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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Yollari & Anor, R (on the application of) v Secretary of State for Transport & Anor  EWHC 1918 (Admin) (28 July 2009)
Cite as:  EWHC 1918 (Admin),  1 All ER (Comm) 253
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
KIBRIS TάRK HAVA YOLLARI
|- and -
SECRETARY OF STATE FOR TRANSPORT
|- and -
THE REPUBLIC OF CYPRUS
Mr David Anderson QC, Mr Sam Wordsworth (instructed by The Treasury Solicitors) for the Defendant
Mr Richard Gordon QC, Professor Vaughan Lowe QC, Mr Akhil Shah and Ms Amy Sander (instructed by DLA Piper UK LLP) for the Interested Party
Hearing dates: 18th -21st May 2009
Crown Copyright ©
Mr Justice Wyn Williams:
"[The First Claimant] hereby applies to vary operating permit IASD/KYV/18/W06-07 so as to permit it to take on board and discharge passengers, baggage and cargo at a point or points in the United Kingdom carried or to be carried on services from the United Kingdom to northern Cyprus and vice versa."
The island of Cyprus
"Her Majesty may by Order in Council (to be laid before Parliament after being made) declare that the constitution designated in the Order as the Constitution of the Republic of Cyprus shall come into force on such day as may be specified in the Order; and on that day there shall be established in the island of Cyprus an independent sovereign Republic of Cyprus, and Her Majesty shall have no sovereignty or jurisdiction over the Republic of Cyprus."
By virtue of section 2 the Republic of Cyprus was declared to comprise the entirety of the island of Cyprus with the exception of two areas known as the sovereign base areas. These areas have no relevance to the present dispute.
"Any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the island."
"The ministers noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community."
"The Security Council,
1. Deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus;
2. Considers the declaration referred to above as legally invalid and calls for its withdrawal;
4. Requests the Secretary-General to pursue his mission of good offices, in order to achieve the earliest possible progress towards a just and lasting settlement in Cyprus;
5. Calls upon the parties to cooperate fully with the Secretary General in his mission of good offices;
6. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot state other than the Republic of Cyprus;
"The Security Council
3. Reiterates the call upon all States not to recognise the purported state of the "Turkish Republic of Northern Cyprus" set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity . "
The position of the government of the United Kingdom in relation to recognition of the TRNC
"The British Government recognise only one Cypriot state: the Republic of Cyprus under the Government of President Kyprianou."
"The UK view is that the Head of State duly elected by the Greek Cypriot community in accordance with the Constitution has remained in office and it therefore continues to recognise the existing State of the Republic of Cyprus."
Government Policy in respect of direct flights between the UK and Northern Cyprus
"We continue to believe that direct flights between the UK and North Cyprus would contribute materially to ending the isolation of the Turkish Cypriots and would contribute to the prospects of reunification. It therefore remains our position that we would in principle support the commencement of direct flights to northern Cyprus."
" . It is important that we end the isolation of northern Cyprus . That means lifting the embargo in respect of trade, [and] in respect to air travel."
The Chicago Convention
"WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and
WHEREAS it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends;
THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically;
Have accordingly concluded this Convention to that end."
AND APPLICATION OF THE CONVENTION
Sovereignty over the airspace
The contracting States recognise that every State has complete and exclusive sovereignty above its territory.
For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.
Civil and state aircraft
a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.
b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.
c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorisation by special agreement or otherwise, and in accordance with the terms thereof.
Article 3 bis*
a) The contracting States recognise that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.
Right of non-scheduled flight
Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights.
Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable.
Scheduled air services
No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorisation of that State, and in accordance with the terms of such permission or authorisation.
Landing at customs airport
Except in a case where, under the terms of this Convention or a special authorisation, aircraft are permitted to cross the territory of a contracting State without landing, every aircraft which enters the territory of a contracting State shall, if the regulations of that State so require, land at an airport designated by that State for the purpose of customs and other examination. On departure from the territory of a contracting State such aircraft shall depart from a similarly designated customs airport. Particulars of all designated customs airport shall be published by the State and transmitted to the International Civil Aviation Organisation established under Part II of this Convention for communication to all other contracting States.
THE INTERNATIONAL CIVIL
Name and composition
An organisation to be named the International Civil Aviation Organization is formed by the Convention. It is made up of an Assembly, a Council, and such other bodies as may be necessary.
The aims and objectives of the Organization are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to:
a) Insure the safe and orderly growth of international civil aviation throughout the world;
b) Encourage the arts of aircraft design and operation for peaceful purposes;
c) Encourage the development of airways, airports, and air navigation facilities for international civil aviation;
d) Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport;
e) Prevent economic waste caused by unreasonable competition;
f) Insure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines;
g) Avoid discriminating between contracting States;
h) Promote safety of flight in international air navigation;
i) Promote generally the development of all aspects of international civil aeronautics.
Meetings of Assembly and voting
a) The Assembly shall meet not less than once in three years and shall be convened by the Council at a suitable time and place. An extraordinary meeting of the Assembly may be held at any time upon the call of the Council or at the request of not less than one-fifth of the total number of contracting States addressed to the Secretary General.
b) All contracting States shall have an equal right to be represented at the meetings of the Assembly and each contracting State shall be entitled to one vote. Delegates representing contracting States may be assisted by technical advisers who may participate in the meetings but shall have no vote.
(c) A majority of the contracting States is required to constitute a quorum for the meetings of the Assembly. Unless otherwise provided in this Convention, decisions of the Assembly shall be taken by a majority of the votes cast.
INTERNATIONAL AIR TRANSPORT
AIRPORTS AND OTHER AIR NAVIGATION FACILITIES
Designation of routes and airports
Each contracting State may, subject to the provisions of this Convention, designate the route to be followed within its territory by any international air service and the airports which any such service may use.
War and emergency conditions
In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council.
"The treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose."
As Lord Steyn points out in Re Deep Vein Thrombosis and Air Travel Group Litigation  1 AC 495 at page 508:-
"Article 31 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964) provides that a Treaty shall be interpreted "in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose." This is the starting point of treaty interpretation to which other rules are supplementary: see articles 31(2), 31(3), 31(4), and 32. The primacy of the Treaty language, read in context and purposively, is therefore of critical importance."
"Sovereignty in international law is the right to exercise the functions of a state to the exclusion of all other states in regard to a certain area of the world. It is clear that complete sovereignty extends to the airspace above the territory of the state. In international aviation the concept of sovereignty is the key stone upon which virtually all air law is built, since any flight in international aviation requires the prior consent of the state overflown, which is generally granted by treaty."
"Such aircraft [i.e. non-scheduled flights] if engaged in the carriage of passengers, cargo, or mail for remuneration or hire . shall also have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable."
"A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty."
Recognition of the TRNC
"We have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison of the practice of our partners and allies. On the basis of this review we have decided that we should no longer accord recognition to Governments.
The British Government recognises States in accordance with common international doctrine.
Where an unconstitutional change of regime takes place in a recognised State, Governments of other States must necessarily consider what dealings, if any, they should have with the new regime, and whether and to what extent it qualifies to be treated as the Government of the State concerned. Many of our partners and allies take the position that they do not recognise Governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally "recognising" the new Government.
This practice has sometimes been misunderstood, and, despite explanations to the contrary, our 'recognition' interpreted as implying approval. For example, in circumstances where there may be legitimate public concern about the violation of human rights by the new regime, or the manner in which it achieved power, it has not sufficed to say that an announcement of 'recognition' is simply a neutral formality.
We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to Governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so."
" .. By 'exercising de facto administrative control' or 'exercising effective administrative control', I understand exercising all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government. It necessarily implies the ownership and control of property whether for military or civil purposes, including vessels whether war ships or merchants ships. In those circumstances it seems to me that the recognition of a Government as possessing all those attributes in a territory while not subordinate to any other Government in that territory is to recognise it as sovereign, and for the purposes of international law as a foreign sovereign State .."
" ..how in future, for the purposes of legal proceedings, it may be ascertained whether, on a particular date, Her Majesty's Government regarded a new regime as the Government of the State concerned."
Sir Ian Gilmore replied:-
"In future cases where a new regime comes to power unconstitutionally our attitude on the question of whether it qualifies to be treated as a Government will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular on whether we are dealing with it on a normal Government to Government basis."
"Implied recognition takes place through acts which, although not referring expressly to recognition, leave no doubt as to the intention to grant it."
a) The "TRNC" has established a Civil Aviation Department to "ensure the secure, regular and speedy navigation of those aeroplanes flying, landing and taking off within the airspace of the Turkish Republic of Northern Cyprus within the rules of the International Civil Aviation Organisation (ICAO) legislation ." (Civil Aviation Department Law 41/1989, Section Two, 5(1)(a)).
b) The Civil Aviation Department of the "TRNC" issues Aeronautical Information Publications (AIPs), "prepared in accordance with the Standards and Recommended Practices (SARPs) of Annex 15 to the Convention on International Civil Aviation [CC] and the Aeronautical Information Services Manual (ICAO Doc 8126)". The "TRNC" AIP is replete with reference to ICAO documents and procedures. The AIP designates Ercan as an international aerodrome, stating "Aircraft flying into or departing from the TRNC shall make their first landing at, or final departure from, an international aerodrome"
c) Ercan is designated as a customs airport for the purposes the Customs and Excise law of the TRNC. Ercan is depicted in the AIP on purported ICAO en-route and standard departure charts. So far as concerns the approach route to Ercan, known as route A28, and the Ercan terminal control area, the Claimant asserts in their evidence:
"All of the TMA and the airway to the south of the Ankara FIR boundary is the territory of the TRNC" (see statement of Mr Nihad, the Director of the Department of Civil Aviation of the "TRNC" at paragraph 11)."
" .I would unhesitatingly hold that the courts of this country can recognise the law or acts of a body which is in effective control of a territory even though it has not been recognised by Her Majesty's Government de jure or de facto: at any rate, in regard to the laws which regulates the day to day affairs of the people, such as their marriages, their divorces, their leases, their occupation and so forth; and furthermore that the courts can receive evidence of the state of affairs so as to see whether the body is in effective control or not."
"In general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance the registration of births, deaths and marriages the effects of which can be ignored only to the detriment of the inhabitants of the Territory."
The European Court of Human Rights has expressed similar sentiments in two decisions relating to the island of Cyprus namely Loizidou v Turkey  23 EHRR 513 and Cyprus v Turkey  35 EHRR 731.
Note 1 This Article was introduced by amendment and came into force on 1 October 1998. [Back]
Note 1 This Article was introduced by amendment and came into force on 1 October 1998. [Back]