Civil unrest and role of migrant workers

by Dr Ruwantissa Abeyratne

(March 11, Colombo, Sri Lanka Guardian) What started on December 17, 2010 with an act of self immolation by Mohammed Bouazizi, a 26-year-old man trying to support his family by selling fruits and vegetables in the central town of Sidi Bouzid in Tunisia, led to massive protests in the country, resulting in the overthrow of Zine El Abidine Ben Ali, the country’s President on January 14, 2011.

On January 25, 2011 protests, at least partly inspired by the toppling of the authoritarian government in Tunisia, erupted in Egypt and grew increasingly worse. As a result, Hosni Mubarak, President of Egypt, was deposed within weeks of a virulent people’s uprising. Contemporaneous protests went on other States such as in Algeria, Yemen and Bahrain, the last of which held a day of rage on February 14, instigated by youths and inspired by events in Egypt and Tunisia. Furthermore, at the time of writing, there was acute unrest in Libya as a result of mass civil unrest and clashes between protesters and the government forces.

Chicago Convention

Thousands of migrant workers in Libya were displayed and scrambled to get out of the country. Many landed in the Libya-Tunisia border as refugees. The question that comes to mind is what is the international mechanism that would assist those in distress in situations such as this in getting back to safety in their own countries? The first answer that pops up is relief flights. There were some sent by countries and ships were chartered by others to ferry migrant workers to safety from Libya.

From an aviation perspective, the operative international treaty that applies to such situations is the Chicago Convention of 1944. The Convention has some provisions that require States to have their airports and ground services open to all airlines.

Article 89 of the Chicago Convention enables Contracting States to have freedom of action irrespective of the provisions of the Convention in case of war, whether belligerents or neutrals.

National emergency

It also allows a State which has declared a state of national emergency to have the same freedom of action notwithstanding the provisions of the Convention. Therefore, unless a State is at war (which the Convention does not define) or has declared a state of national emergency, it would be bound by the provisions of the Convention.

War is conventionally defined as a behaviour pattern of organized violent conflict typified by extreme aggression, societal disruption and high mortality. This behaviour pattern involves two or more organized groups. The first duty of a Contracting State not falling within the purview of Article 89 of the Chicago Convention is to keep its airport open to all incoming aircraft.

Article 15 of the Convention requires inter alia that, uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation.

State reserves

This condition is subject to Article 9 which stipulates that each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services and the aircraft of the other contracting States likewise engaged.

The provision goes on to say that each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition will be applicable without distinction of nationality to aircraft of all other States. The question arises as to whether a State in which there is acute civil unrest is bound to follow the abovementioned principles of the Chicago Convention.

States or international organizations which are parties to such treaties have to apply the treaties they have signed and therefore have to interpret them.

Although the conclusion of a treaty is generally governed by international customary law to accord with accepted rules and practices of national constitutional law of the signatory States, the application of treaties are governed by principles of international law. If however, the application or performance of a requirement in an international treaty poses problems to a State, the Constitutional law of that State would be applied by courts of that State to settle the problem.

Vienna Convention

Although Article 27 of the Vienna Convention on the Law of Treaties of 1969 requires States not to invoke provisions of their internal laws as justification for failure to comply with the provisions of a treaty, States are free to choose the means of implementation they see fit according to their traditions and political organization. The overriding rule is that treaties are juristic acts and have to be performed.

The operation of relief flights, either by States or such bodies as the United Nations, to alleviate human suffering in times of war, natural or manmade catastrophe, is yet another area in which the role of civil aviation is brought to bear in securing peace and security.

There is a specific provision in Annex 9 to the Chicago Convention for provision by State of relief flights. Contracting States are required, by Standard 8.8 of Chapter 8 of the Annex, to facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the United Nations or by or on behalf of States themselves and to take all possible measures to ensure their safe operation.

The relief flights referred to should be undertaken to respond to natural and man-made disasters which seriously endanger human health or the environment. An emergency is acknowledged in the Annex as a sudden and usually unforeseen event that calls for immediate measures to minimize its adverse consequences.

United Nations Charter

A disaster is described in the Annex as a serious disruption of the functioning of society, causing widespread human, material or environmental losses which exceed the ability of the affected society to cope using its own resources.

The United Nations Charter lists the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, as one of the purposes of the United Nations.

The problems that the United Nations is mandated by its Charter to solve should therefore be necessarily of an international nature.

Natural disasters

Article 2(7) of the Charter expands the scope of this philosophy further when it provides that the United Nations is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any State, without prejudice to the right of the United Nations to intervene in matters which are within the domestic jurisdiction of any State, and apply enforcement measures where there is an occurrence of acts of aggression, a threat to the peace or breach thereof.

Therefore stricto sensu, the United Nations cannot intervene in instances where natural disasters such as famine, drought or earthquakes render the citizens of a State homeless, destitute and dying of starvation unless invited by the States concerned. The principle however cannot be too strictly interpreted, as natural disasters may usually lead to breaches of the peace.

In such instances the United Nations Security Council may take such actions by air, sea or land as may be necessary to maintain or restore international peace and security.

The final dimension, without which relief flights would lose their purpose, is the dissemination of relief which forms the final consideration of relief by air. It could well be that, although medical and food supplies arrived at the airport there is no infrastructure to distribute them to those in need. The coordination of relief in armed conflicts or natural or manmade disasters raises very real problems.

In many instances, the lack of coordination in relief operations often results in an imbalance in consignments, foodstuffs perishing in large warehouses and the lack of adequate transport to provide relief in areas which need assistance. Paragraph five of Article 70 of Protocol One to the Geneva Convention lays down the principle of effective international coordination of relief. This provision lays down obligations of all parties concerned ie donors, transit countries and beneficiaries.

Armed conflict

In 1969, the XXIst International Conference of the Red Cross adopted a Resolution whereby States were requested to exercise their sovereign and legal rights so as to facilitate the transit, admission and distribution of relief supplies provided by impartial international humanitarian organizations for the benefit of civilian populations in disaster areas when disaster situations imperil the life and welfare of such populations. The United Nations subsequently announced that this Resolution would also apply to situations arising from armed conflict. The above discussion is not intended to obfuscate the fact that the provisions of the Geneva Conventions and the United Nations Charter do not admit of the operation of relief flights at the will and pleasure of the benefactor, without the permission of the recipient State. It is also not intended to circumvent the fact that States are primarily responsible for organizing relief. Relief societies such as the Red Cross and the Red Crescent Organizations are merely called upon to play a supplementary role by assisting the authorities of the States concerned in their task.

State sovereignty

Since it is clear that the intervention of the United Nations Security Council in a matter lying within the domestic jurisdiction of a State can only be justified in instances where there is a threat to international peace and security, a breach of the peace within a State or an act of aggression, a question which arises when a relief flight is operated as a part of a humanitarian project is whether the operation of such a flight could be considered a legitimate unilateral action by States.

The Question would essentially be ground in a legal analysis of the principles of humanitarian law and State sovereignty. On the one hand, everyone has the right to life, liberty and security of person and the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care.

On the other, there is overall recognition of the fact that every State has complete and exclusive sovereignty over the airspace above its territory. Except for the Paris Convention of 1956, which provides for civil aircraft registered in a member State of the European Civil Aviation Conference (ECAC) to fly freely into member States for the purposes of discharging or taking on traffic where such aircraft are engaged inter alia in non-scheduled flights for the purpose of meeting humanitarian or emergency needs, there is no multilateral or bilateral agreement that admits of unilateral intervention of a State in another for humanitarian purposes, where the intervening State does not obtain permission of the recipient State.

In fact, Resolution 46/182 explicitly provides in the Annex to the Resolution that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations and that in this context, humanitarian assistance should be provided with the consent of the affected country and in principal on the basis of an appeal by the affected country.

These conflicting principles, although not bestowing legal authority on the United Nations to intervene in a State with relief flights, at least give some degree of justification to the United Nations' efforts to mediate with States concerned in the promotion of relief operations and to seek the support of other States, with the concurrence of affected States. The author subscribes to the view that if humans are dying, one has got to help at all costs.