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Protection of airspace in the occupied Crimea and experience of Cyprus

07.07.2014

Arseniy Herasymiv, attorney at law, Ilyashev & Partners
Source: The Kapital

On April 24, 2004, 76% of the Greek community of Cyprus in a referendum rejected the proposed UN plan to unite the Cyprus and the Turkish parts of Cyprus, while 64.91% of the Turkish part of Cyprus, on the contrary, supported unification of the two parts of Cyprus. Let me remind you that on November 18, 1983 the Turkish Cypriots declared independence in the northern Cyprus, which has been occupied by the Turkish troops since July 1974 and created their own state – Turkish Republic of Northern Cyprus. Thus, the Turkish Cypriots, who chose military intervention at the time, expressed their willingness to return, however, the Greek Cypriots did not let them back in the former common home.

Annexation of the Crimea raises many questions and one of them is civil aviation. Experience of Cyprus is meaningful in this context, because the northern part of Cyprus found itself in almost complete air insulation as air transportation from its territory is only possible from and to the territory of the Turkish Republic. Currently, a similar situation is observed in the Crimea, where the airport of Simferopol accommodates only aircraft of the Russian Federation (which apparently already qualifies them as domestic flights) flying through the airspace of Ukraine, as a result of which travel time to Moscow increased for one hour, while flights from other countries stopped.

How does international law define the air traffic procedure in the occupied territory? The general rule of international law specifies that each country has complete and exclusive sovereignty over the airspace above its territory. Any flight of foreign aircraft over the territory of another state, including landing at the airport in a foreign country, requires the permission of competent authority of that State. Operation of aircraft between two or more states is regulated by bilateral and multilateral international agreements, conventions.

Such international framework agreement on international air transportation is the Convention on International Civil Aviation (the Chicago Convention), signed on December 7, 1944 in Chicago, to which both Ukraine and the Russian Federation are parties. Article 1 of the Chicago Convention envisages that every State has complete and exclusive sovereignty over the airspace above its territory (including both land and water area). Scheduled international air transportation services cannot be operated over or into the territory of the State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization (Articles 5, 6 of the Chicago Convention). The operation of such regular flights over the territory of a State upon its authorization is also enshrined in the International Air Services Transit Agreement (Article 1, Section 1). In accordance with Article 10 of the Chicago Convention, every aircraft which enters the territory of a Contracting State, carries on, if required by the rules of that state, landing at an airport designated by that State for the purpose of customs and other examination. On departure from the territory of a contracting State, such aircraft shall depart from a similarly designated customs airport. Information about all designated customs airports is published by the state and sent to the International Civil Aviation Organization (ICAO) for communication to all other contracting states. The principle of territorial sovereignty of airspace is also enshrined in Articles 11-16, 24, 30 of the Chicago Convention and provides that an aircraft flying over the territory of a Contracting State must comply with air and customs regulations of that State.

Assuming that in the Crimea there is a state of war or emergency, the above does not change the current status, as in the meaning of Article 89 of the Chicago Convention in case of martial law provisions of the present Convention shall not affect the freedom of action of any war-affected contracting state both belligerent and neutral. The same principle applies in the case where any contracting state declares a state of emergency.

How will the issue of airspace be settled if one state party to the Chicago Convention has not just occupied, but annexed the territory of another state party to the Chicago Convention, while in the case of Northern Cyprus there was no annexation of the territory of Northern Cyprus by the Turkish Republic? Who will have jurisdiction over the Crimean airspace in the context of the Chicago Convention? In my opinion, the resolution to support territorial integrity of Ukraine approved by the UN General Assembly, as well as the principle of territorial sovereignty enshrined in the Chicago Convention, provide to Ukraine a good opportunity to protect its interests. After all, the International Civil Aviation Organization is a structural body of the UN, which cannot disregard the resolution of the General Assembly of the United Nations. In this context, experience of the Republic of Cyprus is valuable, when the Republic of Northern Cyprus tried to carry out international flights with the Federal Republic of Germany and the United Kingdom through the Ercan Airport. The Republic of Cyprus addressed the International Civil Aviation Organization, which having considered the dispute, stated that the Government of the Republic of Cyprus is the only legitimate authority having jurisdiction over the airspace of Northern Cyprus. Further, upon considering the attempts of the British and German airlines to establish air traffic with Northern Cyprus, the ICAO banned it stating that in case of violation of the ban both private airlines and the relevant states parties will be held liable.

How to influence the situation in Ukraine? It is possible through using the rules of Articles 84-86 of the Chicago Convention, filing application for dispute resolution to the ICAO Council or the International Court of Justice. If the Russian authorities do not comply with judgment of the international court, to demand sanctions under Articles 87, 88 of the Chicago Convention, which provide that each Contracting State undertakes not to permit the activities of the airline of any Contracting State through the airspace above its territory if the Council decided that the this airline does not comply with a final court decision. The Assembly shall suspend the voting power in the Assembly and in the Council of any contracting state, which is defined as not fulfilling the obligations specified in the provisions of the Chicago Convention. Thus, the Russian Federation may be deprived of the right to vote and its flights to other countries may be blocked.

Therefore, in this case protection of the Ukrainian airspace from illegal exploitation by the Russian Federation is the sole responsibility of the Ukrainian authorities and international organizations. International Civil Aviation Organization reaffirmed indivisibility of the Ukrainian airspace. Eurocontrol, which manages the common European airspace also recognizes the exclusive jurisdiction of Ukraine over the airspace of Crimea. According to the available information, the State Aviation Service of Ukraine consults the International Civil Aviation Organization to combat the illegal use of the Ukrainian airspace by the airlines of the Russian Federation. In fact, they consider the rules applied at the time by the Republic of Cyprus in the dispute with the Republic of Northern Cyprus.

 
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