This saga began with an announcement by four Gulf neighbors about a fifth. Saudi Arabia, UAE, Egypt and Bahrain have cut diplomatic ties with Qatar and announced a land, sea and airspace blockade over the terrorism support claims. His Excellency, the Minister of Transport and Communications Jassim bin Saif Al Sulaiti, met with President of the Council of the International Civil Aviation Organization (ICAO), Dr. Olumuyiwa Benard Aliu.
The Minister of Transport and Communications asserted that the impact of siege affected the aviation safety of Qatar, as well as the global system of civil aviation. He added that security is being diminished by this joint action. The Minister also called on ICAO to fulfill its responsibilities as per the Chicago Convention and its annexes as well as other international civil aviation agreements.
ICAO said its role in regional conflict is “limited to ensuring the safety and security of air navigation and will not touch upon political issues, for lack of jurisdiction.” A simpler explanation might have cited the Convention on International Civil Aviation of 1944, known as the Chicago Convention. The First Freedom of Flight, established 73 years ago, makes it clear that the sovereign nations reserve the right to grant and implicitly to deny/withdraw overflight privileges, in stating:
First Freedom of the Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State or States to fly across its territory without landing.
It was easy to assume that ICAO’s role in this regional conflict was over.
Then the headline from The Gulf Times announcing that ICAO issued a directive which was a victory for Qatar. Here is the quote from the Ministry of Transport and Communications (MOTC) said:
“Noteworthy, the blockading countries have – in confession of their infringement on international laws and in order to avoid condemnation from the international community for nonobservance of law, have, only shortly before the Council meeting, relinquished their positions on the closure of international routes, and issued navigation notification (NOTAMs) according to the international law….it looks forward to seeing an expeditious examination of its dossier relating to Item 84 of the Chicago Convention and the Transit Passage convention as quick as possible, as well as Qatar’s request to establish a flight information region (FIR).”
The Ministry said it has full confidence in the Council and its wise decisions that are in the interests of aviation’s safety and security.”
Clearly, Qatar asserts that ICAO was its international aviation court.
A search of the ICAO website did not produce the cited “directive” issued by the UN offices in Montreal after the meeting.
The Saudi Gazette, with a Montreal byline, reported a different version. While the ultimate result is the same, ICAO’s authority is more accurately explained. Its version is as the following:
“The International Civil Aviation Organization (ICAO) Council, which only considered technical issues in an extraordinary session on Monday, following a complaint by Qatar, also accepted the working paper of the four Arab states that cut ties with Qatar which said it would allow Qatari planes to use air corridors in emergencies.
Qatar’s complaint is in accordance with Article 54 (N) of the Convention on International Civil Aviation (Chicago 1944), which gives member states the right to consider any matter relating to the Convention. The United Nations aviation agency was reviewing Qatar’s request to intervene after its Gulf neighbors closed their airspace to Qatar flights.
Prior to the ICAO meeting, the General Authority of Civil Aviation (GACA) on Sunday had announced the allocation of emergency air corridors by the four Arab countries after approval by civil aviation authorities in the United Arab Emirates, Egypt and Bahrain for use by Qatari companies as applicable in cases of closure of regional airspaces.
The chairman of the Council opened the meeting by emphasizing avoidance of political matters and focusing only on the technical issues that were the responsibility of ICAO.
The Arab quartet then presented a joint working paper, which included actions taken in cooperation with the ICAO Regional Office in Cairo to promote safety over international waters in the Middle East region. It also included opening of nine additional air routes to relieve the pressure on current routes over international waters.
The paper received the approval of the members of the Council, who praised the spirit of cooperation among the countries of the region.
The Council adopted resolutions in which it asked the secretariat to continue to implement the contingency plan, encouraged states to cooperate to ensure the implementation of technical solutions and urged all Member States of ICAO to abide by the spirit of the Chicago Convention and to cooperate to ensure the safety, security, efficiency and sustainability of international civil aviation.”
The best news, without regard to the merits of the claims of terrorism against Qatar, is the leverage of the ICAO Council Extraordinary Session caused the four blockading countries to offer emergency corridors to Qatar. The good news is that ICAO was able to avoid getting involved in a political dispute.
The difference between the two articles might seem inconsequential. However, if the Qatar version is universally accepted, a dangerous precedent would be set. The initial ICAO deferring to act on the Qatar complaint can now be cited in the event that another similar closure of airspace for political reasons.
Sometimes the penumbra of power is as forceful as the explicit authority.
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