The impact of the decision to close the airspace of Bahrain, Saudi Arabia and UAE to Qatar

Bahrain, Egypt, Saudi Arabia and UAE severed diplomatic ties with Qatar on Monday 5 June 2017 accusing Qatar of supporting extremist groups. As part of this process Bahrain, Egypt, Saudi Arabia and the UAE closed their airspace to flights landing and taking off between their respective countries and Qatar. At the same time Saudi Arabia took the further step of shutting its airspace to Qatar and subsequently some news sources advised that the UAE has now also closed its airspace to Qatar. Accordingly Qatar Airways (the only scheduled airline in the state of Qatar) can no longer fly over Saudi Arabia or UAE airspace.

Some local news stations have reported that UAE authorities are allowing non-Qatari
aircraft to fly in and out of Doha however the UAE GCAA (the UAE equivalent of the CAA or FAA) has yet to confirm this in writing.

Qatar airspace is essentially landlocked, being surrounded by the airspace of Bahrain
(to the north and west), Saudi Arabia (to the south) and the UAE (to the east). All flights
to and from Qatar will need to overfly Bahrain air space. There are also some reports
that Bahrain is requiring all Qatar Airways flights overflying its airspace to obtain Special Authorisation. Given that Qatar Airlines is continuing to operate flights, flying along a narrow corridor across Bahraini airspace into Iran for all onward journeys, it would appear that this permission is, for the moment, being granted. Prior to the closure of airspace to Qatar flights, flights from Qatar to Europe tracked north of Saudi Arabia, flights to Africa overflew Saudi Arabian airspace and flights to India and South East Asia overflew UAE airspace.

If Bahrain were to extend the ban to include aircraft overflying their airspace or refuse
to grant Special Authorisation this would essentially ground Qatar Airways. It might be
reasonable to assume that the loss of access to UAE airspace would considerably impact Qatar Airways as they have a significant presence there. However Qatar Airways has publicly stated that they are largely unaffected by recent events.

The region does not have a single party-neutral bloc (unlike Europe) and therefore
international conventions and agreements as well any bilateral or multilateral agreements must be considered when assessing the legality of a country’s decision to close its airspace.

The Chicago Convention (the “Convention”) to which Qatar, Bahrain, Saudi Arabia
and the UAE are all signatories, specifies that every state has complete and exclusive
jurisdiction over the airspace above its territory. The Convention further provides that
scheduled flights may only operate over territory of a contracting state in accordance
with “the terms of such permission or authorisation”. As such the granting of permission
or authorisation to access a country’s airspace is at the discretion of each contracting
state (and could be withdrawn), subject to any other international convention or
multilateral or bilateral agreement in place. It should be noted that under the Convention non-scheduled services have the right to fly into or over a contracting state’s territory and to make stops for non-traffic services, without the necessity of obtaining prior permission but subject to the right of the state flown over to require landing. With
non-scheduled flights, only for reasons of flight safety can the contracting state require
aircraft to follow a prescribed route or obtain special permission.

Bahrain, UAE and Qatar are also signatories to the 1994 International Air Services
Transit Agreement (the “Two Freedoms Agreement”). Saudi Arabia is not a signatory.
The Two Freedoms Agreement grants to other contracting states the right to fly
scheduled international services across its territory without landing and to land for
non-traffic purposes. Contracting states to the Two Freedoms Agreement have the
right to withhold or revoke any certificate or permit where the air transport enterprise
of another State has inter alia, failed ‘to comply with the laws of the State over which
it operates’. Unless it can be said that Qatar Airways has failed to comply with Bahraini
and UAE law by itself supporting extremist groups, it could be asserted that Bahrain
and the UAE are potentially in breach of the Two Freedoms Agreement by closing their
airspace to Qatar. The Two Freedoms Agreement does have what effectively amounts
to a termination provision, but this requires a contracting state to provide one year’s
notice, which clearly neither Bahrain nor UAE have done in this instance. There is also a
mechanism for a contracting state, if they deem an action by another contracting state
to be causing injustice or hardship, to ask the Council of ICAO to examine the situation.
The Council has the power to investigate and make findings and recommendations but
the penalties for failing to take remedial action are limited to suspension of the rights and privileges under the Agreement.
Apart from multilateral agreements and treaties, and pursuant to the Chicago provisions,
individual states regulate their scheduled air services bi-laterally between each other in
Air Service Agreements (“ASAs”). Thus ASAs between the countries may provide further
insight into Bahrain, Saudi Arabia and the UAE’s ability to simply withdraw access to
airspace (whether limited to access for landing and take-off or extended to overflying).
Such agreements may well allow countries to withdraw access to their airspace but this
is generally in very limited circumstances and with a notice period on taking such action
that is often significant.

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