UK: Northern Cyprus: English Court Rejects Traffic Rights Appeal

Kibris Türk Hava Yollari and CTA Holidays v Secretary of State for Transport, 28 July 2009

The status of Northern Cyprus raises difficult questions of international law as well as being the subject of political dispute and had to be considered recently by the English Court in the context of applications for air traffic rights.

Cyprus Turkish Airlines ("CTA") had applied for permission to carry UK passengers on services to Northern Cyprus; both CTA and its subsidiary, CTA Holidays, also sought an operating permit for a number of charter flights between the UK and Northern Cyprus. The UK Secretary of State for Transport ("SoS") refused the applications; proceedings ensued and the SoS's defence was supported by the Republic of Cyprus as an Interested Party.

The complex issues raised by this case arise from existence of two autonomous administrations in Cyprus - the Greek Cypriot community and the Turkish Cypriot community, the declaration by the latter in 1983 of an independent state in Northern Cyprus called the Turkish Republic of Northern Cyprus (TRNC) and the position of the international community vis-à-vis the TRNC. The English Court acknowledged that the TRNC is not recognised by any state other than Turkey but also acknowledged that there is undoubtedly an established government in the TRNC. Moreover, there is a fully functioning Civil Aviation Department in Northern Cyprus which administers civil aviation. Those governing the TRNC support direct scheduled and charter flights into the airport at Ercan in Northern Cyprus whilst the government of the Republic of Cyprus has consistently opposed such flights.

It was common ground that UK government policy is to support direct flights to Northern Cyprus but only if it is lawful to do so. Following analysis in particular of various provisions on the Chicago Convention ("Chicago"), the Court held that it would not be lawful for the SoS to grant the claimants' applications.

Article 1 of Chicago provides that every contracting state has complete and exclusive sovereignty over the airspace above its territory; Article 2 defines "territory" as the land and adjacent territorial waters which are "under the sovereignty" of a contracting state. Following argument by both sides, the Court's conclusion was that "sovereignty" in Chicago has the same meaning as it has in customary public international law and effectively means the right to exercise the functions of a state in regard to a particular area of the world. Crucially, the Court took the view that a state retains sovereignty over an area even if it does not effectively control that territory. Consequently, the relevant "state" for Chicago purposes is the Republic of Cyprus (which is a contracting party to Chicago), and the relevant territory is the whole of the island of Cyprus. Therefore, pursuant to Chicago, the Republic of Cyprus is entitled to exclusive sovereignty over the airspace above the whole island and it does not matter for these purposes that the Republic does not control Northern Cyprus. In these circumstances, given that the UK is obliged to respect the rights of other contracting states to Chicago, it would be a breach of that obligation if it were to grant the claimants' applications in the face of opposition to those applications from the Republic of Cyprus.

The Court also held that there could be no valid argument that the rights created by Chicago had become suspended or that it had become impossible for those rights to be exercised. Suspension does not occur automatically; rather it would have to be invoked by the Republic, which was not the case here. Further, the rights created by Chicago were capable of being exercised by the Republic, notwithstanding that it does not have effective control over the TRNC; no question of impossibility could therefore arise.

Finally, the Court touched on questions of recognition - or otherwise - of the TRNC and whether the granting of the claimants' applications would amount to a recognition of the government of TRNC. The Court concluded that the UK Government's consistent position has been that it does not recognise as a state the area of Cyprus controlled by the TRNC; that the claimants had demonstrated that the Government of the TRNC is in effective control of Northern Cyprus and conducts itself as far as it can as if it were a signatory to Chicago; and that the grant of the applications by the UK Government in those circumstances could only be consistent with recognition of the TRNC and would therefore be in complete contradiction to the UK's consistently stated position.

The Court's overall conclusion therefore was that, in the light of treaty and other obligations, the SoS was bound to refuse the applications. The judgment raises some detailed arguments on treaty interpretation as well as dealing with issues which are complex and highly political in nature.

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