Could the International Court of Justice Indicate a ‘No-Fly Zone’ over Libya?

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Stefan Talmon is Professor of Public International Law at the University of Oxford.

A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’

French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.

Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO  or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.

Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?

In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007), the ICJ held that States parties to the 1948 Genocide Convention are under an obligation ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’ (para. 430). The content of the obligation varies greatly from one State to another and depends, inter alia, on

‘the capacity [of the State] to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide’ (ibid.).

It is argued that the least the 141 States parties to the Genocide Convention can do to prevent genocide, and are legally capable of doing, is to challenge genocidal acts before the ICJ. As the Court pointed out, the obligation ‘is one of conduct and not one of result’ (ibid.). The obligation, and the corresponding duty to act, arises at the instant that States learn of, or should normally have learned of, the existence of a serious risk that genocide will be committed. Bringing a case against Libya combined with a request for the indication of provisional measures to halt the (impending) genocide may be considered a ‘means likely to have a deterrent effect on those suspected of preparing genocide’ (para. 431).

Under Article IX of the Genocide Convention any Contracting Party can submit a dispute with another Contracting Party relating to the ‘interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide’ to the ICJ. The Libyan Arab Jamahiriya acceded to the Convention on 16 May 1989. Any Party to the Convention can thus bring a case against Libya for the non-fulfilment by its government of its obligation not to commit genocide against its own people.

Once proceedings against Libya have been instituted before the ICJ, the State bringing the case could immediately make a written request for the indication of provisional measures (Rule 73(1) of the Rules of Court). For the ICJ to indicate provisional measures it must first find that it has prima facie jurisdiction to hear the (merits of the) case, the existence of a risk of irreparable harm or prejudice to the rights which form the subject-matter of the dispute, and an element of urgency. Much will depend on the factual circumstances on the ground and the phrasing of the application. The fact that Libya is a party to the Genocide Convention without reservation to Article IX will not, on its own, be sufficient. In order to determine, even prima facie, whether a dispute within the meaning of Article IX of the Genocide Convention exists, the Court must ascertain whether the alleged breaches of the Convention ‘are capable of falling within [its] provisions […] and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX’ (Legality of Use of Force (Yugoslavia v. United Kingdom), Provisional Measures, Order of 2 June 1999, para. 33). The Court will put particular emphasis on any evidence of Libya’s special intent to destroy a particular group as such (ibid., para. 35). The biggest obstacle to overcome in the present case, however, would be to show that the violence is directed against a ‘national, ethnical, racial or religious group’ (Article II of the Genocide Convention). As long as the violence is directed against political opponents of the current Libyan government, rather than particular tribal groups, it will be difficult to argue that the events taking place in Libya are capable of coming within the provisions of the Genocide Convention. Trial Chamber I of the International Criminal Tribunal for Rwanda pointed out that the crime of genocide targets

‘only “stable groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner’ (Prosecutor v Akayesu, Case No. ICTR-96-4-T, Decision of 2 September 1998, para. 511).

There must also be a sufficient connection or ‘link […] between the alleged rights the protection of which is the subject of the provisional measures being sought, and the [rights forming the] subject of the proceedings before the Court on the merits of the case’ (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 118). It is submitted that the rights at the heart of any genocide claim, and thus at the centre of any request for provisional measures, are ‘the right of existence of entire human groups’ (A/RES/96(1) of 11 December 1946), and the right to life of the individual members of the group. These rights are of such a nature that prejudice to them would be irreparable. According to Article 41(1) of the Statute of the ICJ the object and purpose of the indication of provisional measures is ‘to preserve the respective rights of either party’ (emphasis added). In the case of genocide, the State bringing the case before the Court is not technically protecting its own rights but those of the human group at risk. The prevention of genocide is a matter of international concern. It could be said that the State bringing the case is acting on behalf of ‘mankind’ (A/RES/96(1)) providing functional protection for the human group in question. The element of urgency will usually require that there is a ‘real risk’ that action prejudicial to the rights of either party might be taken before the Court has given its final decision.

Assuming that Article IX of the Genocide Convention constituted a basis on which the jurisdiction of the Court could prima facie be founded in this case and that the other requirements for the indication of provisional measures were fulfilled, the question remains whether a State instituting proceedings against Libya could request the Court to indicate as a provisional measure the establishment of a no-fly zone over Libya (in addition to the Court requesting the Libyan government to cease immediately its acts of violence against its own population). The fact that the Security Council is also seized with the situation in Libya and on 22 February 2011 issued a press statement calling ‘for an immediate end to the violence and for steps to address the legitimate demands of the population’ and stating that ‘members of the Security Council will continue to follow the situation closely’ (SC/10180 – AFR/2120) is not an obstacle to the simultaneous seisin of the ICJ and an application for provisional measures. The indication of a no-fly zone by the ICJ raises however the general question of the nature and possible content of provisional measures orders. Article 41(1) of the Statute of the ICJ provides that:

‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’ (emphasis added).

This provision would suggest that the Court has a very wide discretion in the sense that it can indicate any measure necessary for the preservation of the rights perceived to be at risk. Provisional measures orders are addressed to the parties of the dispute and may require them to take a certain action (positive orders) or refrain, and ensure that others under their direction and control refrain, from certain behaviour (negative orders). It is submitted that the Court could order the Libyan government to establish a no-fly zone over (parts of) its own territory if it considered such a measure necessary for the preservation of the right of existence of a certain human group in Libya. Such a measure would be binding upon Libya (LaGrand (Germany v. United States), Judgment of 27 June 2001, para. 109). The question of whether the Court can order the establishment of a no-fly zone, however, must not be confused with the question of whether the Court could authorize with binding force the party instituting the proceedings (and States cooperating with it) or any other party such as NATO to enforce such a no-fly zone. The Court is the ‘principal judicial organ of the United Nations’ (Article 82 UN Charter); it does not have any enforcement powers under the Charter. The enforcement of provisional measures falls, if at all, to the Security Council. According to Article 41(2) of the ICJ Statute

‘notice of the measures suggested shall forthwith be given to the parties and to the Security Council.’

Any measures indicated are to be communicated to the Security Council through the UN Secretary-General (Article 77 of the Rules of Court). This shows that within the combined framework of the UN Charter and ICJ Statute (Article 92 UN Charter) it is the Security Council who is responsible for the follow-up of the Court’s decisions and for its enforcement if necessary. The communication of a provisional measures order to the Security Council, however, does not mean that the Council will automatically enforce such an order. Even assuming that, despite its reference to ‘judgment’, Article 94(2) UN Charter was applicable to provisional measures decisions this would leave the Council with an almost unfettered margin of discretion as the Council would have to decide upon any measures to give effect to the Court`s pronouncements only ‘if it deems [it] necessary’. Experience to date shows that in such questions the Council will be guided more by political expediency than by considerations of law (enforcement).

Having said that, the Court’s standing in these matters should not be underestimated. The indication by the ICJ of a no-fly zone over Libya as a necessary measure to prevent a genocide in that country from unfolding would carry considerable weight with the Security Council and might help to build enough pressure on individual Council members to finally embrace their responsibility to protect the people of Libya. In the worst case scenario for international law, if the unilateral enforcement of a no-fly zone should become necessary in order to prevent genocide in Libya, the Court’s order could provide, if not legality, so at least some form of legitimacy for such action.

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    Aurel Sari says

    February 25, 2011

    Requesting the Court to indicate provisional measures sounds like an ingenious tactic to obtain a judicial pronouncement that a genocide is under way, thereby triggering the obligations of the parties to the Genocide Convention to do everything in their power to put an end to that genocide. This could be helpful in situations such as Rwanda, where States are reluctant to call genocide by its legal name. But in the case of Libya, relying on the Genocide Convention could be counterproductive: if the Court were to decline provisional measures on the grounds that the Convention is not engaged, would this not discredit the use of provisional measures in this way?

    jpaust says

    February 26, 2011

    Not so likely without the S.C., but "regional action" can be appropriate under Article 52 of the U.N. Charter as long as the S.C. is unable to act to authorize "enforcement measures," as happened regarding Kosovo and NATO's authorization. See, e.g., 35 Cornell Int'l L.J. 533, 545-47 (2002). Also, re: OAS regional action re: the Cuban missile crisis. But what organization? The OAU or the Arab League? OAU more likely.

    Gbenga Oduntan says

    March 4, 2011

    The Controversial Plans for No Fly Zones over Libya Would be Illegal under International Law
    The British Foreign Secretary William Hague has recently expressed the view that this option of the no fly zone could be implemented without the authorisation of the UN Security Council. It appears that British military commanders based at the Permanent Joint Headquarters (PJHQ) in Northwood in the northwest of London are indeed presently embarking on detailed plans to impose a no fly zone. Such a plan will involve the deployment of Typhoon jets to RAF Akrotiri in the British Base areas of Cyprus. The likelihood of the plans going ahead calls for the following comments The significance of writing this piece cannot be lost in this same year that the public has come to learn through the Chilcot Enquiry that politicians have been known to clearly ignore legal advise by the highest law officers of the land and to lean on them to change their legal opinion to fit preconceived political aims.

    The issues raised by the imposition of a no fly zone over an independent state such as Libya are of immense international legal significance and must not be treated with levity. They include possible violations of settled international legal principles that grants right of sovereignty to every state, territorial sovereignty and jurisdiction, sovereign equality, self defence, aerial trespass and perhaps aggression.

    The UN Charter states explicitly in Article 2 that the Organization is based on the principle of the sovereign equality of all its Members. Article 2 (4) also 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”. International law, therefore, operates upon the principle that each sovereign has absolute power and control over all persons biological or juridical within its territory, it therefore follows that relationships of dominance, subjugation or subordinations cannot be allowed to legitimately exist between independent states.

    No fly zones particularly in the manner envisaged by the present government would directly conflict with the provisions and principles of the Chicago Convention (1944), which is the most important codification landmark in Air Law to date.

    The Convention states:

    Article 1: The contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory.

    Article 2: For the purposes of this convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

    It will be observed that the recognition of complete and exclusive sovereignty granted in Article 1 applies to ‘every state’. In other words, it is not confined to only contracting states. It is, therefore, of universal importance. The principle of complete and exclusive sovereignty over the superincumbent airspace by the underlying state is unassailable. An old authority on air law Seara Vazquez in his book Cosmic International Law correctly concluded that; “airspace is that part of space subject to the sovereignty of a state”.

    The usual known violations of this settled principle comes in the form of advent of outright military hostilities between states whereupon aerial raids into foreign territory occur. There may also be deliberate incursions into national airspace where states are contesting a boundary or territorial sovereignty over a piece of territory such as in the long standing situation between Cyprus and Turkey. It is also possible that indeliberate incursion into foreign territory may occur due to unexpected events known as force majeure or out of sheer navigational error.

    Flights maintained in pursuance of a no-fly zone are, however, very unique, sui generis and highly controversial. The origins of the no fly zone device are thought to lie in the use of colonial power and in the forceful perpetuation of colonial control. The earliest recorded uses of air power in this way occurred between the two World Wars by the British Royal Air Force (RAF) in air control operations over Somaliland, Mesopotamia, and Aden. At that time, the Royal Air Force used air power to enforce colonial rule, ensure unmolested travel and sanctity of trade routes, and generally maintain control among the population in the region. There are, however, essential differences between these operations and the concept and operations of the no fly zones developed in the last decade of the 20th century. For instance, the affected peoples of that era had no air forces, no air defences and no sovereignty. Perhaps more importantly the sophisticated treaties of air law including the Chicago Convention had not been created and were not in force. During the Falklands war in 1982, the British armed forces imposed a total exclusion zone in the airspace of their area of operations in the south Atlantic. However, this involved the application of force from all elements of military power – air, sea, and land and occurred mainly over disputed territory. Not until the end of the Gulf War in 1991 did no-fly-zones assume their expanded, modern form.

    It is increasingly becoming clear that derogation from the rule that states have complete state sovereignty in their airspace in the form of imposition of no fly zones is a creation of the political imagination of a select few western military powers -USA, Britain, and France. states. The most recent uses of this controversial device are the series of so-called no fly zones enforced against Iraq in its territorial airspace nearly continuously since the Persian Gulf War in 1990.

    The legality of the no fly zones has always been questioned by legal writers particularly those from the developing states but including those states which originally stood against the invasion of Kuwait by Iraq, the facts of which led to the first Persian Gulf war. Immediately after the United States and the allied forces liberated Kuwait, there was allegedly tremendous protest within Iraq. The Iraqi government was alleged to have responded with brutality on the Kurdish Iraqis in the North, on the Shia Muslim in the South and there were tremendous humanitarian difficulties. The United States through its major western allies –Britain and France engineered the creation of these zones through a circuitous route. The allied powers relied upon a UN resolution, Resolution 688, which essentially demanded that Saddam Hussein must stop repressing his own people. The resolution itself interestingly enough never mentioned the creation of no fly zones. The position advanced by the Western powers was that essentially the best way to make good on this resolution is to deny the Iraqi government the ability to fly planes over large areas of its own country. The zones were delineated in the North in the spring of 1991and in the South in the summer of 1992.

    The UK Defence Committee of the House of Commons rationalised the existence of the no fly zones thus:

    …the UK is making a valid contribution to stability in the Gulf, protecting the minority people of Iraq from Saddam Hussein and containing Iraq's ability to threaten its neighbours…. We have no doubt that UK participation in the no-fly zone operations over Iraq is justified on moral and humanitarian grounds…. We welcome in particular the Committee's recognition that military action is only ever undertaken in response to direct threats from Iraqi forces against coalition aircrew carrying out their humanitarian patrols. The Government remains satisfied that the no fly zones are legally justified as a measure to prevent a humanitarian crisis.

    In reality No fly zones are not as harmless as they at first appear to the uninformed. The propensity of no fly zones to lead to war and destruction of lives is proven. The activity of U.S. and British aircraft in the so-called no fly zones over Iraq led to dozens of severe military conflicts with Iraqi air and ground forces. During the flyovers over Iraqi national territory, missile-bomb strikes were launched at Iraqi forces and sometimes at civilian targets. In December 1998 alone this allegedly resulted in 420 military casualties. Over a thousand civilians were also wounded. The argument that derogation from Iraqi state sovereignty was justifiable on humanitarian grounds rings hollow given the manner in which life and property of Iraqi people had been endangered and destroyed. Moreover, it will appear that politics rather than humanitarian considerations accounted for this creation considering that no UN resolution, treaty or agreement specifically authorised the creation or maintenance of no fly zones over sovereign state territory.

    It is noted that the present British government has argued that its plans to impose no fly zones are legal in and of themselves and do not require appropriate UN resolutions. Not enough has been said about the grounds upon which the government holds this opinion. In the nature of things the bases for such action are likely to be made up ex post facto after the scheme has started and with the implications of such action already being played out. It is notable that this is not the first time British governments have held this belief. It is, however, the first time since the creation of the UN that it does so without any form of prior directly relevant Security Council resolution. United Nations resolution against the state it intends to impose or join in the imposition of no fly zones on.

    In a clear sense, therefore, what the UK government plans to do is to impose its own laws, standards, morals or ideas about political leadership on another independent state, albeit one experiencing domestic crisis, while pressing the device of the no fly zones to the advantage of its preferred factions in a domestic crisis. It may be recalled that when the so called allied nations imposed no fly zones over Iraq they were not claiming to do so in Iraqi airspace so as to implement or impose their own national laws. A maximum of three states took part in the direct implementation of the no-fly zones. They also purported to be acting in furtherance of international laws including possibly UN Security Council resolutions. It is notable that on this occasion only the UK has openly considered this option and the Americans have in fact dissociated themselves from the move and stated that military intervention might be counterproductive.

    The erstwhile Secretary of State for Defence Geoff Hoon, in the House of Commons (Hansard, 26 February 2001), while relying on humanitarian justification betrayed the need to link even such justifications with multilateral UN agreement when he stated that: “In terms of humanitarian justification, we are entitled to patrol the no-fly zones to prevent a grave humanitarian crisis. That is the legal justification in international law. It does not rest on Resolution 688, although that Resolution supports the position we have adopted” (HC Deb 26 February 2001 vol 363 cc 620-34). The added problem, therefore, with the current plans is that it cannot rely even indirectly to any appropriately worded resolution of equal providence such as Resolution 688.

    In essence a no fly zone significantly detracts from the right of independence of a state to independence within its territory. A territorial state ought to have unfettered access to all parts of its own territory following the usual tridimensional application of territorial jurisdiction –underground and into the earth’s centre, its surface and its airspace. Territorial states are also entitled to a tridimensional monopoly of violence within national territory, subject of course to applicable humanitarian considerations. This is probably encapsulated in the submission of Henri Lefebvere in The Production of Space that;
    “Sovereignty implies “space”, and what is more it implies a space against which violence, whether latent or overt, is directed –a space established and constituted by violence … Every state is born of violence, and state power endures only by virtue of violence directed towards a space …. A founding violence, and continuous creation by violent means (by fire and blood, in Bismarck’s phrase) –such are the hallmarks of the state”

    This is also supported by Stuart Elden’s latest work on Terror and Territory: The Spatial Extent of Sovereignty. He advises that: “The control of territory is what makes a state possible. Thus, control of territory accords a specific legitimacy to the violence and determines its spatial extent. Those in control of territory -states – can act in ways those not in control cannot”. The exercise of any form of violence in the sphere of tridimensionality of a sovereign state by another state is prima facie an affront to that state’s sovereignty just as much as if an entire brigade of guards invades its territory in a dawn advance. The potentials for escalation of disputes caused by policing no-fly zones is patently clear to the extent that a state that does not act or does not act quickly in reaction to blatant acts of aerial trespass becomes even more vulnerable to domestic criticism especially from political rivals and the general populace. In other words there is an incentive for the embattled government to become even more draconian towards the beneficiaries of the cover that the no fly zone is supposed to provide. The World Court has also expressed clear jurisprudence against the view that somehow a violation of a state’s airspace is less egregious an act than a violation of any part of its borders. The Military and Paramilitary activities in and against Nicaragua case brought by Nicaragua against the United States, confirmed the erga omnes (non-derogable) nature of the prohibition of violation of national airspace especially where war has not been declared among states. The court noted that respect for State sovereignty, in international law is closely linked with the principles of the prohibition of the use of force and of non-intervention:

    the basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2. paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention, in conjunction with the 1958 Geneva Convention on the Territorial Sea, further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the United Nations Convention on the Law of the Sea adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law.

    Yet it must be conceded that selective inaction of the ICAO and the Security Council has allowed a certain degree of permissiveness in this area of the law. The meticulous reports made by the Iraqi state to flagrant violations of its sovereignty to the UN were ignored in their entirety. Allegations of aggressive, dangerous and illegal actions engaged in by the participating coalition aircraft in the so called no-fly zones in Iraq include aerial bombardment of villages resulting in loss of life and destruction of property; endangerment of health by deliberate breaking of the sound barrier; intimidating and illegal search of vessels within national maritime zones; harassment of civilian population; wanton destruction of the livestock and pollution of the environment. Iraq officially communicated over 500 reported incidents that involved alleged violations of Iraqi airspace by the states involved in policing of the controversial no fly zone. It is significant that when the criticisms became stringent, France pulled out of the arrangement. It is equally significant that states such as Saudi Arabia and Turkey were directly accused by Iraq of allowing their territory o be used as launching ground for the trespassing flights. This perhaps attests to the potentials of the no fly zone device to escalate international tensions and to involve a wide number of affected countries. Any precipitate introduction of no-fly zones in Libya increases the possibility of internationalisation of what is presently a domestic dispute. Any neighbouring state permitting British planes to operate over its airspace for the purposes of reaching targets within Libya will also probably become sucked into the conflict.

    On the whole the no-fly-zones device in international relations has not received the authoritative treatment in international law that it deserves principally as a result of power politics. The practice has been left in the shadows of international practice perhaps deliberately by those that recognise its usefulness in acting against perceived weak states. In this way international action is dictated by the exigencies of western superpower influence and coordination. Power politics, however, must never be allowed to lead international law. When the USSR sponsored draft resolution to condemn the incursion of United States U2 spy aircraft into Soviet airspace as aggressive it received only the support of Poland. Similarly complaints by the few states that have faced no-fly zones sanctions have received little support in the international fora. Should the Libyan government succeed in downing British aircraft involved in the policing of no-fly zones it will appear to have been acting within the full exercise of its right of self defence. This is why British air troops should not be exposed needlessly to such danger.

    This is not to say that there can be no situation under which no-fly zones may be legitimately envisaged. The point is that serious derogations from territorial sovereignty as this may arise only in a very limited category of cases. Such instances are best typified by the example of actions specifically undertaken with respect to Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, And Acts of Aggression). If a blockade of Libyan airspace is found to be desirable in the present circumstances, the Security Council may under Article 41 of the Charter impose such action “… by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”.

    In the absence of such collective determination and action within recognised international law and within the confines of the pertinent provision of the UN Charter the plans of the UK government in introducing no-fly zones over Libya will be illegitimate under international law and will damage the UK’s standing as a law abiding and responsible state in the international system.

    Dr. Gbenga Oduntan
    Director of Advocacy
    Centre for Critical International Law,
    Kent Law School
    University of Kent
    Author of the book Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation Routledge 2011.