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). Continue reading