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As civil aircraft areby de.nitionpresumed to transport civilians, the principles of the Chicago Convention should ensure the protection of civilians and their property from dangers affecting civil aircraft in .ight. The United Nations Charter can therefore be regarded as imputing to the international community a duty to protect the human being and his property in relation to .ight:
There is a mandatory obligation implied in article 55 of the Charter that the United Nations “shall promote respect for, and observance of, human rights and fundamental freedoms”; or, in terms of article 13, that the Assembly shall make recommendations for the purpose of assisting in the realization of human rights and freedoms. There is a distinct element of legal duty in the understanding expressed in article 56 in which all members pledge
543Art. 3(a) of Chicago Convention of 1944, ICAO Doc 7300/6. 544Milde(1986, p. 122).
B. International Conventions
themselves to take joint and separate action in co-operation with the organization for the achievement of the purpose set forth in article 55.545
Acivilaircraft,whenidenti.ed as such cannotbeattacked.546 TheUnitedNations Charter opposes the use of force against civilian aircraft. Article 2(4) of the charter prohibitsthe useofforcein any mannerinconsistentwiththepurposesoftheCharter. There is also provision for the settlement of disputes by peaceful means.547
An armed attack against an aircraft is a special kind of aggression548 and is protected by the right of self-defence which is recognized against such an attack, by Article 51 of the Charter. This provision narrows the .eld of the exercise of self-defence to circumstances involving an armed attack. An unauthorized entry into the airspace of a State by an unarmed aircraft does not constitute an armed attack, even if such entry is effected for the purposes of espionage or provocation.549 Although no authoritative de.nition of an armed attackhas ever been adopted internationally, it is generally presumed that an armed attack would constitute belligerence endan-gering the safety of those affected by such attack when it is carried out by an offender(s) wielding weapons.
IV. The Geneva Convention on the High Seas (1958)
Transportation systems have often attracted terrorist attacks and the international community has come to terms with the vulnerability of modern aviation, taking sustained steps towards the protection of aviation.
The earliest forms of terrorism against international transportation was piracy. Pirates are considered by international law as common enemies of all mankind. The world has naturally an interest in the punishment of offenders and is justi.ed in adopting international measures for the application of universal rules regarding the control of terrorism. The common understanding between States has been that pirates should be lawfully captured on the high seas by an armed vessel of any particular State, and brought within its territorial jurisdiction for trial and punish-ment. Lauterpacht recognized that:
Before international law in the modern sense of the term was in existence, a pirate was already considered an outlaw, a hostis humani generis. According to the Law of Nations, the act of piracy makes the pirate lose the protection of his home State, and thereby his national character. Piracy is a so-called international crime, the pirate is considered enemy of all States and can be brought to justice anywhere.550
545Lauterpact(1950, p. 149). 546Vlasic(1982, p. 161).
547
Art. 33 of the U.N. Charter. 548Kunz(1948, pp. 111, 115). 549Vlasic(1982, p. 275). 550Cited in Oppenheim(1958, p. 609).
It is worthy of note that under the rules of customary international law the international community had no dif.culty in dealing with acts of terrorism which forms the offence of sea piracy. Due to the seriousness of the offence and the serious terroristic acts involved, the offence was met with the most severe punish-ment available – death. The universal condemnation of the offence is re.ected in the statement:
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Aviation Security Law 航空安全法(158)
