More on the Dispute Over Khojaly Airport
January 28, 2013 - 2:27pm
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’s plans to operate an airport at Khojaly, a town in the disputed territory of Nagorno-Karabakh, and Azerbaijan’s 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
I am writing with regard to an item, Karabakh Flights: Getting Legal Counsel, published January 22 in Joshua Kucera’s blog, The Bug Pit, which appears on EurasiaNet.org. I found the above-mentioned, unnamed legal counsel’s 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’s authorities.
The intention of Armenia to operate flights into Azerbaijan’s airspace without Baku’s 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’s airspace.
The ICAO, as a specialized UN agency, follows guidelines established by the United Nations. Azerbaijan’s 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’s 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’s 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’s 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’s 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’s 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 “complete and exclusive sovereignty over the airspace above its territory” and Article 3 bis allows states to “require 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’s broad statement of “complete and exclusive sovereignty” does not give a state the right to do anything it wants to an intruding aircraft. If a plane enters another sovereign’s 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’t 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’s Article 3a bis explicitly says that “every State must refrain from resorting to the use of weapons against civil aircraft in flight.” Barguirov tries to use Article 3b bis to his advantage by mentioning how it does grant that “"[E]very State ... is entitled to require the landing … 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: “For 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.” 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’t 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’t apply to non-civil aircraft. The Convention explicitly states that it refers only to “civil aircraft, and shall not be applicable to state aircraft” (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’s 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.
If the first flight is a civil aircraft, it falls within the Convention, otherwise it doesn’t.
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’s 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.