Superpower football; KAL Flight 7 - the legal aftermath

By , Charles Maechling Jr. is senior associate of the Carnegie Endowment for International Peace.

The shocking callousness of the Soviet Union in shooting down the Korean airliner seems to have obscured the facts of life and international law as applied to the North Pacific air corridor bordering the Soviet Union.

The Russians have repeatedly made it clear that they will, in the last resort , shoot down aircraft of any character overlying prohibited military zones if they fail to obey instructions or warning signals to land. Article I of the Chicago Convention of 1944, as well as other principles of international law, give nations unfettered sovereignty over the airspace above their land areas and territorial waters so that there is no question of the Soviet right to establish such zones.

By any standard of humanity the Soviet Union had no right to shoot down an intruder before ascertaining its character, the probable cause of the intrusion, and the possibility of achieving its exit without the use of force. But this standard has not yet crystallized into international law. Moreover, Soviet border law and internal instructions with respect to prohibited military zones make no distinction between categories of intrusions, whether civilian or military, deliberate or unintentional. The transcripts show no effort by the Soviet air defense authorities to determine the identity of the airliner. The only test the Soviet interceptors used was IFF (identification, friend or foe) - an electronic test limited to determining whether a target is their own aircraft.

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This was a disaster waiting to happen. Air Korea already had a history of monumental navigational error and erratic piloting. Civilian air control over the corridor is vested in personnel of Asian nationalities not noted for individual initiative or the disposition and capacity to freely communicate. There seems to have been no provision for continuous monitoring. All this in an air corridor populated by 20,000 civilian flights a year and flanked for 600 miles by the top secret military installations of a security-conscious civilian and military bureaucracy.

Through an apparent computer error the Korean jet overflew prohibited zones in Kamchatka and the area around Vladivostok for 21/2 hours. Presence of an American reconnaissance plane in the vicinity added further opportunity for confusion, if not as cover for shooting down the airliner. But the fact that the Soviet Union reacts to intruders like a man-eating tiger was so well known that only negligence on the part of air controllers and Air Korea can explain absence of monitoring and two-way communications in this lethal environment.

The superpower confrontation over the disaster has now made compensation from the Soviet Union for the families of victims through mediation or arbitration all but unattainable. As a sovereign nation the Soviet Union is immune from suit without its consent. Although a signatory of the statute of the International Court of Justice, often with a serving judge on the court, the Soviet Union has not adhered to the court's ''optional clause'' which accepts the court's jurisdiction in advance, so it can fend off legal action in that forum. Governmental immunities also protect it from attachments and default judgments.

This leaves only diplomacy as a means of exacting compensation for the families and taking steps to prevent a future disaster.

New flight control procedures should be instituted along the whole route from Anchorage to Japanese and Korean airspace. At night aircraft should fly fully lighted, with shades up. There should be a system for continuously tracking and periodically confirming the positions of aircraft by ground controllers along the full length of Soviet prohibited zones. The embargo on Soviet airports and passenger traffic should not have been lifted until the Soviets agreed to participate in the new system.

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