INFRINGEMENT OF THE PRINCIPLE OF AIRSPACE SOVEREIGNTY AND INTERNATIONAL CONVENTIONS. INTERNATIONAL SANCTIONS AND CONSEQUENCES

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1.- INFRINGEMENT OF INTERNATIONAL CONVENTIONS AND THE POSSIBLE REACTIONS RESULTING FROM SUCH ACTIONS.

Recently, the international scene has echoed two incidents that have entailed a breach of the principle of state sovereignty of airspace and the various international conventions that defend it in different areas. The intention of this article is to analyse the consequences that may arise from such infringements.

On 4 March 2021, Spanish air force aircraft intercepted four Russian fighter jets heading towards North Atlantic Alliance airspace without being authorised to do so, which is not the first time such an incursion by Russian military aircraft has taken place.

This action by Russian fighters could be interpreted as a contravention of the North Atlantic Treaty, or NATO, signed in Washington on 4 April 1949, a military treaty to which Russia is not a party.

In this regard, it is relevant to quote Article 4 of the Treaty: “The Parties shall consult with each other when, in the opinion of either Party, the territorial integrity, political independence or security of either Party is threatened“.

Territorial sovereignty is therefore at the heart of this treaty, whereby its members commit themselves to react when the territorial integrity or security of one of their members is threatened.

Similarly, on 23 May 2021, a RYANAIR aircraft was forced by the Belarusian state authorities to land on its territory, under the pretext of investigating a possible bomb threat on board, which actually culminated in the arrest of dissident journalist Roman Protrasevich, who was flying on the aircraft forced to disembark.

This action could violate the provisions of the Convention on International Civil Aviation signed in Chicago in 1944, and its Articles 1, 3 and 3 bis. It is not a convention applicable to military aircraft.

Article 1: The Contracting States recognise that each State has full and exclusive sovereignty over the airspace above its territory.

This Article should be read in conjunction with Article 3(c), which prohibits any aircraft of a Contracting State from flying over or landing in the territory of another State without having obtained permission to do so.

Article 3a:

“(a) The Contracting States recognise that every State should refrain from the use of arms against civil aircraft in flight and that, in the event of interception, the lives of the occupants of the aircraft and the safety of the aircraft should not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States under the Charter of the United Nations.

(b) The Contracting States recognise that any State has the right, in the exercise of its sovereignty, to require the landing at a designated airport of a civil aircraft flying over its territory without being entitled to do so, or if it has reasonable grounds for concluding that it is being used for purposes inconsistent with the purposes of this Convention; it may also give such aircraft any other instructions necessary to terminate this act of violation. For this purpose, Contracting States may have recourse to all appropriate means consistent with the relevant provisions of international law, including the relevant provisions of this Convention and, specifically, with paragraph (a) of this Article. Each Contracting State agrees to publish its regulations in force relating to the interception of civil aircraft….”.

The principle of airspace sovereignty is enshrined in these articles, along with a number of prerogatives of States. And also the ability to sanction a State that infringes these provisions by peaceful means and without endangering the safety of the occupants of aircraft that enter the airspace of another State without authorisation.

This ability to react against a state’s actions in contravention of international treaties, without resorting to force, is the basis for international sanctions and is contained in the international treaties: Articles 39 to 41 of the UN San Francisco Charter, Articles 21 and 29 of the EU Treaty and 83 of the Treaty on the Functioning of the EU, Article 3 bis of the Chicago Convention.

The sanction to be imposed will depend on the seriousness of the acts and the damage done, or whether the infringement was a mere attempt. International organisations will probably not consider sanctions against a mere attempt to invade airspace, but may consider imposing sanctions for a history of such actions.

As regards the interception of the RYANAIR aircraft by Belarus, this action did not meet the requirements of interception under Article 3bis(b) of the Chicago Convention. If, in turn, this action endangered the safety of the occupants of the aircraft, we enter fully into the realm of criminal air law and the conventions governing unlawful interference. This concept is defined by Annex 17 of the Chicago Convention as: “Acts, or attempts, intended to jeopardise the safety of civil aviation“, and goes on to list several ways of carrying out such an offence, which are included in the various international conventions and which we will not reproduce here, including the unlawful seizure of an aircraft[1].

If this requirement of endangering the safety of civil aviation is not met, then the offence is an international civil aviation offence, and the foreseeable reaction and sanction will be lower.

Sanctions can be multilateral, imposed by international organisations such as ICAO or the UN, or unilateral, imposed by States, which can take measures against other States or their nationals who have violated an international commitment or norm, as part of their foreign policy. Such measures are implemented through their domestic legislation, which is binding on their nationals or residents. These unilateral measures are not sanctions per se, but “countermeasures” or “retaliatory measures[2].

ICAO echoes at its assemblies the sanctions imposed by other organisations such as the United Nations against a given State and, depending on the gravity of the facts, calls on its members to support the sanction in question or imposes its own sanctions[3].

ICAO Articles 87 and 88 also provide for automatic sanctions in case of disputes between members or breaches of the Convention’s provisions:

Article 87: “Each Contracting State undertakes not to permit flights by an airline of a Contracting State in the airspace above its territory if the Council has decided that the airline in question does not comply with a final decision pronounced under the preceding Article.

Article 88: “The Assembly shall suspend the right to vote in the Assembly and in the Council of any Contracting State found to be in default in respect of the provisions of this Chapter.

In the case of Belarus, as we have seen, Article 3 bis of the Chicago Convention, among other provisions, may have been violated. The reaction of many states to close the airspace was immediate.

With regard to counter-sanctions by States, Article 3 bis was introduced into the Chicago Convention through the Montreal Protocol of 1984, following the shooting down of the Korean Airlines plane in September 1983, with the aim of regulating the measures that a territorial State can use to enforce the sovereignty of its airspace.

Article 3 bis. B) indicates that: “States may resort to all appropriate means consistent with the relevant provisions of international law“, however, this provision does not indicate what these means are, although the original wording of this provision contemplated a non-numerus clausus list of valid measures to be adopted.

Professor Moyano Bonilla carries out a rigorous study of state practice in the absence of an express enumeration of possible measures to be taken by states[4].

For this author: “The territorial State that has been the victim of a violation of its airspace by a civil aircraft undoubtedly has every right to punish the offenders of such an unlawful act, in accordance with its domestic law.

Likewise, “From the analysis of Article 3 bis, the following can be seen: a) Prohibition for States to resort to the use of arms against civil aircraft in flight; b) Right of the State overflown to intercept them; c) Right of the State overflown to require them to land; d) Obligation for States to publish their regulations on interception e) Obligation for aircraft to comply with orders to land; (f) Obligation on States to penalise the violation of their legal provisions providing for the duty to comply with orders of the State overflown; and (g) Obligation on States to prohibit the deliberate use of civil aircraft for purposes inconsistent with the Chicago Convention“.

It should be added that the right of interception has limits, it should only be carried out if the safety of the occupants of the aircraft is not endangered, or if it is suspected that the aircraft is being used for purposes incompatible with the Chicago Convention. On the other hand, the possibilities for interception have been developed by States’ legislation following Annex 17 and the ICAO Reference Manuals.

 

2.- INTERNATIONAL SANCTIONS. THEIR INFLUENCE ON THE COMMERCIAL RELATIONS OF THE SANCTIONED STATE AND ON AVIATION INSURANCE.

International sanctions aim to isolate and asphyxiate the sanctioned state in terms of trade and finance, and can be of many different types. Professor Jose Manuel Alvarez Zarate gives an exhaustive account of them in his article “International Economic Sanctions“:

Financial, trade and technical measures: reduction, suspension and cancellation of development assistance; reduction, suspension and cancellation of credits; refusal to refinance debt claims; voting against granting loans, grants or any type of assistance; confiscation or freezing of bank assets; restriction of imports and exports, trade embargoes; imposition of discriminatory customs tariffs; restriction or cancellation of fishing rights, joint investment or development projects; suspension or cancellation of trade agreements; prohibition of technological exports; blacklisting of nationals of the targeted country; prohibition of insuring assets of the country.

Measures on transport and communications: restriction, suspension, cancellation of flights to and from the country subject to the sanctions, as well as overflight restrictions on its commercial airlines, sea or land transit restrictions.

Diplomatic and political measures: public protest, censure and condemnation to veto against admission or vote in favour, expulsion of the target country from international organisations, postponement or cancellation of official visits, meetings or negotiation of treaties or agreements, denial of credentials to diplomats and suspension or expulsion from international organisations.

As far as prohibition of underwriting is concerned, when penalties are imposed, the insurer may be prohibited from fulfilling certain contractual obligations, and sometimes from underwriting the policy at all, depending on the type of penalties applied[5].

Certain sanctions, such as measures involving freezing of assets or restriction of financial assistance, suspend the liability of an insurer for the period they are in force, so that the insurer and/or the broker cannot receive or make payments to the sanctioned person or entity, but without removing the existence of the sanctions, as the courts have ruled[6]. Others, such as the prohibition of trading, may prohibit the very performance of the insurance or reinsurance contract, since the provision of cover itself is prohibited.

In certain cases a licence may be required from the competent authorities in order to be able to underwrite the risk.

The insurance market, (through LMA 3100), and specifically the aviation insurance market, has provided for the inclusion of a number of clauses in policies that prevent the underwriting of internationally sanctioned risks:

Exclusion of certain geographical areas clause LSW617H

“1/ This contract excludes loss, damage or expense incurred in the following countries or regions:

  1. a) Algeria, Burundi, Cameroon, Central African Republic, Democratic Republic of Congo, Ethiopia, Kenya, Mali, Mauritania, Nigeria, Somalia, Republic of Sudan, Republic of South Sudan. b) Colombia and Peru. c) Afghanistan, Jammu and Kashmir, North Korea, Pakistan. d) Abkhazia, Donetsk and Lugansk Regions of Ukraine, Nagorno-Karabakh Republic, North Caucasus Federal District, South Ossetia. e) Iran, Iraq, Lebanon, Libya, Sinai Province of Egypt (including Taba International Airport), Syria, Yemen.

(f) Any other country where operating an aircraft would be in violation of United Nations sanctions.

2/ However, the coverage arising from this contract has been agreed:

(a) For the overflight of each of the excluded countries when the flight is over an internationally recognised air corridor and operated in accordance with ICAO recommendations.

  1. b) When circumstances cause an insured aircraft to land in an excluded country solely as a result of force majeure.

3/ Each of the excluded countries may be covered by the Insurers in accordance with terms and conditions agreed prior to the scheduled flight.

AVN 111 International Sanctions Exclusion Clause.

“Even if otherwise stated in the Policy, the following shall apply:

  1. If by virtue of any law or regulation applicable to an Insurer at the inception of this Policy, or which subsequently becomes applicable, offering the Insured cover which is or becomes illegal due to the breach of a lien or penalty, the Insurer will not provide cover and will have no liability of any kind nor provide any defence to the Insured, or pay defence costs, or offer any security on behalf of the Insured, on the understanding that it would be due to the breach of such law or regulation.
  2. In circumstances where it is lawful for an Insurer to provide cover under the Policy but payment of a claim may infringe an attachment or penalty, the Insurer will take all reasonable steps to obtain the necessary authorisation to proceed with such payment.
  3. In the event that any law or regulation becomes applicable during the Policy period which restricts an Insurer’s ability to offer cover as specified in paragraph 1, then both the Insured and the Insurer shall have the right to cancel their participation in this Policy in accordance with the laws applicable to the Policy offered, provided that the Insurer gives 30 days’ notice in writing. In the event of cancellation by either the Insured or the Insurer, the Insurer shall retain the pro rata proportion of the premium for the period the Policy has been in force. However, in the event that claims incurred at the date of cancellation exceed the pro-rata premium earned (as applicable) by the Insurer and in the absence of a more specific provision in the Policy relating to return of premium, the eventual return of premium shall be subject to mutual agreement. Cancellation notices by the Insurer shall be effective even if the Insurer does not make any payment or offer a return of premium. ”.

These clauses may not have the intended effect of exonerating the insurer from liability if the insurer is already aware of the activities, transactions, persons or entities subject to sanctions at the time of underwriting the risk, or upon receipt of the premium, and can only be invoked when insurers have no reason to suspect a sanctions breach, without prejudice to any permission that may be sought to underwrite a policy in certain cases. Therefore, the protection offered by a sanctions clause will always depend on the particular facts of the case, with the insurer’s reluctance to provide cover for those countries under sanction both by the UN, indicated in the clauses reproduced, and by certain States such as the USA and the EU. If it is finally decided to cover this risk, the premium may be higher than usual.

Madrid, 8 June 2021.

 

Written by:

Irene Sánchez del Río Moreta 

Lupicinio Rodríguez 

 

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[1] The conventions in the aeronautical-criminal field that regulate the different ways of committing unlawful interference are: Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963), by the Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, 1970), by the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1971), by the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1988), by the Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal, 1991), by the Convention for the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing, 2010), by the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (Beijing, 2010).

[2]  This is what certain authors have called them, such as Ana Gemma López Martín in her article: “Embargo y Bloqueo Aéreo en la práctica reciente del Consejo de Seguridad: del conflicto del Golfo al caso de Libia” (Embargo and Air Blockade in the recent practice of the Security Council: from the Gulf conflict to the case of Libya), citing Professor DUPUY. Also Don José Manuel Alvarez Zarate in his article “Las Sanciones Económicas Internacionales“.

[3]  (ICAO Assembly A20-1: Diversion and seizure of Lebanese civilian aircraft by Israeli military aircraft, invasion of Lebanese airspace, warning the State of Israel that action will be taken if violations persist. A21-7: Jerusalem airport, requesting States to refrain from operating, or to grant permission to any airline to operate, any air service to or from Jerusalem airport, A23-5: Jerusalem airport. The Assembly instructs the Council to take the necessary measures to implement Resolution A21-7. A28-7: Implications of the Iraqi invasion of Kuwait. The Assembly declares that the unilateral registration of Kuwait Airways-registered aircraft as Iraqi-registered aircraft is null and void,…. calls on all States not to provide Iraq, its companies or its nationals, either directly or indirectly, with any spare parts, equipment or supplies or services that would enable Iraq to use such aircraft…etc).

[4]  Moyano Bonilla: “The 1984 Montreal Protocol and the violation of airspace by civil aircraft“.

[5] Lloyd’s Sanctions Guidance – Sanctions Clauses. Y4916.

[6] Mamancochet Mining Ltd v Aegis Managing Agency Ltd & Others [2018] EWHC 2643 (Comm). The Court rejected the defendants’ contention that the Sanctions Clause served to extinguish the claim. It was held that the Sanctions Clause merely suspended the insurers’ liability to pay so long as the payment was prohibited by applicable laws or regulations. Therefore, although the payment was prohibited from 2012 to 2016, once the relevant EU and US sanctions were lifted the insurers were required to pay.

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