Interim conclusions. Domestic law governs the conferral of domestic legal personality on international organisations. But for its privileges and immunities, an international organisation with such personality would be subject fully to domestic law and the jurisdiction of the local courts. Whether an international organisation has international legal personality depends on the will of the member states. Such personality is often conferred. As to the UN, as opined by the ICJ in Reparation for Injuries, it has been endowed with such personality. As a consequence of international legal personality, an international organisation incurs international responsibility for the wrongful act of breaching a primary obligation towards a private party. However, the ARIO clarify neither the content nor implementation of such responsibility. The rights of private parties to remedies against international organisations under international law require closer examination.
Interim conclusions. There are good arguments that international organisations, including the UN, are bound by treaties to which they have consented. Furthermore, they arguably are bound by general international law, that is, 226 Ibid., para. 12.19, fn. 65. 227 Another example concerns the UN Transitional Authority in East Timor (UNTAET). See UNTAET/REG/1999/1, 27 September 1999, Section 2 of which is largely identical to UNMIK/REG/1999/24, 12 December 1999, Section 1.3. 228 See further paragraph 2.4.2.1.1. 229 Art. 1.2 of UNMIK/REG/2006/12, 23 March 2006. Furthermore, UNMIK was the first UN operation to have submitted to human rights oversight by the Human Rights Committee. See Xxxxxxx et al. (2017), para. 12.29. 230 Also, Section 1.4 of UNMIK/REG/1999/24 inter alia prohibits discrimination by anyone ‘undertaking public duties or holding public office in Kosovo’, whereas Section 1.5 of said regulation abolished capital punishment. customary international law and general principles of law. However, the Member States, inter se, may ‘opt out’ of such obligations by clearly expressing a ‘desire’ to that effect. Further enquiry is required when it comes to jus cogens norms, including in relation to international organisations. Regarding the UN specifically, in addition to human rights obligations under general international law, in terms of treaty law, as discussed in detail in chapter 3, it incurs obligations under the General Convention. The UN may moreover be considered bound to respect human rights under the UN Charter, as its constitution, which rights are specified in the International Bill of Rights. As to the UN operation in Kosovo, UNMIK, it is moreover bound by a wide range of international human rights obligations, as per its own decision.
Interim conclusions. A Contracting State enjoys sovereignty over its territory and can exercise the sovereignty to establish prohibited/restricted airspace over its territory, subject to conditions and requirements in Article 9 of the Chicago Convention. Under Article 9 of the Chicago Convention, establishing prohibited airspace is an exercise of right rather than obligation. The conditions, or justifications for closing airspace, include military necessity, public safety, exceptional circum- stances, and emergency; these conditions are to be interpreted narrowly so that they do not cover the airspace restrictions in times of war or in national emergency. The requirements in Article 9 of the Chicago Convention include two aspects: the national treatment in Article 9(a) and the most-favored-nation treatment in Article 9(b). The benchmark for measuring distinction is based on the nationality of the aircraft. Therefore, a Contracting State’s prohibition of one particular airline’s transit rights might not necessarily create distinction as to the nationality of the aircraft, taking note of flexible arrangements under Article 83bis of the Chicago Convention. Furthermore, a prohibited/restricted area should be “as small as practicable” and “contained within simple geo- metrical limits.” The normative analysis is the foundation upon which this study answers the three research questions on prohibited airspace. As explained in Chapter I, this interpretation of a treaty provision is to be complemented by subsequent practices. Real-life examples of prohibited airspace help further understand the application for these conditions and requirements in Article 9. 216 See further in Chapter V. 217 On Article 89 and national emergency, see Section 2.4 of Chapter V. TION This section examines examples of prohibited airspace to confirm the meaning of terms as explained in previous sections. The following cases will be dis- cussed: – Pasir Gudang restricted area (2019) in Section 3.1; – India-Pakistan dispute (1950s and 2010s) in Section 3.2; – Qatar ‘blockade’ case (2017-2021) in Section 3.3.
3.1 Pasir Gudang restricted area (2019) Malaysia announced to establish a permanent Restricted Area for military activities over Pasir Gudang, a port town of Malaysia, from 2 January 2019.218 Singapore objected to this initiative and described the restricted area being in a “controlled and congested airspace” that will impact the existing and normal operations of aircraft transiting through.219 Pasir Gudang ...
Interim conclusions. Albeit prescriptions in bilateral/regional agreements, the suspension of transit privileges over a Contracting State’s territory is subject to territorial sovereignty and the Chicago Convention. Pakistan’s prohibited airspace along its western border in the 1950s did target Indian aircraft only; the action was hardly consistent with Article 9 of the Chicago Convention. The regulation of transit rights by Pakistan in 2019 in law did not make a distinction regarding aircraft’s nationality. However, because Airway P518 is the route designated in Indian- Pakistan BASA, Air Indian and Indian airlines are the principal airlines being hit. This measure made a distinction on the basis of air routes, but it applies to all aircraft without making a distinction as to the nationality of an aircraft.
Interim conclusions. Section 29(a) of the General Convention concerns legal controversies concerning third party claims, having a ‘private law character’, to which the UN, as a legal person, is a party. Under Section 29, the UN is required to make ‘provisions for appropriate modes of settlement’ of such disputes. Where the UN fails to do so, in breach of Section 29(a) of the General Convention, it incurs international responsibility towards those states parties (not to third parties themselves). There is a long-standing tradition of the UN recognising its liability where third party claims are substantiated. The nature of that liability varies depending on the law applied in settling the dispute. Where a state espouses claims of its nationals by way of diplomatic protection, and the claims are founded, the UN incurs international responsibility, that is, responsibility under international law, towards that state. In reality, it is the UN that unilaterally determines whether a dispute has a ‘private law character’ and whether modes of settlement qualify as ‘appropriate’ (both heads of Section 29 are discussed separately below). Consequently, the UN effectively controls its own accountability. Whilst such determinations may be scrutinised by the ICJ in advisory proceedings under Section 30, that is not a realistic avenue given the multitude of claims and the political nature of the process regarding the making of a request for an advisory opinion. The current practice is at odds with core notions of justice and the rule of law (and arguably Article 14 of the ICCPR), which are central to the UN’s very purposes and operations, and which it has embraced.
Interim conclusions. The blockade against Qatar in 2017 was not consistent with Article 9 of the Chicago Convention, because only Qatar-registered aircraft is prevented from using the airspace of the four countries. Nonetheless, depending on local situations, the four countries could declare a national emergency and invoke Article 89 to justify their ban. Bahrain’s NOTAMS attracts more attention because its FIR encompasses all of Qatar’s sovereign airspace. Chapter III will discuss who and how to establish a prohibited area in delegated airspace(s).
Interim conclusions. This section concerned the interpretation and application of the phrase ‘private law character’ under Section 29(a) of the General Convention. It has been submitted that the ordinary meaning of the term dispute of a ‘private law character’ refers to the following: domestic law, not international law; the opposite of ‘public law’; and a common denominator among domestic private laws, as opposed to one specific domestic law. It has furthermore been submitted that, according to the collective travaux of the General Convention and the Specialized Agencies Convention, ‘disputes of a private law character’ may be said to refer to disputes that: concern matters that are ‘incidental’ to the ‘constitutional functions’ of the UN and do not relate to the ‘actual performance’ of such functions; would have come before municipal courts but for the immunity of the UN, Section 29 of the General Convention being the ‘counterpart’ of the UN’s immunities; and concern the performance of ‘official acts’, but not ‘constitutional functions’. In interpreting the phrase ‘private law character’, the key challenge is to distinguish ‘public’ from ‘private’. This section offered a number of considerations to that end. Three ingredients suggest, but are not necessarily determinative of, a ‘private law character’: the nature of the claimants (third non-state parties); the damage sustained (personal injury, illness or death, and property loss or damage); and, the remedy requested (compensation). Furthermore, the jurisdiction of domestic courts in private law disputes would normally exclude those disputes that are within the public realm of international organizations. Moreover, since the adoption of the General Convention, there has been a development whereby the UN began to exercise governmental powers over individuals. A parallel development involved the advent of international human rights. This ‘dual process’ calls for the establishment of ‘public law remedies’. The Dutch experience cautions against expanding the interpretation of the application of Section 29 to such disputes (which would moreover run contrary to its travaux préparatoires). When this interpretation of ‘private law character’ is applied to the UN’s practice, the 1995 Report’s exclusion of disputes based on ‘political or policy-related grievances’ appears problematic. In determining whether a dispute has a private law character, what matters is whether the actual performance of constitutional functions is at issue. As...
Interim conclusions. In accordance with Article 1 in conjunction with Article 28 of the Chicago Convention, the provision of ATS is a national prerogative by virtue of its sovereignty. Meanwhile, appropriate ATS authorities have the competences and obligations to make risk assessments of air routes and take contingency measures, including declaring a segment of airspace as “not safe/secure/ available”. Lacking consent from the territorial State, any pending technical or opera- tional operations will have to be addressed outside of the sovereign airspace of a State, unless otherwise agreed by concerned States. In the context of cross- border ATS provision, a delegating State, by default, retains both jurisfaction and jurisaction with respect to prohibited airspace; the ATS jurisdiction to manage traffic flows are subject to bilateral agreements. Unless otherwise prescribed, sovereign airspace is to be used or closed, on the initiative of, or with the agreement or consent of, the delegating State: in establishing pro- hibited areas, the ‘use’ of sovereign airspace is to be interpreted as including ‘non-use’; this interpretation is supported by Member States interventions at the ICAO Council meetings. A bilateral delegation agreement can specify the possible division of juris- faction and jurisaction between a delegating State and a providing State. For example, a delegating State is to prescribe the conditions for airspace closure and a providing State is to execute only: upon suggestions from the appropriate ATS authorities of a providing State, a delegating State has the final say as to the closure of its sovereign airspace.
Interim conclusions. The appropriate ATS authorities, as prescribed in Annex 11, are responsible for assessing risk levels of air routes and taking contingency measures. Respons- ibility as such encompasses two dimensions: competence and obligation. On the one hand, an appropriate ATS authority is entrusted with the com- petence to manage traffic flows, including determining the access and level of service provided to civil aircraft. The scope of this competence, meaning the jurisdiction of the appropriate ATS authority, is marked through individual Flight Information Regions (FIRs). The appropriate ATS authority in its FIR in charge have the competence to take appropriate action to monitor any of any developments that might lead to events requiring contingency arrangements, such as announcing airspaces as “not available”. On the other hand, establishing prohibited areas is more than merely a technical function of the concerned ATS authority. The responsibility thereby accepted by the appropriate ATS authority establishes the primary obligations as such: the obligation to assess risk levels of air routes and the obligation to take contingency measures. Even if Annex 11 does not specifically emphasize the obligation dimension, various court judgments and civil aviation authorities have confirmed that an appropriate ATS authority is obliged to assess risks, close airspace, and re-assign air routes. State practices as such testify the existence of such opinio juris. Considering that Attachment C of Annex is designed to protect the common values, applying the instant custom theory, no matter how short the amount of time that elapses since its adoption, those particular air rule in Annex 11 should be considered as customary international law, in light of the fact that Member States consistently follow and endorse these rules. 5 Prohibited airspace in bilaterally delegated airspace
5.1 Introductory remarks Based on the international rules for ATS, this section will explore how to establish a prohibited area in bilaterally delegated airspace. As aforementioned in Section 3.4 of this chapter, once a portion of airspace is delegated to another State, it is the responsibility of the providing State to seek and collect timely information regarding the airspace. Nonetheless, a delegating State still retains sovereignty over the airspace in accordance with Article 1 of the Chicago Convention: it remains a question who and how to establish prohibited air- space.
5.2 The ‘(non)-use’ of sover...
Interim conclusions. The operations of civil aviation involve a complex process which, amongst others, depends on the provision of ATS. An appropriate ATS authority, in implementing safety management, may determine that certain routes are not safe/secure/available; therefore, the ATS authority issues warnings and declares that air routes are restricted or prohibited from being used by civil aircraft. The closure of air routes could lead to prohibited airspace being established against one targeted State. Due to the closure of air routes, especially those air routes that connect national airspaces and international airspaces, a Con- tracting State may lose all its connections to international civil aviation. This targeted State may thus question the legality of this encirclement. To address this problem, the following sections explain the competence and responsibility of appropriate ATS authorities to close air routes under international air law. 3 International rules with respect to the provision of Air Traffic Services
