The (Legal) Battle for Air Superiority

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The (Legal) Battle for Air Superiority

Yet another round in India v. Pakistan

The (Legal) Battle for Air Superiority
Credit: AP Photo/Rajesh Kumar Singh

Separated at birth, India and Pakistan, blood brothers of the subcontinent, share a jagged border and a contentious history. In South Asia, the struggle for Kashmir has come to define their respective national identities and shape the geopolitical landscape. Like the mighty rivers that pour down from the Himalayas, the conflict ebbs and flows, lifting patriotic spirits and, on occasion, claiming the lives of those lying in its path.

Alongside the various wars involving Kashmir – 1947-48, 1965, 1971, and 1999 – Islamabad and Delhi have carried the battle into the skies, leveraging novel legal arguments and assertions of sovereignty in attempts to undermine the other. In this long-standing conflict, lawfare has been employed early and often. Thus, in this latest iteration, we should not be surprised that Delhi and Islamabad find themselves before the International Civil Aviation Organization (ICAO), the UN-specialized agency that oversees the Convention on International Civil Aviation (otherwise known as the Chicago Convention of 1944).

India recently lodged a complaint with ICAO against Pakistan following the latter’s refusal to let Prime Minister Narendra Modi’s plane transit the country’s airspace en route to Saudi Arabia for the kingdom’s investment summit. Islamabad’s flight ban is in response to Delhi’s revocation of the special status of India-administered Kashmir and an ensuing crackdown. ICAO responded by acknowledging India’s concern, but explaining that flights transporting heads of state are considered “state aircraft” and are not subject to the Chicago Convention’s provisions. Despite its initial statement, the ICAO Council has recognized authority and broad jurisdiction to interpret the treaty with regard to international aviation matters, in no small part due to past airspace battles between India and Pakistan. But does India or Pakistan seek anything more than a tactical win? Would the ICAO Council really venture into the treacherous terrain of Kashmir? In the near term, answers to such questions are not likely forthcoming, but, if history is our guide, this will not be the last round in the legal battle for air superiority.

India versus Pakistan

 In 1952, India submitted the first complaint under the Chicago Convention’s formal dispute resolution provisions. Pakistan had denied overflight rights for Indian aircraft seeking to service Afghanistan on the basis that the entire length of West Pakistan’s western frontier was a “prohibited area.” In effect, Indian airlines were forced to take a circuitous route via Baluchistan in order to reach Kabul, resulting in a 2,080-mile journey, as opposed to the direct route of 642 miles.

India claimed that Pakistan’s actions violated transit rights under the Chicago Convention because the prohibited zone was not reasonable in its extent and location, and unnecessarily interfered with air navigation. Delhi further claimed that Pakistan unlawfully discriminated against Indian aircraft, as Iranian airlines were not similarly restricted in overflying the western frontier. Pakistan replied that there were firm security rationales underlying the no-fly zone, which dated back to British rule. For example, insisted Islamabad, the safety of crews and passengers from a non-Muslim state could not be guaranteed given the “attitude” of tribesmen in the area.

Eventually, the parties negotiated a settlement without forcing a decision on the merits. The case, however, forced the ICAO Council to consider its dispute resolution powers and establish new procedural rules modeled after the International Court of Justice (ICJ). Moreover, the fact that Pakistan felt compelled to offer legal grounds for restricting transit rights implied that assertions of sovereignty and flight restrictions may not be arbitrary acts; prohibited areas should be based on considerations of safety and security.

India and Pakistan returned to ICAO in 1971, this time with Islamabad alleging violations of transit rights under the Chicago Convention. On January 30, 1971, members of the Kashmir National Liberation Front-KNLF hijacked an Indian aircraft flying from Jammu, India. The hijackers diverted the airplane to Lahore, Pakistan. Although the passengers and crew were freed, Pakistan granted asylum to the hijackers and allowed them to blow up the aircraft when India denied the hijackers’ demand to release KNLF prisoners. In response, India suspended Pakistan’s overflight rights – a critical blow to a country that was, at the time, geographically detached (with India wedged between West and East Pakistan).

Soon after Pakistan filed its formal complaint, India challenged the jurisdiction of the ICAO Council.  Delhi argued that the Chicago Convention and a related international transit agreement were suspended between the parties. Bilateral air services, according to India, were instead governed by rules established under the 1966 Tashkent Declaration, an agreement normalizing relations between the countries following the 1965 war in Kashmir. Delhi maintained that, because the Chicago Convention was not in force, there was no disagreement over the interpretation or application of its provisions. After the ICAO Council affirmed its jurisdiction over the case, India appealed to the ICJ, per the procedural terms of the Chicago Convention.

In a significant ruling, the ICJ upheld the ICAO Council’s competency to hear the case. The ICJ framed the ICAO Council’s jurisdiction very broadly. The court reasoned that so long as the controversy involves a disagreement requiring interpretation and application of the Chicago Convention, the ICAO Council may exercise jurisdiction. This jurisdiction exists not only as to matters alleging breach of substantive provisions, but also to issues involving the scope of the treaty itself. By the time the ICJ issued its ruling in August 1972, however, the legal case was overcome by events. Bangladesh, with India’s assistance, had achieved independence from Pakistan, but at a terrible human cost, with estimates of up to 3 million lives lost. Eventually, India and Pakistan discontinued the proceedings.

In 1999, Pakistan and India resumed their legal conflict shortly after the end of the Kargil War (named after the locus of conflict along the Line of Control in Kashmir). Pakistan filed an application with the ICJ to hold India responsible under international law for the shooting down of an unarmed naval aircraft purportedly over Pakistani territory on August 10, 1999. Islamabad alleged that Delhi violated Pakistan’s sovereignty and breached India’s obligation to refrain from the threat or use of force under Article 2, paragraph 4 of the United Nations Charter. Pakistan also claimed that India’s actions constituted breaches of a 1991 agreement on the prevention of air space violations between the countries.

As before, issues of jurisdiction were at the forefront of the case. Pakistan argued that both countries had accepted the ICJ’s compulsory jurisdiction as part of a unified British India. More particularly, Pakistan maintained that the General Act for Pacific Settlement of International Disputes of 1928 applied to India – through acts and principles of succession – following its independence from the British empire. This multilateral convention, established under the League of Nations regime, provided a basis of jurisdiction for the Permanent Court of Justice, the ICJ’s predecessor.

However, the ICJ concurred with India’s position, concluding that independent India could not be regarded as a party to the General Act of 1928 on the date of Pakistan’s application; therefore, the convention did not constitute a basis of jurisdiction. The court also agreed with Delhi’s argument that India’s declaration, per the ICJ’s statue, contained a reservation under which “disputes with the government of any State which is or has been a member of the Commonwealth of Nations” were barred from its jurisdiction.

One consequence of the court’s holding, as noted by Paul Dempsey, Director Emeritus of the Institute of Air & Space Law at McGill University, is that the ICJ is unable to provide relief in the Kashmir conflict. In comparison, in light of the ICJ’s 1971 ruling (India v. Pakistan), ICAO remains capable of addressing issues arising from Kashmir, at least to the extent they require interpretation and application of the Chicago Convention.

The Snowden Effect

 The latest legal clash between India and Pakistan involves the denial of overflight for state aircraft, Modi’s airplane. Pakistan justified its airspace ban due to “ongoing grave human rights violations” in Indian-administered Kashmir. India most assuredly does not share this assessment. It is not the first time that contested geopolitical issues have led to denials of airspace for heads of state.

On July 2, 2013, a Bolivian air force plane carrying President Evo Morales from Moscow was re-routed to Austria after several European countries denied him airspace access. Morales was attempting to return to Bolivia after attending an energy summit in Russia. While in Moscow, Morales had expressed a willingness to grant political asylum to Snowden. After fleeing Hong Kong, with his U.S. passport revoked, the former National Security Agency contractor was essentially trapped in the transit zone of Moscow’s Sheremetyevo International Airport.

As Morales boarded his jet for the flight home there were suspicions that Snowden may also be on board. After France, Italy, Spain and Portugal blocked their respective airspace, the presidential plane, running out of fuel, was forced to land in Vienna.  As the State Department later confirmed, Washington had tipped off these countries that Snowden may be flying through their airspace and requested that he be “returned.” Morales’ grounded aircraft was apparently subject to search by Austrian officials. During the forced 14-hour layover, Austrian president Heinz Fischer even stopped by to see for himself, having breakfast with Morales on board the aircraft.

Bolivia responded by accusing the United States and cooperating governments of “kidnapping” Morales and pledging to file a complaint with the United Nations. UNASUR, the 12-nation South American bloc, denounced the denial of airspace as “unfriendly and unjustifiable acts that have also put in serious risk the security of the Bolivian head of state and his party.” Brazil, Argentina, Uruguay and Venezuela recalled their diplomats for consultations and demanded an explanation from the European states. Speaking for MERCOSUR, a regional trade body, Uruguay described the actions as being “unfounded, discriminatory and arbitrary, in a flagrant violation of the precepts of international law.” The Organization of American States (OAS) also condemned the flight prohibitions and demanded that the countries apologize to Bolivia. Following a meeting with MERCOSUR members on August 5, 2019, Secretary-General Ban Ki-moon reaffirmed that a head of state and his or her aircraft enjoy immunity and inviolability.

After offering initial resistance, France, Italy, Spain and Portugal bowed to the diplomatic and legal pressures, describing the refusal as a mistake and blaming incorrect procedures. The embarrassing role of false intelligence also likely played a role. In the end, Bolivia reluctantly accepted their apologies.

Return Flight to ICAO

Although ICAO initially demurred in the latest dispute between Pakistan and India, citing the exclusion of state aircraft from the Chicago Convention, its initial statement is not likely the last word in this debate.

First, per the ICJ’s judgment in 1971, the ICAO Council has broad competency to address legal questions involving interpretation or application of the Chicago Convention. And while it is true that aircraft transporting heads of state are considered state aircraft and state aircraft are generally excluded from the treaty, per the clause in Article 3(a), the Chicago Convention has specific provisions that speak directly to the transiting of state aircraft. Article 3(c) expressly requires the authorization by “special agreement” for overflight of state aircraft and any such flight must be “in accordance with the terms” of this agreement. By extension, ICAO arguably has jurisdiction to investigate whether Pakistan denied authorization per the terms of any agreement with India concerning clearances for state aircraft.

Second, ICAO has in fact applied the Chicago Convention to issues involving state aircraft and the use of sovereign airspace. Indeed, ICAO established new treaty provisions following the controversial downing of Korean Airlines Flight 007 by Soviet Union military aircraft after the scheduled airliner’s unauthorized penetration of Soviet airspace. Article 3 bis is aimed at protecting the safety of civil aircraft, crew, and passengers during interceptions by state aircraft. In 1996, following the downing of U.S. civil aircraft by Cuban fight jets, the ICAO Council condemned the action and noted that states, while exercising their exclusive sovereign airspace rights, must be guided by the Chicago Convention and customary international law.

In other words, a country’s use of sovereign airspace is not boundless.

State practice during the alleged Snowden flight suggests that the denial of transit rights for head of state aircraft should not be based on unfounded, discriminatory, or arbitrary reasons. Indeed, the travel of heads of state is critical to diplomacy. To borrow from the Chicago Convention, it is necessary in order “to promote that co-operation between nations and peoples upon which the peace of the world depends.” More broadly, as I noted in these pages, we should avoid sanctioning the weaponization of airspace in pursuit of parochial geopolitical agendas. This is counter to the safe and orderly development of international aviation, the object of the Chicago Convention.

Fourth, although the character of the aircraft in this case is clear cut, distinguishing between state and civil aircraft is not always straightforward. For example, in 1986, Israeli fight jets intercepted a Libyan executive jet operated by Libyan Arab Airlines in international airspace on suspicion that the passengers included members of the Palestinian Liberation Organization. Instead, the passengers were Syrian government officials. Israel argued that its actions were legal under principles of self-defense and that ICAO had no jurisdiction because the Libyan flight involved state aircraft. In the end, the ICAO Council determined otherwise and issued a resolution condemning Israel for violating the Chicago Convention. In the heated clouds over Kashmir, there may be a future occurrence where miscalculation, miscommunication or misidentification could result in tragic consequences.

Even with their bitter divide, the parties have relied on ICAO’s good offices to work through immediate differences. In this instance, ICAO should not shy from its mandate. If India and Pakistan were to enter a tailspin, we would find our community of nations in a much smaller world.

Roncevert Ganan Almond is an adjunct professor of law at Georgetown University Law Center and a partner and vice-president at The Wicks Group in Washington, D.C. He has counseled government authorities in Asia, Europe, the Middle East, Africa, and the Americas on issues of international law. The views expressed here are strictly his own.