Tweet
MORE ON THE DISPUTE OVER KHOJALY AIRPORT
http://www.eurasianet.org/node/66459
January 28, 2013 - 2:27pm Nagorno-Karabakh Letters to the Editor
Letters continue to come in to EurasiaNet.org concerning a blog post
that appeared in The Bug Pit on January 8. That original item touched
on Armenia~Rs plans to operate an airport at Khojaly, a town in the
disputed territory of Nagorno-Karabakh, and Azerbaijan~Rs potential
response to the resumption of air traffic there. Today, EurasiaNet.org
is posting two letters that look at different aspects of the Khojaly
airport issue.
Taking Issue with Anonymous Counsel
Farid Shafiyev
I am writing with regard to an item, Karabakh Flights: Getting Legal
Counsel, published January 22 in Joshua Kucera~Rs blog, The Bug Pit,
which appears on EurasiaNet.org. I found the above-mentioned, unnamed
legal counsel~Rs analysis to be a lame excuse for potentially illegal
flights into Azerbaijan's airspace.
The fact that the writer chose to hide behind anonymity is unfortunate
in that it hinders the ability for an honest an open exchange of
opinion. Instead of writing anonymously, I urge the author to get an
official opinion of the International Civil Aviation Organization
(ICAO), of which I am officially accredited to. On a number of
occasions officials have reconfirmed the fact that Azerbaijan has
exclusive sovereignty over its airspace, and the ICAO will not issue
any permit, nor it will give to Khojaly airport an identification
code without the consent of Azerbaijan~Rs authorities.
The intention of Armenia to operate flights into Azerbaijan~Rs airspace
without Baku~Rs consent violates a number of provisions of the Chicago
Convention, in particular its articles 1, 2, 5, 6, 10-16, 24 and 68.
Indeed, it is the government of Armenia, along with some Western
experts, that tries to politicize the issue. From a legal point of
view, there is no room for the operation of Khojaly airport, or the
operation of any unauthorized civilian flight through Azerbaijan~Rs
airspace.
The ICAO, as a specialized UN agency, follows guidelines established by
the United Nations. Azerbaijan~Rs territorial integrity is recognized
and unequivocally reconfirmed by the UN and its governing bodies,
such as the Security Council and the General Assembly.
As for the interception of civilian flights, I can point to arguments
that have already appeared in an article published by EurasiaNet.org.
(Would It Be Justified, Or Wise, For Azerbaijan To Shoot Down Karabakh
Aircraft?, January 16, 2013).
Besides the question of flights, we have to consider the question of
the airport itself. No one can guarantee that civilian aircraft will
not be used for military purposes, such as the delivery of equipment
and personnel. The Republic of Azerbaijan has no access to the Khojaly
airport and does not have the ability to exercise customs control in
accordance with the relevant provisions of the Chicago Convention.
The Armenian side~Rs justification that operations at Khojaly airport
should be permitted for humanitarian reasons is a pretext, one designed
to provide cover for a desire to strengthen its military presence in
the occupied territories of Azerbaijan. It~Rs worth noting that Khojaly
airport was destroyed by Armenian forces in 1992 to prevent its use by
Azerbaijani troops, according to the Armenian reasoning at that time.
Having occupied a vast portion of Azerbaijani territory, Armenia
has been transporting people and cargo overland to Karabakh for many
years, in violation of international law. This situation has allowed
the Armenian armed forces to fortify military installations, and
they continue to do that on even a larger scale today. In addition,
operating flights to and from the Khojaly airport would represent an
expansion of Armenia~Rs military occupation, encompassing not just
territory, but Azerbaijani airspace as well.
Please Leave the Legal Analysis to Lawyers
By Gabriel Armas-Cardona
This is a response to EurasiaNet~Rs recent interview with Adil
Baguirov, the Board of Directors of the U.S. Azeri Network, asking
whether it would be legal for Azerbaijan to shoot down a plane
flying into the Karabakh airport. Barguirov said it would be legal
to shoot down the plane incorrectly citing international treaties
for his support. This response is meant to correct his incorrect
legal analysis.
Barguirov~Rs main support is the Convention on International Civil
Aviation (hereinafter the Convention) The Convention has 191 parties
and is undoubtedly accepted international law (likely both customary
law as well as treaty law). His main arguments are that Article 1
of the Convention gives states ~Scomplete and exclusive sovereignty
over the airspace above its territory~T and Article 3 bis allows
states to ~Srequire the landing at some designated airport of a civil
aircraft flying above its territory without authority or if there are
reasonable grounds to conclude that it is being used for any purpose
inconsistent with the aims of this Convention; it may also give such
aircraft any other instructions to put an end to such violations."
Barguirov is playing fast and loose with definitions and
interpretations. A proper reading of the Convention does not
grant the power to shoot down planes, but more importantly, the
Convention is superseded by both international humanitarian law and
the Armenian-Azerbaijan cease-fire agreement, both of which prohibit
the shooting down of a civil aircraft.
Issue 1: The Convention does not give the power to shoot down a plane.
Article 1~Rs broad statement of ~Scomplete and exclusive sovereignty~T
does not give a state the right to do anything it wants to an intruding
aircraft. If a plane enters another sovereign~Rs airspace, that would
be a violation, which engages the rules on state responsibility. The
violator has to make amends for the violation, and the victim
state can~Rt take unilateral action without giving the violator an
opportunity to make amends (See Article 30 of the Draft rules on the
Responsibility of States for Internationally Wrongful Acts).
The Convention~Rs Article 3a bis explicitly says that ~Severy State
must refrain from resorting to the use of weapons against civil
aircraft in flight.~T Barguirov tries to use Article 3b bis to his
advantage by mentioning how it does grant that ~S"[E]very State ... is
entitled to require the landing ~E of a civil aircraft flying above
its territory without authority or if there are reasonable grounds
to conclude that it is being used for any purpose inconsistent with
the aims of this Convention; it may also give such aircraft any
other instructions to put an end to such violations." But, Barguirov
ignores the very next sentence of Article 3b bis that limits states
to non-lethal force: ~SFor this purpose, the contracting States
may resort to any appropriate means consistent with relevant rules
of international law, including the relevant provisions of this
Convention, specifically paragraph a) of this Article.~T Paragraph a
expressly prohibits the use of force against civil aircraft in flight,
and the relevant rules of international law also prohibit the use of
force against civilian aircraft (see Issue 3).
Issue 2: The Convention won~Rt apply to the first few flights. Even if
the Convention granted the power to shoot down flights, which would
make flying around rogue states much scarier for the average person,
the Convention doesn~Rt apply to non-civil aircraft. The Convention
explicitly states that it refers only to ~Scivil aircraft, and shall
not be applicable to state aircraft~T (Article 2a). The first flight
from or to Karabakh will almost certainly be a state aircraft,
and thus outside the scope of this convention.* Even if we assume
that the Convention does grant the power to shoot down planes and
Azerbaijan threatens to shoot down only the first civilian flight
as defined within the Convention, Azerbaijan still could not legally
shoot down a plane because of issue 3.
Issue 3: There is lex specialis that prohibits shooting down a civilian
aircraft. Armenia and Azerbaijan are in a special relationship unlike
all other members of the Convention. Their frozen conflict imposes
extra obligations on each of them that would not exist for states
not at war. Those extra obligations are the Laws of War, primarily
international humanitarian law. International humanitarian law trumps
whatever legal rights or obligations granted by the Convention. This
is a standard canon of interpretation where the specialized law (lex
specialis) trumps the general law (lex generalis). International
humanitarian law explicitly prohibits the targeting of civilians
including civilian flights.
There is also an even higher level of lex specialis: the ceasefire
agreement signed by Armenia and Azerbaijan. Shooting down a plane
is an obvious violation of the ceasefire agreement, as is flying a
plane into the airspace of another. However, not all violations are
created equal. A violation of the cease-fire agreement is justified if
it~Rs a proportional response to a violation by the other side, but
shooting down an Armenian plane for merely entering airspace claimed
by Azerbaijan is not proportional. Only if the Armenian plane attacked
or an attack was imminent could Azerbaijan respond with deadly force.
To recap:
If the first flight is a civil aircraft, it falls within the
Convention, otherwise it doesn~Rt.
The Convention does not allow states to shoot down civil aircraft.
Regardless of whether the Convention applies, international
humanitarian law prohibits the targeting of civilians and international
humanitarian law takes priority over the Convention.
If the first flight was a military aircraft, Azerbaijan could
destroy it under international humanitarian law, but it would be
a disproportional violation of the ceasefire agreement unless the
military aircraft attacked or was about to attack Azerbaijan.
* Article 2c does list a requirement for state aircraft to acquire
permission to fly over or within a territory, but the Convention
cannot list a penalty for such a violation without contradicting
the text of Article 2a. Article 2c must be read as a reiteration of
existing international law rather than some new obligation.
Editor's note: Farid Shafiyev is the ambassador of the Republic of
Azerbaijan to Canada. He is also Azerbaijan~Rs permanent representative
to the International Civil Aviation Organization. Gabriel Armas-Cardona
is a lawyer in New York State and was a legal fellow at the Office of
the Human Rights Defender of the Republic of Armenia. He regularly
comments on the political and human rights situation of Armenia on
his blog.
http://www.eurasianet.org/node/66459
January 28, 2013 - 2:27pm Nagorno-Karabakh Letters to the Editor
Letters continue to come in to EurasiaNet.org concerning a blog post
that appeared in The Bug Pit on January 8. That original item touched
on Armenia~Rs plans to operate an airport at Khojaly, a town in the
disputed territory of Nagorno-Karabakh, and Azerbaijan~Rs potential
response to the resumption of air traffic there. Today, EurasiaNet.org
is posting two letters that look at different aspects of the Khojaly
airport issue.
Taking Issue with Anonymous Counsel
Farid Shafiyev
I am writing with regard to an item, Karabakh Flights: Getting Legal
Counsel, published January 22 in Joshua Kucera~Rs blog, The Bug Pit,
which appears on EurasiaNet.org. I found the above-mentioned, unnamed
legal counsel~Rs analysis to be a lame excuse for potentially illegal
flights into Azerbaijan's airspace.
The fact that the writer chose to hide behind anonymity is unfortunate
in that it hinders the ability for an honest an open exchange of
opinion. Instead of writing anonymously, I urge the author to get an
official opinion of the International Civil Aviation Organization
(ICAO), of which I am officially accredited to. On a number of
occasions officials have reconfirmed the fact that Azerbaijan has
exclusive sovereignty over its airspace, and the ICAO will not issue
any permit, nor it will give to Khojaly airport an identification
code without the consent of Azerbaijan~Rs authorities.
The intention of Armenia to operate flights into Azerbaijan~Rs airspace
without Baku~Rs consent violates a number of provisions of the Chicago
Convention, in particular its articles 1, 2, 5, 6, 10-16, 24 and 68.
Indeed, it is the government of Armenia, along with some Western
experts, that tries to politicize the issue. From a legal point of
view, there is no room for the operation of Khojaly airport, or the
operation of any unauthorized civilian flight through Azerbaijan~Rs
airspace.
The ICAO, as a specialized UN agency, follows guidelines established by
the United Nations. Azerbaijan~Rs territorial integrity is recognized
and unequivocally reconfirmed by the UN and its governing bodies,
such as the Security Council and the General Assembly.
As for the interception of civilian flights, I can point to arguments
that have already appeared in an article published by EurasiaNet.org.
(Would It Be Justified, Or Wise, For Azerbaijan To Shoot Down Karabakh
Aircraft?, January 16, 2013).
Besides the question of flights, we have to consider the question of
the airport itself. No one can guarantee that civilian aircraft will
not be used for military purposes, such as the delivery of equipment
and personnel. The Republic of Azerbaijan has no access to the Khojaly
airport and does not have the ability to exercise customs control in
accordance with the relevant provisions of the Chicago Convention.
The Armenian side~Rs justification that operations at Khojaly airport
should be permitted for humanitarian reasons is a pretext, one designed
to provide cover for a desire to strengthen its military presence in
the occupied territories of Azerbaijan. It~Rs worth noting that Khojaly
airport was destroyed by Armenian forces in 1992 to prevent its use by
Azerbaijani troops, according to the Armenian reasoning at that time.
Having occupied a vast portion of Azerbaijani territory, Armenia
has been transporting people and cargo overland to Karabakh for many
years, in violation of international law. This situation has allowed
the Armenian armed forces to fortify military installations, and
they continue to do that on even a larger scale today. In addition,
operating flights to and from the Khojaly airport would represent an
expansion of Armenia~Rs military occupation, encompassing not just
territory, but Azerbaijani airspace as well.
Please Leave the Legal Analysis to Lawyers
By Gabriel Armas-Cardona
This is a response to EurasiaNet~Rs recent interview with Adil
Baguirov, the Board of Directors of the U.S. Azeri Network, asking
whether it would be legal for Azerbaijan to shoot down a plane
flying into the Karabakh airport. Barguirov said it would be legal
to shoot down the plane incorrectly citing international treaties
for his support. This response is meant to correct his incorrect
legal analysis.
Barguirov~Rs main support is the Convention on International Civil
Aviation (hereinafter the Convention) The Convention has 191 parties
and is undoubtedly accepted international law (likely both customary
law as well as treaty law). His main arguments are that Article 1
of the Convention gives states ~Scomplete and exclusive sovereignty
over the airspace above its territory~T and Article 3 bis allows
states to ~Srequire the landing at some designated airport of a civil
aircraft flying above its territory without authority or if there are
reasonable grounds to conclude that it is being used for any purpose
inconsistent with the aims of this Convention; it may also give such
aircraft any other instructions to put an end to such violations."
Barguirov is playing fast and loose with definitions and
interpretations. A proper reading of the Convention does not
grant the power to shoot down planes, but more importantly, the
Convention is superseded by both international humanitarian law and
the Armenian-Azerbaijan cease-fire agreement, both of which prohibit
the shooting down of a civil aircraft.
Issue 1: The Convention does not give the power to shoot down a plane.
Article 1~Rs broad statement of ~Scomplete and exclusive sovereignty~T
does not give a state the right to do anything it wants to an intruding
aircraft. If a plane enters another sovereign~Rs airspace, that would
be a violation, which engages the rules on state responsibility. The
violator has to make amends for the violation, and the victim
state can~Rt take unilateral action without giving the violator an
opportunity to make amends (See Article 30 of the Draft rules on the
Responsibility of States for Internationally Wrongful Acts).
The Convention~Rs Article 3a bis explicitly says that ~Severy State
must refrain from resorting to the use of weapons against civil
aircraft in flight.~T Barguirov tries to use Article 3b bis to his
advantage by mentioning how it does grant that ~S"[E]very State ... is
entitled to require the landing ~E of a civil aircraft flying above
its territory without authority or if there are reasonable grounds
to conclude that it is being used for any purpose inconsistent with
the aims of this Convention; it may also give such aircraft any
other instructions to put an end to such violations." But, Barguirov
ignores the very next sentence of Article 3b bis that limits states
to non-lethal force: ~SFor this purpose, the contracting States
may resort to any appropriate means consistent with relevant rules
of international law, including the relevant provisions of this
Convention, specifically paragraph a) of this Article.~T Paragraph a
expressly prohibits the use of force against civil aircraft in flight,
and the relevant rules of international law also prohibit the use of
force against civilian aircraft (see Issue 3).
Issue 2: The Convention won~Rt apply to the first few flights. Even if
the Convention granted the power to shoot down flights, which would
make flying around rogue states much scarier for the average person,
the Convention doesn~Rt apply to non-civil aircraft. The Convention
explicitly states that it refers only to ~Scivil aircraft, and shall
not be applicable to state aircraft~T (Article 2a). The first flight
from or to Karabakh will almost certainly be a state aircraft,
and thus outside the scope of this convention.* Even if we assume
that the Convention does grant the power to shoot down planes and
Azerbaijan threatens to shoot down only the first civilian flight
as defined within the Convention, Azerbaijan still could not legally
shoot down a plane because of issue 3.
Issue 3: There is lex specialis that prohibits shooting down a civilian
aircraft. Armenia and Azerbaijan are in a special relationship unlike
all other members of the Convention. Their frozen conflict imposes
extra obligations on each of them that would not exist for states
not at war. Those extra obligations are the Laws of War, primarily
international humanitarian law. International humanitarian law trumps
whatever legal rights or obligations granted by the Convention. This
is a standard canon of interpretation where the specialized law (lex
specialis) trumps the general law (lex generalis). International
humanitarian law explicitly prohibits the targeting of civilians
including civilian flights.
There is also an even higher level of lex specialis: the ceasefire
agreement signed by Armenia and Azerbaijan. Shooting down a plane
is an obvious violation of the ceasefire agreement, as is flying a
plane into the airspace of another. However, not all violations are
created equal. A violation of the cease-fire agreement is justified if
it~Rs a proportional response to a violation by the other side, but
shooting down an Armenian plane for merely entering airspace claimed
by Azerbaijan is not proportional. Only if the Armenian plane attacked
or an attack was imminent could Azerbaijan respond with deadly force.
To recap:
If the first flight is a civil aircraft, it falls within the
Convention, otherwise it doesn~Rt.
The Convention does not allow states to shoot down civil aircraft.
Regardless of whether the Convention applies, international
humanitarian law prohibits the targeting of civilians and international
humanitarian law takes priority over the Convention.
If the first flight was a military aircraft, Azerbaijan could
destroy it under international humanitarian law, but it would be
a disproportional violation of the ceasefire agreement unless the
military aircraft attacked or was about to attack Azerbaijan.
* Article 2c does list a requirement for state aircraft to acquire
permission to fly over or within a territory, but the Convention
cannot list a penalty for such a violation without contradicting
the text of Article 2a. Article 2c must be read as a reiteration of
existing international law rather than some new obligation.
Editor's note: Farid Shafiyev is the ambassador of the Republic of
Azerbaijan to Canada. He is also Azerbaijan~Rs permanent representative
to the International Civil Aviation Organization. Gabriel Armas-Cardona
is a lawyer in New York State and was a legal fellow at the Office of
the Human Rights Defender of the Republic of Armenia. He regularly
comments on the political and human rights situation of Armenia on
his blog.