Aerial Intrusions by Civil and Military Aircraft in Time of Peace
![handle is hein.journals/milrv107 and id is 261 raw text is: 1985]
AERIAL INTRUSIONS IN TIME OF PEACE
AERIAL INTRUSIONS BY CIVIL AND
MILITARY AIRCRAFT IN TIME OF PEACE
by Major John T. Phelps II*
This article examines the -nature of military and civil aerial intru-
sions into the airspace of other states. It explores the acceptable
responses under international law that an overfloum state may
make in response to an aerial violation of its territorial sovereign-
ty. This article concludes that force may be used against military
intruders but a requirement to warn and an opportunity to turn
away or land exists under certain circumstances. Force may not be
used against civil aerial intruders unless in self-defense as defined
in the United Nations Charter.
We state, in the Soviet territory the borders of the Soviet Union
are sacred
Soviet Foreign Minister Andrei Gromyko in justifying the
destruction of Korean Airliner Flight 007 and its 269
passengers and crew.'
I. INTRODUCTION
A. THE KOREAN AIRLINES 007 INCIDENT
The issue of the sovereignty of a nation's airspace was put to the
test on August 31, 1983 at 1400 hours Greenwich Mean Time (GMT),
when a Korean Air Lines Boeing 747, Flight 007, departed from John
F. Kennedy International Airport for a flight to Seoul, Republic of
Korea. It made one scheduled stop at Anchorage, Alaska for refuel-
ing and a crew change. It carried 269 passenges and crew for the
final flight to Seoul.2 The passengers represented 14 different na-
*Judge Advocate General's Corps, United States Army. Currently assigned as Chief,
Nonresident Instruction and Media Services Branch, The Judge Advocate General's
School, U.S. Army, Charlottesville, Virginia, 1984 to present. Formerly assigned as
Trial Counsel, Administrative Law Officer, Chief of Legal Assistance, & Chief of
Military Justice, U.S. Army Infantry School and Fort Benning, Fort Benning, Georgia,
1980-83; Legal Assistance Officer and Trial Counsel, 101st Airborne Division, Fort
Campbell, Kentucky, 1976-79. J.D., University of Cincinnati, 1975; B.S., Ohio State
University, 1972. Completed 32d Judge Advocate Officer Graduate Course, 1984;
80th Judge Advocate Officer Basic Course, 1976. Member of the bar of the State of
Ohio. This article is based upon a thesis submitted in partial satisfaction of the re-
quirements for completion of the 32d Judge Advocate Officer Graduate Course.
'Secretary of State George Shultz quoting Andrei Gromyko in a statement made in
Madrid, Spain on September 7, 1983. Dep't St. Bull., Oct. 1983, at 1, 3.
2ld. at 1.
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Aerial Intrusions by Civil and Military Aircraft in Time of Peace
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