Doc. 11302 Report 101. “Military flights” is a term relating to the function of the flight, not the type of aircraft used. In international aviation law, the status of an aircraft is determined by the function it is performing at any given time59– and flights performing “military” functions would necessarily fall into the category of “state aircraft”.60 102. “State aircraft” enjoy precisely the type of immunity from the jurisdiction of other states that the United States Government sought to achieve for aircraft operating on behalf of the CIA: “They cannot be boarded, searched or inspected by foreign authorities, including host state’s authorities.”61The conventional constraint on “state aircraft” is that they are usually “not permitted to fly over or land in foreign sovereign territory otherwise than with express authorisation of the state concerned.”62However, with “blanket overflight clearances” under the NATO framework this constraint could be conveniently circumvented.63 103. Similarly, the provision of access to airfields for operations against terrorism secured landing rights at military bases and dual military-civilian airfields for aircraft operating on behalf of the CIA under a NATO “cover”.64 104. Accordingly there would be two prerequisites for CIA clandestine operations to fulfil in order to remain within the NATO framework. The first would be to ensure that the aircraft used in such operations were, in their function, designated as “military flights” or “state flights”. The second would depend on the state whose airspace or territory was at issue having agreed to the terms of the “blanket” NATO authorisations of 4 October 2001. 105. It is therefore all the more pertinent to note that the range of countries who agreed to these authorisations in the context of the United States “war on terror” extended well beyond the NATO member states, into a total of as many as 40 countries.65One year after the NATO authorisations, the United States Government declared: “Our allies have delivered on that [Article 5] obligation with concrete actions, both individually and collectively: all 18 NATO Allies66and the nine NATO ‘aspirants’67have provided blanket overflight rights, ports/bases access, refuelling assistance, and increased law-enforcement co-operation.”68 59. See the Venice Commission Opinion, 17 March 2006, supra note 52, at paragraph 91. 60. The Venice Commission notes that “as a general rule, ‘aircraft are recognised as state aircraft when they are under the control of the state and used exclusively by the state for state intended purposes’,” citing Diederiks-Verschoor, An Introduction to Air Law, Kluwer, p. 30, paragraph 12. “Military flights,” as defined by the NATO allies in the context of this authorisation, cannot be interpreted to be anything other than “for state intended purposes”. See the Venice Commission Opinion, 17 March 2006, ibid., at paragraph 91. 61. See the Venice Commission Opinion, 17 March 2006, ibid., at paragraph 93. 62. Article 3.c of the Chicago Convention on International Civil Aviation, 1944, as cited in the Venice Commission Opinion, 17 March 2006, ibid., at paragraph 93. 63. For another in-depth analysis of the law applicable to civil and state aircraft, including the applicable permissions/ immunities and selected references to NATO, see Center for Human Rights and Global Justice, Enabling Torture: International Law Applicable to State Participation in the Unlawful Activities of Other States, NYU School of Law, 2006, available at http://www.chrgj.org. 64. See the reference in Lansford, supra note 41, at p. 112: this agreement “allowed for more streamlined planning and the formulation of missions, especially the transfer of assets from one theater to another”. Further references to the terminology of “theatres” in the “war on terror” – specifically relating to the transfer of detainees – were used frequently in our discussions with sources concerning secret detentions in Romania. 65. See Lansford, supra note 41, at p. 112: “when the American-led attacks began, some 40 nations gave the coalition permission to use their airspace for operations”. 66. At the time of this statement, the United States’ 18 NATO allies were: Belgium, Canada, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom. All of them except Canada were then and are now also member states of the Council of Europe. 67. At the time of this statement, the nine NATO “aspirants” (or candidates for accession) were: Albania, Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia, Slovenia and “the former Yugoslav Republic of Macedonia”. All of them were then and are now also member states of the Council of Europe. 68. See United States Department of State, “NATO: Coalition Contributions to the War on Terrorism”, Fact Sheet of 31 October 2002, available at http://www.state.gov/p/eur/rls/fs/14627.htm. Indeed, within days of the authorisations, United States Secretary of State Colin Powell made special mention of “all the NATO nations making commitments under the Article 5 invocation to give us overflight rights and other things that have proven so helpful to our efforts”. See United States Department of State, “Colin Powell Holds Media Availability with NATO Secretary General George Robertson”, 10 October 2001, available at http://transcripts.cnn.com/TRANSCRIPTS/0110/10/se.16.html. 22