The Freedoms of the Air and the Qatar Diplomatic Crisis

While some countries in the world are land-locked, the State of Qatar is ‘air-locked’: its airspace is surrounded on all sides by the respective zones of Saudi Arabia, Bahrain and the United Arab Emirates. On June 5, 2017, these same three states broke off diplomatic relations with Qatar, and closed their airspaces to all flights flying in and out of the country, with the exception of a single air corridor through Bahraini airspace. This post looks at the international legal framework of this issue, and whether these states have the legal right to enforce such prohibitions.

On June 5, 2017, Saudi Arabia, Bahrain, the United Arab Emirates (UAE), and Egypt broke off diplomatic relations with Qatar, bringing to a head the long-standing tensions within the Gulf Cooperation Council (GCC) over Qatar’s ties to Iran, Hezbollah and Hamas. To date, Yemen, Libya and the Maldives have also cut diplomatic ties, and Jordan and Djibouti have downgraded their relationship with Qatar, ordering Qatari ambassadors to leave their territory. The crisis also saw Saudi Arabia, Bahrain and the UAE announce that they would close all land, air and sea routes between their states and Qatar. Moreover, Qatari citizens were banned from entering these states, even in transit. On June 6, Qatar was compelled to charter flights from Oman Air to transport affected passengers out of Saudi Arabia back to Doha.
While Qatar has direct access to international waters, its airspace is entirely enclosed within the airspaces of its neighbouring states, with Bahrain’s zone largely surrounding it, Saudi Arabia managing an area to its south, and the UAE sitting to its east. If these states were to all close off their airspace to planes flying to or from Qatar, the country would be completely cut off from the outside world by both air and land – Qatar’s only land border is with Saudi Arabia – and Qatar Airways, the state-owned carrier that services around 150 international destinations, would be grounded.
On June 5, Saudi Arabia closed its airspace to planes flying to or departing from Doha in an announcement by its General Authority of Civil Aviation; the UAE and Bahrain followed suit the same day. In particular, Bahrain published the following NOTAM (‘Notice to Airmen’) at 11:22 a.m. local time:
At 12 noon, however, a second NOTAM was published, providing Qatar with one air corridor in each direction through its airspace:
This situation raises an interesting question at international law, as to the legality of such an embargo. The principle of state sovereignty gives each state the basic right to close its borders, and prohibit entry into its airspace or waters under its jurisdiction, subject to other obligations. However, international air travel is governed by the Chicago Convention on International Civil Aviation, which came into effect on April 4, 1947, and to which all relevant states have notified their adherence. The Convention creates an International Civil Aviation Organisation (ICAO), which regulates international air travel in accordance with the Convention as an agency of the UN. Reflecting the principle of state sovereignty, Article 6 of this Convention provides that: “No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State.” However, there exists another, separate treaty, which is open to all the Convention’s parties and operates within its framework: the International Air Services Transit Agreement (IASTA), which entered into force on 30 January, 1945. This instrument institutes a broader freedom of overflight between its parties: Section 1 of Article I of IASTA provides: “Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air services: (1) The privilege to fly across its territory without landing…”
Saudi Arabia is one of around sixty states that adhere to the Chicago Convention, but are not parties of IASTA. As such, Article 6 of the former applies, and Saudi Arabia reserves the right to close its airspace and refuse permission to enter, as it has done so.
The UAE and Bahrain, however, are parties to IASTA, and so are bound at international law to allow Qatari flights into their airspace, as long as the flights aren’t scheduled to land within their territory. Persistence in enforcing such a prohibition would allow Qatar to invoke the conflict resolution provision in Article II of IASTA, and request the Council of the ICAO – comprised of 36 elected member states – to examine the case and make recommendations. If these recommendations were not adopted, the issue would proceed to the ICAO Assembly, where a two-thirds majority vote would see the offending state lose their own rights under IASTA. Such a result would be especially damaging to the UAE, given the international reach of its own state-owned carriers, Etihad Airways and Emirates.
Interestingly, Egypt, which has also closed its airspace to Qatari flights, is a signatory to IASTA, and so its ban is also in breach of international law. However, practically speaking, this ban only affects direct flights between Qatar and Egypt, which aren’t covered by IASTA’s overflight provisions in any case.
At the time of writing, Qatar seems to have avoided conflict with its neighbors over this question. In the first place, all flights into and out of Saudi airspace have been suspended. Qatar also does not seem to be contesting the UAE’s ban: flights normally scheduled to pass through UAE airspace are instead flying around it, into friendly Iran. Rather, Qatar continues to use the airway granted to it by Bahrain on June 5 as the only way in or out of the country by air. Interestingly, however, the first NOTAM of June 5 was actually revised on June 7, with the addition of an extra sentence:
How this affects the continued viability of this airway, and to what extent this approval is actually requested or granted, is unclear. Nonetheless, Qatar continues to use the airway, apparently without complaint.
While currently acting within the legal scope of IASTA, if Bahrain were to follow the example of Saudi Arabia and the UAE and close this air corridor, the resulting no-fly zone would bring Bahrain into contravention of the treaty. This situation would likely compel Qatar either to seek recommendations from the ICAO against both Bahrain and the UAE, or to assert its rights under IASTA by continuing to fly into the prohibited airspace against the states’ wishes. As the crisis develops, it is important to consider the legality of the limitations the GCC states’ are setting on the freedoms of the air, as they continue to pressure Qatar into changing its foreign policy: the current limitations have already had a huge effect on Qatar Airways, due to the resultant congestion and delays, and any further limitations would greatly hinder Qatar’s ability to maintain relevant global links.