The Morales Analogy
| by Dr. Ruwantissa Abeyratne
( August 9, 2013, Montreal, Sri Lanka Guardian) In November, Sri Lanka will host the Commonwealth Heads of Government Meeting (GHOGM), attracting some heads of government. Curiously, principles of international law governing the status or treatment of heads of Government are not enshrined in any international treaty as are the principles governing diplomatic law which are contained in the Vienna Convention on Diplomatic Relations (1961).
The Vienna Convention defines a head of mission and a diplomatic agent and contains principles pertaining to foreign missions, personnel and premises abroad. Impliedly these statements, which establish principles of protocol to be followed by the host country would be deemed to embody principles which apply to a head of Government as well.
The term “head of government” is used in both constitutional law and international law when referring to an official who holds the highest ranked position in a sovereign State and has the vested or implied powers to act as the chief public representative of a State.
So what is the status enjoyed by a head of government when he/she visits a foreign country officially? This question can be answered by a discussion of the events following the detention of the aircraft of President Evo Morales of Bolivia in Vienna and the earlier refusal of overflight rights to his plane by four European countries.
Earlier in 2013, amidst heightened diplomatic drama, Bolivia (and other Latin American States) accused France, Spain, Portugal and Italy for denying over flight rights to an aircraft carrying Bolivian President Evo Morales on his way from Moscow to La Paz. BBC reported that the underlying assumption was that the United States requested some European States to intervene on the basis that Edward Snowden, A US citizen and a felon facing charges in the US for leaking secretive and strategic information was on the plane.
Bolivia called the denial of the four European States of overflight rights to the Presidential aircraft an “act of aggression” accusing the States of “blocking the plane”. The Bolivian authorities also claimed that this was a breach of international law by the States concerned. The aircraft was finally forced to land in Vienna and was searched (allegedly with the agreement of President Morales) by Austrian authorities who found that the President was travelling alone. Seemingly, Austria had given the aircraft permission to land upon the request that the aircraft was running out of fuel.
Upon arrival in Bolivia, President Morales is reported to have said “it is not an offence against the President, it is an offence against the country, against the whole of the Latin American region”. He described the incident as "almost a kidnapping of 13 hours". The fact that the Presidential aircraft took off from Moscow may have created a suspicion in the United States that Snowden could be on the aircraft particularly since the aircraft carrying the President was deemed to be a State aircraft. Snowden predictably vanished after the leaks and was known to have flown to Hong Kong. The US authorities requested Hong Kong to detain him on a provisional arrest warrant ahead of a move to extradite him. However, Snowden managed to leave Hong Kong surreptitiously and land in Moscow.
The Snowden kerfuffle, in addition to raising complex diplomatic issues, carried two dimensions of air transport. The first was the claim of Russian President Vladimir Putin that Snowden had not entered Russian territory as he was in the transit lounge in the airport in Moscow which Putin claimed was not Russian Territory and that Snowden had not been formally admitted to Russia. A legal analysis of this vexatious issue has already been published by the author in this journal. The second dimension is the issue of the status of the Presidential aircraft which in turn bears upon the status of the head of Government . This is the subject of discussion to follow.
Article 3 of the Convention on International Civil Aviation (Chicago Convention) of 1944 states that the Convention does not apply to State aircraft and goes on to inclusively provide that aircraft used in military, customs and police services shall be deemed to be State aircraft. The provision also goes on to state that no state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. Furthermore, Article 3 requires that the contracting States (to the Chicago Convention) undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.
The three aircraft types, i.e. aircraft used in military, customs and police services are merely inclusive. Article 3 is indeed an interesting provision which in b) identifies three types of aircraft as State aircraft but is not clear as to whether the definition is comprehensive or merely inclusive and is open to other types of aircraft to be identified within its umbrella. For example, are aircraft used by a government to douse forest fires or aerial spraying included in this provision? Are aircraft carrying heads of State for official purposes State aircraft? The more plausible approach has been to consider the purpose for which aircraft are used rather than the label they carry. One commentator states: “ The status of military aircraft is not clearly determined by positive rules of international law and is not particularly transparent or unequivocal. The issue is not addressed in international law with any specificity, could not be located in any one single international instrument and only some fragmentary aspects can be deduced directly or indirectly from different sources of international law (international treaties). The identifiable rules are mostly “negative”- stating what does not apply to military aircraft or what such aircraft are not permitted to do. The practice of States that could form a basis for the development of customary law is also not transparent or uniform and is often shrouded in secrecy”.
The same author goes on to say that military aircraft is a typical representative of State aircraft.
The predecessor to the Chicago Convention – The Paris Convention of 1919 - is much clearer when it provides that State aircraft are military aircraft and aircraft exclusively used in State service such as posts, customs and police sand that every other aircraft shall be deemed to be private aircraft. The Paris Convention goes on to say “All State aircraft other than military, customs and police aircraft shall be treated as private aircraft and as such shall be subject to all the provisions of the present Convention”.
The clarity of the Paris Convention, which presumably was considered by the forefathers of the Chicago Convention, provides further argument that the Article 3 definition of State Aircraft is an open ended and inclusive one.
Another drawback of the Chicago Convention is that, while on the one hand it explicitly mentions that the treaty will not apply to State (i.e. military aircraft) on the other hand it provides in Article 3 c) that No state aircraft of a Contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof, thus making the Convention applicable to military aircraft to the extent of Article 3c).
The issue under discussion is, was the aircraft carrying President Morales a State aircraft?
What initially comes to mind is whether Article 3, which excludes the application of the Chicago Convention to State aircraft, is inflexible. For instance, the crash of Tupolev TU-154M on 10 April 2010 which operated as a State aircraft with call sign “Flight 101” carrying the Polish Head of State and several officials whilst approaching Severny Airport in the vicinity of Smolensk in Western Russia came under the scrutiny of Annex 13 (Accident Investigation) to the Chicago Convention. There apparently was blatant disregard of the text in Article 3 of the Chicago Convention with regard to this flight which concerned a State aircraft operated by the air force of a foreign country.
Next, is there a need to inquire as to what distinguishes a civil aircraft from a State aircraft, on the basis that, in the latter instance a particular aircraft is used for purposes of State business, such as carrying a head of State or carrying out a State purpose such as in the performance of military, police or customs services. There are no clear international rules, generally accepted, whether conventional or customary, as to what constitutes state aircraft and what constitutes civil aircraft. Military aircraft, more than any other kind of aircraft including customs and police aircraft, personifies the public or sovereign power of a State, and several attempts have been made to arrive at an internationally acceptable definition thereof. A simplistic but apt definition of civil aviation is “aviation activities carried out by civil aircraft”. The operative criteria for defining whether an aircraft is a State aircraft should be firstly, the nature of the persons and cargo carried. Are they on official business ? and is the does the cargo carried represent supplies or equipment for the military, customs or police services of a State? Article 35 of the Chicago Convention recognizes that the mere carriage “of munitions or implements of war” does not by itself make an aircraft a state aircraft.
Then there is the question of ownership of the aircraft. Is it owned privately or by the State? The degree of control and supervision of the operation of the aircraft by the specified services are also factors to be considered in this equation. The nature of the passengers or personnel carried is also a consideration. Are they heads of State, military, customs or police officials, or members of the public at large? Is the particular flight open for use by members of the public? Do aircraft registration and nationality markings become relevant? Will a usual civil (ICAO) flight plan be submitted and the usual air traffic clearances obtained? What is the nature of crew? Are the crew civilian, or are they military, customs or police personnel, or employed by these services? Who is the operator? Is the operator a military, customs or police agent? What sort of documentation is carried in the aircraft? Are the documents required by the Chicago Convention and its Annexes to be carried on civil aircraft in fact being carried (e.g. certificate of registration, certificate of airworthiness, licences for the crew, journey log book, etc.)? What would the area of operations be? Will the aircraft fly to, or over, areas in a situation of on-going or imminent armed conflict? What about customs clearances? Will the normal clearances be obtained?
The broad answer to all these questions would lie in the fact that, in the ultimate analysis, the responsibility of using aircraft and crew for State purposes rests with the State concerned. The fundamental legal premise which applies in such situations is that, in international relations, the erosion of one’s legal interests by another brings to bear the latter’s responsibility. State responsibility is a recognized principle of international law in the current context. The law of international responsibility involves the incidence and consequence of acts which are irregular at international law, leading to the payment of compensation for the loss caused.
One can draw some valid inferences from the Vienna Convention on Diplomatic Relations which in Article 22 addresses the issue of diplomatic premises. Article 22 provides that the premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. Article 22 further states that the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission are immune from search, requisition, attachment or execution. According to the international law principle of inviolability, the premises, persons or property physically present in a sovereign State has a special status if such were to be subject to diplomatic protocol although they may not be subject to the sovereign State’s jurisdiction. According to the Convention, the Sovereign State in which such persons, premises or property are located cannot exercise law enforcement rights such as search of premises. The State has also to protect such premises from invasion or interference. There is no room for doubt that this provision is applicable to a State aircraft used by a head of State.
An attack on the dignity of a diplomat (and inferentially a head of Government) is addressed in Article 29 which provides that the person of a diplomatic agent is inviolable. This is the oldest principle in diplomatic law which lays down that he/she is not liable to be subject to any form of arrest or detention. The receiving State is required to treat the agent with due respect and take all appropriate steps to prevent any attack on his/her person, freedom or dignity. In the 2007 case of Mariam Aziz v. Aziz et.al Sultan of Brunei intervening, involving the Sultan of Brunei who, under section 20 of the State Immunity Act 1978 of the United Kingdom, was given the same inviolability as a head of mission, and which involved the exercise of freedom of expression against the spouse of the Sultan by a third party, the British Court of Appeal, per Collins L.J. held: “ I am far from convinced by the material before us that there is a rule of customary international law which imposes an obligation on a State to take appropriate steps to prevent conduct by individuals which is simply offensive or insulting to a foreign head of State abroad.
The Aziz case involved a fortune teller who had misrepresented facts which made the spouse of the Sultan alienate some of her property. Collins L.J’s statement clearly implies that a more serious indignity against a foreign head of State would certainly have been justiciable”.
Some members of the international press have called the Morales incident – that of forcing down the Bolivian President - as an act of “air piracy” and “ State terrorism” . They have said: “Imagine the aircraft of the President of France being forced down in Latin America on "suspicion" that it was carrying a political refugee to safety – and not just any refugee but someone who has provided the people of the world with proof of criminal activity on an epic scale.
Imagine the response from Paris, let alone the "international community", as the governments of the West call themselves. To a chorus of baying indignation from Whitehall to Washington, Brussels to Madrid, heroic special forces would be dispatched to rescue their leader and, as sport, smash up the source of such flagrant international gangsterism. Editorials would cheer them on, perhaps reminding readers that this kind of piracy was exhibited by the German Reich in the 1930”.
All this goes to show that matters of State should mesh with a substantial dollop of diplomacy, and international relations should transcend the strict interpretation and reading of the law. As was seen in the Flight 101 accident in Western Russia, the authorities disregarded the explicit words of Article 3 of the Chicago Convention, arguably in the interests of expedition and efficiency and with minimum insult to the Chicago Convention. Similarly, when the events of 11 September 2001 occurred which applied purely to domestic flights in the United States, ICAO, which is governed by the Chicago Convention (which is purely applicable to international civil aviation) sprang to life, mostly at the behest of its member States.
At the end of the day, intergovernmental accord is the result of diplomacy, as enunciated by the Preamble to the Chicago Convention which recognizes that civil aviation and its development must go to ensuring friendship and understanding among the people of the world. It resonates a message of peace and harmony among nations of the world through aviation. One could well close with the words of the United States delegation at the Chicago Conference which led to the adoption of the Chicago Convention: “It is therefore the view of the United States, that, without prejudice to full rights of sovereignty, we should work upon the basis of exchange of needed privileges and permissions which friendly nations have a right to expect from each other.