Civil aviation and the Soviet law of hooliganism

ON May 28, a 19-year-old West German boy, Mathias Rust, created summer headlines by flying a single-engine propeller aircraft across 500 miles of Soviet territory, landing in Moscow's Red Square, and signing autographs until arrested by Soviet police. On Sept. 4 he was convicted by a Soviet court of ``malicious hooliganism,'' violating Soviet borders, and breaking international flight rules. He was sentenced to 4 years on the first charge, 2 on the second, and 3 on the third. Reportedly, the first was the only charge he contested in court.

To a lawyer, the tale is bewildering. The one charge against which no defense was likely to succeed was the first. ``Malicious hooliganism'' appears to be a translator's version of the Soviet equivalent of the equally vague common-law misdemeanor of ``disturbing the peace.''

Even if such a charge would raise problems in United States constitutional law today, it raises none in the Soviet Union and would raise none in most other countries. If signing autographs in Red Square is ``malicious hooliganism'' by Soviet law, there is no legal defense to the charge.

It is hard to imagine a serious argument that landing an airplane and hanging out in Red Square, whether signing autographs or not, could be considered any more lawful in the Soviet Union than doing the same in Boston Common or the Mall in Washington, D.C. It is easy to see pleas in mitigation, but difficult to believe this charge was ``defended'' by counsel.

Four years might seem an excessive punishment on the hooliganism charge. As long as Mr. Rust was treated no worse than a Soviet national on the same charge, however, one can only theoretically complain that, by some concept of international minimum standards of natural justice, the sentence was too long for the charge as applied to a 19-year-old. Few are likely to be convinced.

Much more disturbing are the other two charges and punishments. Article V of the 1944 Chicago Convention on Civil Aviation states: ``Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services, shall have the right, subject to the observance of the terms of this Convention, to make flights into or ... to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing.''

This provision does not apply to aircraft in military, police, customs, or other state service, nor to scheduled civil aircraft. It applies only to ``general aviation,'' like Rust's flight.

It is not quite a carte blanche: ``Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights.'' Another provision allows contracting states, ``for reasons of military necessity or public safety,'' to restrict or prohibit overflights of ``certain areas of its territory ... of reasonable extent and location, so as not to interfere unnecessarily with air navigation.''

The USSR, West Germany, and Finland, where Rust's flight originated, are all among the 142 parties to this convention. In these circumstances, it is very difficult to understand how the second charge, violating the Soviet border, but apparently not violating a militarily closed area or any restricted area reasonable in terms of the convention, can be justified under a Soviet law inconsistent with Soviet obligations to its treaty partners.

The normal legal procedure in such cases is diplomatic correspondence and public protest. I have seen no report of any West German defense of its nationals' interests or West German rights under this convention.

It is particularly disturbing when it is recalled that the Soviet destruction of the KAL 007 Korean flight in 1983 displayed a similar view of Soviet territorial rights in disregard of the Soviet commitment in the convention to yield those rights with regard to unscheduled civil aviation. The KAL flight was scheduled and therefore not entitled to overflight rights under this convention. Yet by their own account, the Soviets did not know that. And in either case it is doubtful that destruction of the overflying aircraft was a permissible legal response.

The US, as a party to the same convention, does permit Cuban and other nonscheduled civil overflights of its territory, subject only to the right, noted above, to require the aircraft involved to land and submit to search.

The third charge is odd. International flight rules require the filing of a flight plan. Yet Rust's violation of those rules occurred in Finland, where he apparently filed a false plan. As far as I know, the USSR has no legal authority to enforce Finnish law.

In sum, the situation is bewildering.

Most puzzling is not the German silence, which might have resulted from political decisions in which Rust's fate was a minor consideration. It is the apparent failure for the second time of the international civil aviation community and the parties to the Chicago Convention to refer the legal question of Soviet interpretation to the World Court at The Hague for an advisory opinion.

Such a referral is easy as a matter of law, and the Soviets cannot veto it or prevent the court from rendering an opinion.

Failure to make such a referral to the court on the heels of a similar omission with respect to the Soviet legal position on the KAL 007 disaster leaves the Soviet interpretation of law unchallenged. The implication is a radical change in international rules regarding noncommercial civil aviation which have nearly universal support.