45 The Law of the Sea (1983) . Moreover Article 29 gives the definition of a warship i.e. "a ship belonging to the armed forces of a state bearing the external marks distinguishing such ship of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline." 46 Abeyratne (2010) , p. 162. 47 Cheng (1962), p. 148. ensure that these operations do not compromise the safety, regularity and efficiency of international civil air traffic." 48

What is the status of UA under international air law? The Chicago Convention, 49 the Magna Carta for aviation and the primary bedrock source of the public international air law-in Article 3 distinguishes between civil and state aircraft. A distinct anomaly is observed in the question as to "how an international treaty, which on the one hand prescribes that it applies only to civil aircraft [Art. 3(a)], turns around and prescribes a rule for State aircraft [Art.3(c) ]." 50 However, Article 3 does not provide a definition but at best gives a rebuttable presumption as those aircrafts utilized in furtherance of state activities such as search and rescue, natural disasters, governmental transport, and other state related services can be categorized as State aircraft. 51 This is far from a comprehensive definition and unreliable since the same Unmanned aircraft can transform into 'civil' or 'state' aircraft depending on the course of function. 52 Whether UA is a 'civil' or 'state' aircraft raises different set of obligations and liabilities. If UA is a state aircraft, then UA would not come within the purview of Chicago Convention. If UA is a civil aircraft, then it would fall under the jurisdiction of ICAO and national laws. Some distinguishable characteristic of the Unmanned Aircraft for the purposes of interception and regulation can be the i) design of UA, ii) registration marks, iii) ownership, and iv) type of operation. 48 Annex 2 to the Convention on International Civil Aviation, "Rules of the Air", 2.1.1 Note. 49 Convention on International Civil Aviation also known as the Chicago Convention was signed at Chicago on December 7th, 1944. See ICAO doc 7300/9 Ninth Edition, 2006. 50 Abeyratne (2010), p. 168. 51 In the absence of any definition of 'military services' the interpretation must be done in accordance with the Article 31 of the Vienna Convention on the Law of Treaties that "ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." 52 See, Accident Investigation Board Report, August 1996, at 4 when USAF CT-43 A, a military equivalent of B-737 -200 carrying VIP Croatian officials crashed at Dubrovnik on 3 April 1996; the investigation report deemed the aircraft as civil aircraft per Article 3 of the Convention. See also, Resolution 1562 (2007) of the Parliamentary Assembly of the Council of Europe titled "Secret detention and illegal transfers of detainees involving Council of Europe member States" which was critical of countries involved with US authorities in transporting suspected terrorists in Gulfstream civilian aircrafts online at http://assembly.coe.int/main.asp?Link¼/documents/ adoptedtext/ta07/eres1562.htm. In the aftermath of 911, special rendition flights were performed to transport high-value terrorists for questioning in countries where they would not enjoy immunity against torture. The aircrafts identified were civilian B-737 and had US nationality marks but were used in a secret operative manner that would categorize them as State aircrafts. See also Milde (2008), pp. 477-486. i) Design: In 2010, CIA deployed micro UA in Pakistan, approximately the size of a pizza platter specially designed to survey targets with more precision in order to minimize civilian causalities. 53 The drone operators also changed tactics by targeting terrorists in vehicles rather than residences to reduce collateral damage. However, the difficulty to distinguish UA lies in the fact when they can be easily re-modified for other purposes. ii) Registration: The registration bearings can also distinguish an aircraft. However, the nationality and registration itself are insufficient proof that an aircraft is used solely for state or civil purpose. In a well-documented case of civil airplane B-737 MisrAir flight 2843 from Cairo to Tunis, suspected of carrying terrorists under Military Police escort was intercepted by US fighter planes and forced to land in Italy. The US explained its action stating that "it is our view that the aircraft was operating as a State aircraft at the time of interception. The relevant factors -including exclusive State purpose and function of the mission, the presence of armed military personnel on board and the secrecy under which the mission was attempted -compel this conclusion." 54 iii) Ownership: The ownership may indicate that whether the aircraft is owned by the State or by a private entity. However, the problem arises where a state contracts out its military duties to private security contractors. For instance, the US State Department is operating surveillance drones to protect the US embassy in Iraq and is accepting bids from private security contractors to manage the drones program. 55 This has outraged the Iraqi officials who believe this program is an affront to Iraqi sovereignty. 56 Thus, ownership itself does not prove that the UA is used in state or a civil operation rather it further complicates the matter when the UA are contracted to private military security companies in the event liability arises. 57 53 Warrick and Finn (2010) . 54 ICAO document LC/29-WP/2-1 (1994) at pp. 11-12. 55 As Schmitt and Schmidt reported, "American contractors say they have been told that the State Department is considering to field unarmed surveillance drones in the future in a handful of other potentially high-threat countries, including Indonesia and Pakistan, and in Afghanistan after the bulk of American troops leave in the next two years. . .The drones are the latest example of the State Department's efforts to take over functions in Iraq that the military used to perform. Some 5,000 private security contractors now protect the embassy's 11,000-person staff, for example, and typically drive around in heavily armored military vehicles." See Schmitt and Schmidt (2012 In an another case, the Elbit Systems which is a defense electronics manufacturer, trades on NASDAQ and sells Unmanned Aircraft systems to many countries around the world. Although, 45 % shares are owned by Micheal Federmann, due to its close connections with the Israeli Ministry of Defense, Elbit Systems has been a target of the pro-Palestinian BDS (boycott, divestment, sanctions) movement due to the use of its Hermes 450 drone in West Bank and Gaza. 58 iv) Type of Operation: The type of operation can prove the nature of either the UA flight for civil or secret state purpose. The drone operations in Yemen planned to go after Al-Qaeda in a way that they cannot escape, qualifies these drones as state aircrafts. For example, the CIA drone operation killed Anwar al-Awlaki, an American-born leader of a Yemen Al-Qaeda network without affording him an opportunity for a trial. Besides, these drone strikes have increased resentment both against the Yemeni and the US government. 59

In the absence of any other regulatory guidance, the term 'used' in Article 3 (b) of the Chicago convention can determine the actual status of the UA. This functionality is the dispositive factor in ascertaining whether UA is a state or a civil aircraft. The CIA's use of drones in Pakistan, Yemen and Somalia is raising controversial issues. The CIA is not a military agency rather it is an independent civilian agency of the U.S. 60 This begs the question of whether the CIA drones operators who are civilians engaged in armed conflict can be categorized as unlawful combatants and subject to prosecution. 61 And whether the drone used for extra-judicial killing violate the UN Charter and state sovereignty.

For reasons adduced earlier in this article, drones would remain the popular weapon of choice despite calls to reduce its reliance on them. This incontrovertible fact is brought to bear by the fact that the Obama administration has used more than 400 drone strikes so far as against 50 strikes sanctioned by President George W. Bush during his 8 years in office. 62 On the positive side, drones have effectively rid the world of terrorist leaders and decimated terrorist organizations in foreign 58 Cole and Wright (2010a) . 59 Smith (2012) . 60 Central Intelligence Agency, online: CIA https://www.cia.gov/about-cia/todays-cia/index.html. 61 As Solis notes, "An unlawful combatant is one who takes an active and continuous part in armed conflict who therefore should be treated as a combatant in that he/she is a lawful target of attack, not enjoying the protections granted to civilians. Because unlawful combatants do not differentiate themselves from civilians and do not obey the laws of armed conflict they are not entitled to the privileges of combatants, for example, prisoner-of-war status". See Solis (2007 ), p. 130. 62 Byman (2013 countries that are infested with terrorist activity. One commentator unreservedly states that drones remain "a necessary instrument of counter-terrorism". 63 One of the effective achievements of drones is their ability to cut off communications of terrorist cells and destroy their training capabilities. However, a distinct danger is that along with the advantages to States fighting terrorism with drone attacks would be the tendencies to use such attacks at whim and indiscriminately on the tenuous justification that if it is good for the United States to use drones with impunity, they should also have the license to do so.

On the other side of the coin is a compelling argument against the use of drones, that the drone programme has taken a life of its own "to the point where tactics are driving strategy instead of the other way around" 64 resulting in "remote controlled repression". 65 Another grave disadvantage of drone attacks, particularly from a strategic point of view is that it kills individuals suspected of terrorism or proven terrorists without giving States the flexibility and advantage of questioning them. Therefore drone attacks are only good when a State decides that a terrorist would have to be eliminated rather than captured. However, the most compelling and indisputable argument against drone attacks is that drones have proved to be lethal to innocent civilians 66 whose killings go to the heart of the most important law of all brought to prominence in recent times with the growing instances of torture and killings of non-combatants in warfare and the solid grounding of international society-the law of humanity.

The use of drones brings to bear the age old maxim Inter arma enim silent leges attributed to Cicero, which translates as "In times of war, the laws are silent". In the twenty-first century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero's time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called "prerogative" or "discretion" of the sovereign, to act for the public good as the guardian of the rule of law.

One commentator has said:

In recent years, international criminal lawyers have proclaimed the arrival of a new order where impunity for war criminals is extinguished or swept aside by crusading domestic prosecutors (e.g. Garzon in Spain), by national courts (e.g. the House of Lords in Pinochet), by bold legislators (e.g. the Belgian war crimes legislation in 1993 and 1999, notwithstanding subsequent amendments), and by proliferating . . .international tribunals. 67

Law School and Visiting Professor, London School of Economics, Global Governance, says: Sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics -which had prevailed until recently -to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines. 68

This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: "a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach". 69 There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare. Let us take the chronological evolution first. After World War II, the world has, over the past 70 years or so, gone through three global political and economic stages. The first was the modernist era, where naturally, State sovereignty was considered paramount over any other consideration in the immediate and proximate aftermath of the War where nations and States were attacked. This lasted until the 1960s.

From then on the trend shifted to the post-modernist era where the focus veered from the interests of the State to the welfare of the citizen. Post modernism, which was a characteristic of the 1960s and 1970s, progressed steadily toward the twentyfirst century. Post modernist thinking was geared to accepting that human culture, as we knew it from a social and economic perspective, was reaching an end. This school of thought associated itself with the momentum of industrial society, drawing on an image of pluralism of cultures and a multitude of groups. The interaction between political modernism, which brought to bear the globalization of nations and deconstruction of separatism of human society, while at the same time ascribing to the individual certain rights at international law that transcended natural legislation parameters, has been symbiotic and essentially economic. In the post modernist era, the fundamental modernist philosophy of state sovereignty and peace gave way to an industrial culture that emphasized economic coexistence for the betterment of the global citizen.

The neo post modernist era was signalled as an immediate consequence of the attacks of 11 September 2001 where close to 3,000 human beings were decimated by terrorist activities within a few minutes. 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, was immediately resuscitated in the minds of the international community.

This principle is embodied in the work of the International Law Commission, through Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts which provides that international responsibility of a State, which is referred to in Article 1, is attributable to that State if conduct of the State constitutes a breach of an international obligation of that State. The document also provides that the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations. The State responsible for an internationally wrongful act is under an obligation to compensate for damage caused, including reparation for financially assessable damage including loss of profits.

In addition to State responsibility for conduct attributable to that State, the International Law Commission has established that a crime against the peace and security of mankind entails individual responsibility, and is a crime of aggression. The Rome Statute of the International Criminal court, defines a war crime, inter alia, as intentionally directing attacks against civilian objects; attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objects; employing weapons, projectiles, and material and methods of warfare that cause injury The Statute also defines as a war crime, any act which is intentionally directed at buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.

The law of war categorizes justification for killing into four groups: military necessity; distinction; proportionality and humanity. The last is what applies to drone killings. Targeting of civilians and medical personnel by no means comes even close to any of these categories. That drones-which some call "assassination machines"-in their missions of targeted killings, are used contrary to Article 51 of the United Nations Charter 70 make them clearly contrary to the principles of public international law. Drones are precision instruments which rarely miss their targets but unfortunately lack the means to distinguish between the innocent and the guilty.

Killings by drones come within the new heading under international law called the "conscience of mankind". It is a universal law which goes as far back as 1949 when the International Court of Justice (ICJ) recognized: 70 Article 51 states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security".

Certain well recognized principles, namely elementary considerations of humanity, even more existing in peace than in war. 71 Again in 1951 the ICJ made a similar pronouncement which appeared once again in 1976 in the Draft Articles of the International Law Commission which recognized the existence of "international crimes". The principle of humanity law was immutably established with no room for doubt in 1986 when the ICJ in the Nicaragua Case evolved "elementary considerations of humanity" which essentially devolved responsibility of ensuring the safety and security of humanity on the State even outside treaty law, such as the provisions contained in the 1949 Geneva Conventions on International Humanitarian Law. 72 The future of UA will largely depend on how technology, regulators, and states can work in tandem. As already discussed, the status of an unmanned aircraft can be ascertained by the actual function it is performing at the given moment. Any UA on a particular journey would be considered military if it is surveying for a combat mission, other time the same UA can be considered civil if it is surveying for a humanitarian relief. Hence, the status of each flight must be pre-approved by the approved flight plan accepted by the States to be flown above and should beforehand specify the nature of the flight. As history unfolds and technology advances the future of UAVs will largely rely on the governmental funding of its research and development. The advances in technology will not only decrease the costs as the demand increases but their easy availability may raise the problems of UA getting in wrong hands. Thus, the legislatures and engineers should work hands in hands to make sure that the use of unmanned aircrafts is for the good of humanity not for its destruction. In view of this article, the future regulation of Unmanned Aircrafts remains a step-by-step process.

Drones are retaliation to mass murder and the unacceptable abuse and torture of humanity. More than 12 years have passed since the outrageous and catastrophic events of 11 September 2001. Yet, none of us can get over the outrage we felt at the dastardly terrorist acts which killed nearly 3,000 people in a day. Most of the world that day felt an amalgam of concern, fear, and anger that motivated us to take precautions. Overnight, we converted ourselves from a society that was both laid back and reactive to a society that took pre-emptive and preventive action to make sure such things never happened again. For purposes of definition, Preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action. Prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action. 71 Corfu Channel Case, (United Kingdom v. Albania), ICJ Reports (1949) at 22. 72 The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.

Alan Dershowitz, Professor of Law at Harvard University, asserts that "There is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defence and defense of others". 73 Preemption and prevention are necessary elements in today's political and military fabric, where legal legitimacy is ascribed to actions of States which act swiftly to avoid harm and protect its citizenry. These practices, however well meant from a strategic context, inevitably give rise to the law of outrage. Referring to the Holocaust during World War II President Roosevelt said on October 7, 1942: "It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith." The next year Roosevelt, Stalin and Churchill vowed, through the Moscow Declaration, to bring the perpetrators to justice. On 26 October 1943 the United Nations War Crimes commission composed of 15 allied nations met for the first time in London. On March 24, 1944 President Roosevelt again issued the warning: "None who participate in these acts of savagery will go unpunished. All who share in the guilt shall share the punishment". The last sentence was reiterated in a different way by Present George W. Bush in the aftermath of the events of 9/11: Every nation has a choice to make. In this conflict, there is no neutral ground. If any government sponsors the outlaws and killers of innocence, they have become outlaws and murderers themselves. And they will take that lonely path at their own peril. 74

Although this is the ultimate justification for the eradication of the vermin of terrorism that nature ever suffered to crawl upon the surface of the world, historic responses such as drone attacks are extreme measures resonating killings of both the innocent and the guilty summarily, without arraignment or judgment. There are some societies that are terrorized by drone attacks where they occur. In instances of hooliganism and vandalism as in the London riots of 2011 the statement in Parliament of Prime Minister David Cameron during: "We will not allow a culture of fear to exist on our streets. And we will do whatever it takes to restore law and order and to rebuild our communities. . . anyone charged with violent disorder and other serious offences should expect to be remanded in custody not let back on the streets and anyone convicted should expect to go to jail" might resonate. 75 But whether this philosophy can be extended to civilians of Afghanistan or Pakistan or Yemen who, while celebrating their relatives wedding at a party find a drone attack descending on them killing the bride and most of the happy relatives, is entirely another matter. 

On 8 December 2014 in Chicago the ICAO Council adopted a Resolution 76 to mark the 70th anniversary of the signing of the Chicago Convention. The Resolution states inter alia that the Council is determined to ensure that international civil aviation will continue to contribute to the promotion of global peace and security, social integration among the peoples of the world, economic prosperity of nations, and sustainable development for future generations. It then resolved, again inter alia, to encourage all Member States of ICAO to continue to promote the ideals and principles of the Convention on International Civil Aviation and compliance with its provisions; and acknowledged the critical need for continued ICAO efforts aimed at identifying the challenges posed by increases in global air transport demand and capacity, as well as the opportunities offered by new and emerging technologies, and to address those challenges and take advantage of those opportunities in order to achieve the safe, secure and sustainable growth of the international civil aviation system. The Resolution also invited all stakeholders, including Member States and relevant organizations of the global civil aviation community, to continue sharing and promoting best practices and working together through ICAO in support of a worldwide air transport system, which serves and benefits all nations and peoples of the world. Ironically, nowhere in this Resolution is mention that the Council was mindful of instances when aviation was used over the past 70 years to attack and destroy communities and societies. The following discussion addresses such instances.

The Universal Declaration of Human Rights of the United Nations underscores the compelling importance of human rights and calls upon every society and human to contribute towards ensuring that human rights are enjoyed by everyone. In this context one of the most blatant abuse of human rights in the field of aviation is the carriage of military equipment and arms as well as active involvement in the provision of military assistance to regimes that use military force on their communities and societies. The Chicago Convention, in Article 35 provides that 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 is required to 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. Article 35 also states that each contracting State reserves the right, for reasons of public order and safety, to regulate or prohibit the carriage in or above its territory of articles other than those 76 Resolution Adopted at the Extraordinary Session of the Council on 8 December 2014 on the Occasion of the Seventieth Anniversary of the Signing of the Chicago Convention. See http:// www.icao.int/Newsroom/Pages/ICAO-council-passes-chicago-convention-resolution.aspx. enumerated above, provided that no distinction is made in this respect between its national aircraft engaged in international navigation and the aircraft of the other States so engaged; and provided further that no restriction are imposed which may interfere with the carriage and use on aircraft of apparatus necessary for the operation or navigation of the aircraft or the safety of the personnel or passengers.

The above facts make it imperative for air carriers to be consciously aware of the danger of their contributing to attacks on civilians. Munitions of war are considered dangerous goods when carried by air. The subject of carriage of dangerous goods by air is addressed in Annex 18 to the Chicago Convention. The material in this Annex was developed by the Air Navigation Commission in response to a need expressed by Contracting States for an internationally agreed set of provisions governing the safe transport of dangerous goods by air. At its 33rd session held in Montreal from 25 September to 5 October 2001, the ICAO Assembly adopted Resolution A33-1 77 which was a direct response to the terrorist acts of 9/11. The Resolution recognized that a new type of threat was posed to civil aviation which required new concerted efforts and policies of cooperation on the part of States. The Resolution also urges all ICAO member States to ensure, in accordance with Article 4 of the Chicago Convention, that civil aviation is not used for any purpose inconsistent with the aims of the Convention, and to hold accountable and punish severely those who misuse civil aircraft as weapons of destruction, including those responsible for planning and organizing such acts or for aiding, supporting or harbouring perpetrators. It also called upon States to cooperate with each other in this endeavour and to ensure that ICAO Standards and Recommended Practices (SARPs) relating to aviation security are adhered to. Finally the Resolution directed the Council of ICAO and the Secretary General to act urgently to address new and emerging threats to civil aviation, in particular to review the adequacy of existing aviation conventions on security.

Munitions of war are not only arms and ammunitions but are deemed to include noxious material and gases that, when released, could be dangerous to humans. The ICAO requirements for dangerous goods have been largely developed by a panel of experts which was established in 1976. This panel continues to meet and recommends the necessary revisions to the Technical Instructions. As far as possible the Technical Instructions are kept aligned with the recommendations of the United Nations Committee of Experts on the Transport of Dangerous Goods and with the regulations of the International Atomic Energy Agency. The use of these common bases by all forms of transport allows cargo to be transferred safely and smoothly between air, sea, rail and road modes.

The ICAO requirements for the safe handling of dangerous goods firstly identify a limited list of those substances which are unsafe to carry in any circumstances and then show how other potentially dangerous articles or substances can be transported safely. The nine hazard classes are those determined by the United Nations Committee of Experts and are used for all modes of transport.

Class 1 includes explosives of all kinds, such as sporting ammunition, fireworks and signal flares. Class 2 comprises compressed or liquefied gases which may also be toxic or flammable; examples are cylinders of oxygen and refrigerated liquid nitrogen. Class 3 substances are flammable liquids including gasoline, lacquers, paint thinners, etc. Class 4 covers flammable solids, spontaneously combustible materials and materials which, when in contact with water, exit flammable gases (examples are some powdered metals, cellulose type film and charcoal).

Class 5 covers oxidizing material, including bromates, chlorates or nitrates; this class also covers organic peroxides which are both oxygen carriers and very combustible. Poisonous or toxic substances, such as pesticides, mercury compounds, etc., comprise Class 6, together with infectious substances which must sometimes be shipped for diagnostic or preventative purposes. Radioactive materials are in Class 7; these are mainly radioactive isotopes needed for medical or research purposes but are sometimes contained in manufactured articles such as heart pacemakers or smoke detectors. Corrosive substances which may be dangerous to human tissue or which pose a hazard to the structure of an aircraft are dealt with in Class 8 (for example, caustic soda, battery fluid, paint remover). Finally, Class 9 is a miscellaneous category for other materials which are potentially hazardous in air transport, such as magnetized materials which could affect the aircraft's navigational systems.

In response to the requirement of A33-1, that ICAO act with some urgency to address new and emerging threats to civil aviation, an ICAO Special Sub Committee meeting of the Legal Committee on the subject of preparation of one or more instruments addressing new and emerging threats was held at ICAO Headquarters from 3 to 6 July 2007. 78 At this meeting, Australia submitted a proposal 79 to prohibit the intentional and unlawful transport by air of particularly dangerous goods and fugitives. In this paper, Australia quoted the Preamble 80 to the Chicago 78 One of the terms of reference of the Sub Committee as agreed by the ICAO Council was: to prepare, in light of A33-1 and the guidance of the Council, one or more draft instruments addressing the new and emerging threats to civil aviation. See Special Sub Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats, Introductory Note, LC/SC-NET-WP/1, 29/05/07 at p. 2. 79 Proposal to Prohibit the International and Unlawful Transport by Air of Particularly Dangerous Goods and Fugitives, LC/SC-NET-WP/3, 5/07/07. 80 The Preamble to the Chicago Convention recognizes that the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, and yet its abuse can become a threat to the general security. It also states that it is desirable to avoid friction and to promote co-operation between nations and peoples upon which the peace of the world depends. In pursuance of these objectives, governments signed the Convention that contains 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.

Convention and emphasized that ICAO was created to help ensure the safe and orderly growth of civil aviation and to encourage the operation of civil aircraft for peaceful purposes. It was also the view of Australia that there were gaps in the international legal framework with regard to the unlawful transport of biological, chemical and legal weapons and other dangerous material on board civil aircraft and that the international aviation community had a responsibility to address these lacunae and shortcomings, particularly when an opportunity such as the one presented through the ICAO meeting arose.

The Sub Committee meeting had the opportunity, through the Australian paper, to note other international legislation on the transportation of dangerous materials. For example, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation which underscores the extreme danger of use by unlawful activity of maritime transport of nuclear, chemical or biological weapons. 81 Additionally, there are other guidance material, such as those issued by the World Health Organization 82 which provide practical guidance to facilitate compliance with current international regulations for the transport of infectious substances 83 and patient specimens by all modes of transport, both nationally and internationally, and include the changes that apply from 1 January 2005. 84 The WHO regulations categorically state that The Technical Instructions for the Safe Transport of Dangerous Goods by are the legally binding international regulations. 85 IATA Dangerous Goods Regulations (DGR) that incorporate the ICAO provisions and may add further restrictions (where necessary such restrictions are included in these guidelines). The ICAO rules apply on all international flights. For national flights, i.e. flights within one country, national civil aviation authorities apply national legislation. This is normally based on the ICAO 81 Wagner et al. (2006) . Bio surveillance is the science of real-time disease outbreak detection. Its principles apply to both natural and man-made epidemics (bioterrorism). It is worthy of note that in addition to activity in this field in the United States, there is also work being done in Europe, where disease surveillance is beginning to be organized on a continent-wide scale needed to track a biological emergencies. The system not only monitors infected persons, but also attempts to discern the origin of the outbreak. 82 Guidance on Regulation for the Transport of Infectious Substances, World Health Organization, September 2005, WHO/CDS/CSR/ LYO/2005.22. 83 For the purposes of transport, infectious substances are defined as substances which are known or are reasonably expected to contain pathogens. Pathogens are defined as microorganisms (including bacteria, viruses, rickettsiae, parasites, fungi) and other agents such as prions, which can cause disease in humans or animals. The definition is applied to all specimens except those explicitly excluded in the WHO Guidance Material. 84 The international regulations for the transport of infectious substances by any mode of transport are based upon the Recommendations made by the Committee of Experts on the Transport of Dangerous Goods (UNCETDG), a committee of the United Nations Economic and Social Council. The Recommendations are presented in the form of Model Regulations. The United Nations Model Regulations are reflected in international law through international modal agreements. 85 It is widely recognized that SARS is not a disease but a syndrome. See generally, Ruwantissa and Abeyratne (2002), pp. 53-80. provisions, but may incorporate variations. State and operator variations are published in the ICAO Technical Instructions and in the IATA Dangerous Goods Regulations. The WHO guidelines also contain detailed packing instructions regarding infectious substances. 86 Regionally, there is direct provision with regard to safety provisions that impact on protecting humanity at large. For instance, European Union Regulation EC 3922/1991 87 prescribes common standards for consistency and harmonization in the design, manufacture, operation and maintenance of aircraft. The United Kingdom has focused regulations, such as the Air Navigation Order 2005 (CAP 393), Article 69 of which prohibits aircraft from carrying munitions of war 88 unless they are carried under a letter of authority of the Civil Aviation Administration and the commander of the aircraft is advised in writing of all details of the consignment carried in his aircraft, such details to be given to the commander prior to take off.

In the United States The US Code of Federal Regulations (Title 18.922) permits only licensed manufacturers, importers or dealers to be involved in the dissemination of arms and ammunition by shipping or transportation ob surface or by air. There are other countries which have similar restrictions. 89 86 The system of packaging is recommended for use all infectious substances. It consists of three layers as follows: Primary receptacle-which is a primary watertight, leak-proof receptacle containing the specimen. The receptacle is packaged with enough absorbent material to absorb all fluid in case of breakage. Secondary packaging-which is a second durable, watertight, leakproof packaging to enclose and protect the primary receptacle(s). Several cushioned primary receptacles may be placed in one secondary packaging, but sufficient additional absorbent material shall be used to absorb all fluid in case of breakage. Outer packaging-which are secondary packagings placed in outer shipping packagings with suitable cushioning material. Outer packagings protect their contents from outside influences, such as physical damage, while in transit. The smallest overall external dimension shall be 10Â10 cm. Each completed package is normally required to be marked, labelled and accompanied with appropriate shipping documents (as applicable). Supra, note 82 (this chapter) at p. 6. 87 Council Resolution EEC No. 3922/91 of 16 December 1991 on the Harmonization of the Technical Requirements and Administrative Procedures in the Field of Civil Aviation, Amended by Regulation EC No. 1899 /2006 of 12 December 2006 , Regulation EC No. 8/2008 of 11 December 2007 , Regulation EC No. 859 of 20 August 2008 Any weapons or ammunition, any article carrying an explosive, noxious liquid or gas or any other thing that is designed to be made use of in war. 89 In El Salvador, OPS 2065 prohibits the transport by air of weapons and munitions of war unless specifically permitted by the relevant authorities. In Barbados, Regulation 69 requires all States concerned and involved in the carriage and receipt of arms and ammunition carried by air to give their permission and agreement for such carriage before the consignments can be placed on board aircraft. In Jamaica, Air operators are not allowed to transport munitions of war by air unless prior approval has been granted by the Civil Aviation Authority: Munitions of war shall not be carried on an aircraft unless the munitions of war are carried with the written permission of the Authority and in accordance with the Eighteenth 667 and Twentieth 668 Schedules and any other conditions imposed by the Authority relating thereto; Weapons of war cannot be carried on an aircraft in any compartment to which passengers have access. In Trinidad and Tobago, Trinidad and Tobago no airlines, whether domestic or foreign, are allowed to transport weapons of war by air unless prior approval has been granted by the Civil Aviation Authority. In Nicaragua, Nicaragua, according to

Countries such as Afghanistan, Sudan, Somalia, Nicaragua, Angola the Democratic Republic of Congo and a host of other States have suffered from the transportation of arms and ammunition with the use of commercial aircraft. In Nicaragua, in a conflict spanning from 1982 to 1990 where 42,000 perished, much of the damage on the ground was done by the transport of munitions by air into Nicaragua. Around the same time, support to the Contra groups in Honduras was given by anti Cuban regime groups in Miami when they provided by air loads of small arms and ammunition in 1981. 90 A commentary on the subject of carriage by air of weaponry states:

Various airports and sea ports -located in 20 different countries -were used between 1981 and 1986 to carry out the logistic operations in support of the Contras and of the arms shipments to Iran. Some of the aviation companies serving the Iran-Contra operations in Europe, the Middle East and Central America were also engaged at the same time in arms and military supply operations in Angola and DR Congo. . . One of the first documented flights occurred on April 9, 1983, when Southern Air Transport 61 "Flight SJ1466 (carried out by an L-100), supposedly en route from Panama to Tegucigalpa, landed instead at Palmerola AFB, under secret instructions given to the pilot by SAT management. The plane transported 22 tons of small arms and ammunition picked up in Panama. Also in 1983, other companies, such as Summit Aviation, Investair and Westair Intl., provided the Contras with light planes, used for operations inside Nicaragua. In 1985 and 1986 , several other arms shipments reached the Contras, mainly" own by Southern Air Transport (contracted by Richard Gadd's Eagle Aviation Service and Technology, EAST and AirMach), Arrow Air (subcontracted by SAT) and F. A. Conner Air. North's associates also organized large arms shipments from Portugal, through the shell companies ACE and Energy Resources as well as through arms dealers in Portugal and Canada. North's associates used forged Guatemalan Army end-user certi! cates and diverted the arms from their supposed destinations in Guatemala to Contra bases. The shipments included arms and ammunition worth about USD5.6 million altogether, with a volume that added up to some 800 tons. 91 a 2007 Regulation, based upon the ICAO's Standards and Recommended Practices and the European Joint Aviation Requirements (JAR), transportation of munitions are generally forbidden. In India, India according to rule 8 of the Aircraft Rules, 1937, arms, ammunition, munitions of war, implements of war, explosives etc. shall be carried to, from, within or over India only with the written permission of the Central Government and subject to the terms and conditions of such permission. 675 The power to issue permission is delegated to officers of the Directorate General of Civil Aviation. Under the Civil Aviation Rules (1994) of Pakistan, the country prohibits the carriage of weapons or parts thereof, or ammunition or constituents thereof, which are designed for use in warfare, or against a person. 678 Only the Director-General of the Civil Aviation Authority can authorize the carriage of such items. Article 41 paragraph 1 of the Air Navigation Order of Singapore prohibits the carriage of munitions of war on aircraft. Munitions of war are defined as "such weapons and ammunition designed for use in warfare or against the person, including parts designed for such weapons and ammunition". 90 See Danssaert and Finardi (2011) , at note 58 where the authors say: "According to FBI investigators, Raul Arana, an agent for Contra leader Fernando Chamorro," flew "several large arms shipments from Miami to Honduras in 1981", see Walcott and Paztor (1987) . 91 Id. Danssaert and Finardi (2011), pp. 15 and 17. Aviation, arms and ammunition and strikes against civilian targets are interlinked. The most ominous threat to attacks on civilians in the aviation context is military air strikes.

On 4 December 2001, Israel Military forces attacked the Gaza International airport, destroyed the air navigation facilities and bombarded runways and taxiways until the airport became unserviceable. When the Palestinian Authority attempted a repair on 11 January 2002, the Israeli military forces bombarded once again the airport and its facilities by aircraft, artillery and tanks, thereby destroying the runway, the taxiways and all facilities.

Gaza International Airport (LVGZ), the only gateway for the Palestinians to and from Palestine, had been inaugurated for air navigation in November 1998 by President Arafat of Palestine and President Bill Clinton as a result of the Wye-River accord signed by Israel and the Palestine Liberation Organization. On 23 October 1998 and also in accordance with the Protocol regarding the establishment and operation of the International Airport in the Gaza Strip during the interim period. That Protocol, signed by Israel and Palestinian 20 November 1998 at Tel Aviv, reserved the right for the Palestinian Civil Aviation Authority to operate the airport 24 h a day around.

On 8 October 2000, the Israeli Government had ordered the closure of the airport's airspace, preventing Palestine Airlines, Egypt Air, Jordanian Royal Wings, Royal Air Maroc and any other airlines from carrying out operations between that airport and those of Cairo, Amman, Jeddah, Dubai, Abu Dhabi, Doha, Larnaca and Istanbul, and preventing any humanitarian flights, including the transportation of injured persons and medical assistance. This public punishment procedure, it was alleged in the ICAO Council when it deliberated on this issue, was without any excuse related to the airport operations, which had been functioning smoothly under joint security supervision by Palestinians and Israelis without dispute, since Israel had the overriding responsibility for security during implementation of joint activities such as aircraft arrival and departure procedures, passenger and luggage arrival and departure procedures, customs procedures, inbound and outbound procedures, aircraft security inspection before departure and after arrival etc.

The destroyed airport and air navigation facilities were used for the transportation of civilian passengers, search and rescue operations in case of emergencies, transportation of rescue material, including medical equipment, medicines and survival kits for safeguarding human lives. The observer from Palestine in the council for purposes of this discussion emphasized the need for a fully functional airport in the Palestine occupies territories, taking into account the prevailing tense and violent situation and the urgent need for humanitarian relief and medical assistance.

The airport was developed with voluntary contributions from a number of European countries, which recognized beyond doubt the urgent need for the airport. Nevertheless, the airport was destroyed without paying attention to any humanitarian consideration. This led the European Union to condemn the Israeli actions and reserve the right to demand compensation for the damages.

The ICAO Council was advised that the destruction of the civil airport in Gaza was an act deliberately perpetrated by a Contracting State. Such destruction took place under the watchful eyes of the international community and was widely covered by local and international media reports. Let alone the complaisance of the perpetrator, contempt of respect for human life, the disrespect of international laws, including the conventions on civil aviation security.

The issue brought to bear the relevance of the Chicago Convention which provides that:

Each contracting state agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention. 92 Those aims, as enshrined in the Convention, include:

Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport. 93 The States parties to the Montreal Convention (1971) considered that: ". . . Unlawful acts against the safety of civil aviation jeopardize the safety of persons and property, seriously affect the operation of air services, and undermine the confidence of the peoples of the world in the safety of civil aviation", that "the occurrence of such acts is a matter of grave concern" and that "for the purpose of deterring such acts, there is an urgent need to provide appropriate measures for punishment of offenders".

In its Resolution A20-1 Resolving Clause 3, The Assembly solemnly warned Israel that if it continues committing such acts the Assembly will take further measures against Israel to protect international civil aviation.

In its Resolution A33-2, the Assembly stated the following: "Whereas acts of unlawful interference against civil aviation have become the main threat to its safe and orderly development; Recognizing that all acts of unlawful interference against international civil aviation constitute a grave offence in violation of International law"; the Assembly: strongly condemned all acts of unlawful interference against civil aviation wherever and by whomever and for whatever reason they are perpetrated.

In the light of repeated military attacks by Israel against civil aviation and considering the framework of the Chicago Convention (1944), the civil aviation 92 See Article 4 (Misuse of civil aviation). 93 See Article 44 (Objectives). security conventions, Assembly resolution A20-1 and Assembly resolution A33-2, the Council was requested by Algeria, Egypt, Lebanon and Saudi Arabia to accept its responsibilities and solemnly condemn the unlawful act perpetrated by Israel against the civil international Gaza Airport and issue a clear warning that such acts will not go unpunished. 94 It must be noted that Article 54(n) of the Chicago Convention provides that, "the Council shall . . . consider any matter relating to this Convention which any Contracting State refers to it" and it was under this principle that the Council considered the Gaza issue.

It was claimed on behalf of the Palestinian National Authority that it had the right, under international law to demand compensation from Israel for all losses caused by their incursions on this civil airport for a total of US$14 million and a condemnation in the Council of Israel for the acts of unlawful interference with civil aviation.

The following incidents of Israeli aggression by air were cited to the ICAO Council: that unlawful acts of violence jeopardizing the safety of airports disturb the safe and orderly conduct of civil aviation for all States; Considering that the occurrence of such acts is a matter of grave concern to the international community;

1. Strongly condemns all acts of unlawful interference against civil aviation, wherever, by whomsoever and for whatever reasons they are perpetrated; 2. Strongly condemns the destruction of Gaza International Airport and its air navigation facilities; 3. Reaffirms the important role of the International Civil Aviation Organization to facilitate the resolution of questions which may arise between Contracting States in relation to matters affecting the safe and orderly operation of international civil aviation throughout the world; 4. Urges Israel to fully comply with the aims and objectives of the Chicago Convention; 5. Strongly urges Israel to take the necessary measures to restore Gaza International Airport so as to allow its reopening as soon as possible; 6. Requests the President of the Council to attend to the implementation of this Resolution, in particular its preceding Clauses 3, 4 and 5, and to secure the full cooperation of the parties with respect to the application of the Chicago Convention and of the above-mentioned principles; and 7. Requests the Secretary General to inform all 187 Contracting States of this Resolution.

This issue was placed as an item for discussion at The High-level, Ministerial Conference on Aviation Security (AVSEC-Conf/02) held at ICAO Headquarters on 19 and 20 February 2002, which was attended by 717 participants from 153 Contracting States and 25 observers. 95 The Conference adopted a Declaration on aviation security which did not refer specifically to the Gaza issue but inter alia recognized the responsibility of States for the security and the safety of civil aviation, irrespective of whether the air transport and related services concerned are provided by Government, autonomous or private entities; The Declaration also noted the significant improvements in aviation security recently initiated in a large number of States and went on to recognize that a uniform approach in a global system is essential to ensure aviation security throughout the world and that deficiencies in any part of the system constitute a threat to the entire global system. It also affirmed that a global aviation security system imposes a collective responsibility on all States. 95 The Council decided to place this matter before the High Level Safety Conference. See C-WP/ 11786, 27 February 2002.

During the "Arab Spring" 96 of 2011, the Libyan military, its equipment and personnel who were launching military attacks 97 on protesting civilians came under heavy attack from NATO as a consequence of United Nations Security Council Resolution 1973. This Resolution, which was adopted on 17 March 2011, demanded an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute "crimes against humanity", the Security Council this evening imposed a ban on all flights in the country's airspace-a no-fly zone-and tightened sanctions on the Qadhafi regime and its supporters.

Adopting Resolution 1973 by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory-requesting them to immediately inform the Secretary-General of such measures.

Recognizing the important role of the League of Arab States in the maintenance of international peace and security in the region, and bearing in mind the United Nations Charter's Chapter VIII, the Council asked the League's member States to cooperate with other Member States in implementing the no-fly zone.

The Council stressed the need to intensify efforts to find a solution to the crisis that responded to the legitimate demands of the Libyan people, noting actions being taken on the diplomatic front in that regard. It further demanded that Libyan authorities comply with their obligations under international law and take all measures to protect civilians and meet their basic needs and to ensure the rapid and unimpeded passage of humanitarian assistance.

In that connection, the Council specified that the flight ban would not apply to flights that had as their sole purpose humanitarian aid, the evacuation of foreign nationals, enforcing the ban or other purposes "deemed necessary for the benefit of the Libyan people".

It further decided that all States should deny permission to any Libyan commercial aircraft to land in or take off from their territory unless a particular flight had been approved in advance by the committee that was established to monitor sanctions imposed by resolution 1970 (2011). 96 The 2010-2011 "Arab Spring" is a revolutionary wave of demonstrations and protests and protests that has been taking place in the Middle East and North Africa. Since 18 December 2010. Prior to this period Sudan was the only Arab country to have successfully toppled dictatorial regimes. 97 The uprising in Libya instantly became violent when the Libyan government reacted harshly towards peaceful protests. On February 18, 3 days after the protests began; the country erupted into an armed conflict when protesters executed policemen and men loyal to Colonel Muammar Gaddafi for killing protesters.

In tightening the asset freeze and arms embargo established by that resolution, the Council this evening further detailed conditions for inspections of transport suspected to be violating the embargo, requesting States enforcing the embargo to coordinate closely with each other and the Secretary-General on the measures they were taking towards implementation.

It requested the Secretary-Secretary to create an eight-member panel of experts to assist the Security Council committee in monitoring the sanctions.

Introducing the resolution, the Foreign Minister of France, Alain Juppé, said "the situation on the ground is more alarming than ever, marked by the violent re-conquest of cities that have been released". The Security Council could not stand by and "let the warmongers flout international legality". The world was experiencing "a wave of great revolutions that would change the course of history", but the will of the Libyan people had been "trampled under the feet of the Qadhafi regime". Earlier Council measures had been ignored and violence against Libyan civilians had redoubled.

He said that the urgent need to protect the civilian population had led to the elaboration of the current resolution, which authorized the Arab League and those Member States wishing to do so to take all measures to protect areas that were being threatened by the Qadhafi regime. "We have very little time left -perhaps only a matter of hours," he said, adding that each hour and day that passed "increased the weight" on the international community's shoulders.

Speaking after the vote, representatives who had supported the text agreed that the strong action was made necessary because the Qadhafi regime had not heeded the first actions of the Council and was on the verge of even greater violence against civilians as it closed in on areas previously dominated by opposition in the east of the country. They stressed that the objective was solely to protect civilians from further harm.

The full text of resolution 1973 (2011) reads as follows:

The Security Council, Recalling its resolution 1970 (2011) Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties,

Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians,

Condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions, Further condemning acts of violence and intimidation committed by the Libyan authorities against journalists, media professionals and associated personnel and urging these authorities to comply with their obligations under international humanitarian law as outlined in resolution 1738 (2006),

Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity, Recalling paragraph 26 of resolution 1970 (2011) in which the Council expressed its readiness to consider taking additional appropriate measures, as necessary, to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in the Libyan Arab Jamahiriya, Expressing its determination to ensure the protection of civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian assistance and the safety of humanitarian personnel,

Recalling the condemnation by the League of Arab States, the African Union and the Secretary-General of the Organization of the Islamic Conference of the serious violations of human rights and international humanitarian law that have been and are being committed in the Libyan Arab Jamahiriya, Taking Taking note also of the decision of the Council of the League of Arab States of 12 March 2011 to call for the imposition of a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in the Libyan Arab Jamahiriya, Taking note further of the Secretary-General's call on 16 March 2011 for an immediate ceasefire,

Recalling its decision to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, and stressing that those responsible for or complicit in attacks targeting the civilian population, including aerial and naval attacks, must be held to account, Reiterating its concern at the plight of refugees and foreign workers forced to flee the violence in the Libyan Arab Jamahiriya, welcoming the response of neighbouring States, in particular Tunisia and Egypt, to address the needs of those refugees and foreign workers, and calling on the international community to support those efforts,

Deploring the continuing use of mercenaries by the Libyan authorities, Considering that the establishment of a ban on all flights in the airspace of the Libyan Arab Jamahiriya constitutes an important element for the protection of civilians as well as the safety of the delivery of humanitarian assistance and a decisive step for the cessation of hostilities in Libya, Expressing concern also for the safety of foreign nationals and their rights in the Libyan Arab Jamahiriya, Welcoming the appointment by the Secretary General of his Special Envoy to Libya, Mr. Abdul Ilah Mohamed Al-Khatib and supporting his efforts to find a sustainable and peaceful solution to the crisis in the Libyan Arab Jamahiriya, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya,

Determining that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Demands the immediate establishment of a ceasefire and a complete end to violence and all attacks against, and abuses of, civilians;

2. Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people and notes the decisions of the Secretary-General to send his Special Envoy to Libya and of the Peace and Security Council of the African Union to send its ad hoc High-Level Committee to Libya with the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution;

3. Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance;

Protection of civilians 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

Recognizes the important role of the League of Arab States in matters relating to the maintenance of international peace and security in the region, and bearing in mind Chapter VIII of the Charter of the United Nations, requests the Member States of the League of Arab States to cooperate with other Member States in the implementation of paragraph 4;

No-fly zone 6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians; 7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the authorization conferred in paragraph 8 to be for the benefit of the Libyan people, and that these flights shall be coordinated with any mechanism established under paragraph 8;

8. Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above, 9. Calls upon all Member States, acting nationally or through regional organizations or arrangements, to provide assistance, including any necessary overflight approvals, for the purposes of implementing paragraphs 4, 6, 7 and 8 above;

10. Requests the Member States concerned to coordinate closely with each other and the Secretary-General on the measures they are taking to implement paragraphs 4, 6, 7 and 8 above, including practical measures for the monitoring and approval of authorised humanitarian or evacuation flights; 11. Decides that the Member States concerned shall inform the Secretary-General and the Secretary-General of the League of Arab States immediately of measures taken in exercise of the authority conferred by paragraph 8 above, including to supply a concept of operations;

12. Requests the Secretary-General to inform the Council immediately of any actions taken by the Member States concerned in exercise of the authority conferred by paragraph 8 above and to report to the Council within 7 days and every month thereafter on the implementation of this resolution, including information on any violations of the flight ban imposed by paragraph 6 above;

Enforcement of the arms embargo 13. Decides that paragraph 11 of resolution 1970 (2011) shall be replaced by the following paragraph : "Calls upon all Member States, in particular States of the region, acting nationally or through regional organisations or arrangements, in order to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect in their territory, including seaports and airports, and on the high seas, vessels and aircraft bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, calls upon all flag States of such vessels and aircraft to cooperate with such inspections and authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections"; 14. Requests Member States which are taking action under paragraph 13 above on the high seas to coordinate closely with each other and the Secretary-General and further requests the States concerned to inform the Secretary-General and the Committee established pursuant to paragraph 24 of resolution 1970 (2011) ("the Committee") immediately of measures taken in the exercise of the authority conferred by paragraph 13 above;

15. Requires any Member State whether acting nationally or through regional organisations or arrangements, when it undertakes an inspection pursuant to paragraph 13 above, to submit promptly an initial written report to the Committee containing, in particular, explanation of the grounds for the inspection, the results of such inspection, and whether or not cooperation was provided, and, if prohibited items for transfer are found, further requires such Member States to submit to the Committee, at a later stage, a subsequent written report containing relevant details on the inspection, seizure, and disposal, and relevant details of the transfer, including a description of the items, their origin and intended destination, if this information is not in the initial report;

16. Deplores the continuing flows of mercenaries into the Libyan Arab Jamahiriya and calls upon all Member States to comply strictly with their obligations under paragraph 9 of resolution 1970 (2011) to prevent the provision of armed mercenary personnel to the Libyan Arab Jamahiriya;

Ban on flights 17. Decides that all States shall deny permission to any aircraft registered in the Libyan Arab Jamahiriya or owned or operated by Libyan nationals or companies to take off from, land in or overfly their territory unless the particular flight has been approved in advance by the Committee, or in the case of an emergency landing;

18. Decides that all States shall deny permission to any aircraft to take off from, land in or overfly their territory, if they have information that provides reasonable grounds to believe that the aircraft contains items the supply, sale, transfer, or export of which is prohibited by paragraphs 9 and 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, except in the case of an emergency landing;

Asset freeze 19. Decides that the asset freeze imposed by paragraph 17, 19, 20 and 21 of resolution 1970 (2011) shall apply to all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the Libyan authorities, as designated by the Committee, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, as designated by the Committee, and decides further that all States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the Libyan authorities, as designated by the Committee, or individuals or entities acting on their behalf or at their direction, or entities owned or controlled by them, as designated by the Committee, and directs the Committee to designate such Libyan authorities, individuals or entities within 30 days of the date of the adoption of this resolution and as appropriate thereafter; 20. Affirms its determination to ensure that assets frozen pursuant to paragraph 17 of resolution 1970 (2011) shall, at a later stage, as soon as possible be made available to and for the benefit of the people of the Libyan Arab Jamahiriya; 21. Decides that all States shall require their nationals, persons subject to their jurisdiction and firms incorporated in their territory or subject to their jurisdiction to exercise vigilance when doing business with entities incorporated in the Libyan Arab Jamahiriya or subject to its jurisdiction, and any individuals or entities acting on their behalf or at their direction, and entities owned or controlled by them, if the States have information that provides reasonable grounds to believe that such business could contribute to violence and use of force against civilians;

Designations 22. Decides that the individuals listed in Annex I shall be subject to the travel restrictions imposed in paragraphs 15 and 16 of resolution 1970 (2011), and decides further that the individuals and entities listed in Annex II shall be subject to the asset freeze imposed in paragraphs 17, 19, 20 and 21 of resolution 1970 (2011); 23. Decides that the measures specified in paragraphs 15, 16, 17, 19, 20 and 21 of resolution 1970 (2011) shall apply also to individuals and entities determined by the Council or the Committee to have violated the provisions of resolution 1970 (2011), particularly paragraphs 9 and 10 thereof, or to have assisted others in doing so;

Panel of Experts 24. Requests the Secretary-General to create for an initial period of one year, in consultation with the Committee, a group of up to eight experts ("Panel of Experts"), under the direction of the Committee to carry out the following tasks:

(a) Assist the Committee in carrying out its mandate as specified in paragraph 24 of resolution 1970 (2011) and this resolution;

(b) Gather, examine and analyse information from States, relevant United Nations bodies, regional organisations and other interested parties regarding the implementation of the measures decided in resolution 1970 (2011) and this resolution, in particular incidents of non-compliance;

(c) Make recommendations on actions the Council, or the Committee or State, may consider to improve implementation of the relevant measures;

(d) Provide to the Council an interim report on its work no later than 90 days after the Panel's appointment, and a final report to the Council no later than 30 days prior to the termination of its mandate with its findings and recommendations;

25. Urges all States, relevant United Nations bodies and other interested parties, to cooperate fully with the Committee and the Panel of Experts, in particular by supplying any information at their disposal on the implementation of the measures decided in resolution 1970 (2011) and this resolution, in particular incidents of non-compliance;

26. Decides that the mandate of the Committee as set out in paragraph 24 of resolution 1970 (2011) shall also apply to the measures decided in this resolution;

27. Decides that all States, including the Libyan Arab Jamahiriya, shall take the necessary measures to ensure that no claim shall lie at the instance of the Libyan authorities, or of any person or body in the Libyan Arab Jamahiriya, or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in resolution 1970 (2011), this resolution and related resolutions;

28. Reaffirms its intention to keep the actions of the Libyan authorities under continuous review and underlines its readiness to review at any time the measures imposed by this resolution and resolution 1970 (2011), including by strengthening, suspending or lifting those measures, as appropriate, based on compliance by the Libyan authorities with this resolution and resolution 1970 (2011); "29. Decides to remain actively seized of the matter."

The significant elements of this Resolution lie in the ban imposed on all flights over Libyan airspace (except for humanitarian flights) and in Resolving Clause 4 in terms of protection of civilians whereby States were authorized to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), 98 to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council. The phrase "all necessary measures" extended much flexibility for States to employ air power to strike the Libyan military, stopping short of foreign occupation of Libya.

Resolution 1973 followed Resolution 1970 on tough measures on the Libyan Regime in response to its crackdown on protesters.

Deploring what it called "the gross and systematic violation of human rights" in strife-torn Libya, the Security Council this evening demanded an end to the violence and decided to refer the situation to the International Criminal Court while imposing an arms embargo on the country and a travel ban and assets freeze on the family of Muammar Al-Qadhafi and certain Government officials.

Unanimously adopting resolution 1970 (2011) under Article 41 of the Charter's Chapter VII, the Council authorized all Member States to seize and dispose of military-related materiel banned by the text. It called on all Member States to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in Libya and expressed its readiness to consider taking additional appropriate measures as necessary to achieve that.

Through the text, the Council also decided to establish a new committee to monitor sanctions, to liaison with Member States on compliance and to respond to violations and to designate the individuals subject to the targeted measures. Individuals and entities immediately subjected to the targeted sanctions were listed in an Annex to the resolution.

Regarding its referral of the situation in Libya since 15 February 2011 to the Prosecutor of the International Criminal Court, the Council recognized that States not party to the Rome Statute that established the Court had no obligations to it, but urged all States and concerned organizations to cooperate fully with the Court's Prosecutor.

The Council affirmed it would keep the actions of the Libyan authorities under continuous review and would be prepared to strengthen, modify, suspend or lift the prescribed measures in light of compliance or non-compliance with the resolution.

Following the adoption of the text, Secretary-General Ban Ki-moon welcomed the Council's "decisive" action. "While it cannot, by itself, end the violence and the repression, it is a vital step -a clear expression of the will of a united community of nations," he said. 98 See below the complete text of Resolution 1970 for the text of Clause 9.

He expressed hope that the message that "gross violations of basic human rights will not be tolerated and that those responsible for grave crimes will be held accountable" would be "heard and heeded" by the Libyan regime and that it would bring hope and relief to those still at risk. He looked for similar action from the General Assembly and the international community as a whole, and warned that even bolder steps might be necessary.

In their explanations of vote, Council members welcomed the unanimity of the action and expressed solidarity with the people of Libya, hoping that their "swift and decisive" intervention would help bring them relief. Many expressed hope that the resolution was a strong step in affirming the responsibility of States to protect their people as well as the legitimate role of the Council to step in when they failed to meet that responsibility.

With the referral of the situation to the International Criminal Court, France's representative hoped the vote would open a new era in commitment to the protection of populations. Further to that goal, Brazil's representative expressed strong reservations to the provision in the resolution allowing for exemptions from jurisdiction of nationals from non-States parties, saying those were not helpful to advance the cause of justice and accountability.

Noting that five Council members were not parties to the Rome Statute that set up the International Criminal Court, including India, that country's representative said he would have preferred a "calibrated approach" to the issue. However, he was convinced that the referral would help to bring about the end of violence and he heeded the call of the Secretary-General on the issue, while stressing the importance of the provisions in the resolution regarding non-States parties to the Statute.

Some speakers, such as the representatives of Lebanon and the Russian Federation, stressed the importance of affirming the sovereignty and territorial integrity of Libya. The Chinese representative said he had supported the resolution taking into account the special circumstances in Libya.

Speaking last, Libya's representative said that the Council's action represented moral support for his people and was a signal that an end must be put to the fascist regime in Tripoli. He launched an appeal to all the officers of the Libyan armed forces to support their own people, and welcomed the referral to the International Criminal Court, as well as the decision not to impose sanctions on those who might abandon Mr. Al-Qadhafi in the end.

Also speaking this evening were the representatives of the United Kingdom, South Africa, Nigeria, United States, Colombia, Portugal, Germany, and Bosnia and Herzegovina and Gabon.

The full text of resolution 1970 (2011) reads as follows: "The Security Council, Expressing grave concern at the situation in the Libyan Arab Jamahiriya and condemning the violence and use of force against civilians,

Deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government,

Welcoming the condemnation by the Arab League, the African Union, and the Secretary General of the Organization of the Islamic Conference of the serious violations of human rights and international humanitarian law that are being committed in the Libyan Arab Jamahiriya, Taking note of the letter to the President of the Security Council from the Permanent Representative of the Libyan Arab Jamahiriya dated 26 February 2011,

Welcoming the Human Rights Council resolution A/HRC/S-15/2 of 25 February 2011, including the decision to urgently dispatch an independent international commission of inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, to establish the facts and circumstances of such violations and of the crimes perpetrated, and where possible identify those responsible,

Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity, Expressing concern at the plight of refugees forced to flee the violence in the Libyan Arab Jamahiriya,

Expressing concern also at the reports of shortages of medical supplies to treat the wounded,

Recalling the Libyan authorities' responsibility to protect its population, Underlining the need to respect the freedoms of peaceful assembly and of expression, including freedom of the media,

Stressing the need to hold to account those responsible for attacks, including by forces under their control, on civilians,

Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect, Expressing concern for the safety of foreign nationals and their rights in the Libyan Arab Jamahiriya, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya.

Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations,

Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41, 1. Demands an immediate end to the violence and calls for steps to fulfil the legitimate demands of the population; 2. Urges the Libyan authorities to: (a) Act with the utmost restraint, respect human rights and international humanitarian law, and allow immediate access for international human rights monitors;

(b) Ensure the safety of all foreign nationals and their assets and facilitate the departure of those wishing to leave the country;

(c) Ensure the safe passage of humanitarian and medical supplies, and humanitarian agencies and workers, into the country; and (d) Immediately lift restrictions on all forms of media; 3. Requests all Member States, to the extent possible, to cooperate in the evacuation of those foreign nationals wishing to leave the country;

ICC referral 4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court; 5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State; 7. Invites the Prosecutor to address the Security Council within 2 months of the adoption of this resolution and every 6 months thereafter on actions taken pursuant to this resolution; 8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

Arms embargo 9. Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories, and decides further that this measure shall not apply to:

(a) Supplies of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance or training, as approved in advance by the Committee established pursuant to paragraph 24 below;

(b) Protective clothing, including flak jackets and military helmets, temporarily exported to the Libyan Arab Jamahiriya by United Nations personnel, representatives of the media and humanitarian and development works and associated personnel, for their personal use only; or (c) Other sales or supply of arms and related materiel, or provision of assistance or personnel, as approved in advance by the Committee;

10. Decides that the Libyan Arab Jamahiriya shall cease the export of all arms and related materiel and that all Member States shall prohibit the procurement of such items from the Libyan Arab Jamahiriya by their nationals, or using their flagged vessels or aircraft, and whether or not originating in the territory of the Libyan Arab Jamahiriya;

11. Calls upon all States, in particular States neighbouring the Libyan Arab Jamahiriya, to inspect, in accordance with their national authorities and legislation and consistent with international law, in particular the law of the sea and relevant international civil aviation agreements, all cargo to and from the Libyan Arab Jamahiriya, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe the cargo contains items the supply, sale, transfer, or export of which is prohibited by paragraphs 9 or 10 of this resolution for the purpose of ensuring strict implementation of those provisions;

12. Decides to authorize all Member States to, and that all Member States shall, upon discovery of items prohibited by paragraph 9 or 10 of this resolution, seize and dispose (such as through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) items the supply, sale, transfer or export of which is prohibited by paragraph 9 or 10 of this resolution and decides further that all Member States shall cooperate in such efforts;

13. Requires any Member State when it undertakes an inspection pursuant to paragraph 11 above, to submit promptly an initial written report to the Committee containing, in particular, explanation of the grounds for the inspections, the results of such inspections, and whether or not cooperation was provided, and, if prohibited items for transfer are found, further requires such Member States to submit to the Committee, at a later stage, a subsequent written report containing relevant details on the inspection, seizure, and disposal, and relevant details of the transfer, including a description of the items, their origin and intended destination, if this information is not in the initial report;

14. Encourages Member States to take steps to strongly discourage their nationals from travelling to the Libyan Arab Jamahiriya to participate in activities on behalf of the Libyan authorities that could reasonably contribute to the violation of human rights;

Travel ban 15. Decides that all Member States shall take the necessary measures to prevent the entry into or transit through their territories of individuals listed in Annex I of this resolution or designated by the Committee established pursuant to paragraph 24 below, provided that nothing in this paragraph shall oblige a State to refuse its own nationals entry into its territory;

16. Decides that the measures imposed by paragraph 15 above shall not apply: (a) Where the Committee determines on a case-by-case basis that such travel is justified on the grounds of humanitarian need, including religious obligation;

(b) Where entry or transit is necessary for the fulfilment of a judicial process; (c) Where the Committee determines on a case-by-case basis that an exemption would further the objectives of peace and national reconciliation in the Libyan Arab Jamahiriya and stability in the region; or (d) Where a State determines on a case-by-case basis that such entry or transit is required to advance peace and stability in the Libyan Arab Jamahiriya and the States subsequently notifies the Committee within 48 h after making such a determination;

Asset freeze 17. Decides that all Member States shall freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities listed in Annex II of this resolution or designated by the Committee established pursuant to paragraph 24 below, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, and decides further that all Member States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the individuals or entities listed in Annex II of this resolution or individuals designated by the Committee;

18. Expresses its intention to ensure that assets frozen pursuant to paragraph 17 shall at a later stage be made available to and for the benefit of the people of the Libyan Arab Jamahiriya;

19. Decides that the measures imposed by paragraph 17 above do not apply to funds, other financial assets or economic resources that have been determined by relevant Member States:

(a) To be necessary for basic expenses, including payment for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services in accordance with national laws, or fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds, other financial assets and economic resources, after notification by the relevant State to the Committee of the intention to authorize, where appropriate, access to such funds, other financial assets or economic resources and in the absence of a negative decision by the Committee within 5 working days of such notification;

(b) To be necessary for extraordinary expenses, provided that such determination has been notified by the relevant State or Member States to the Committee and has been approved by the Committee; or (c) To be the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgment provided that the lien or judgment was entered into prior to the date of the present resolution, is not for the benefit of a person or entity designated pursuant to paragraph 17 above, and has been notified by the relevant State or Member States to the Committee; 20. Decides that Member States may permit the addition to the accounts frozen pursuant to the provisions of paragraph 17 above of interests or other earnings due on those accounts or payments due under contracts, agreements or obligations that arose prior to the date on which those accounts became subject to the provisions of this resolution, provided that any such interest, other earnings and payments continue to be subject to these provisions and are frozen; 21. Decides that the measures in paragraph 17 above shall not prevent a designated person or entity from making payment due under a contract entered into prior to the listing of such a person or entity, provided that the relevant States have determined that the payment is not directly or indirectly received by a person or entity designated pursuant to paragraph 17 above, and after notification by the relevant States to the Committee of the intention to make or receive such payments or to authorize, where appropriate, the unfreezing of funds, other financial assets or economic resources for this purpose, 10 working days prior to such authorization;

Designation criteria 22. Decides that the measures contained in paragraphs 15 and 17 shall apply to the individuals and entities designated by the Committee, pursuant to paragraph 24 (b) and (c), respectively;

(a) Involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in the Libyan Arab Jamahiriya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities; or (b) Acting for or on behalf of or at the direction of individuals or entities identified in subparagraph (a).

23. Strongly encourages Member States to submit to the Committee names of individuals who meet the criteria set out in paragraph 22 above; New Sanctions Committee 24. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council (herein "the Committee"), to undertake to following tasks:

(a) To monitor implementation of the measures imposed in paragraphs 9, 10, 15, and 17;

(b) To designate those individuals subject to the measures imposed by paragraphs 15 and to consider requests for exemptions in accordance with paragraph 16 above;

(c) To designate those individuals subject to the measures imposed by paragraph 17 above and to consider requests for exemptions in accordance with paragraphs 19 and 20 above;

(d) To establish such guidelines as may be necessary to facilitate the implementation of the measures imposed above;

(e) To report within 30 days to the Security Council on its work for the first report and thereafter to report as deemed necessary by the Committee;

(f) To encourage a dialogue between the Committee and interested Member States, in particular those in the region, including by inviting representatives of such States to meet with the Committee to discuss implementation of the measures;

(g) To seek from all States whatever information it may consider useful regarding the actions taken by them to implement effectively the measures imposed above;

(h) To examine and take appropriate action on information regarding alleged violations or non-compliance with the measures contained in this resolution;

25. Calls upon all Member States to report to the Committee within 120 days of the adoption of this resolution on the steps they have taken with a view to implementing effectively paragraphs 9, 10, 15 and 17 above;

Humanitarian assistance 26. Calls upon all Member States, working together and acting in cooperation with the Secretary General, to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in the Libyan Arab Jamahiriya, and requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to this paragraph, and expresses its readiness to consider taking additional appropriate measures, as necessary, to achieve this;

Commitment to review 27. Affirms that it shall keep the Libyan authorities' actions under continuous review and that it shall be prepared to review the appropriateness of the measures contained in this resolution, including the strengthening, modification, suspension or lifting of the measures, as may be needed at any time in light of the Libyan authorities' compliance with relevant provisions of this resolution;

28. Decides to remain actively seized of the matter." Jurists will argue on the legitimacy of this international move by the member States of the United Nations which are generally guided by the United Nations Charter, Article 2.4 provides 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. As a counter argument is the compelling need to protect persons who are attacked by a regime to quell a peaceful protest.

Arguably, an analogy to the incursion into Libyan airspace by NATO aircraft would be the United States (and allies) military offensives on Afghanistan and Iraq, both of which, in terms of Article 51 of the United Nations Charter 99 were 99 Article 51 provides that nothing in the Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. seemingly carried out outside the parameters of the United Nations Charter and prompted some jurists to allege breaches of sovereignty in both instances. State Sovereignty is all about control over a society. However, it is also about legitimacy, as the Montevideo principles enunciated. It has to be noted that, from a purely academic perspective, the concept goes back several centuries. The doctrine of sovereignty was introduced to the Western world by the French philosopher Bodin. At a time when political attitudes were in transition from the dominance of the universal church to a universal legal order, Bodin introduced sovereignty as a supreme power over citizens and subjects that was not itself bound by laws. Bodin elaborated that every independent community had to consider that while acknowledging the authority of the law, a State was above the law if it wished to govern successfully. Other jurists who supported the theory of exclusive sovereignty were Hugo Grotius, who maintained that sovereign States were independent of foreign control, and Thomas Hobbes, who said that sovereignty was absolute and its misuse was unthinkable. John Locke attempted to compromise the absolute quality of sovereignty by opining that sovereignty was not absolute and unquestionable in that it was an exchange of social trust between the government and the people. Accordingly, there was an inarticulate premise that a breach of the social trust between the two parties would erode the concept of sovereignty. This brings one to the inexorable conclusion that, in the ultimate analysis the sovereignty of a nation, and therefore its independence, lies in a stable population that subscribes to the aspirations of the people. This is the ultimate value of self determination, legitimacy and independence.

The above notwithstanding, Article 39 of the United Nations Charter empowers the Security Council to determine the existence of any threat to the peace, breach of the peace or aggression. The Security Council may make recommendations or decide on the measures that may be taken. Although practically such recommendations may not be adopted owing to the veto power of the permanent members of the Council no such veto was exercised in the case of Resolution 1973 against Libya.

United Nations General Assembly Resolution 3314 of 1974 provides some examples of aggression, among which is invasion or attack by armed forces of a State. One of the fundamental rules of humanitarian law in the context of armed conflicts was prepared by the International Committee of the Red Cross in 1978 requires parties to a conflict to distinguish at all times between the civilian population and combatants in order to spare civilian population and property. It goes on to say that neither the civilian population as such nor civilian persons shall be the object of attack. The 1981 Conventional Weapons Convention prohibits the use of mines, booby traps and other similar devices and incendiary weapons directed against the civilian population or used indiscriminately and the first Protocol of 1977 imposes very detailed target restraints with a view to protecting civilians.

The operation of relief flights, either by States or such bodies as the United Nations, to alleviate human suffering in times of war, natural or manmade catastrophe, is yet another area in which the role of civil aviation is brought to bear in securing peace and security. There is a specific provision in Annex 9 to the Chicago Convention for provision by State of relief flights. Contracting States are required, by Standard 8.8 of Chapter 8 of the Annex, to facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the United Nations or by or on behalf of States themselves and to take all possible measures to ensure their safe operation. 100 The relief flights referred to should be undertaken to respond to natural and man-made disasters which seriously endanger human health or the environment. An emergency is acknowledged in the Annex as "a sudden and usually unforeseen event that calls for immediate measures to minimize its adverse consequences". A disaster is described in the Annex as "a serious disruption of the functioning of society, causing wide spread human, material or environmental losses which exceed the ability of the affected society to cope using its own resources." 101 The United Nations Charter lists the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, as one of the purposes of the United Nations. 102 The problems that the United Nations is mandated by its Charter to solve should therefore be necessarily 100 Standard 8.8 States: "Contracting States shall facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the UN or by or on behalf of States themselves and shall take all possible measures to ensure their safe operation. Such relief flights are those undertaken in response to natural and man-made disasters which seriously endanger human health or the environment, as well as similar emergency situations where UN assistance is required. Such flights shall be commenced as quickly as possible after obtaining agreement with the recipient State.

Note 1.-According to its Internationally Agreed Glossary of Basic Terms, the United Nations Department of Humanitarian Affairs considers an emergency to be "a sudden and usually unforeseen event that calls for immediate measures to minimize its adverse consequences", and a disaster to be "a serious disruption of the functioning of society, causing widespread human, material or environmental losses which exceed the ability of the affected society to cope using only its own resources". of an international nature. Article 2(7) of the Charter expands the scope of this philosophy further when it provides that the United Nations is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any State, without prejudice to the right of the United Nations to intervene in matters which are within the domestic jurisdiction of any State, and apply enforcement measures where there is an occurrence of acts of aggression, a threat to the peace or breach thereof. 103 Therefore stricto sensu, the United Nations cannot intervene in instances where natural disasters such as famine, drought or earthquakes render the citizens of a State homeless, destitute and dying of starvation unless invited by the States concerned. The principle however cannot be too strictly interpreted, as natural disasters may usually lead to breaches of the peace. In such instances the United Nations Security Council may take such actions by air, sea or land as may be necessary to maintain or restore international peace and security. 104 For such instances, Article 43 of the Charter provides:

All members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces assistance and facilities, including rights of passage necessary for the purpose of maintaining international peace and security.

Here again, action can only be taken for the maintenance of international peace, effectively precluding any direct intervention in a domestic issue.

Resolutions adopted by the United Nations Security Council relating to Somalia 105 and Bosnia and Herzegovina 106 clearly demonstrate the parameters of the scope of United Nations' intervention under its Charter. 107 In the case of Somalia, the United Nations Security Council recognized the unique character of the situation in the country, where conflict and violence demanded that all concerned take all necessary measures to facilitate the measures of the United Nations, its specialised agencies and humanitarian organizations to provide humanitarian assistance to the affected population in Somalia. In the case of Bosnia and Herzegovina the Security Council recognized in its Resolution that the situation in the two States constituted a threat to international peace and security. In both Resolutions, the Security Council had to function within its mandate of intervention only in instances of conflict and breaches of the peace.

The Geneva Conventions of 12 August 1949 for the Amelioration of the Wounded and Sick in Armed Forces in the Field contain provisions for facilitation 103 Id. Chapter VII Articles 39, 41 and 42. 104 Id. Article 42. 105 S/RES/794 (1992) 3 December 1992. 106 S/RES/770 (1992) 13 August 1992. 107 See also the earlier Security Council Resolution 688 (1991), 5 April 1991 whereby the Security Council expressed grave concern at the repression of the Iraqi civilian population in parts of Iraq and insisted that Iraq allow immediate access by international humanitarian organizations to all parts of Iraq. of aircraft for the removal of the wounded and sick and for the transport of medical personnel and equipment. 108 The thrust of the Conventions is that relief operations by air in the case of removing wounded and sick soldiers and civilians in instances of armed conflict are protected from attack and facilitated through. The Conventions also provide that medical aircraft of parties to the conflict may fly over the territories of neutral powers, land thereon in case of necessity, or use them as ports of call. 109 Medical aircraft are required by the Conventions to give neutral States previous notice of their passage through such States.

Humanitarian assistance per se is by no means contrary to the principles of international law. In Nicaragua v. USA (Merits) 110 the International Court of Justice (ICJ) held:

there can be no doubt that the provisions of strictly humanitarian aid to persons or forces in another country, whatever the political obligations or objectives, cannot be regarded as unlawful intervention, or in any way contrary to international law. 111

When the recipient State however, does not grant permission to a State or organization to operate relief flights into its territory, the status quo becomes different, and the legality of the relief flight becomes prima facie questionable. In such an instance, a relief flight would ipso facto be an intervention. The fact that such a flight does not obtain the permission to fly over or into the recipient State would clearly tantamount to a forcible entry. The question which emerges in this scenario is, when, if at all, does a unilateral humanitarian intervention such as a relief flight operated unilaterally, become legally justifiable?

The Court in the Nicaragua case, having concluded that the activities of the United States in assisting the Contras against the wishes of the Nicaraguan government constituted prima facie acts of intervention, held that the principle of non-intervention derives from customary international law, and a mere request for assistance by a person or group of persons or organization in a State would not justify at international law the unilateral intervention of State in the affairs of another. 112 Court relied heavily on the paramount authority of treaty provisions over the other sources of international law and applied the principle that the use of force or threat thereof by one State on another-to render assistance to the latter, without the latter's consent-was contrary to existing treaty law and therefore unacceptable. Judge Sette-Camara quoted the International Law Commission and observed: The Court in this case has therefore clearly arranged legal priorities in such a manner that the United Nations Charter is paramount over any other moral or ethical argument on humanitarian assistance. Toussaint L'Ouverture International Airport at Port -au-Prince had only one runway which is 9,900 ft. in length. There is only one parking area at which only 44 aircraft can be accommodated at any given time. Because only one aircraft can land or depart from this runway at the same time, and because aircraft must be separated by a certain time to avoid collisions, the airport has a finite capacity. Air traffic control can also be limiting, since there are only so many aircraft an air traffic control unit can safely handle. Additionally, staff shortages, radar maintenance or equipment faults can lower the capacity of a unit. This can affect both airport air traffic control as well as en-route air traffic control centers. 114 The fundamental principle with regard to the provision of air traffic services is contained in Annex 11 to the Chicago Convention which provides that the need for the provision of air traffic services is determined by the types of air traffic involved; the density of air traffic, 115 the meteorological conditions and such other factors as may be relevant. 116 The main objective of the air traffic control service is to prevent collisions between aircraft and between aircraft and obstructions in the maneuvering area and to expedite and maintain an orderly flow of air traffic. 117 The objective of airspace management is to maximize, within a given airspace structure the utilization of available airspace by dynamic time-sharing and, at times, segregation of airspace among various categories of users based on short term needs. 118 The objective of air traffic flow management is to ensure an optimum flow of air traffic to or through areas during times, when demand exceeds or is expected to exceed available capacity of the air traffic floor system. 113 Id. para. 199. 114 http://www.airtrafficmanagement.net/view_news.asp?ID¼1435 A seven member team from the US FAA is working with the Haitian government and the US Department of Defense (DOD) to supply technical assistance for air traffic management. The US Air force has successfully used the one-slot system which rapidly brings in an aircraft when one leaves. 115 At the time of writing, the US Air Force was to open a second relief centre distribution point at Jacmel Airport in the south of Haiti to relieve the pressure on Toussaint Louverture International Airport at Port-au-Prince. Some 200 flights a day were proving a colossal strain at Port-au-Prince and Jacmel will immediately be able to receive C-130 Hercules deliveries initially supporting Canadian humanitarian assistance efforts. One of the considerations in the context of relief flights in Haiti is that there could be both civil and military aircraft operating into Haiti. 119 From an aeronautical perspective, Annex 11 to the Chicago Convention, which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft. The International Standards and Recommended Practices in the Annex, Chapter 2, (2.17 and 2.18 in particular) contain provisions for co-ordination between military authorities and air traffic services and co-ordination of activities potentially hazardous to civil aircraft. These provisions specify that air traffic services authorities shall establish and maintain close co-operation with military authorities responsible for activities that may affect flights of civil aircraft. The provisions also prescribe that the arrangements for activities potentially hazardous to civil aircraft shall be co-ordinated with the appropriate air traffic services authorities and that the objective of this co-ordination shall be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft. Standard 2.17.1 stipulates that arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention. Standard 2.17.2 of Annex 11 explains that the objective of the coordination referred to in the earlier provision shall be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft.

The above considerations of safety notwithstanding, it is incontrovertible that cooperation in the activities of military and civil aviation is not only about sharing airspace. It is also about the efficient allocation of airspace to both categories of activity in separating such flights, particularly in the context of military flights which operate in special use airspace and those proceeding to special use airspace across civilian air routes. This brings to bear the inevitable conclusion that there must essentially be coordination between military authorities and air navigation service authorities.

In the instance of a proliferation of aircraft in airspace, as the Haitian relief operations might entail, separations considerations also prove vital. Action on the part of air traffic services (ATS) to keep aircraft operating in the same general area at such distances from each other and to keep the risk of collision maintained at an acceptable level is critical to this process. In determining appropriate separation minima, the airspace planner must have a thorough knowledge of the existing airspace, the CNS/ATM 120 capabilities and the airspace characteristics, which 119 There is also the issue of civil aircraft being deployed for military purposes in transport military personnel to Haiti. The responsibility of using civil aircraft and crew for military purposes rests with the State concerned. The fundamental legal premise which applies in such situations is that, in international relations, the erosion of one's legal interests by another brings to bear the latter's responsibility. See generally, Abeyratne (1997) , pp. 1-23. 120 For a discussion on CNS/ATM see O'Keeffe (2000), pp. 133-148. may influence the safe separation minima. This involves a number of factors such as: the route structure; complexity of the airspace; traffic demand pattern; numbers and location of traffic tracks, amount of traffic operating on opposite direction tracks and the amount of traffic which is either climbing or descending. 121 However, the fundamental premise still remains in Article 12 of the Chicago Convention 122 which states that each contracting State undertakes to adopt measures to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention.

The final dimension, without which relief flights would lose their purpose, is the dissemination of relief which forms the final consideration of relief by air. At the initial stages, it was reported that in Haiti, although medical and food supplies arrived at the airport there was no infrastructure to distribute them to those in need. The coordination of relief in armed conflicts or natural or manmade disasters raises very real problems. In many instances, the lack of coordination in relief operations often results in an imbalance in consignments, foodstuffs perishing in large warehouses and the lack of adequate transport to provide relief in areas which need assistance. Paragraph 5 of Article 70 of Protocol 1 to the Geneva Convention 123 lays down the principle of effective international coordination of relief. This provision lays down obligations of all parties concerned i.e. donors, transit countries and beneficiaries.

In 1969 the XXIst International Conference of the Red Cross adopted a Resolution whereby States were requested to exercise their sovereign and legal rights so as to facilitate the transit, admission and distribution of relief supplies provided by impartial international humanitarian organizations for the benefit of civilian populations in disaster areas when disaster situations imperil the life and welfare of such populations. 124 The United Nations subsequently announced that this Resolution would also apply to situations arising from armed conflict. The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population Disaster Situations, as laid down in Resolution XXVI adopted by the twenty first The above discussion is not intended to obfuscate the fact that the provisions of the Geneva Conventions and the United Nations Charter do not admit of the operation of relief flights at the will and pleasure of the benefactor, without the permission of the recipient State. It is also not intended to circumvent the fact that States are primarily responsible for organizing relief. Relief societies such as the Red Cross and the Red Crescent Organizations are merely called upon to play a supplementary role by assisting the authorities of the States concerned in their task.

Since it is clear that the intervention of the United Nations Security Council in a matter lying within the domestic jurisdiction of a State can only be justified in instances where there is a threat to international peace and security, a breach of the peace within a State or an act of aggression, a question which arises when a relief flight is operated as a part of a humanitarian project is whether the operation of such a flight could be considered a legitimate unilateral action by States. The Question would essentially be ground in a legal analysis of the principles of humanitarian law and State sovereignty. On the one hand, everyone has the right to life, liberty and security of person 126 and the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care. 127 On the other, there is overall recognition of the fact that every State has complete and exclusive sovereignty over the airspace above its territory. Except for the Paris Convention of 1956, 128 which provides for civil aircraft registered in a member State of the European Civil Aviation Conference (ECAC) to fly freely into member States for the purposes of discharging or taking on traffic where such aircraft are engaged inter alia in non-scheduled flights for the purpose of meeting humanitarian or emergency needs, 129 there is no multilateral or bilateral agreement that admits of unilateral intervention of a State in another for humanitarian purposes, where the intervening State does not obtain permission of the recipient State. In fact, Resolution 46/182 130 explicitly provides in the Annex to the Resolution that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations and that in this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country. These conflicting principles, although not bestowing legal authority on the United Nations to intervene in a State with relief flights, at least give some degree of justification to the United Nations' efforts to mediate with States concerned in the International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application. promotion of relief operations and to seek the support of other States, with the concurrence of affected States.

The author subscribes to the view that if humans are dying, one has got to help at all costs. 131

The earthquake which devastated the capital of Haiti and much of its environs in January 2010, causing massive fatalities and damage to property, could be distinguished from the Tsunami of December 2004 in that the latter left the government infrastructure and machinery intact. The earthquake, on the other hand, crippled the Haitian government and infrastructure, rendering government authorities weak in the running of the country. From an aeronautical perspective, this brought to bear issues of sovereignty within the parameters of relief flights and humanitarian law. Another devastation which was unique to the earthquake was that although the only runway at the airport was undamaged, the rest of the aviation infrastructure lay in a shambles. The flow of the numerous relief flights that came into Haiti after the fact had therefore to be managed with caution and diligence.

On Tuesday 12 January 2010, at 16.53 local time, an earthquake with a magnitude of 7.0 Mw on the Richter scale 132 hit Haiti at a depth of 13 km. Its epicenter was near Leogane, which was approximately 25 km or 16 miles west of the country's capital Port-au-Prince. 133 The International Red Cross estimated the people affected by the earthquake at around three million. 134 It was estimated that around 100,000-200,000 people would have perished as a result of the catastrophe. 135 The quake damaged many important buildings including the Presidential Palace, The National Assembly and the Cathedral of Port-au-Prince. The headquarters of the United Nations Stabilization Mission in the city collapsed killing many UN 131 See letter to the Editor by Professor Leff, Yale Law School, New York Times October 4 1968 at 46 Column 3, cited in Lillich (1973), p. 151. 132 The Richter scale is the best known scale for measuring the magnitude of earthquakes. The magnitude value is proportional to the logarithm of the amplitude of the strongest wave during an earthquake. A recording of 7, for example, indicates a disturbance with ground motion 10 times as large as a recording of 6. The energy released by an earthquake increases by a factor of 30 for every unit increase in the Richter scale. See http://www.matter.org.uk/schools/content/seismology/ richterscale.html. 133 Wikipedia records that the United States Geological Survey counted at least 33 aftershocks, 14 of which were between magnitudes 5.0 and 5.9. See http://en.wikipedia.org/wiki/2010_Haiti_ earthquake. 134 workers including the Chief of Mission. The disaster also caused severe damage to communication systems, air, land, and sea transport facilities, hospitals, and electrical networks, drastically hampering rescue and aid efforts.

Many countries responded to appeals for humanitarian aid, pledging funds and dispatching rescue and medical teams, engineers and support personnel. Communication systems, air, land, and sea transport facilities, hospitals, and electrical networks had been damaged by the earthquake, which hampered rescue and aid efforts. 136 From an aeronautical perspective, there was considerable confusion over who was in charge of the relief efforts and of flights in and out of Haiti, and the problem was compounded by air traffic congestion and problems with prioritization of flights which in turn hampered relief work.

Several nations that pitched in with relief in the early aftermath of the disaster may not have pondered the legalities concerned with entering the airspace over Haiti or landing therein. This would doubtless have provoked some members of the legal profession to question issues of sovereignty and legal rights of Haiti in this instance. Technically, although the Chicago Convention of 1944 provides that Member States of ICAO recognize that every State has complete and exclusive sovereignty over the air space above its territory, 137 the general consensus of contemporary 136 Initially, relief flights from around the world were delayed as a two-tier system was put in place to make sure that the most urgently needed supplies and personnel were getting in first, and the rest followed using a pre-arranged arrival and take-off schedule. Once a ground control team from the Air Force's first Special Operations Wing began landing aircraft on January 13, a team from the U.S. Federal Aviation Administration and Haitian authorities began working to restore navigation and communication capabilities. A team of U.S. military and civilian aviation experts working with Haitian officials began sorting flights, allowing some to land immediately based on what was needed most. 137 As per Article 1 of the Convention. The Convention applies only to State aircraft and not to military aircraft. However, it states, in Article 3 that no aircraft used in military, customs or police services 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. It must also be borne in mind that United Nations General Assembly Resolution A/RES/46/182 of 19 December 1991 provides, in resolving clause 3 that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country. In April 1992, the Secretary-General established the Department of Humanitarian Affairs (DHA), incorporating UNDRO, various UN units that had been dealing with specific emergency programs, and the secretariat for the International Decade for Natural Disaster Reduction. The Secretary-General appointed an Emergency Relief Coordinator to head the new department. The DHA has its headquarters in New York and an office in Geneva.

international law is that this is not an absolute and pristine principle anymore. One commentator states very aptly:

The role of the State in the modern world is a complex one. According to legal theory, each State is sovereign and equal. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of States can be entirely sovereign. Interdependence and the close knit character of contemporary international commercial and political society ensures that virtually any action of a State could well have profound repercussions upon the system as a whole and the decisions under consideration by other States. 138 Therefore, although sovereignty is the basic constitutional doctrine of the law of nations, modern exigencies of international relations, particularly in the case of disasters, whether man made or natural, have not regarded this principle as inflexible. The essence of intervention is compulsion. The legal question with regard to the inviolability of the sovereignty of a State is not whether the intervention concerned was an armed or unarmed one, but whether it was effected unilaterally under compulsion or threat by the intervening State. 139 Starke is inclined to stretch the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances:

. . ."Sovereignty" has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalised States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider "law of nature". 140 Oppenheim holds a similar view that the "traditional" law of humanity is incorporated into contemporary international law. He views this attitude as: recognition of the supremacy of the law of humanity over the law of the sovereign State when enacted or applied in violation of human rights in a manner that may justly be held to shock the conscience of mankind. 141 Some authorities in international law also believe that intervention should, if absolutely necessary, be effected when there is cogent evidence of a breakdown in the minimum guarantees of humanity. 142 Accordingly, it may be argued that any act of intervention aimed at saving the lives of human beings which are in danger, would be legally and morally justifiable. Fernando Teson 143 argues that since the ultimate justification for the existence of States is the protection and enforcement of the natural rights of the citizens, a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy, but also its international legitimacy as well. He goes on to say: I suggest that from an ethical standpoint, the rights of States under international law are properly derived from individual rights. I therefore reject the notion that States have any autonomous moral standing -that they hold international rights that are independent from the rights of individuals who populate the State. 144 Schwarzenberger analyses the concept somewhat clinically and concludes that in the absence of an international jus cogens which corresponds to municipal jus cogens of advanced communities, where the latter prevents the worst excesses of inequality of power, the supremacy of the rule of force would prevail. 145 There is also a contrasting view that humanitarian intervention is generally resorted to by States only in instances of serious abuses of human rights by one State upon its people or others. Dr Michael Akehurst argues that if a State intervenes forcibly on the territory of another in order to protect the local population from serious human violations, such an armed intervention could inevitably constitute a temporary violation de facto of the territorial integrity of the latter State, and to an extent of its political independence, if carried out against its wishes. 146 Dr. Akehurst goes on to assert: Any humanitarian intervention, however limited, constitutes a temporary violation of the target State's political independence and territorial integrity if it is carried out against the State's wishes. 147 The doctrine of humanitarian intervention is thought of by some commentators as an invention of strategy to circumvent the strong jus cogens nature of the principle of sovereignty and inviolability of States which Dr. Akehurst refers to. Professor Brownlie is of the view that States have generally invoked the doctrine to give support to their commercial and strategic considerations. 148 The United Kingdom legislature recently considered the view of the British Minister of State who was of the view:

When members of the United Nations act in a forcible manner either they should do so within and under the authority of the United Nations or that which they do should be authorised by the principles of international law. 149 Clearly, this statement establishes the view that international law in the context of intervention is jus cogens. The British Foreign Office has supported this position in the following language: the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal but the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention. 150

Despite this strong alignment towards anti humanitarian intervention, it is believed that there is a school of thought within the British legislature that is prepared to accept unilateral intervention as justifiable under customary international law in cases of "extreme humanitarian need." 151 The view that despite these divergent views, the non-intervention principle remains sacrosanct as a contemporary postulate of international law and deviations from the principle, although recognized as ethical and moral in certain instances by scholars, would be justified only in extreme cases 152 sounds logical and practically acceptable.

Aircraft noise is generated whenever the passage of air over the structure of the aircraft or flowing through its power plants cause fluctuating pressure disturbances which transform into auditory impulses in the human being. 153 Such impulses, called unwanted sound, not desired by the recipient, 154 is measured using a logarithmic unit called the decibel (dB) in terms of pressure exerted in the ear. 155 In the case of jet aircraft, two distinct kinds of engine noise affect the human ear adversely, namely the roar of the jet exhaust and the whine of the compressor fan. 156 The roar of the jet exhaust occurs mainly in the take-off phase, where the engines are at maximum power to enable the aircraft to be airborne. 157 Grey (1975) , p. 72. fan blades with turbulence and wakes results in a whine of high frequency in the compressor of the engine. 158 There is definite medical evidence to prove that exposure to aerial noise causes deleterious psychological effects. For instance, a study made in relation to admissions to a psychiatric hospital in England draws a distinct relationship between the disturbed mental state of the admitted inmates of the hospital and high intermittent noise levels from Heathrow Airport, to which they were exposed. 159 One writer states that airport and industrial noise are the causes of mental stress and maladjustment, increases in chronic fatigue and neurotic complaints in some cases, although different personalities may underlie individual differences in noise effects. 160 Aircraft noise is at best a nuisance and at worst a gross infringement of a fundamental right. The issue of aircraft noise becomes even more critical in the face of noise curfews imposed by certain jurisdictions that force some States to have their carriers depart at night in order to beat night-time curfews imposed by the State at which the aircraft arrives. Several African States have raised this issue in the Council of ICAO in the context of African carriers facing night curfews in Europe-an issue brought up also by States such as India in the Council.

The term "noise" has so far not been examined in depth by the courts specially in relation to tolerance levels. It is clear that courts have not had occasion to consider noise as a significant factor in litigation which calls for detailed consideration in terms of medical and scientific pronouncements to ascertain what degree of noise is detrimental to the human being. Courts have not been able to do so due to two significant factors.

The first is that the issue of noise as pollution has surfaced rarely. The second is that even if it did surface, courts have always had to question noise as it is referred to in regulations or municipal by-laws, the validity of which has been the primary factor of consideration. It can be seen that most by-laws refer generally to noise and the prohibition of it. It is not surprising therefore, that courts have never attempted to define noise empirically or medically and instead preferred to observe the nature of noise on a very general basis.

The Chicago Convention is the fundamental source which grants regulatory powers to the international community on matters relating to international civil aviation. The Convention in its Preamble proclaims that the governments that are parties to it agree on certain principles and arrangements in order that international civil 158 Ibid. 159 Abey-Wickrama et al. (1969 ), pp. 1275 -1277 . 160 Cohen (1968 , 25 pp. aviation may be developed in a safe and orderly manner. Public safety is a feature of major concern to the Convention which requires that:

Each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory. . .Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization. 161 The Convention also established the International Civil Aviation Organization which is required as one of its objectives to foster the planning and development of international air transport so as inter alia to ensure the safe and orderly growth of international civil aviation throughout the world, 162 meet the needs of the people of the world for safe, regular, efficient and economic air transport, 163 promote safety of flight in international air navigation, 164 and promote generally the development of all aspects of international civil aviation. 165 To this end, ICAO is mandated by the Convention to adopt and amend from time to time as may be necessary, international Standards and Recommended Practices and Procedures (SARPS) dealing inter alia with characteristics of airports and landing areas and such matters concerned with the safety, regularity and efficiency of air navigation as may from time to time be appropriate. 166 Each contracting State has undertaken to collaborate in securing the highest practicable degree of uniformity in the above regulations, standards and procedures of the Organization.

In order to carry out its policies in environmental issues related to civil aviation, ICAO established the Committee on Environmental Protection (CAEP) in 1983. 167 CAEP is a technical committee reporting to the ICAO Council and consisting of 14 members nominated by their States. The members are experts in the field of aviation and the environment. The Committee is charged with addressing the main environmental problems affecting civil aviation, which are pollution caused by aircraft engine emissions and aircraft noise. The three main approaches adopted by CAEP in its work on aircraft noise concern reduction of noise at source; use of noise abatement operating measures; and land use planning. One of the CAEPs positive contributions to ICAO's environmental programme has been the development of a new chapter for Volume 1 of Annex 16, which contains a noise certification scheme for light helicopters as well as a number of modifications to the technical specifications of the Annex. CAEP believes that although ICAO initiatives on Chapter 2 161 Article 9. 162 Article 44(a). 163 Article 44(d). 164 Article 44(n). 165 Article 44(i). 166 Article 37(b). 167 For more details on CAEP see Mortimer (1992), p. 6. See also, Crayston and Hupe (1999) , p. 5. aircraft withdrawal will ameliorate the problem of noise near airports, it will be short lived, as the rapidly increasing proportions of international air travel in the next few years will render the benefits brought about by the initiative, nugatory.

At its Fourth Meeting held in April 1998, CAEP focussed inter alia on the subject of nuisance and noise from light aircraft and recommended that pilots and operators be aware of the nuisance their operations may cause and take steps to minimize noise levels of their aircraft.

In the light of developments concerning the phasing out of Chapter 2 aircraft wholly by Chapter 3 aircraft, CAEP has been charged with an extension to its mandate, to undertake additional work on reviewing Chapter 3 noise standards with a view to identifying a standard even more stringent than the Chapter 3 representation. 168 The Noise Scenarios Group, established within CAEP for the purpose of addressing increased options for possible aircraft noise restriction levels. 169 ICAO's active involvement in aviation related environmental issues is not without good reason, as 9 of the 27 principles contained in the Declaration of the United Nations Conference on Environment and Development (UNCED)-also known as the "Earth Summit"-held in Rio de Janeiro in June 1992. They are:

1. "States have . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." (Principle 2). 2. "The special situation and needs of developing countries, particularly the least developed.... shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries." (Principle 6). 3. ". . . In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command." (Principle 7). 4. "To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption . . ." (Principle 8). 5. "States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries." (Principle 11). 6. "Environmental measures addressing trans-boundary or global environmental problems should, as far as possible, be based on an international consensus." (Principle 12). 168 Only two aircraft that will meet standards beyond those prescribed in Chapter 3 of Annex 16 to the Chicago Convention will be in production after the year 2000, namely the Boeing 747-400 and the Airbus A321. It is expected that by the year 2007, more than 70 % of the world airline fleet would meet the most stringent of the proposals under consideration by CAEP. See Chapter 3½ The Avmark Aviation Economist, January/February 1995, at p. 10. 169 See Crayston and Hupe (1999) , supra, note 167, at p. 6. 7. "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (Principle 15). 8. "National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, . . ." (Principle 16). 9. "Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority." (Principle 17).

Standards and Recommended Practices for aircraft noise were first adopted by ICAO on 2 April 1971 and designated as Annex 16 to the Convention. The development of the Annex originated in September 1968 at the 16th Session of the ICAO Assembly which adopted Resolution A 16-3 which recognized that the problem of aircraft noise was so serious in the vicinity of many of the world's airports that public reaction was mounting to a degree that gave cause for great concern and required urgent solution. The Assembly also noted that noise concerned the public and civil aviation and was becoming a matter for concern with the increase in air traffic and that the introduction of future aircraft types could increase and aggravate the problem further unless action was taken to alleviate the problem. Accordingly, the Assembly resolved to instruct the ICAO Council to call an international conference within the machinery of ICAO as soon as possible; establish international specifications and associated guidance material relating to aircraft noise; and, to include, in the appropriate Annexes and other relevant ICAO documents and possibly in a separate Annex on noise, such material as the description and methods of measurement of aircraft noise and suitable limitations on the noise caused by aircraft that was of concern to communities in the vicinity of airports.

In response to the Assembly Resolution, a Special Meeting on Aircraft Noise in the Vicinity of Aerodromes was convened in Montreal in November-December 1969 to examine the following aspects related to the problems of aircraft noise: a) procedures for describing and measuring aircraft noise; b) human tolerance to aircraft noise; c) aircraft noise certification; d) criteria for establishment of aircraft noise abatement operating procedures; e) land use control; and, f) ground run-up noise abatement procedures.

Based on the recommendations of the Special Meeting on Aircraft Noise in the Vicinity of Aerodromes, draft International Standards and Recommended Practices for Aircraft Noise were developed and, after amendment following the usual consultation with the Contracting States of the Organization, were adopted by the Council to form the text of Annex 16.

With the development of Standards and Recommended Practices dealing with the control of aircraft engine emissions, it was felt that all provisions relating to environmental aspects of aviation should be included in a single document. Accordingly, Annex 16 was re-titled as "Environmental Protection". Volume I of the Annex contains the existing provisions relating to aircraft noise and Volume 11 contains the provisions related to aircraft engine emissions. 170 The much dreaded sonic boom 171 See ICAO Doc 8894, SPB/11, at 1-5. caused by supersonic aircraft was broadly discussed during the Second Meeting of ICAO's Sonic Boom Committee in Montreal in June 1973. 172 The Committee found that The sonic boom had no ill effects on the human eye and ear. As for psychological effects of the boom, it was noted by the Committee that it caused a startle reaction in the human being, in addition to a slight increase in heart rate which returned to normalcy within a very short period. It was also the Committee's view that the startle effects of the Concorde and TU-144 aircraft did not give rise to any significant circulatory effects. With regard to the sociological effects of the sonic boom, the Committee considered a study of the Concorde aircraft over Australia in June 1972 and concluded that this aspect be best studied as both a public and private law issue by the Legal Committee of ICAO.

The ICAO Assembly has, in addition, adopted several Resolutions concerning aviation and the environment. At its 22nd Assembly held in September/October 1977 the ICAO Assembly adopted Resolution A 22-12 which recognized inter alia the following: 1) advancing technology has caused aviation to become a significant influence in the environment; 2) many of the adverse environmental effects of civil aviation activity can be reduced by, the application of integrated measures embracing technological improvements, appropriate noise abatement operating procedures, proper organization of air traffic and the appropriate use of airport planning and land use control mechanisms; 3) other international organizations are becoming involved in activities relating to noise abatement policies; 4) in fulfilling its role, ICAO strives to achieve a balance between the benefit of accruing to the world community through civil aviation and the harm caused to the human environment in certain areas through the progressive advancement of civil aviation; . . . a phenomenon peculiar to supersonic flight. It is caused by the mach waves that an aircraft inevitably generates aerodynamically when it flies at a speed greater than that of sound. Roughly speaking these waves take the form of compression waves from the bow and the stern separated by expansion waves. . .these waves extend from the aircraft as an audible pattern of roughly conical shape, much as the water waves from a boat extend from it as a visible pattern of roughly v-shape, and just as the water waves from a boat cause a disturbance that often extends to and travels along a neighbouring shore as the boat passes by, so do these shock waves from an aircraft cause a disturbance that normally extends to and travels along the ground as the aircraft flies over., The passage of these shock waves is perceived as a sonic boom.

The Assembly therefore declared: 1) that ICAO is conscious of the adverse environmental impacts that may be related to aircraft activity and of its responsibility and that of its Contracting States to achieve maximum compatibility between the safe and orderly development of civil aviation and the quality of the human environment; 2) that the Council Should maintain its vigilance in the pursuit of aviation interests related to the human environment and also maintain the initiative in developing policy guidance on all aviation matters related to the human environment, and not leave such initiatives to other organizations;

The Assembly also invited States to continue their active support for ICAO's Action Programme Regarding the Environment on all appropriate occasions as their participation in civil aviation's contribution to the United Nations Environment Programme (UNEP) and authorised the ICAO Council, if and when it deems this desirable, to enter into cooperative arrangements with the United Nations Environment Programme for the execution of environmental projects financed by the United Nations Environment Fund. The Assembly urged States to refrain from unilateral measures that would be harmful to the development of international civil aviation.

At the same Session, the Assembly adopted Resolution a 22-13 on airports and the environment, observing inter alia: 1) the compatibility between the airport and its environment was one of the elements to be taken into account in long-term systems planning; 2) the problem of aircraft noise in the vicinity of many of the world's airports continued to arouse public concern and required appropriate action; 3) the introduction of future aircraft types could increase and aggravate this noise unless action was taken to alleviate the situation.

The Assembly therefore requested the council to continue its work on establishing Standards and Recommended Practices relating to the alleviation of the problem and urged contracting States to adopt, where appropriate, the ICAO measures and procedures applicable.

In the following Session (September/October 1980), the Assembly adopted Resolution A 23-10 on aircraft noise and engine emissions from subsonic aircraft and requested contracting States not to allow the operation of foreign registered subsonic jet planes that did not conform to ICAO's specifications on noise certification standards as specified in Annex 16 until 1 January 1988. 173 At the 28th Assembly Sessions held in October 1990, the ICAO Assembly observed that while certification standards for subsonic jet aircraft noise levels are specified in Volume 1, Chapter 2 and Chapter 3 of Annex 16 and that environmental problems due to aircraft noise continued to exist in the neighbourhood of many international airports, some States were consequently considering restrictions on the operations of aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16. The Assembly also recognized that the noise standards in Annex 16 were not intended to introduce operating restrictions on aircraft and that operating restrictions on existing aircraft would increase the costs of airlines and would impose a heavy economic burden, particularly on those airlines which do not have the financial resources to re-equip their fleets. Therefore, considering that resolution of problems due to aircraft noise must be based on the mutual recognition of the difficulties encountered by States and a balance among their different concerns, the Assembly, by Resolution A 28-3, urged States not to introduce any new operating restrictions on aircraft which exceed the noise levels in Volume I, Chapter 3 of Annex 16 before considering: a) whether the normal attrition of existing fleets of such aircraft will provide the necessary protection of noise climates around their airports; b) whether the necessary protection can be achieved by regulations preventing their operators from adding such aircraft to their fleets through either purchase, or lease/ charter/interchange, or alternatively by incentives to accelerate fleet modernization; c) whether the necessary protection can be achieved through restrictions limited to airports and runways the use of which has been identified and declared by them as generating noise problems and limited to time periods when greater noise disturbance is caused; and, d) the implications of any restrictions for other States concerned, consulting these States and giving them reasonable notice of intention

The Assembly further urged States: a) to frame any restrictions so that Chapter 2 compliant aircraft of an individual operator which are presently operating to their territories may be withdrawn from these operations gradually over a period of not less than 7 years; b) not to begin the above phase-in period for any restrictions before I April 1995; c) not to restrict before the end of the phase-in period the operations of any aircraft less than 25 years after the date of issue of its first individual certificate of airworthiness; d) not to restrict before the end of the phase-in period the operations of any presently existing wide-body aircraft or of any fitted with high by-pass ratio engines; e) to apply any restrictions consistently with the non-discrimination principle in Article 15 of the Chicago Convention so as to give foreign operators at least as favourable treatment as their own operators at the same airports; and, f) to inform ICAO, as well as the other States concerned, of all restrictions imposed.

The Assembly also strongly encouraged States to continue to cooperate bilaterally, regionally and inter-regionally with a view to: a) alleviating the noise burden on communities around airports without imposing severe economic hardship on aircraft operators; and b) taking into account the problems of operators of developing countries with regard to Chapter 2 aircraft presently on their register, where they cannot be replaced before the end of the phase-in period, provided that there is proof of a purchase order or leasing contract placed for a replacement Chapter 3 compliant aircraft and the first date of delivery of the aircraft has been accepted;

The Assembly, while urging States, if and when any new noise certification standards are introduced which are more stringent than those in Volume I, Chapter 3 of Annex 16, not to impose any operating restrictions on Chapter 3 compliant aircraft, urged the Council to promote and States to develop an integrated approach to the problem of aircraft noise, including land-use planning procedures around international airports, so that any residential, industrial or other land-use that might be adversely affected by aircraft noise is minimal. The Assembly further urged States to assist aircraft operators in their efforts to accelerate fleet modernization and thereby prevent obstacles and permit all States to have access to lease or purchase aircraft compliant with Chapter 3, including the provision of multilateral technical assistance where appropriate. This Resolution superseded Resolution A23-10, which was discussed above.

Resolution A 28-3 represents a cautious balance between the concerns of the aircraft manufacturers, the airline industry and developing States who do not wish to lose in the near future, the services of Chapter 2 aircraft which are already in use and service. Although aircraft manufactured prior to October 1977 that are included in Chapter 2 of Annex 16 and called "Chapter 2 aircraft" are required to be phased out, the compromise in Resolution A 28-3 allows States that have noise problems at airports to start phasing out operations by Chapter 2 aircraft from the year 1995 and to have all of them withdrawn by the year 2002, with some exceptions. The Resolution envisages that by the year 2002 only aircraft manufactured after October 1977 and described in Chapter 3 of Annex 16 (called "Chapter 3 aircraft") would be in operation. Following this resolution, a number of developed States have already started to phase out Chapter 2 aircraft, while giving due recognition to the compromise reached in Resolution A28-3.

At its 32nd Assembly, held in September 1998, Assembly Resolution A32-8 174 containing a consolidated statement of continuing ICAO policies and practices related to environmental protection was adopted, making current the regulatory policies relating to aviation and the environment. Appendix B to the Resolution cites Annex 16 Volume 1 as comprising, inter alia, noise certification standards for future subsonic aircraft and mentions that aircraft manufacturers and operators need to note that future generations of aircraft have to be so designed as to operate efficiently and with the least possible environmental disturbance. Appendix C calls upon Contracting States and international Organizations to recognize the leading role of ICAO in dealing with aircraft noise and requests the former to work closely together to ensure the greatest harmonization of work in the area of environmental protection as related to air transport. In Appendix G, which relates to the problem of sonic boom, the Assembly reaffirms the importance attached to ameliorating problems caused to the public by sonic boom as a result of supersonic flight, invites States involved in the manufacture of supersonic aircraft to furnish ICAO with proposals that would meet specifications established by ICAO on the subject.

The most topical issue addressed by Resolution A32-8, is in its Appendix D, which, whilst reiterating the time limits specified for the phasing out of Chapter 2

Aircraft and related dates, strongly encourages States to continue to co-operate bilaterally, regionally and inter-regionally with a view to alleviating the noise burden on communities and also to take into account the problems that may be faced by some operators in phasing out their Chapter 2 aircraft before the end of the period specified. The Resolution also urges States, if and any noise certification standards are introduced new which are more stringent than those in Volume 1, Chapter 3 of Annex 16 not to impose any operating restrictions on Chapter 3 compliant aircraft. More importantly, States are urges to assist operators in their efforts of fleet modernization with a view to preventing obstacles and permit all States to have access to lease or purchase aircraft compliant with Chapter 3.

The qualification in Resolution A32-8 seemingly admits of Chapter 2 aircraft which are converted to be compliant with Chapter 3 noise levels being considered for operation at least until 1 April 2002. The Resolution urges States to consider the difficulties faced by operators of Chapter 2 aircraft who are unable to make them Chapter 3 compliant by the given date, implying that it would be in the economic interests of such operators to be given additional time in order to make the necessary replacements. Chapter 2 aircraft could be made Chapter 3 compliant whereby the aircraft can be re-certified to Chapter 3 standards through re-engining or hush kitting. Chapter 2 aircraft which are likely to be re-engined or hush-kitted are Boeing 727s and 737s, DC-9s, BAC1-11s and some Boeing 747-100s that need hush-kitting.

There is an attempt on the part of the European Union to limit and eventually eliminate Chapter 3 compliant aircraft from operating within countries of the European Union. This ban would also be calculated to affect the importation of such aircraft into the region. Legislation passed by the Union in April 1999 was intended to bar Chapter 3 compliant aircraft from European registries from 4 May 2000 (originally 1 April 1999, which is 3 years before the date specified in Resolution A32-8, namely, 1 April 2002) and to prohibit their operation into the countries of the European Union after 1 April 2002. Such action has been reportedly criticized by the Air Transport Association which claims that the inflexibility of such a deadline "will severely undercut, if not destroy entirely -ICAO's efforts to address environmental issues on a uniform international basis". 175 The action of the European Union seeks justification on the basis that the exponential air traffic growth in Europe will increase noise around European airports, requiring stringent noise standards. A related fear is reportedly that hush-kitted aircraft, which are rare in Europe, will find a new home in the Continent. Unlike in Europe, airlines in the United States have been somewhat prolific in the use of hush-kits in aircraft 176 and many United States carriers operate Stage 175 Flint (1999), p. 29. 176 It was reported that American Airlines is installing the Raisbeck System on 52 B 727 aircraft and hush-kitting 20 more. United is installing hush-kits on 75 B 727 aircraft and 24 B 737-200s. Delta is hush-kitting 104 727s and 54 737-200s. Southwest, TWA, Alaska Airlines and US Airways are other carriers who plan to hush-kit their Chapter 2 aircraft. See Flint (1999) , Id. at p. 34. 2 hush-kitted aircraft into Europe and even have based equipment in the Continent. At the time of writing, although the U.S. State Department had reacted forcefully to the European Union's hush-kitted aircraft ban, the application of which was extended by the Union until May 2000, it was reported that both the United States and the European Union were working together on a possible new ICAO Standard (presumably to be called Chapter 4). 177 The issue is a "double edged sword" involving two distinct disciplines. As discussed earlier, the European contention is based on the strictly legal issue of noise pollution and overtones of the tort of nuisance committed by operators whose aircraft are not compliant with Chapter 3 standards to the satisfaction of the European Union. Others who oppose what they claim to be a premature enforcement of ICAO standards, as contained in Resolution A32-8, argue that the European hush-kit rule would cost the manufacturing industry significant losses. It is reported that the United States industry would lose $2 billion if the ban is enforced in Europe as scheduled. 178 The aircraft noise issue has entered a phase where trading and environmental issues are at a delicate balance. On the one hand, competition issues pertaining to the sale of hush-kits and other equipment calculated to reduce aircraft engine noise to levels prescribed by ICAO are quite significant from the perspective of international trade, and on the other hand, environmental issues that have been addressed by the ICAO Council through CAEP and also by the Assembly should also be given careful consideration. As discussed earlier, ICAO Assembly Resolution A32-8 urges States to give consideration to the economic difficulties that some States may have to face in phasing out Chapter 2 aircraft by the year 2002. However, the Resolution does not leave room for States to claim that pure economic factors would effectively preclude them from phasing out Chapter 2 aircraft by the date stipulated in the Resolution.

The 33rd Session of the ICAO Assembly (Montreal, 25 September-5 October 2001), Resolution A33-7 urged Contracting States to adopt a balanced approach to noise management, taking full account of ICAO guidance, applicable legal obligations, existing agreements, current laws and established policies, all to be given due consideration when addressing noise problems at international airports. Contracting States are urged to adopt appropriate mechanisms in implementing this balanced approach, notably: in establishing a transparent process based on objective, measurable criteria for the assessment of the noise problem; in evaluating likely costs and benefits of various measures with a view to achieving maximum environmental benefit; and in providing for dissemination of the evaluation results that may be used in consultation with stakeholders and dispute resolutions.

As part of the balanced approach, Resolution A33-7 encourages States, inter alia, to conduct studies, support research and technology programmes aimed at reducing noise at source and to work closely with each other to ensure that their noise management programmes are harmonized taking into consideration the particular economic exigencies of developing countries and also taking particular care so as not to derogate the non-discrimination principle enshrined in Article 15 of the Chicago Convention. 179 Resolution A33-7, in Appendix D, urges Contracting States not to introduce any phase-outs of subsonic jet aircraft which exceed noise levels contained in Volume 1 of Annex 16 to the Chicago Convention before giving consideration to a clear determination as to whether normal attrition of existing fleets of such aircraft will provide the necessary protection of noise climates around airports and whether necessary protection can be achieved by regulators preventing their operations from adding such aircraft to their fleets through either purchase, or lease/charter/interchange or alternatively by incentives to accelerate fleet modernization. Before phasing out subsonic aircraft that may exceed the above mentioned noise levels, the Resolution also calls upon Contracting States to give careful thought to whether alternatively effective noise management can be achieved by applying regulations preventing operations of such aircraft through restrictions limited to airports and runways, the use of which has been identified and declared by these States as generating noise problems and limited to time periods when greater noise disturbance is caused. Finally, Contracting States are called upon to consider implications of any restrictions for other States concerned, through consultation and reasonable notification of the application of restrictions.

One of the most significant achievements of Resolution A33-7 lies in the skilful balance achieved in offering a compromise to Contracting States which, despite the above mentioned criteria, decide to phase out aircraft which comply with noise certificates Standards in Volume 1, Chapter 2 of Annex 16 but which exceed the noise levels in Volume 1, Chapter 3 of Annex 16. This compromise recommends that such States frame any restrictions so that Chapter 2 compliant aircraft of an individual operator which are operating at present to their territories may be withdrawn from such operations gradually, over a period of not less than 7 years. The Resolution also requests Contracting States not to restrict before the end of the above period the operations of any aircraft less than 25 years after the date of issue of its first individual certificates of airworthiness, and, not to restrict before the end of the period the operations of any presently existing wide-body aircraft or of any fitted with engines that have a by-pass ratio higher than 2 to 1. Contracting States are required to inform ICAO, as well as the other States concerned, of all restrictions imposed.

Finally, on the subject of noise, the Resolution urges States not to introduce measures to phase out aircraft which comply, through original certification or re-certification, with the noise certification standards in Volume 1, Chapter 3 or 4 of Annex 16 and, in particular, not to impose any operating restrictions on Chapter 3 compliant aircraft, except as part of the balanced approach to noise management developed by ICAO and in accordance with Appendices C and E to the Resolution which address issues pertaining to phase-out of subsonic aircraft and local noise related operations at airports.

At the 38th Session of the ICAO Assembly held in September/October 2013, the Assembly adopted Resolution A38-17 (Continuous statement of continuing ICAO policies and practices related to environmental protection -general provisions, noise and local air quality) Appendix C of which is on policies and programmes based on a "balanced approach" to aircraft noise management. The Resolution Calls upon all ICAO Member States and international organizations to recognize the leading role of ICAO in dealing with the problems of aircraft noise, and urges States to: adopt a balanced approach to noise management, taking full account of ICAO guidance (Doc 9829), relevant legal obligations, existing agreements, current laws and established policies, when addressing noise problems at their international airports; institute or oversee a transparent process when considering measures to alleviate noise, including: a) assessment of the noise problem at the airport concerned based on objective, measurable criteria and other relevant factors; b) evaluation of the likely costs and benefits of the various measures available and, based on that evaluation, selection of measures with the goal to achieve maximum environmental benefit most costeffectively; and c) provision for dissemination of the evaluation results, for consultation with stakeholders and for dispute resolution.

Resolution A38-17 also encourages States to: promote and support studies, research and technology programmes aimed at reducing noise at source or by other means taking into account interdependencies with other environmental concerns; apply land-use planning and management policies to limit the encroachment of incompatible development into noise-sensitive areas and mitigation measures for areas affected by noise, consistent with Appendix F to the Resolution; apply noise abatement operational procedures, to the extent possible without affecting safety and considering interdependencies with other environmental concerns; and not apply operating restrictions as a first resort but only after consideration of the benefits to be gained from other elements of the balanced approach and in a manner which is consistent with Appendix E to the Resolution and taking into account the possible impact of such restrictions at other airports.

States are requested by the Resolution to work closely together to ensure the harmonization of programmes, plans and policies to the extent possible; ensure that the application of any measures to alleviate noise are consistent with the non-discrimination principle in Article 15 of the Chicago Convention; and take into consideration the particular economic conditions of developing countries. States are requested to keep the Council informed of their policies and programmes to alleviate the problem of aircraft noise in international civil aviation.

The Resolution requests the Council to: assess continuously the evolution of the impact of aircraft noise; ensure that the guidance on the balanced approach in Doc 9829 is current and responsive to the requirements of States; and promote the use of the balanced approach, for example through workshops and calls upon States to provide appropriate support for this work on ICAO guidance and any additional work on methodologies, and for the assessment of the impact or effectiveness of measures under the balanced approach as necessary.

It is noteworthy that at the 38th ICAO Assembly, South Africa, while recalling Assembly Resolution A27-11 which is still in force, (still in force), called upon to consider the possible relaxation of operating restrictions for aircraft meeting the requirements of Chapter 3 of Annex 16-Environmental Protection, including the easing of night curfews and/or quotas for off schedule arrivals by such aircraft, submitted that the issues arising from night curfews that have existed for many years continue to remain despite the fact that advancement in aircraft engine technology has contributed considerably to noise abatement in the past two decades. South Africa noted that although the measure of night curfews can help reduce the aircraft noise problem at the airport, it can also have a deleterious effect on the operation of air services, particularly international services to and from the airport, and the economic well-being of the local community and the country at large. 180

The only Common Law cause of action which merits detailed discussion in this chapter is nuisance. The word "nuisance" remains the most uncertain word in legal terminology even though it has been put to diverse use by the judiciary. Its tentacles lie spread-eagled on a multitude of wrongs ranging from the noises made by animals to obnoxious smells. Perhaps the reason for this is due to the spontaneous human response of identifying any interference, obstruction or damage caused to an individual as a nuisance. In attempting to interpret the word "nuisance" the judiciary has been in a quandary. The meaning of the word "nuisance" has been stretched from "a potential source of annoyance" 181 to "liability for any act of obstruction of the enjoyment of a legal right". 182 Though the very concept of nuisance originated to retaliate against offences of a public nature, it has since been categorized into public and private nuisance. English common law rigidly classifies a public nuisance as a crime and a private nuisance as a civil wrong. 183 It is submitted that in the environmental law area it is the concept of private nuisance which is most relevant. The concept of private nuisance can be divided into a wrongful disturbance of land and a wrongful interjection of deleterious matter into land belonging to another. Therefore, private nuisance is particularly appropriate to claims founded upon excessive noise because it is directed at the interference with a person's interest in the peaceful use and enjoyment of his property. The basis of this branch of the law is the necessity of maintaining a balance between the right of an occupier to use and enjoy his property and the right of an occupier to be protected from interference or injury. 184 Therefore, courts when adjudicating on environmental disputes and determining whether the tort of private nuisance is present, have to balance the equities between the parties. This chapter will attempt to trace the manner in which the Anglo Australian judiciary has dealt with nuisance in noise pollution disputes.

Howlett v. McCarthy 185 is an early case which exemplifies the difficulty faced by the courts in this respect. In this instance, a New South Wales court examined a resolution of a council which ordered the occupiers of premises to cause "no noise" in the use of such premises, between specified hours. In the context of the phrase "no noise" it was extremely difficult for Judge Betts, who delivered judgment, to examine whether the sound caused by machinery was noise which would amount to a breach of such by-law. The court cautiously observed that a liberal meaning should be attributed to "noise" as a strict interpretation of the term would hinder anyone in carrying out a business or industry. 186 Therefore, "noise" was identified as that which would carry beyond the confines of the premises it emanated from to such a degree or of such a nature in quality or volume as to interfere with the life of the residents of normal temperament in the neighbourhood. The interference referred to was further elaborated to be worry, inconvenience, annoyance, discomfort ir loss of sleep during the prohibited hours.

Judge Betts faced the dilemma of being confronted with two conflicting interests-that of the plaintiff who alleges the injury or annoyance and of the business man who carries on an industry as a means of livelihood. Eventually, His Honour introduced an effective compromise by stating that any sound does not necessarily become noise unless it causes the discomfort specified above, and if it does, the person who suffers the annoyance is entitled to seek redress in order that the noise be abated by the person who causes it. Although the judgment seems fair and just for the time it was delivered, it does not suffice that such a general observation be applied in the present day when industry and population grow simultaneously and the consideration of sustainable development has become a pre-eminent factor in human development.

The judgment was fully endorsed by Richardson J. in a case decided 20 years later 187 where His Honour did not deviate from the general stance taken by Judge Betts. The same criteria were used in different terminology to state that noise should be modulated so as not to inconvenience others and cause discomfort 188 and that noise caused by such things as hammers, building implements and loud speakers should not hinder the comfortable enjoyment of life by neighbours. 189 The judgment was followed verbatim by Manning J. in Bankstown Municipal Council v. Berzins 190 in which His Honour stated that noise is distinguishable from sound, in that noise, unlike sound, materially interferes with the ordinary comfort and convenience of residents of the neighbourhood. 191 The early attitude towards noise as environmental pollution does not differ in any way to that which was taken by the courts. The courts too were faced with the problem of being confronted by inadequately framed by-laws and the paucity of precedent which adequately defined noise. In Leslie v. City of Essendon, 192 a case decided in Victoria, Australia in 1902, Sholl J. dealt casually with noise by calling it "loud sound" 193 whereas Copell A.J., quoting from them Oxford English Dictionary preferred to expand the definition to a "loud or harsh sound of any kinda din". 194 It is not unreasonable to assume that in the light of the few cases decided, noise was always considered subjectively which made it difficult for courts to ascertain whether in any given instance a person aggrieved had a cause of action. What was lacking was a definite idea of what the basic human tolerance level was. At that time courts did not even mention the possibility of excessive noise causing injury to the human ear. However, as was mentioned earlier, the above cases were decided between 1936 and 1957 during which time medical science, though not totally unaware of the detrimental effects of noise on the human ear, had not published sufficient material on the subject.

Although ample evidence was available in the 1960s on noise pollution and human physiology, a case decided in 1967 in Victoria, Australia 195 decided to follow precedent and appeared to agree with the general view that noise becomes intolerable when it causes discomfort. 196 Although the courts only examined the validity of a by-law prohibiting noise on a highway, it did mention noise in general without attempting to assess modern scientific findings on the subject.

The British case of Regina v. Fenny Stratford Justices, ex parte Watney Mann (Midlands) Ltd. 197 decided in 1976 adopted a more positive attitude even though it did not consider the effects of noise in terms of scientific findings. Watkins 188 Id. 233. See also 236. 189 Ibid. 190 [1962 ] N.S.W.R. 641. 191 Id. 644. 192 [1952 V.L.R. 222. 193 Id. 231. 194 Id. 241. 195 Schofield v. City of Moorabbin [1967 ] V.R. 22. 196 Id. 24. 197 [1976 1 W.L.R. 1101. J. expressing his opinion of a jukebox as a modern appliance was both sincere and unequivocal. His Lordship said:

. . .at any rate it is my opinion that excessive noise is one of the curses of the modern age. One of the reasons why this is so is that somebody invented the amplifier, which serves at least one purpose, namely, very nearly to blast out the eardrums of anyone within its proximity. 198 This statement is certainly more expressive than those exemplifying the previous attitude, although noise related discomfort and injury was not dealt with specifically. At least the plaintiff is given the assurance that even though the courts have still not considered modern medical findings on the subject, they consider any kind of noise with the same apprehension as when they consider any other assault on the human body. In addition, one can be comforted by the thought that it will not be long before the courts take full cognizance of the impact of modern scientific findings.

Pollution has been defined as:

the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such nature as to endanger human health, harm living resources and ecosystems, and impair or interface with amenities and other legitimate uses of the environment. 199

The definition covers human health which has been a major concern of environmentalists for some time. It also accommodates the role played by the United Nations under its Charter. Article 1 of the United Nations Charter identifies as one of the purposes of the United Nations, the achievement of international cooperation in solving international problems inter alia of a human character 200 and charges the General Assembly of the United Nations to promote international cooperation inter alia in the health fields. 201 Article 55 of the Charter requires the United Nations to promote higher standards of living 202 and arrive at solutions concerning inter alia health problems. 203 For this purpose of the Economic and Social Council of the United Nations (ECOSOC) may make or initiate studies and reports inter alia with respect to international health matters. 204 The role of the United Nations in preserving the environment is thereby clearly entrenched in its Charter. International regulation, as discussed above, are but a corollary to this status quo.

The tort of nuisance is caused by an unprivileged interference by a person of another's enjoyment of his or her private property, causing discomfort to the latter, and invariably causing the property to diminish in value. 205 There are two instances, however, where recovery against the tort of nuisance is not possible, namely, where a State can invoke sovereignty; and where the defence of pre-emption can be successfully claimed. 206 In all other instances, where nuisance is alleged to have been committed by aircraft noise, particularly where a State run airport is held answerable, a successful legal approach for the plaintiff would lie in the theory of inverse condemnation. The principle of inverse condemnation has been identified as: the popular description of a cause against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant even though no formal exercise of the power of eminent domain has been attempted by taking the agency. 207 and was brought to light by the seminal decision in the case of United States v. Causby, 208 decided in 1946, which involved repeated flights over the plaintiff's property by military aircraft, held that there had been a compensable interference with property and consequent taking down of its value which was at variance with the Fifth Amendment of the United States' Constitution. 209 The 1962 case of Thornburg v. Port of Portland 210 made a significant deviation from the usual principle that compensation for a nuisance caused by noise produced by aircraft could only be awarded if the aircraft was directly above the property concerned and ruled that a trespass resulting in nuisance could occur even if the noise was coming from an aircraft flying beside the property. The Thornburg principle was followed some years later in Martin v. Port of Seattle 211 which rejected the rigidity of the principle that, in the words of the court, insisted upon "the wingtip of the aircraft passing through some fraction of an inch of the airspace directly above the plaintiff's land". 212 The early English case of Walter v. Selfe 213 was the tour de force in awarding the remedy of private nuisance in the environmental law area. The famous dictum of 205 Stein (1991 ), p. 555. 206 Ibid. 207 See. Thornburg v. Port of Portland, (1962 ) 233 Or. 178, 376 P.2d. 100 at 101, note 1. 208 328 U.S. (1946 The Fifth Amendment provides that private property shall not be taken for public use without payment of compensation. See also the cases of Griggs v. Allegheny County 326 U.S. at 84 (1962) and Batten v. United States 306 F. 2d. 580 (10th Cir. 1962 ) which awarded damages for diminishing of value of property under the United States' Constitution. 210 Supra, note 207 (this chapter). 211 391 P. 2d. 540 (1964) . 212 Id. at p. 545. See also Aaron v. City of Los Angeles, 40 Cal. App. 3d. 471, 115 Cal. Rptr. 162 (1974) which held that compensation should be awarded to persons for property values affected by aircraft noise even though the property was not located within a direct flight path of the Los Angeles airport. 213 Knight Bruce V.C. in this case concerned the test of whether emanations from land constitute a nuisance to persons in possession of other land. The criterion was whether they create:

. . . an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people. 214 Another early case which is frequently considered as formulating the legal principles on nuisance as it applies to noise pollution is Gaunt v. Fynney. In this case Lord Selborne L.C. states:

A nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree. If my neighbour builds a house against a party-wall, next to my own, and I hear through the wall more than is agreeable to me of the sounds from his nursery or his music room, it does not follow (even if I am nervously sensitive or in infirm health) that I can bring an action or obtain an injunction. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable. 215

Later cases in determining whether noise amounts to a nuisance have applied these principles. In determining what is a reasonable noise and what are plain, sober and simple notions the courts have had to consider the general nature of the neighbourhood, the nature of the location at which the alleged nuisance took place, the character, duration of time of occurrence of the noise and the effects of the noise. 216 In an early case 217 decided by the Supreme Court of Victoria, Australia, the ringing of a church bell in the early morning hours of Sunday and public holidays in such a manner as to disturb persons residing in the neighbourhood was considered a nuisance. The court took into account, among other things, the degree of the disturbance caused. This case could be contrasted with a South Australian case decided a few years later. 218 The plaintiff who lived 17 ft. away from the defendant's premises claimed an injunction and £500 in damages for depreciation of the value of his house by reason of the noises made by the defendant who conducted religious services on Sundays, commencing at 7 a.m. The noises the plaintiff complained of were singing, band playing, hand clapping and walking about the hall. It was held that singing in a place of religious worship is a sound considered to be ordinarily proceeding from such a place. Although the noises complained of in the two cases are similar, the judges in the South Australian case distinguished that case from the Victorian case on the basis that the necessary inference that can be drawn from the Victorian case is that the ringing of a church bell is not considered part of the service, whereas singing is a necessary part of religious worship. Whether such a distinction is logical is a moot point. Therefore, on similar facts the judges in the two cases came to different conclusions.

In a New South Wales case 219 decided in 1928, the plaintiff who was the defendant's neighbour, complained that the carrying on of building operations by the defendants by the use of mechanical drills, caused a continuous deafening noise during normal business hours. The plaintiff contended that this noise prevented business being carried on in a building owned by the plaintiff. Despite the protests of the company no effort had been made by the defendants to conduct their operations during hours when the plaintiff's business would not be affected. The court granted an injunction restraining the defendants from causing the nuisance. It was held that an alternative method of conducting their operations was available to the defendants even though such method was more costly and time consuming. Long Innes J. distinguished this case from an early English case 220 in which on similar facts the court held that an alternative method of operation would have endangered the lives of the employees.

However, in the later case of Painter v. Reed 221 the Supreme Court of South Australia held that the alterations made by the defendant to make his business as unobjectionable as possible was not sufficient to prevent the plaintiff from succeeding in an action for nuisance. In contrast, a 1953 case 222 determined by the Supreme Court of South Australia found the alterations made by the defendant's operations, which substantially reduced the noise were sufficient to no longer make the noise an actionable nuisance. In this case the plaintiff complained of the noise (and also the dust and the fumes) from a nearby sports ground which was also used as a speedway. Napier C.J. relying on Gaunt v. Fynney 223 and Rushmer v. Polsue & Alfieri Ltd. 224 took into account the nature of the trades usually carried on in the locality and the benefit to the public by the entertainment provided by the defendant's business. His Honour found a considerable interference by the defendant with the peace and comfort of the plaintiffs, but concluded that the nuisance no longer existed due to the alterations made by the defendant.

In a later case 225 the court took into account the fact that the plaintiff's sole occupation was poultry farming and that the use of explosives by the defendant to clear his land of stumps, which had adverse effects on the plaintiff's poultry, was a serious nuisance which warranted the granting of an injunction to prevent the nuisance. It was held that the defendant could use as an alternative, a reasonably practicable method of removing the trees, even though such a method would be more expensive. In a recent case determined by the Supreme Court of Western Australia 226 even though the defendants had taken considerable steps to reduce the noise (and the dust) from their quarrying operations, the plaintiffs succeeded in their action in nuisance as the noise interfered with the use and enjoyment of their land.

In analysing the above cases it is clear that in Daily Telegraph Co. Ltd. v. Stuart and in McMahon v. Catanzaro the courts granted injunctions to restrain the nuisance and ordered the defendants to use alternative methods even though such methods were expensive. In Field's case an injunction was not granted as the nuisance had already been abated by an alternative method. In all three cases the courts took into consideration the alternative methods of operation that the defendants could use and had used. However, in Painter v. Reed although it was held by Richards J. that "the defendant had done very much to make the manner of carrying on his business unobjectionable" 227 this was not considered enough to have abated the nuisance. In Aldridge v. Clough, Burt C.J. found that "[E]ach step taken no doubt had some beneficial effect" but His Honour too came to the same conclusion as Richards J. Therefore, what is an unreasonable act to the plaintiff in nuisance disputes in the noise pollution area has to be determined according to the facts of each case, following the basic idea given in Walter v. Selfe. An objective standard cannot be used.

In continuing to analyse the judicial dicta on private nuisance as a remedy for noise pollution, the decision in Ruthning v. Ferguson 228 took into account the test of whether the noise of the defendants' birds interfered with the ordinary physical comfort of human existence according to the plain, sober and simple notions obtaining among the Australian people. An injunction had been granted restraining the defendant from keeping roosters in such a manner as to cause a nuisance to the plaintiffs. This decision was reversed on appeal because it was found in evidence that the complaints of the plaintiffs were grossly exaggerated.

A case decided in 1937 by the High Court of Australia 229 held that mere competition which is offered by the defendants does not amount to an actionable nuisance. The facts of the case briefly were that descriptions of races taking place on the plaintiff's land were broadcast by the defendants on adjoining land, without the plaintiff's permission. As a result of such broadcasting, attendance at the race course diminished. The plaintiff asked for an injunction to restrain such broadcasting as it amounted to a nuisance. It was held that although the plaintiff suffered a 226 Aldridge v. Clough, Unreported S.C. Decisions of Western Australia No. 1246 of 1979 . 227 [1930 ] S.A.S.R. 295 at p. 297. 228 [1930 ] St. R. Qd. 325. 229 Victoria Park Racing and Recreation Grounds Company Ltd. v. Taylor and Others (1937 58 C. L. R. 479. substantial monetary loss due to the defendants' actions, yet it was not considered as an interference with the use and enjoyment of the plaintiff's land.

Spencer v. Silva 230 was a case where the plaintiff complained of the noise caused by the defendant's use of saws in his business. Mayo J. in determining whether the noise infringed the plaintiff's right to comfort considered whether the plaintiff was peculiarly susceptible to noise. His Honour held the view that the test of determining such susceptibility was objective, i.e. it is to be measured according to the plain, sober and simple notions among ordinary people. However, Mayo J. held that although the measure must be objective, the application of the test is subjective. The test is subjective to the extent that in some circumstances, which do not include cases where the discomfort is purely personal, only very slight evidence of damage need be proved. 231 Concluding that the plaintiff was entitled to an injunction His Honour held that:

When that noise occurs daily for long periods, I think, it becomes a menace to reasonable comfort. It may be true that some people can readily adapt themselves to it without effort, others can with the exercise of determination accustom themselves to it,..but that does not necessarily mean, because that is so, if it is, that the law requires all persons to enure themselves to the unpleasantness or quit. 232

In the case of Dunstan v. King 233 the prolonged and excessive noise emitted from a sawmill and a diesel engine and by smoke and oil fumes therefrom was the alleged nuisance complained of by the plaintiffs who were four residents of that locality. The court followed the rationale in the earlier case of Spencer v. Silva and decided that the plaintiffs had truthfully described the effects of the mill upon themselves.

Similarly, a case decided 2 years later 234 considered whether the plaintiff was peculiarly sensitive to the noise complained of. Roper C.J. asked the question:

Are they fastidious or neurotic or oversensitive to something which according to simple and sober notions is not an annoyance at all, or not an annoyance to any appreciable degree? 235 and came to the conclusion that the noise of the defendant's pigeons flying over the plaintiff's land would be an intolerable nuisance to reasonable normal people.

In Clarey v. Principal and Council of the Women's College, 236 the High Court of Australia had to consider whether a landlord who lets a portion of his residence for the accommodation of university students, could complain that the conduct of the students in making noises which are incidental to the occupation of premises as a dwelling place such as walking about, having a bath, laughing and talking, 230 [1942] constitute a nuisance to adjoining occupiers within the meaning of sub-s. 41 (5) (d) of The Landlord and Tenant Acts of 1948-1950. The court using Pollock on Torts as an authority came to the conclusion that the use of a dwelling house in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and inconvenience to a neighbour. 237 In Munro v. Southern Dairies Ltd. 238 the plaintiff complained of the noise and smell from the defendant's dairy. The court in determining whether the noise and the smell amounted to a nuisance took into consideration inter alia, the particular sensitivity if any, of the plaintiff. Sholl J. held that although a man is not entitled to relief merely because he may happen to be unduly sensitive to noise, yet a man who lives next door to premises from which the noise emanates may get relief when another man some distance away will fail to obtain it. 239 The American case of Boomer v. Atlantic Cement Company 240 is an example of a case in which the court was swayed by the economic position of the defendant company. 241 Here the plaintiff alleged property damage caused by the dirt and vibrations resulting from the defendant's industrial complex. The court recognized a substantial interference of the plaintiff's rights. Although the court cites the law in New York, which is to the effect that a nuisance will be found to exist even though there is marked disparity in economic consequence between the effect of the injunction and the effect of the nuisance, yet it strangely decided to ignore it on the basis that the rule should not be followed too "literally". 242 The court granted damages to the plaintiff instead of an injunction obviously because they were favourably impressed by the vast wealth of the defendant company and knew that a permanent injunction would have caused a significant loss to the company. The court may have been influenced in its decision by the loss of employment to the 300 workers of the defendant company if the court granted an injunction. However, the ability of the common law in protecting the ordinary citizen is illustrated in the English case of Halsey v. Esso Petroleum Co. Ltd. 243 The plaintiff in this case lived in an area zoned for residential purposes. The defendant, who was a mammoth oil company, used a land on the opposite side as an oil storage depot. The plaintiff alleged nuisance resulting from the noise and smell of the defendant's operations. In this case the court refused to be awed by the economic position of the defendant and seemed to base the judgment on the principle that the standards binding on both parties are those of the ordinary reasonable man. Although the defendant company had taken a number of steps to abate the nuisance, the court found that an actionable nuisance existed and granted an injunction restraining the defendant from carrying 237 Id. 176. 238 [1955] V.L.R. 332. 239 Id. 335. 240 257 N.E. 2d. 870. 241 The defendant's investment in the plant was in excess of $45,000,000. 242 Boomer, supra, note 240 (this chapter) at pp. 872-873. 243 [1961] 1 W.L.R. 683. on the activities which caused the nuisance. Although in both cases the court held that a nuisance existed, in the English case the court by granting an injunction prevented the recurrence of the nuisance. These two cases illustrate the subjective approach adopted by the judiciary in nuisance disputes. A general principle cannot be culled from these decisions.

The case of Aldridge v. Clough 244 echoes the time honoured words in Walter v. Selfe. Burt C.J. considered carefully whether the plaintiffs were specially sensitive to the noise and dust from the quarry. His Honour came to the conclusion that the evidence of the plaintiffs was not only honest but also fairly objective. The earlier New South Wales case of Farley and Lewers Ltd. v. Attorney General 245 was cited as authority for the proposition that the plaintiffs' reaction should represent the reaction of the ordinary person. Burt C.J. in the course of his judgment referred to the Noise Abatement Act of 1972 which attempts to prescribe noise levels which if exceeded, constitutes an offence, and held that on the evidence of the plaintiffs the latter had made good the claim in nuisance. 246 Although the judgment is clearly based on the rationale in Walter v. Selfe, Burt C.J. determined the case on the evidence, according to his individual view of what constitutes an interference with "plain and sober notions among our people". 247

A frequent factor that courts take into consideration in determining whether a particular activity is a nuisance is the locality of the alleged nuisance. For instance, in Painter v. Reed, 248 in determining whether the noises caused in the early morning by the movement and stamping of horses which disturbed the sleep of the plaintiff constituted an actionable nuisance and should be restrained by injunction, Richards J. considered carefully the locality in which the alleged nuisance occurred. His Honour was of the opinion that although the defendant's business was situated in a very suitable place in the city, yet the noise complained of was not as reasonable as the law would require. In Dunstan v. King, 249 in coming to the conclusion that the noise amounted to an actionable nuisance, the court considered the type of locality in question. Although it was adduced in evidence that there were other sawmills in the district, the court held that there was no other industrial undertaking within reasonable distance of the particular locality, which had the character of a quiet countryside. 250 considering whether the noise complained of was characteristic of the particular neighbourhood, Sholl J. held that it was not so. 252 In another case 253 the defendant was a haulage contractor and the noise and the dust caused by his business constituted a substantial nuisance to the plaintiff. The court cited a great deal of judicial authority in this area of the law. After considering the pecuniary loss resulting to the defendant if the court granted a permanent injunction, the fact that no one else living in the neighbourhood supported the plaintiff and the fact that the plaintiff had a motive for complaining about the noise (there was ill-feeling between the two families) the court came to the conclusion that in a residential suburb a man is not at liberty habitually to start a noisy motor vehicle at very early hours of the morning when his neighbours are usually asleep. Upon the defendant undertaking to abate the nuisance, the action was dismissed. This case underscores the preoccupation of judges in considering the locality of the alleged nuisance important, even in circumstances where there is evidence in favour of the defendant.

The relevance of locality has been considered in situations where the defendant avers that the plaintiff came to the nuisance. However, "coming to the nuisance" is not a defence to an action in nuisance. Certain cases have discussed this non-defence. One of the earliest cases 254 which has done so held that the plaintiff's having come to the nuisance did not dis-entitle him to equitable relief. In Barber v. Penley 255 the offending noise came from the crowd at a theatre in the locality where the plaintiff lived. It was held that a person who deliberately goes next door to a theatre cannot expect to have precisely the same amenities that the lessee of a private house in a street occupied by private houses only in the West End would expect. However, the court held that such a lessee still has the right to expect that no nuisance shall be committed to the prejudice of such person. 256 In the recent case of Miller v. Jackson 257 Geoffrey Lane L.J. posed the question:

. . . can the defendants take advantage of the fact that the plaintiffs have put themselves in such a position by coming to occupy a house on the edge of a small cricket field, with the result that what was not a nuisance in the past now becomes a nuisance? 258 His Lordship held that although he was inclined to find for the defendants he could not do so as he was bound by judicial precedent. Ch. D. 852 . In this case the plaintiff who was a physician was hindered in his work by the noise and vibrations from the neighbouring confectionery shop. claim in nuisance for a defendant to show that the plaintiff brought the trouble upon himself by building and coming to live in a house so close to the defendant's premises that he would inevitably be affected by the defendant's activities. 260 Geoffrey Lane L.J. thought that this rule works injustice. He reluctantly held for the plaintiff. His Lordship seemed to have been much impressed by the fact that the locality was a country area in which cricket was an important activity. Therefore, courts throughout the ages have been influenced by the locality in question in considering whether the plaintiff came to the nuisance.

Certain cases have considered whether the benefit to the public by the defendant's activity would override the nuisance such activity would cause to the plaintiff.

Munro v. Southern Dairies Ltd. 261 was such a case. In this case Sholl J. cited the early case of Shelfer v. City of London Electric Lighting Company 262 in support of his contention that the public benefit resulting from the defendant's activity was not sufficient to prevent the plaintiff from succeeding in the nuisance action. In the more recent English case of Kennaway v. Thompson and another 263 the Court of Appeal considered the jeopardy caused to the public interest in granting an injunction prohibiting the defendant, a boating club, from carrying on noisy activities which prevented the plaintiff from using and enjoying her land. Lawton L.J. held that although the plaintiff was not entitled to an injunction restraining all of the club's activities because there had to be a reasonable amount of give and take, those activities which caused a serious nuisance to her should be restrained by injunction. 264 His Lordship was of the opinion that the public benefit generated by the defendant's activities outweighed the inconvenience to the plaintiff who had to absent herself from her house for many days in order to avoid the noise. 265 Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g., a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Company. 267 Kennaway v. Thompson reiterated the attitude of the courts in considering a person's right to use and enjoy his land as sacrosanct as opposed to the benefit to the public that may accrue from the defendant's activities.

Damages and injunctions are the two important remedies 268 granted to a successful plaintiff in a nuisance action. Judges have had difficulty in determining whether damages or injunctions should be granted and if damages are to be awarded, the test in determining reasonable damages. The loss need not be of a pecuniary nature but must be material or substantial. The loss complained of in most of the cases on nuisance by noise is the interference with the use and enjoyment of the complainants premises.

The decision of Oldham v. Lawson 269 examined the question of whether damages should be granted for non-pecuniary loss. Harris J. held that until the 1975 case of Bone v. Seale 270 there was no test applicable that would warrant the award of damages in the instance where the nuisance complained of does not affect the plaintiff's property. Harris J. relied on the dictum of Scarman L.J. in Bone v. Seale. Scarman L.J. held:

Nuisance is a wrong to property, but it is well recognised that even when there is no physical damage to property it may cause annoyance inconvenience and discomfort to the occupier of the property in his enjoyment of it. 271 Scarman L.J. relied on McGregor on Damages to buttress his proposition that damages are allowable for non-pecuniary loss caused by nuisance and that such damages should be regarded as part of the normal measure of damages; in determining what the normal measure of damages are, His Lordship held that the general principle in cases where there is no financial yardstick in awarding damages were formulated by Lord Morris of Borth-y-Gest in H. West & Son Ltd. v. Shephard, 272 when His Lordship said that all that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.

On the question of what is reasonable Scarman L.J. held that there was very little guidance in the law, which led His Lordship to formulate the following principle:

One must bear in mind also a further general principle, that, when one is removed from the world of pecuniary loss and is attempting to measure damages for non-pecuniary loss, an element in reasonableness is the fairness of the compensation to be awarded. There must be 267 [1895] 1 Ch. 287. 268 The other remedies are abatement without recourse to legal proceedings, summary proceedings for penalties or abatement of statutory nuisances and criminal proceedings. 269 moderation; some attention must be paid to the rights of the offending defendant as well as the rights of the injured plaintiff. 273 Although Harris J. accepted this proposition as an accurate statement of the law, it is submitted that Scarman L.J. seemed to have experienced the same difficulty as his predecessors in formulating a test for non-pecuniary damages. His Lordship too does not formulate a comprehensive test.

In Spencer v. Silva 274 Mayo J. discussed the instances when damages should be granted in lieu of injunctions. 275 Damages instead of an injunction might be given if the injury to the plaintiff's legal right was small, was capable of being estimated in money, could be adequately compensated by a small money payment or if the injunction would be oppressive to the defendant. Mayo J. discusses another instance when damages should be granted instead of an injunction. This is the instance when considerable time has elapsed before the plaintiff instituted legal proceedings. 276 It is submitted that although such a clear statement of the law has been formulated, judges have persisted in applying subjective criteria in determining whether damages or injunctions should be granted. For instance, in Boomer v. Atlantic Cement Company, 277 the judge refused to grant an injunction preventing the defendant from continuing his commercial activities which was a considerable nuisance to the plaintiff, because the judge was swayed in his judgment by the wealth of the defendant company.

In Vincent v. Peacock 278 the court discussed the instances when an injunction should not be granted. In this regard the court considered the statement of Lord Evershed M.R. in Pride of Derby and Derbyshire Angling Association LD. v. British Celanese LD. 279 important. According to Lord Evershed M.R., if A proves that his property rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered. 280 The court in Vincent v. Peacock held that instances of special circumstances would be extreme hardship, where the effect of granting an injunction would be to order someone to perform an impossibility or to abstain from doing something which is impossible for him not to do. The Supreme Court overruled the decision of the lower court which failed to grant an injunction to restrain the defendant's drunken behaviour which prevented the plaintiffs from the reasonable enjoyment of their home. The lower court seemed to have considered the facts that the offensive behaviour occurred only when the defendant was drunk and the admission of the defendant that he was an alcoholic sufficed as special circumstances for an injunction not to be granted. 281 The reasoning of the lower court was based on the premise that it was futile to issue an injunction against an offender who cannot control the commission of the offence, being in a perpetual state of intoxication. It is apparent that these were not special circumstances within the rule mentioned above. Special circumstances could be interpreted by different judges in different ways as the above case illustrates.

The courts may not only grant a remedy to a plaintiff subsequent to the commission of a nuisance from which he suffers; they may also issue an injunction to prohibit any activity which could cause a nuisance. The latter is called a quia timet injunction at common law. This effectively precludes the commission of an act which would result in a nuisance. A quia timet injunction should be granted only if three factors are present. They are:

1. Would an act considered in a quia timet action if not prohibited, cause a nuisance to the plaintiff? 2. If it would, how imminent is the nuisance? 3. Would the nuisance caused to the plaintiff result in substantial damage to him?

In determining whether these three factors are present, the onus of proof on the plaintiff was considered to be an important consideration in the case of Grasso v. Love 282 determined by the Full Court of the Supreme Court of Victoria, Australia. Disapproving of the expression "moral certainty" used in an earlier case 283 to describe what the plaintiff must prove, as suggesting a criminal onus of proof, the court held that there is no third onus of proof required in quia timet injunctions, lying between the civil and criminal onus. It was held by the Full Court that the plaintiff must prove that there is a real probability that the defendants' activities would cause a nuisance. 284 Citing academic authority in support of their view, 285 the judges held that in determining the real probability of the alleged nuisance, the relevant circumstances of the case should be taken into account, to determine whether the issuance of the injunction would be unfair to either party to the action. 286 For example, in Grasso v. Love on an appeal against the granting of an injunction against the construction of a drive-in cinema, the appellants argued mainly on the grounds that evidential facts were insufficiently considered in the court of first instance which resulted in a permanent injunction against them. held on appeal that although the issuance of the injunction was justified to the extent that substantial damage would have been caused to the respondents who resided in a portion of the land had the injunction not been issued, it need not have applied to the entire land as there was insufficient evidence to show that the proposed drive-in cinema would have caused a nuisance to the respondents had it been erected on a portion of the land a considerable distance away from the respondents' home. Therefore, the Supreme Court considered the rights of both parties in reaching their decision. However it could be argued that "relevant circumstances" is a purely subjective phrase and is dependent on the interpretation given to it by courts.

In Heathrow airport and the aircraft which use it are not owned, controlled or operated by the Government or by any agency of the Government. The Court considers that, accordingly, the United Kingdom cannot be said to have "interfered" with the applicants' private or family life. Instead, the applicants' complaints fall to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 of the Convention. 288 In inquiring as to whether, as claimed by the applicants, their fundamental right had been breached by the aircraft noise the Court took into consideration Article 8 of the European Commission on Human Rights and Fundamental Freedoms, adopted in Rome in 1950 protects the right to respect for private and family life, home and correspondence, which reads as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In attempting a balance between this provision and the averment of the respondent that aircraft movement at the time in question were necessary for the economic well being of the industry as well as society, the Court held that:

The Court would, however, underline that in striking the required balance, States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others. . . It considers that States are required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project. 289

The Environmental Noise (England) Regulations 2006 (as amended), which transpose the provisions of EU Directive 2002/49/EC relating to environmental noise from transport and industry, requires that airport operators produce a Noise Action Plan which must be approved by the Government and reviewed every 5 years. Heathrow's Noise Action Plan 2010-2015 was adopted in May 2011 and London Stansted's Noise Action Plan for 2010-2015 in July 2011. 290 A historical analysis of the cursus curiae in the field of nuisance as a remedy for noise pollution illustrates the fact that judges throughout the ages up to the present time have been influenced by the fundamental legal principle enunciated in the early English case of Walter v. Selfe. However, the judges in the different cases have given their own interpretation of the rationale in Walter v. Selfe. Although it could be stated that diversity in judicial opinion leads to independence in judicial thinking and that judges should not be hampered by a comprehensive definition, yet a strong argument against this type of attitude is that the law would be ambivalent when there is a multitude of judicial opinions on one point, out of which no general principle could be culled. It is this vagueness which has led to the common law of nuisance being to a large extent replaced by an array of statutory provisions which have been designed to control environmental damage.

The World Health Organization (WHO) has stated that that noise pollution can cause interference with communication, sleep disturbance, increased annoyance responses, noise-induced hearing loss, learning acquisition, performance effects, and cardiovascular and psycho physiological effects. Studies have suggested that the reading age of children in schools under flight paths is below the national average. 291 WHO has said: Noise pollution is not believed to be a cause of mental illness, but it is assumed to accelerate and intensify the development of latent mental disorders. Noise pollution may cause or contribute to the following adverse effects: anxiety, stress, nervousness, nausea, headache, emotional instability, argumentativeness, sexual impotence, changes in mood, increase in 289 Ibid. 290 http://www.politics.co.uk/reference/aviation-noise 291 Ibid. social conflicts, neurosis, hysteria, and psychosis. Population studies have suggested associations between noise and mental-health indicators, such as rating of well-being, symptom profiles, the use of psychoactive drugs and sleeping pills, and mental-hospital admission rates. Children, the elderly, and those with underlying depression may be particularly vulnerable to these effects because they may lack adequate coping mechanisms. Children in noisy environments find the noise annoying and report a diminished quality of life. 292

In a 2001 Report issued by WHO Europe 293 it is said that the evidence from epidemiological studies on the association between exposure to road traffic and aircraft noise and hypertension and ischemic heart disease has increased during recent years. Road traffic noise has been shown to increase the risk of ischemic heart disease, including myocardial infarction. Both road traffic noise and aircraft noise increase the risk of high blood pressure. Very few studies exist regarding the cardiovascular effects of exposure to rail traffic noise. 294 The World Medical Association (WMA), in a Statement issued in 1992 has stated that noise affects people in diverse ways pertaining to hearing, the vegetative nervous system, the psyche, spoken communication, sleep and performance. WMA states further that the stress caused by noise on humans places, an increased burden on the body leading to higher energy consumption and greater wear. WMA suspects that noise can primarily favour diseases in which stress plays a contributory role, such as cardiovascular diseases, which can then be manifested in the form of hypertension, myocardial infarction, angina pectoris, or even apoplexy, not to mention in the psychosocial aspects of human life. In its Statement WMA inter alia called upon ministers of transport and urban planners to develop alternative concepts that are capable of countering the growing level of environmental noise pollution, while advocating appropriate statutory regulations for combating environmental noise pollution. 295

Aircraft emit gases and particles directly into the upper troposphere and lower stratosphere where they have an impact on atmospheric composition. These gases and particles alter the concentration of atmospheric greenhouse gases, including carbon dioxide (CO 2 ), ozone (O 3 ), and methane (CH 4 ); trigger formation of condensation trails (contrails); and may increase cirrus cloudiness, all of which lead to climate change. The effects of climate change through air pollution is already well know and addressed in depth. The effects of aviation and climate change and work carried out in that respect have also been addressed quite regularly in all its nuances. 297 However, the following discussion is on the effects of greenhouse gas emissions (which are also emitted by aircraft engines) on human rights.

On 28 March 2008 the United Nations Human Rights Council adopted Resolution 7/23 which inter alia decided to request the Office of the United Nations High Commissioner for Human Rights, in consultation with and taking into account the views of States, other relevant international organizations and intergovernmental bodies including the Intergovernmental Panel on Climate Change and the secretariat of the United Nations Framework Convention on Climate Change, and other stakeholders, to conduct, within existing resources, a detailed analytical study on the relationship between climate change and human rights, to be submitted to the Council prior to its tenth session. The following year, in March 2009, the Council adopted Resolution 10/4 which decided to hold a panel discussion on the relationship between climate change and human rights at its 11th session in order to contribute to the realization of the goals set out in the Bali Action Plan 298 and to invite all relevant stakeholders to participate therein.

In October 2011 the United Nations Human Rights Council adopted Resolution 18/22 which, while expressing its concern that, while implications of climate change affect individuals and communities around the world, the effects of climate change will be felt most acutely by those segments of the population that are already in vulnerable situations owing to factors such as geography, poverty, gender, age, indigenous or minority status and disability, and recognizing that climate change is a global problem requiring a global solution, and that effective international cooperation to enable the full, effective and sustained implementation of the United Nations Framework Convention on Climate Change in accordance with the provisions and principles of the Convention is important in order to support national efforts for the realization of human rights implicated by climate changerelated impacts, affirmed that human rights obligations, standards and principles have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes The Council reiterated its concern that climate change poses an immediate and far-reaching threat to people and communities around the world and has adverse implications for the full enjoyment of human rights and requested the Office of the United Nations High Commissioner for Human Rights: to convene, prior to the 19th session of the Human Rights Council, a seminar on addressing the adverse impacts of climate change on the full enjoyment of human rights, with a view to following up on the call for respecting human rights in all climate changerelated actions and policies, and forging stronger interface and cooperation between the human rights and climate change communities. Resolution 18/22 also requested that States and other relevant stakeholders, including academic experts, civil society organizations and representatives of those segments of the population most vulnerable to climate change, be invited to participate actively in the seminar.

In April 2012 the Human Rights Council adopted Resolution 19/10 which decided inter alia to appoint for a period of 3 years an expert on human rights to study To study, in consultation with Governments, relevant international organizations and intergovernmental bodies, including the United Nations Environment Programme and relevant multilateral environment agreements, human rights mechanisms, local authorities, national human rights institutions, civil society organizations, including those representing indigenous peoples and other persons in vulnerable situations, the private sector and academic institutions, the human rights obligations, including non-discrimination obligations, relating to the enjoyment of a safe, clean, healthy and sustainable environment; to identify, promote and exchange views on best practices relating to the use of human rights obligations and commitments to inform, support and strengthen environmental policymaking, especially in the area of environmental protection, and, in that regard to prepare a compendium of best practices.

ICAO has produced its Airport Air Quality Manual 299 contains advice and practical information to assist ICAO Member States in implementing best practices with respect to airport-related air quality. Information related to State requirements, emissions from airport sources, emissions inventories and emissions allocation are addressed throughout the document. It also provides a process for States to determine the best approaches and analytical frameworks for assessing airport-related air quality and identifies best practices for different needs or scenarios. It is not intended as a basis for any regulatory action, it does not describe specific projects or actions nor does it address research-related aspects of airport air quality. The Manual contains such key recommendations on such subjects as best practices in achieving to the best possible extent clean air quality in the vicinity of airports as well as the maintenance of emissions inventories.

The Economist of January 19-25 2013 reported that, although international attempts at achieving global consensus that could result in a multilateral international treaty on cutting emissions and compensating victims are constantly ending in failure, local legislation per country is increasing. The journal claims that "according to a new study of 33 countries for GLOBE, a group of legislators from round the world, the number of new domestic environmental laws rose from 10 a year in the early 2000s to 20 in 2012. . .31 of the 33 countries now have a basic greenery law. South Korea passed legislation to set up an emissions-trading scheme in 2015. Japan introduced a carbon tax and a new law to encourage denser, more energy efficient cities". The Study concludes that half the 33 countries made significant strides in environmental legislation in 2012, prompting Sam Fankhauser of the London School of Economics, who was involved in writing the results of the 299 Doc 9889, First Edition 2011. Study, to say that the figures debunk the views of skeptics who reject the approach of countries acting alone in taking steps to counter the ill effects of climate change.

The article concludes that voters appear to favor domestic legislation to an international treaty on emissions and that this might be an indictment of years of sustained green activism for a global treaty.

So why has this activism failed? There could be many reasons. The first could be that we consider emissions as a problem that should be solved at home, and many countries are practicing self help because they can tailor the solution according to their individual problem. The problems of pollution in China and Australia may not necessarily be those of a majority of European Countries. The problems in the United States, if globally addressed, may hinder industry. Above all, the views on emissions are still polarized because emissions issues are intertwined with industry and development, human rights and health, together with and complex concepts such as Common But Differentiated Responsibilities.

Obviously, we still do not have a handle on the legal reason for establishing global principles. Most view the environment in its simplistic sense-that it is the overall summation of all things natural. In this context, as Nobel laureate Amartya Sen observes, the pervasive common view is that this "state of nature" will remain without change as long as we interfere with it as little as possible. Sen further states that this misconception can be rejected on two counts, the first being that the value of the environment does not lie in its existing state but in the opportunities it offers humankind, and the second being that it is not sufficient to ensure that the environment is passively preserved by us but there needs to be active initiatives in educating the populace of the world on the environment and the benefits that would accrue to it by our actions such as reducing the population of the world and creating employment opportunities. In this context, education is a paramount factor that would make us more environmentally conscious. I would add a third factor to Sen's au fait treatise, that economic instruments which are brought to bear with a view to reducing pollution, particularly in the context of global warming, would be essential to meet the reality that, no matter what we might do to avoid interference with the environment by our enforced inactivity, the growth of world trade would force us to impose economic measures to curb greenhouse gas emissions. The issue is whether such measures could be enshrined in a globally applicable regime.

Over the past two decades environmental scientists have set the climate sensitivity parameter (Cs) at a range of 1.5-4.5 C equilibrium warming for a 100 % increase of atmospheric concentrates of carbon dioxide from pre industrial levels. The Inter Governmental Panel on Climate Change (IPCC)'s international review carried out in 2001 and its Third Assessment Report (TAR) which followed did not alter this benchmark, although the TAR indicated increased expected realized warming by the year 2100. Policy was established on the issue of climate change and global warming at the 1992 Rio Earth Summit when 150 States Parties agreed to the United Nations Framework Convention on Climate Change (UNFCC). Although the UNFCC did not set hard targets for emissions, there were two following implementing conferences in Berlin and Kyoto in 1995 and 1997 respectively. The 1997 Kyoto Protocol set quantitative emissions ceilings for developed nations while abstaining from setting such ceilings for developing nations. By March 2001, 84 nations had signed the Kyoto Protocol (with the notable exception of the United States) and by November 2003, 120 states had ratified the Protocol. The United States policy in refusing to accede to the Protocol, conveyed by President Bush's refusal to sign the Protocol in 2001, has been based on the argument that scientific reasoning that led to the Kyoto Protocol was uncertain and implementation of the Protocol's policy would be too expensive. Another reason was that the United States strongly believes that there must be commitments by developing countries towards achieving emissions ceilings. In early December 2003, Russian President Putin also indicated that he did not intend to make Russia a party to the Protocol. The policy of the European Union toward the Kyoto Protocol was initially enthusiastic, where the EU stated in October 1990 that it would control and constrain emissions in 2000 to be consistent with 1990 levels. However, in 1992 the EU indicated that its carbon tax policy will be enforced toward the above end only if all OECD States (including United States and Japan) ratified the Protocol.

The Protocol was adopted on 11 December 1997 in Kyoto, Japan, and entered into force on 16 February 2005. As of September 2011, 191 States had signed and ratified the protocol. The United States signed but did not ratify the Protocol and Canada withdrew from it in 2011.

The most compelling policy issue with regard to a rational analysis of global warming lies in attempting to discount costs and benefits of the future with a view to achieving comparable values for current policy judgements. The underlying recognition by the global community is that comparably expensive measures may have to be taken at the present time to ensure sustainability of a stable climate in the future. A known factor in this equation is that it takes at least three decades for the impact of emissions to be felt, due to ocean thermal lag and, perhaps more importantly, due to the fact that emissions are recurrent annually over a span of centuries owing to the pervasive residues of carbon dioxide in the atmosphere for long periods of time.

It must be noted that the underlying principle of the Kyoto Protocol is to have industrial and transition economies cut emissions back to 5 % below their 1990 levels and freeze them at that level, while allowing developing States the luxury of unlimited emissions. This philosophy is fundamentally flawed if one were to take into consideration the increasing gaseous emission levels from the developing countries which could seriously endanger global abatement. Another perceived inadequacy of the Kyoto Protocol is its inability to sustain consistency between its provisions on emissions trading which violates the least-cost solution of cutting emissions aimed at equating the marginal cost of cutbacks across all countries.

The issue is not what happens to Kyoto after 2012 or whether to place monetary caps and values on emissions. The IMF/World Bank reports that additional needs in developing countries to limit the rise of the global mean temperature to +2 C above pre industrial levels will continuously grow over the next decades to reach US$139 billion to $175 billion annually by 2030. Therefore, no one would doubt that mitigating the adverse effects of climate change is a costly business. It is here that the deficit of judgment occurs, where the main focus seems to be on the generation of revenue as compensation for pollution. Any such revenue collected should be based firstly on external factors such as trading on the quantity of emissions rather than internally on the quantity of consumables such as fossil fuels. Secondly, the revenue collected should be used on modernizing technology rather than on buttressing national coffers. Greener machines and engines should be developed that would lesson global engine emissions, and resources should be pumped into developing the necessary technology for the manufacture of such equipment. More sophistication is needed in the design of industry components towards this goal.

The key response to climate change should be investment, where investors accept the bulk of the scientific evidence available and invest in companies that would offer advanced technology in the field. The overall opportunity for investment is huge in that the value of low carbon energy markets would be around $500 billion by 2050 and cumulative net savings from energy efficient products by 2012 in the United States alone would be $84 billion. Investors will look at a long term model of investment, taking into account the importance of low carbon technologies; carbon prices; environmental actions by corporations and governmental environmental policies and regulations.

Internationalization of environmental law and seeking global consensus on emissions is indeed a noble approach. However, one must take in to consideration the fact that a multilateral treaty at public international law would entail State responsibility. Would such a treaty enforce penalties on States after their obligations are breached? This would be counter-productive from an environmental sense. What solution would there be after a species or ecosystem is lost? Could State responsibility be enforced in complex situations affecting global warming? Would restitution or compensation work in instances of environmental damage? How would States be held responsible for emissions of private entities? Perhaps Professor Ian Brownlie, who takes the example of the Chernobyl disaster of 1986 offers some food for thought: "Chernobyl and its aftermath casts doubts on the efficacy of the approach to environmental disasters by way of State responsibility. States clearly did not regard the legal approach as being especially relevant. The State responsibility, or liability approach is about allocation of losses and reparation. It is thus retrospective. In the case of the protection of the environment it is prospective and prevention action is called for". 300 Have we got the whole equation upside down?

The Stern Review on the Economics of Climate Change, released in 2006 states that the ongoing proliferation of greenhouse gases will pose immense challenges to the well being of humanity, stating that "the stock of greenhouse gases could more than treble by the end of the century, giving at least a 50 % risk of exceeding 5 C global average temperature change during the following decades. This would take humans into unknown territory. An illustration of the scale of such an increase is that we are now only around 5 C warmer than in the last ice age." The key points of the Stern Review are as follow:

All countries will be affected by climate change, but the poorest countries will suffer earliest and most.

Average temperatures could rise by 5C from pre-industrial levels if climate change goes unchecked.

Warming of 3 or 4C will result in many millions more people being flooded. By the middle of the century 200 million may be permanently displaced due to rising sea levels, heavier floods and drought.

Warming of 4C or more is likely to seriously affect global food production.

Warming of 2C could leave 15-40 % species facing extinction. Before the industrial revolution level of greenhouse gases in the atmosphere was 280 parts per million (ppm) CO 2 equivalent (CO 2 e); the current level is 430 ppm CO 2 e. The level should be limited to 450-550 ppm CO 2 .

Anything higher would substantially increase risks of very harmful impacts. Anything lower would impose very high adjustment costs in the near term and might not even be feasible.

Deforestation is responsible for more emissions than the transport sector. Climate change is the greatest and widest-ranging market failure ever seen.

Three elements of policy are required for an effective response: carbon pricing, technology policy and energy efficiency. Carbon pricing, through taxation, emissions trading or regulation, will show people the full social costs of their actions. The aim should be a global carbon price across countries and sectors.

Emissions trading schemes, like that operating across the EU, should be expanded and linked.

Technology policy should drive the large-scale development and use of a range of low-carbon and high-efficiency products.

Globally, support for energy research and development should at least double; support for the deployment of low-carbon technologies should be increased my up to five times.

International product standards could be introduced. Large-scale international pilot programmes to explore the best ways to curb deforestation should be started very quickly.

Climate change should be fully integrated into development policy, and rich countries should honour pledges to increase support through overseas development assistance.

International funding should support improved regional information on climate change impacts.

International funding should go into researching new crop varieties that will be more resilient to drought and flood.

The benefits of strong, early action considerably outweigh the costs.

Unabated climate change could cost the world at least 5 % of GDP each year; if more dramatic predictions come to pass, the cost could be more than 20 % of GDP.

The cost of reducing emissions could be limited to around 1 % of global GDP; people could be charged more for carbon-intensive goods.

Each tonne of CO 2 we emit causes damages worth at least $85, but emissions can be cut at a cost of less than $25 a tonne.

Shifting the world onto a low-carbon path could eventually benefit the economy by $2.5 trillion a year.

By 2050, markets for low-carbon technologies could be worth at least $500 billion.

What we do now can have only a limited effect on the climate over the next 40 or 50 years, but what we do in the next 10-20 years can have a profound effect on the climate in the second half of this century. 301 Later, in an interview given to The Guardian, Lord Stern, the author of the Stern Review said that he had under-estimated the danger of global warming and the dangers posed to humanity and the global economy, which is even worse than is reflected in his Review of 2006. 302 Lord Stern is reported to have told The Guardian: "This is potentially so dangerous that we have to act strongly. Do we want to play Russian roulette with two bullets or one? These risks for many people are existential." 303 301 As reported in the Guardian. See http://www.theguardian.com/politics/2006/oct/30/economy. uk. 302 See http://www.theguardian.com/environment/2013/jan/27/nicholas-stern-climate-changedavose. 303 Ibid. An Inter-Governmental Panel on Climate Change Report, on Aviation and Climate Change (IPCC) released in 1999 states that aircraft emissions were calculated to have increased NO x at cruise altitudes in northern mid-latitudes by approximately 20 %. The uncertainty in this calculation is primarily related to uncertainties in the NO x chemical lifetime and in the relative magnitude of the aircraft source compared to lightning, rapid vertical convection of surface NO x , and other sources of upper tropospheric NO x . The calculated increase was substantially smaller than the observed variability in NO x . NO x emissions from aircraft were calculated to have increased ozone by about 6 % in the region 30-60 N latitude and 9-13 km altitude. Calculated total ozone column changes in this latitude range are approximately 0.4 %. Calculated effects are substantially smaller outside this region. Some of the uncertainty in these calculations is captured by the range of model results. However, the models were notably deficient in coupling representations of stratospheric and tropospheric chemistry and in describing exhaust plume processes, HO x sources, and non-methane chemistry in the upper troposphere. In addition, there was high uncertainty associated with the model description of vertical and horizontal transport in the upper troposphere/lower stratosphere. The effect of current aircraft particle and particle precursor The Fifth Assessment Report on climate change of the Inter-Governmental Panel on Climate Change (IPCC) released in 2014 reports that:

Each of the last three decades has been successively warmer at the Earth's surface than any preceding decade since 1850. The period from 1983 to 2012 was likely the warmest 30-year period of the last 1400 years in the Northern Hemisphere, where such assessment is possible (medium confidence). The globally averaged combined land and ocean surface temperature data as calculated by a linear trend, show a warming of 0.85 [0.65 to 1.06] C2 over the period 1880 to 2012, when multiple independently produced datasets exist. 304

The ICAO Assembly, at its 38th Session held in 2013 adopted Resolution A38-18 which reiterated inter alia that ICAO should continue to take initiatives to promote information on scientific understanding of aviation's impact and action undertaken to address aviation emissions and continue to provide the forum to facilitate discussions on solutions to address aviation emissions; and emphasis should be on those policy options that will reduce aircraft engine emissions without negatively impacting the growth of air transport especially in developing economies. 305 

295 where His Lordship cited Harrison v. Southwark and Vauxhall Water Company

See 231 of Field's case

These instances were first discussed by Smith

The use of civil aircraft and crew for military purposes

Aviation and the environment

Aviation security law

Aviation and the carbon trade

Aviation and climate change: in search of a global market based measure

Mental hospital admissions and aircraft noise

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Humanitarian intervention. In: Bull H (ed) Intervention in world politics

Unmanned aircraft systems, UAVs design, development and deployment

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Law, war & crime, -war crimes trials and the reinvention of international law

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CIA role in arming Contras seen larger than White House has acknowledged

Amid outrage over civilian deaths in Pakistan, CIA turns to smaller missiles

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Selected international agreements relating to air law