Qatari overflight rights: Qatar’s international law fights
The Middle East is starting to look a lot like Spain circa 1936. Then as now, the enemy of my enemy is my friend. That always makes for strange bedfellows. Like the Soviet purges of the Fifth Column, Arab States including Bahrain, Egypt, Saudi Arabia and the United Arab Emirates have collectively isolated Qatar over its supposed support of violent Islamic movements. Libya, Maldives and Yemen soon followed suit. Like an icepick made Soviet-red by the blood from Trotsky’s head, the liveries of Middle East carriers should now be painted crimson. Qatar’s support for all things anti-Israel may have landed it in hot water and that water smells like jet fuel. Too many weird associations and mixed metaphors? Welcome to Middle East politics in a Trump era. Imagine what it must look like from inside Trump’s head. The synchronised isolation includes the closing of airspace and airports to Qatari flights. The legality of these moves, from the perspective of public international air law, is suspect. The Chicago Convention recognised states’ complete and exclusive sovereignty over their airspace, which means that Gulf states and Egypt may exclude other states’ operators from overflying their territories. However, the principle of complete and exclusive sovereignty over the skies was reined in by the International Air Services Transit Agreement, signed on the same day as the Chicago Convention. Under IASTA, each state grants to the others the privilege to overfly its territory – the so-called ‘First Freedom.’ According to its own terms, parties to IASTA may denounce the agreement and withdraw from it only on one year’s notice. Bahrain, Egypt and UAE are parties to IASTA: Saudi Arabia is not. Neither Bahrain, Egypt nor UAE has withdrawn from the agreement, making their denial of overflight a violation of IASTA. Arguably, only Saudi Arabia may withhold access to its skies. Of course, overflight can be suspended for safety and security concerns pursuant to the Chicago Convention’s recognition of complete and exclusive sovereignty. The US did so following the attacks of 9/11, and European states and the US frequently do this via blacklists that designate certain countries and/or their airlines as unsafe. Initially, Bahrain, Egypt, Saudi Arabia and UAE made no such claims of necessity to preserve safety and/or security within their territories. Their professed purpose of denying overflight rights was political. One week after the blockade was announced, Saudi Arabia asserted a security motive. The Chicago Convention mandates that its parties not use civil aviation for any purpose inconsistent with the aims of Convention. By leveraging civil aviation for regional, political concerns, these countries are treating civil aviation like a trade sanction – an illegal one at that. Qatar may have a right of reprisal for these breaches of international obligations: it can inflict commensurate counter-measures against these states. Likely, such counter-measures would have little effect. Qatar could also seek resolution through ICAO – IASTA expressly includes the Chicago Convention dispute resolution mechanism as a means for resolving disputes arising under it. ICAO’s dispute resolution mechanism has been invoked a handful of times, notable in 1995 in relation to the US ‘No Fly’ policy prohibiting Cuban overflight. When it became clear that the ICAO Council would rule in Cuba’s favour, the US capitulated. That took three years. In the wake of the overflight ban, Qatar Airways Chief Executive Akbar al-Baker called on ICAO to take action. He recently lashed out against ICAO for moving too slowly. To its credit, the ICAO can take no action unless formally requested by Qatar, and dispute resolution under the ICAO Council can move forward only after formally invoked by Qatar after diplomatic processes have been exhausted. Purportedly, those diplomatic processes have begun. Qatar sent a letter to the ICAO Council seeking assistance in resolving the matter. Whether formal dispute resolution has been invoked under the Convention is yet unclear. In the meantime, Qatar Airways is stuck with longer flight routes causing increased fuel expenditures and emissions, of course, amongst other travails. Coincidentally, the airline recently announced that its net profits rose more than 20% over the past year. Without for a moment questioning the religious sectarian basis for the tension, these decisions may also have a positive impact for a number of other airlines in the region.Trackback from your site.