To Overfly, or not to Overfly...? Autonomous Sanctions in International Civil Aviation amidst the Recent ‘Gulf Crisis’ - Part I
By Elena Carpanelli, University of Parma|elena.carpanelli@unipr.it
Part 1/2 – International civil aviation sanctions and the ‘Gulf crisis’: setting the scene
In June 2017, Bahrain, Egypt, Saudi Arabia and the United Arab Emirates (UAE), later joined by other countries, severed ties with Qatar, claiming that it undermined the security of the region by supporting terrorist groups such as the Islamic Brotherhood and Daesh. This ‘Gulf crisis’ presents interesting and at the same time concerning issues from the standpoint of public international law. Whilst some of the concerns have already been discussed at length in other fora (see here and here), this post will focus specifically on the decision taken by the abovementioned States to close their airspace to Qatari-registered aircraft and to halt their (State-owned) carriers from flying to and from Doha until further notice.
Here are the facts in short. Amidst the major diplomatic rift in the Gulf, on 5 June 2017 Bahrain, Egypt, Saudi Arabia and the United Arab Emirates announced the closure of their airspace to Qatari-registered aircraft, banning them from landing or departing from their airports and from overflying their airspace. As a result of this measure, Qatar, whose airspace is limited in reach and enclosed by those of neighbouring States, found itself ‘air-locked’. Several days later, Bahrain eased the restrictions imposed on Qatari-registered aircraft by allowing them to fly across a limited air corridor through its airspace. Meanwhile, the same countries imposed a closure of their airspace to flights taking off or landing between their respective territories and Qatar, causing their air carriers to halt operations to and from Qatar.
The right to overfly: legal background and current issues
From an international law perspective, the denial of overflight rights to Qatari-registered aircraft is particularly problematic. The International Air Service Transit Agreement (IASTA) – to which both Qatar and most sanctioning States (namely, Bahrain, Egypt and the UAE) are parties – provides for the multilateral exchange, with respect to scheduled international air services, of the so-called ‘first’ and ‘second freedoms’ rights. These consist of privileges for designated airlines of other States parties to fly across a State’s territory without landing and to land for non-traffic purposes. Pursuant to IASTA, the exercise of these privileges may be subjected to previous authorization only in exceptional circumstances, namely where there are active hostilities or occupation, or in time of war. Accordingly, in the absence of these circumstances, sanctioning States would not be able to rely on IASTA to justify restrictions to Qatar’s overflight rights.
Doubts also arise as to the possibility of deriving any ‘pro-restriction’ arguments from Article I(2) of IASTA, pursuant to which first and second freedom privileges should be exercised in accordance with the Convention on International Civil Aviation (Chicago Convention). As a corollary to the customary principle of airspace sovereignty recognized in Article 1 of the Chicago Convention, Article 6 of the same instrument reserves States parties the right to subject international air services operations by foreign air carriers over or into their territory to a special permission or authorization. There is no doubt, however, that, with specific reference to the right to overfly, consent to be bound by IASTA satisfies, vis-à-vis the other Contracting States, the ‘special permission’ requirement imposed by Article 6.
Article 9(b) of the Chicago Convention further provides that States parties retain the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, to restrict or prohibit the aircraft of other States from flying over the whole of their territories. However, even admitting that an exceptional circumstance exists, the possibility to exercise this right strictly depends on the fact that the restriction or prohibition is applied without any distinction as to the nationality of aircraft from all other States; a circumstance which is clearly not met in the case at hand, where airspace closure only impacts ‘selected’ flights.
Similar considerations also apply to Bahrain’s ‘partial’ closure of its airspace. Pursuant to Article 9(a) of the Chicago Convention, States parties can, for reasons of military necessity or public safety, restrict or prohibit the aircraft of other States from flying over certain parts of their territory. Nonetheless, this right may only be exercised provided that no distinction is made between national and foreign air carriers and that the area concerned is of reasonable extent, so not to interfere unnecessarily with air navigation. The breadth of the no-fly area, established by Bahrain and the distinctive target of the measure, leads undoubtedly to the conclusion that neither of these two requirements is satisfied in the case under examination.
Moreover, whilst Article III of IASTA recognizes States parties’ right to denounce the treaty by providing one year’s notice, so far no similar announcement has been made by any of the sanctioning States.
Where not covered by IASTA, rights of overflight are normally granted through bilateral air service agreements (BASAs). Article 2 of the 2001 BASA between Qatar and Saudi Arabia, as originally concluded, grants, for instance, designated airlines belonging to each of the Contracting Parties the right to fly across the other State’s territory without landing. No restriction or exception is envisaged in the bilateral agreement, which subjects its termination to a one year’s written notice by either of the Contracting States.
In light of the above, there is little doubt that the denial of overflight rights to Qatari-registered aircraft has deprived Qatar of a privilege to which it is legally entitled on the basis of treaty law (either IASTA or BASAs).
Elena Carpanelli is Postdoctoral Research Fellow in Public International Law at the Center for Studies in European and International Affairs (CSEIA) of the University of Parma (Italy) since August 2016. She holds a Ph.D. in Public International Law from the University of Milan-Bicocca (2016) and a Master’s degree in Law (cum laude) from the University of Parma (Italy) (2009). In 2011, she completed (cum laude) the LL.M. (Adv.) programme in Air & Space Law at the University of Leiden (The Netherlands). Before starting her Ph.D., she worked for two years (2011-2013) in the aviation department of the law firm Pirola, Pennuto, Zei & Associati (Milan office). Her previous experience also includes traineeships at the United Nations Office for Outer Space Affairs (Vienna, 2011) and at the Geneva Academy of International Humanitarian Law and Human Rights (Geneva, 2014).