Air Navigation in Abkhazia: Another Inter-State Litigation between Georgia and Russia in the Making?

In November 2020 the President of the Russian Federation, Vladimir Putin, held a meeting with the head of Georgia’s breakaway region of Abkhazia to discuss relations between Russia and the de facto entity. According to the Abkhaz leader, an agreement was reached to restore the functioning of the Sokhumi airport. Russian plans to renovate the airport in Sokhumi have also been unveiled before, resulting in Tbilisi’s condemnation that such plans violate international law and Georgian legislation.

The possible operation of flight services in Abkhazian sky – a portion of airspace that falls beyond Georgia’s effective control – raises important legal questions related to the air traffic and designation of airports without state consent, sovereignty over the air space, and prospects of inter-state dispute in various international mechanisms.

The UN recognises Georgian authorities as a legitimate government of Abkhazia, which is widely considered as occupied territory by scholars (see Benvenisti (2012:61) Dinstein (2019:xiii,13) Kalandarishvili-Mueller (2020:70-74) and here); various international organisations (e.g. EU, CoE) and NGOs (Amnesty International (2019:18), RULAC project).

International Air Navigation in Territories Beyond Effective Control of Legitimate Government

International air law upholds the principle of sovereignty, which lies at the heart of it. The opening clauses of the Chicago Convention (art.1.2) underline that every State has complete and exclusive sovereignty over the airspace above its territory, which is further defined as the land areas and territorial waters adjacent thereto under the sovereignty […] of such State. Commentaries (2014:16) to the Chicago Convention spell out three pillars of the sovereignty of airspace, which are (1) the use of airspace; (2) the nature of its possession and (3) the nature of its control to the exclusion of others. This interpretation suggests that each state has complete sovereignty over its airspace, even if a portion of its airspace is beyond effective governmental control. Additionally, states have discretion as to which aircraft to allow in their airspace and, most importantly, exercise of state functions regarding its airspace happens to the exclusion of all other states. Any interference in air sovereignty is linked to the potential violation of the principle of non-intervention provided in the 1970 Declaration of Principles. Furthermore, the Chicago Convention upholds the exclusive right of the member states to designate airports (art.68) for international flights and to let scheduled (art.6) or non-scheduled flights (art.5) in and over its airspace. Moreover, exclusive sovereignty over the airspace also allows states to declare part of their airspace as a no-fly zone for security reasons (art.9-a).

Given the absence of special rules governing air navigation in territories that are beyond the effective control of the legitimate government and applying above-described general norms, it is obvious that the legitimate government is the only sovereign who can regulate air navigation in the airspace of such territories and any interference from third states in this matter would be considered as a violation of the principle of sovereignty.

Exercise of the right of sovereignty was a critical factor in the case of Kibris Tűrk Hava Yollari v. SS Transport at the UK Court of Appeal, which discussed the legality of international flight services in Nicosia Airport, over which Cyprus was not exercising effective control. The Court noted that Cyprus’s rights under the Chicago Convention are capable of being exercised even without effective control over the territory [Nicosia Airport] itself. The rights may not be fully effective and enforceable, but they can be exercised effectively, as has been done in practice, by withholding permission for, or imposing limitations on, flights over the territory and by the non-designation of airports in the territory. Republic of Cyprus is entitled to rely on other states to honour their obligations under international law to respect its decisions on such matters (para.38). In finding so, the Court, inter alia, relied on scholarly views of Talmon (2005:30), who suggested that states starting flights to Northern Cyprus against the expressed wish of the Republic of Cyprus (legitimate government), breach their obligations under the Chicago Convention.

Claims of similar nature have reached the Assembly of the International Civil Aviation Organization (ICAO) when Israel started the operation of Jerusalem Airport. The Assembly in its resolution A21-7 (1974) recognised that Jerusalem airport fell under the jurisdiction of Jordan and called upon all states to refrain from any air services to and from Jerusalem without the prior consent of Jordan. Additionally, in its resolution A23-5 (1980) the Assembly condemned Israel’s disregard of previously taken ICAO decisions and deeply deplored Israel’s unilateral action of formally annexing Jerusalem, including its airport, and declared such action null and void.

Consequently, the law and practice of air navigation in territories beyond the control of legitimate government demonstrate that none of the states (other than the territorial state) are authorised to either open airport or operate flight services in such territories without the prior consent of the legitimate government pursuant to the Chicago Convention.

The legality of Reopening of Sokhumi Airport for International Flights

Since 2008 Georgia banned all flights in the airspace of Abkhazia and made it clear that it does not plan to apply to ICAO to declare customs airport in Sokhumi. Despite this, the de facto Abkhaz cabinet adopted a legal act, which unilaterally designated a four-symbol code for Sokhumi airport and called upon relevant bodies to instigate negotiations with Russia to include Sokhumi Airport into Aeronautical Information Service (AIS) of Russia (art. 2.3).

So far, Russian and Abkhazian officials only agreed on the need for complete renovation of air traffic infrastructure, with active works anticipated to start as early as March 2021; however, if Russia takes steps towards the inclusion of Sokhumi Airport in its AIS and supporting Abkhazia to operate the airport for international flights, this will raise concerns over possible violation of at least seven different provisions of the Chicago Convention by Russia, as a contracting party.

First, Russia’s move to operate an airport in Sokhumi without prior authorisation from Georgia could be qualified as a violation of sovereignty and territory clauses as enshrined in articles 1 and 2 of the Chicago Convention. Secondly, the launch of flight services to and from Sokhumi will violate articles 5 and 6, which permit any flight services (scheduled or non-scheduled) only with approval of the territorial state, which is Georgia in our case. Thirdly, as Abkhazia’s airspace is declared a no-fly zone by Georgia, any flights in this space would violate article 9(a), which rules out flight operation in prohibited areas. Furthermore, flight operation in Abkhazia would conflict with Russia’s commitments under article 12, which obliges contracting states to adopt such regulations, which ensure compliance with the domestic legislation of the country, in which its flag-aircrafts fly. Finally, under article 68 of the Chicago Convention, only territorial states are entitled to designate the route to be followed within its territory by any international air service and the airports which any such service may use, therefore any attempts to reopen Sokhumi airport without Georgia’s consent would violate this rule.

Dispute Resolution Mechanisms for Possible Claims of Georgia

The Chicago Convention provides dispute resolution mechanisms in case of disagreement between contracting parties over application or interpretation of the Convention. In such circumstances, the ICAO Council acts as a quasi-judicial body to adjudicate the dispute. Article 84 provides that any disagreement that cannot be settled by negotiation, shall be decided by the Council. Moreover, any party to the dispute can appeal from the decision of the Council to either a jointly agreed arbitral tribunal or to the ICJ. Commentaries (2014:663) to the Chicago Convention specify that this provision reflects two significant points: the first is that contracting states should attempt to resolve their dispute by themselves, through negotiation; the second is that the Council possesses decision-making power, and its decisions are juridically dignified. However, it is worth noting that the Council is composed of states and its decisions would always be based on policy and equity considerations rather than on pure legal grounds (ibid:666). That is why article 84 reserves the right of any party to the dispute to appeal from the Council decision to a ‘truly’ legal body such as an arbitral tribunal or the ICJ.

Therefore, if Georgia decides to pursue legal proceedings against Russia for violating the Chicago Convention, it should first initiate negotiations specifically on that matter and only if parties fail to reach a deal, refer the case to the ICAO Council for adjudication and afterwards institute proceedings at the ICJ. Notably, Georgia attempted to bring Russia to the ICJ in 2008, when it lodged an application based on the CERD (art.22), but as it has somewhat similar procedures like the Chicago Convention related to negotiations and adjudication at the special committee before referring the case to the ICJ, Georgia’s application was declared inadmissible. Given the previous failed effort to challenge Russia’s actions in Abkhazia at the ICJ, Georgia needs to be incredibly careful if it decides to initiate litigation under the Chicago Convention. It may not skip the first two stages (like it did in 2008) – negotiations and adjudication at the Council – before starting proceedings at the ICJ.

The author wishes to cordially thank Mr. Teimuraz Antelava (International Development Law Organization and European University Institute) for engaging discussions and feedback, which inspired earlier thoughts of the author on the topic of this blog post