Part 2/2 – Legal challenges and future perspectives related to the adoption of sanctions in international civil aviation amidst the ‘Gulf crisis’
As stated in Part I of the post, there is little doubt that restrictions of the right to overfly adopted during the ‘Gulf crisis’ violate international treaty law. But is the denial of overflight rights justified?
The denial of overflight rights: a justified act under international law?
A preliminary ground to justify this measure is to rely on the suspension or termination of IASTA or the Chicago Convention (see, i.e., Appeal relating to the jurisdiction of the ICAO Council (India v. Pakistan), judgment of 18 August 1972, ICJ Reports 1972, p. 46). Pursuant to Article 60 of the Vienna Convention on the Law of Treaties, any such argument would inevitably require, nonetheless, the allegation of a material breach of the treaty whose suspension or termination is invoked. So far, however, sanctioning States have not claimed any violation by Qatar of IASTA or the Chicago Convention in their public statements.
As a consequence, the answer to the question raised at the outset very much depends on whether the denial of overflights may be regarded as a lawful countermeasure under customary international law as stated in the 2001 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Draft Articles).
Countermeasures presuppose the existence of an international wrongful act to which the injured State adopting them is reacting. In the context of the Gulf diplomatic crisis, sanctioning States invoked Qatar’s violation of its international obligations, namely the so-called Riyadh Agreements, concluded by Qatar and its Gulf neighbours (Bahrain, Kuwait, Saudi Arabia and the UAE) between 2013 and 2014. Whereas these Agreements have always been cloaked in secrecy, on 11 July 2017 CNN published some leaked documents, revealing that the mentioned Agreements would mainly require that States parties not interfere with each other’s internal affairs by backing opposition groups and refrain from giving assistance to external organizations hostile to the Gulf States. It may be wondered whether such Agreements constitute an international agreement or merely represent a declaration of common political will. But even leaving this argument aside, no evidence has so far been publicly displayed concerning Qatar’s alleged involvement in supporting specific opposition or terrorist groups.
One of the main problems related to autonomous sanctions (i.e. measures not taken by the United Nations Security Council under Article 41 of the UN Charter) is indeed the fact that there is little or no control over whether they are effectively reacting to a breach of law or pursing different political or economic goals (Beaucillon, 103). The ‘Gulf crisis’ appears to be a case in point. The list of 13 demands that Qatar has been required to implement in order to halt sanctions – which includes the duty to align to the other Gulf and Arab Countries militarily, politically, socially and economically – cast in fact doubt as to the goals effectively pursued by the implementation of the air ‘blockade’ and additional sanction measures. At the same time, the far-reaching character of the list (which includes political and economical demands) questions the consistency of the adopted measures with the requirement embodied in Article 49 of the ILC Draft Articles, whereby States may rely on countermeasures only to induce the State allegedly in breach of an international obligation to cease the international wrongful act and provide reparation.
Let us, however, assume that Qatar violated its treaty obligations under the Riyadh Agreements. The question further arises whether the sanctioning States may be qualified as ‘injured States’. Pursuant to Article 42(a) of the ILC Draft Articles, a State should be deemed ‘injured’ if the obligation breached was owed to it individually. As to States parties to the Riyadh Agreements, no problem seems to arise in the event that evidence was submitted stating that Qatar had interfered with their internal affairs, as, in that case, the breach would relate to an obligation owed to them ‘individually’. Moreover, even if the breach would only concern one of them, it may be speculated whether other ‘non-injured’ States parties could still invoke responsibility on the assumption that the obligation allegedly violated was owed to a group of States to which the State invoking responsibility belongs and was established for a collective interest (see Article 48, para. 1(a), of the ILC Draft Articles). Whether these States could rely on countermeasures is, however, uncertain: whilst Article 54 of the ILC Draft Articles leaves this issue expressly open, according to its commentary, it has been argued that State practice would support the admissibility of third-parties countermeasures as a progressive development of international law (Dawidowicz).
In order to preclude wrongfulness, countermeasures have to fulfill additional conditions, including proportionality. Whilst the fulfillment of this requirement is largely a matter of appreciation by courts or arbitrators, it may be difficult for multilateral countermeasures to be proportionate (Tzanakopoulos, 71). This consideration appears particularly true in the case at hand, where the closure of airspace is only one of a set of measures taken against Qatar and where its contextual implementation by a plurality of States has translated into a sort of ‘air blockade’.
Finally, it has been argued that countermeasures would be illegal if aimed at coercing a State to subordinate the exercise of its sovereign rights or independence (Dupont, 61). As already underlined, the measures adopted against Qatar may have an impact on the economy of the country and may interfere with Qatar’s foreign policy. However, apart from factual uncertainties, this argument is far from unanimously accepted. The ILC indeed purposefully removed a provision from its 2001 Draft Articles which prevented States from resorting, by way of countermeasures, to extreme economic or political coercion designed to endanger the territorial integrity and political independence of the State which committed a wrongful act (see Article 50 of the Draft Articles on State Responsibility adopted by the ILC on first reading).
In light of the above, the possibility of justifying sanctioning States’ conduct under the heading of countermeasures appears to be anything but certain. One could still wonder, however, whether the denial of overflight rights could be justified on different grounds. The reference to the need to adopt precautionary measures to protect national security contained in sanctioning States’ official statements may, for instance, be understood as an (implicit) invocation of necessity as a circumstance precluding wrongfulness. So far, however, no evidence has been (publicly) provided concerning the existence of a grave and imminent peril to a State’s essential interest (see Article 25(1) of the ILC Draft Articles).
On top of that, the fact that air traffic rights are explicitly excluded from the scope of application of the General Agreement on Trade in Services (Annex on Air Transport Services) prevents one from framing the dispute – and thus assessing the legality of the sanctions adopted – under the exceptional clauses provided for within the WTO regime (contrary to what is happening with respect to other economic sanctions adopted against Qatar). That said, it is highly questionable whether the denial of overflights may be justified.
Other restrictions related to international civil aviation
The decision taken by some Middle-Eastern air carriers to stop their flights to and from Qatar in abidance by governmental instructions also raises challenging issues, although under a different guise. Lacking any legal entitlement to be served by foreign air carriers, such measures constitute – at least prima facie – an unfriendly act and, more specifically, an act of retorsion.
The lawfulness of such measures is, however, questionable, potentially triggering the countermeasure argument also in this respect. The customary principle of non-intervention may, by restraining States from resorting to means of economic or political pressure capable of determining a coercive interference in the domaine réservé of other States, indeed act as a limit to restrictive measures adopted against a country. According to the UN General Assembly’s Resolution 2625 (XXV), violations of the principle of non-intervention include, in fact, the resort to “economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind” (see also Military and Paramilitary Activities in and against Nicaragua, judgment of 27 June 1986, ICJ Reports 1986, p. 106). It has been correctly argued, however, that the relevance of this principle to cases such as the one under examination would much depend on whether one upholds an interpretation of ‘coercion’ which includes the abuse of a State’s (sovereignty) rights.
Additionally, it may further be questioned whether stopping flights to or from another State to create economic and political pressure is consistent with Article 4 of the Chicago Convention, which prohibits the use of civil aviation for any purpose inconsistent with the aim of the Convention. Any such argument would, however, seemingly defeat the Convention drafters’ intention – namely, to avoid the use of aircraft as a means to threaten a State’s national security – stretching the scope of the law much beyond its intended meaning.
Whereas Qatar called the ICAO Council to consider the situation in conformity with Article II(1) of IASTA and Article 54(n) of the Chicago Convention, the ICAO Council refused to decide the matter due to its ‘political’ character. A more incisive intervention by the Council could now be triggered by the resort to its dispute settlement function as per Article II(2) of IASTA and Chapter XVIII of the Chicago Convention. The ongoing (unfruitful) negotiations and the existence of an issue of application of IASTA and the Chicago Convention indeed satisfy both requirements set by relevant norms.
This path would not be exempted, however, from further challenges: as shown, counter-claims in the case at hand may involve considerations that lie outside the scope of application (and thus interpretation) of the Chicago Convention and IASTA, which throws into question the ICAO Council’s jurisdiction to delve into them.
This hypothetical scenario would therefore raise complex legal issues.
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).