Sovereignty Over Airspace: International Law, Current Challenges, and Future Developments for Global Aviation
The island of Cyprus has been divided in two since 1974 when the Turkish army invaded the island and military occupied one third of its territory. In 1983, the Turkish Cypriot entity proclaimed its independence. This declaration was condemned by the international community and Turkey is currently the only State recognizing the independence and legitimacy of the said’’ Turkish Republic of Northern Cyprus’’.40 In the case R (on the application of Kibris Turk Hava Yollari & CTA Holidays) v Secretary of State for Transport (republic of Cyprus)41, the Court of Appeal of England and Wales held that no direct flights can be operated between the United Kingdom and Ercan airport in the north part of Cyprus because this would amount to a violation of the Chicago Convention. This airport was never designated by the Republic of Cyprus, under the terms of article 15. The court held that the island had not lost its territorial sovereignty under the north part of the island (article 1).
Between 1462 and 1704 the strait of Gibraltar that is lying at the southern tip of Spain was under the sovereignty of Spain. Under the Treaty of Utrecht of 1713, Spain has ceded Gibraltar to the United Kingdom and in 1830 it was designed as a Crown Colony. However this agreement stipulates that Spain retains a constitutional right in the event that the United Kingdom opts to abandon its sovereignty.42 Because if the strategic geographical position of Gibraltar which lies at the southern tip of Spain and gives entrance to the western part of the Mediterranean. This accord engendered numerous frictions between Madrid and London because the Spanish authorities argue that the Detroit should be returned to Spain.43 Spain contests the sovereignty of the United Kingdom over the entire Crown Colony and in particular the exercise of British jurisdiction over part of Gibraltar where an international airport is located.44In June 2010, a British spokesman reported that Spain has denied British air forces the right to conduct military exercises in the airspace near Gibraltar.45 This refusal to use the airspace of Gibraltar was connected to the lasting tensions between Britain and Spain concerning the territorial waters of Gibraltar. Nevertheless, the government of Morocco that is controlling half of the airspace of the Alboran training zone used by the British troops allowed the latter to use the part of the airspace under their control.46 In an interview given in April 2011, the British Minister for Europe, David Lidington affirmed that the UK is not ready to give away its sovereignty rights over Gibraltar and is in favour of a closer cooperation with Spanish authorities in the area of air traffic control and aviation safety.47
A more flexible and less stringent regime governs the operation of non-scheduled flights. Indeed, article 5 of the Chicago Convention provides that ‘’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 in transit non-stop across its territory and 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. 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. Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable’’.
This article suggests that the implications of the concept of State sovereignty over its airspace are more readily lifted for the operation of charter flights than for scheduled flights. Charter flights are often excluded from the scope of bilateral air service agreements and are governed by a more open regime of separate or ad hoc agreements.48
State Aircraft Flights
The sovereignty of States over their airspace is still strongly expressed for flights carried out by State aircrafts that are subject to a special regime. Indeed, in its article 3 (a), the Chicago Convention expressly excludes from its scope the operation of State aircrafts flights such as aircrafts used by the custom, the police forces or the military. The same article goes on by requiring State aircrafts to obtain a special authorisation before being allowed to overfly or land in the territory of another contracting State. States aircrafts are regulated by, inter alia, the Warsaw Convention 192949, the Montreal Convention 199950, the Eurocontrol Convention51, rules enacted by NATO, the Red Cross, the European Union, national legislation a number of ad hoc agreements.52 For damages caused by State aircrafts, the responsible State may escape liability by claiming sovereign immunity if it was acting acta iure imperi (the defence of sovereign immunity is not available if the State was acting on the same footing as private individuals).53 As a conclusion, it can be said that the contracting States of the Chicago Convention did not open their airspace for the free operation of States aircrafts by signing bilateral or multilateral agreements and appear to give a certain priority to the operational needs of civil aviation.54
The Compatibility of the European ETS with Sovereignty Rights in Airspace
In July 2008, the European Parliament and the European Council agreed to include the aviation activities into the European ETS. This change means that from 2012, all Community operators and Non-EU carriers flying to, from and within the EU will have to acquire an emission allowance that is equal to the total CO2 emissions produced by the air carrier.55 This highly controversial decision that extends to portions of flight that are carried out outside the European Union raised strong protests among air carriers that brought the issue before the Court of Justice of the European Union, arguing that this modification of the original European ETS, amounts to a violation of articles 1 5 and 15 of the Chicago Convention because the ETS allegedly amounts to a charge or tax that is prohibited by international agreements.56 A number of US airlines advocated that the inclusion of aviation into the ETS is a violation of the Kyoto Protocol 1997, the EU-US Open Skies agreement and customary international law.57 The advocate general of the Court rendered its opinion on 6 October 2011 and held that Directive 200/101 ‘’does not contain any extraterritorial provisions and does not infringe the sovereign rights of third parties’’ (opinion, para 165).58 She pursued her reasoning by saying that ‘’if the Parties to the Kyoto Protocol had wished the ICAO to have exclusive competence they could have been expected to express this with the requisite degree of clarity…” (opinion, para 177). The opinion of the advocate general is not binding and until a final decision is rendered on this subject matter is rendered, legal uncertainty remains as to the issues raised by the claimants.
The Relationship Between Article 1 and Article 9 of the Chicago Convention
Article 9 of the Chicago Convention provides that ‘’ (a) Each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization’’.
After the Icelandic volcanic eruption of 2010, several European States decide to close their airspace for safety reasons. For instance, Iceland decided to temporarily suspend all flights to and from its biggest international airport, Keflavik airport, because a plume of ash and smoke rendered visibility in the sky too low. Icelandic authorities estimated that the ash cloud could possibly damage the aircrafts’ engines and thus endanger the lives of passengers and crew members as well as the aircrafts.59 With 12000 passengers affected, the closure of the European airspace in 2010 was the most massive disruption of traffic and the largest closure of airspace since the Second World War and States relied upon article 9 previously mentioned as a legal basis for their actions.60 Nevertheless, relying on the fact that the Chicago Convention applies exclusively to civil aircrafts, to the exclusion of State aircrafts (article 3), a number of military and NATO flights were allowed. On 15 April 2010, Finnish air forces conducted military exercises over the European airspace despite its closure for civil aviation.61
On 11 September 2011, the United States decided to close their airspace after two civilian aircrafts hit the twin towers of the World Trade Centre. Nearly 3000 people died in these attacks. No aircrafts could fly to, or take off from any airport in the USA for an unprecedented 96 hours for national security reasons. The US government feared that other aircrafts may be used as weapons of mass destruction by terrorist groups.62Continued on Next Page »