Our imagination could not have led us to believe that the safest and the quickest mode of transport could ever be through an aircraft, had it not been for the Wright brothers. Eventually, this mode opened doors for travel, to the extent that it is one of the most important components involved while travelling across countries. Be it, for delivering packages or human resources from one place to another, one cannot deny the impact that it currently has on a country’s economy, let alone the tourism sector. With the use of a particular object, be it an electronic gadget or an article as minor as a pen, the majority of it comes with certain instructions or rules in place. Then how can we ignore the aviation sector as a whole?
In 1952, the very first dispute that arose between India and Pakistan was when India filed a complaint with the International Civil Aviation Dispute Forum, for being barred to travel to Afghanistan, to provide aid, via Pakistan’s Western Frontier Route since Pakistan claimed that it was a prohibited area. Following this, India had to take the Baluchistan route to gain entry to Kabul which led to an excess journey, of about 2080 miles as opposed to 642 miles.
India’s contended that Pakistan had disrespected and discriminated against the transit rights that were granted under the Chicago Convention as they had allowed the Iranian Airlines to travel via the same, so-called prohibited route. Eventually, the case was settled and this prompted the ICAO Council to revamp itself on the lines of rules laid down by the International Court of Justice (ICJ).
In 1971, Pakistan is the one knocking on doors at ICAO in retaliation to the ban levied by the Indian authorities, by suspending Pakistan’s overflight rights. This occurrence was caused, due to the Indian aircraft being blown away, by the Kashmir National Liberation Front (KLNF) hijackers, since their demand of releasing KNLF prisoners was not fulfilled. India, in response, challenged the jurisdiction of the ICAO council.
Indian authorities stated that the Chicago Convention and another significant treaty were no longer in use by both neighbours. Instead, it emphasized the 1966 Tashkent Declaration and declared that the bilateral ties between both the neighbouring countries were to be governed via this declaration, following the 1965 war in Kashmir. But as soon as the ICAO affirmed its jurisdiction, India took recourse and appealed to the ICJ.
ICJ’s ruling in the case of Non-state aircraft
According to the ICJ’s reasoning, not only the substantive issues but also the scope of the Chicago Convention’s applicability/interpretation over a dispute would come under the ambit of ICAO’s jurisdiction. Navigating to the year 1999, Pakistan again sought help by filing an application before the ICJ. Consequently, the reason was that India shot down an unarmed naval aircraft over Pakistan’s territory. It also claimed that India had breached Article 2, paragraph 4 of the UN Charter, 1991 Agreement on the prevention of air space violations and the General Act for Pacific Settlement of International Disputes of 1928. ICJ, finally concluded by giving a befitting reply and stated that it would not preside over the Kashmir conflict as India had very well made a reservation in the agreement and claimed that ICJ would not have jurisdiction over a dispute which involves India as one party and the other party, a current member or an ex-member of the Commonwealth of Nations. Adding to this, ICJ also clarified that it out-rightly will have jurisdiction over issues to an extent, which requires the interpretation and application of the Chicago Convention.
Coming to the issue of State aircraft, which involves travelling of the head/national leaders of one state to the other, ICAO has specifically kept an upper hand and stated that as per Article 3(c) of the Chicago Convention, there is an express requirement of authorization by way of special agreement for overflight of state aircraft and it has to be in accordance with the terms of the agreement. In simple terms, ICAO has jurisdiction to investigate disputes regarding state aircraft, in this scenario, concerning India and Pakistan.
Conundrum & Conclusion
We now very well know the stance of civil aircraft and whether ICAO has jurisdiction to deal with disputes regarding that. Article 3(a) of the Chicago Convention strenuously states that it is unreservedly applicable over civil aircraft and in order to bring state aircraft under its ambit, there are certain conditions that need to be fulfilled, as laid down under Article 3(c) and Article 3(d) of the above-said convention. Therefore, in 2019, the scenario when Narendra Modi’s aircraft was denied overflight clearance by Islamabad, entrenches itself from within the Articles of the Convention. Islamabad or any other contracting state, which is a member of the Convention, can aptly do so since it is a state Aircraft not covered within the bounds of the convention. Aircrafts carrying passengers, mail, and cargo carried for remuneration or hire, can also be denied entry to the contracting party’s territory as it is very well established by Article 7 of the convention, which discusses cabotage. Further, Article 9(a) and 9(b) of the convention talks about prohibited areas and enlists that either of the contracting states can deny access over a particular area of territory based on reasons such as public safety, military necessity, state of emergency, and in exceptional circumstances.
The conundrum lies in the fact that how much reliance is to be placed on a convention/treaty if it acts only as the skeleton and the major decision makers are the contracting states themselves. One has to understand the legal complexity of various conventions beyond the customary questions surrounding the already well-defined law and its applicability to trans-border disputes. The rules and regulations should be laid down in a clear and concise manner without leaving any kind of ambiguity to interpretation. Moreover, in order to stay relevant to the changing scenarios, it has to be amended every now and then.
Author(s) Name: Mehar Khaneja (Symbiosis International (Deemed) University)