“22. The TRNC has never been recognised by any state except Turkey since its inception. Conversely, the Republic of Cyprus continues to enjoy international recognition …. 23. There is no doubt, as a matter of fact, that there exists in the TRNC an established government; it governs the area of Cyprus which is north of ‘the green line’; it has done so continuously since 1983. Indeed, in his witness statement, Mr Garip says that Northern Cyprus and its population has been under the de facto control of an autonomous and fully functioning administration operated by Turkish Cypriots since 1974. As I have said, there currently exists a constitution which provides for an executive, a judiciary and a democratically elected legislature. The legislature has passed and continues to pass a body of civil and criminal law covering most aspects of normal living and trade and movement of persons, goods and services. Laws are administered and enforced by relevant officials, the police and the courts. Mr Garip points out that the Government of the United Kingdom has from time to time made use of the legal system which subsists in the Northern part of the island. For example, authorities in the United Kingdom have ensured that evidence is available in trials before the courts in Northern Cyprus.”
“24. … There currently exists a Civil Aviation Department within a Ministry of Communications and Public Works with responsibility for the administering of civil aviation in Northern Cyprus. Aircraft and their operators in Northern Cyprus are required to comply with the Aeronautical Information Publication (‘AIP’) published by the Civil Aviation Department from time to time. Extracts from the publication are set out in Mr Garip’s witness statement …; the AIP clearly seeks to follow the model of documents issued by the International Civil Aviation Organisation (‘ICAO’). The airport at Ercan has been designated as a customs airport for the purposes of the Customs and Excise Law (Law no. 37/1983) enacted by the legislature in Northern Cyprus. Ercan was modernised and upgraded in 2003. It is apparently designed to comply with applicable ICAO standards in relation to airports.”
“The Government is committed to ending the isolation of the Turkish Cypriot community, and supports the initiatives of the European Union and of the United Nations in this respect. In that context, the Government has expressed the belief that direct flights between the United Kingdom and northern Cyprus would contribute materially to ending the isolation of the Turkish Cypriots. Were there no legal obstacle, it would give full consideration to applications such as those which prompted the contested decision.”
“Article 1 Sovereignty The contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory. Article 2 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.”
“Article 5 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. Article 6 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 authorization of that State, and in accordance with the terms of such permission or authorization. … Article 10 Landing at customs airport Except in a case where, under the terms of this Convention or a special authorization, 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 airports shall be published by the State and transmitted to the International Civil Aviation Organization established under Part II of this Convention for communication to all other contracting States.”
“Article 68 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 such service may use.”
“The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of the treaty.”
“Article 61 Supervening impossibility of performance 1. 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 ….”
“Article 73 Cases of State succession, State responsibility and outbreak of hostilities The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.”
“46. The Court has no need to dwell upon the question of the applicability in the present case of the Vienna Convention of 1969 on the Law of Treaties. It needs only to be mindful of the fact that it has several times had occasion to hold that some of the rules laid down in that Convention might be considered as a codification of existing customary law. The Court takes the view that in many respects this applies to the provisions of the Vienna Convention concerning the termination and suspension of the operation of treaties, set forth in Articles 60 to 62 …. 47. Nor does the Court need to dwell upon the question of the relationship between the law of treaties and the law of State responsibility, to which the Parties devoted lengthy arguments, as those two branches of international law obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of a State which proceeded to it, is to be made under the law of State responsibility. Thus the Vienna Convention of 1969 on the Law of Treaties confines itself to defining – in a limitative manner – the conditions in which a treaty may lawfully be denounced or suspended; while the effects of a denunciation or suspension seen as not meeting those conditions are, on the contrary, expressly excluded from the scope of the Convention by operation of Article 73.”
“… It is not the view of His Majesty’s Government that multilateral conventions ipso facto should lapse with the outbreak of war, and this is particularly true in the case of conventions to which neutral Powers are parties. Obvious examples of such conventions are the International Air Navigation Convention of 1919 [the predecessor of the Chicago Convention] and various postal and telegraphic conventions. Indeed, the true legal doctrine would appear to be that it is only the suspension of normal peaceful relations between belligerents which renders impossible the fulfilment of multilateral conventions insofar as concerns them, and operates as a temporary suspension as between the belligerents of such conventions ….”
“62. … At the risk of repetition, the rights conferred by Article 5, 6, 10 and 68 of the Convention are capable of being exercised by the Interested Party for the reasons explained above notwithstanding that it does not have effective control over the TRNC. 63. This same line of reasoning is fatal to the submissions made on behalf of the Claimants to the effect that the rights conferred upon the Interested Party under Articles 5, 6, 10 and 68 of the Convention have become suspended by virtue of other doctrines of law which permit the suspension of rights (or obligations) in defined circumstances. Each of these doctrines has at its heart the notion that events have occurred which prevent the exercise of the rights in question or that events have occurred whereby the legal person subject to an obligation can treat the occurrence of the events as a reason why, at his election, he is absolved from compliance with an obligation. I am not persuaded that any doctrine of public international law exists whereby rights conferred by a treaty are suspended against the will of the legal person upon whom those rights are conferred and in circumstances when the rights can be enjoyed.”
“As from19 November 1971 , China has been represented within the ICAO by the Government of the PRC, which, in principle, may exercise the rights under the Chicago Convention also with regard to Taiwan. However, rights derived from the Convention that require control over territory are suspended with regard to Taiwan. While the Government of the PRC remains competent to assign location indicators to airports in Taiwan and to designate airports throughout Taiwan as customs airports in accordance with Article 10 of the Chicago Convention it has, owing to its lack of territorial control, lost its legislative competence to require aircraft to land only at such designated customs airports. The right under Article 6 of the Chicago Convention to grant special permission or other authorization to operate scheduled air services also requires control over territory and is thus suspended with regard to Taiwan. Non-scheduled air services operated by aircraft of other contracting States do not require any special permission, either by the Government of the PRC or by that of the ROC [the Republic of China].”
“The rights of insurgents in territorial waters depend on the extent of their effective territorial control within the state. They would seem in principle to have the right to close ports under their control merely by an order to that effect without the need to impose a blockade; contrariwise, the parent government is not entitled to close by decree ports which insurgents control (as it is entitled to do in respect of ports under its own control) but must establish an effective blockade in order to do so ….”
“65. It seems to me that this submission ignores the fact that the Interested Party has rights under the Convention (Articles 5, 6, 10 and 68) which it was capable of exercising regardless of whether it controlled the territory in the north of the island of Cyprus. In my judgment it cannot be that treaty rights relating to international aviation and which are capable of being performed (as I have found them to be) are nonetheless suspended by virtue of a principle of customary international law which has evolved and has been strictly confined hitherto in its application to the closure of seaports.”
“International law is a realistic legal system. It takes account of existing power relationships and endeavours to translate them into legal rules. It is largely based on the principle of effectiveness, that is to say, it provides that only those claims and situations which are effective can produce legal consequences. Thus, for instance, if a new State emerges from secession, it will be able to claim international status only after it is apparent that it undisputedly controls a specific territory and the human community living there. Control over the State community must be real and durable. The same consideration holds true for insurgents. If civil strife breaks out within a State, the rebels cannot claim international rights and duties unless they exercise effective authority over a part of the territory concerned …. The principle of effectiveness permeates the whole body of rules making up international law …. The foregoing observations essentially apply to the traditional setting of the international community. Since the First World War a number of States have attempted to make ‘legality’ prevail over sheer force of authority. The main impetus came from the Stimson doctrine of 1932 (see 17.2.2). This doctrine suggested withholding legitimation from certain situations which, although effective, offended values that were increasingly regarded as fundamental.”
“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.”
“This is a highly unusual case in which the interests of the Interested Party, a sovereign state, were under significant challenge. In those circumstances separate representation was completely justified and the interests of justice demand that the unsuccessful party should bear the costs not just of the Defendant but of the Interested Party.”