12/06/2017
On Monday 5 June 2017, Bahrain, Egypt, Saudi Arabia and the United Arab Emirates (the G4) severed diplomatic ties with Qatar and effective 6 June imposed restrictions on flying into, over or out of the State of Qatar and the carriage of Qatari nationals or those holding Qatari residency visas.
As a sign of solidarity, Libya, the Maldives, Mauritania, Mauritius, the Union of the Comoros and Yemen subsequently cut diplomatic ties, Chad, Niger and Senegal recalled their ambassadors, Djibouti reduced its diplomatic presence and Jordan downgraded its diplomatic relations with Qatar.
We consider the current impact of these measures on the aviation industry and in particular the carriage of passengers and cargo into Qatar and across the Gulf Cooperation Council (GCC).
General restrictions on nationals of Qatar and the G4
As part of the measures adopted, the respective governments of Bahrain, Saudi Arabia and the UAE directed that all Qatari citizens leave their territories by 19 June 2017 and likewise their citizens to leave Qatar. Qatar has not reciprocated these requirements and it remains unclear how sanctions against nationals of Bahrain, Saudi Arabia and the UAE will be enforced if they stay in Qatar or the severity of such sanctions.
There are strong historical links between the Gulf States through both tribal alliances and marriage. Doubtless based on requests by their citizens during this Holy month of Ramadan, on 11 June 2017 Bahrain, Saudi Arabia and the UAE respectively announced that telephone hotlines have been established within their Interior Ministries to address any humanitarian circumstances imposed by these restrictions on joint Saudi-Qatari, Bahraini-Qatari and Emirati-Qatari families, for example, those having Qatari spouses.
Egypt has not required the removal of Qataris or the return of its citizens from Qatar likely because there are approximately 250,000 Egyptian nationals residing in Qatar. With the continuation of Egyptian nationals living in Qatar and in view of the cessation of Egypt’s diplomatic ties with Qatar, Greece has agreed to provide consular support to Egyptian nationals in Qatar.
Flight, airline and passenger restrictions
Bahrain
The sovereign airspace of the Qatar lies entirely within the Bahrain Flight Information Region (FIR) [1]. For that reason, the Notice to Airmen (NOTAM) [2] issued by Bahrain has not entirely blocked Qatar’s access to Bahrain FIR but allows limited access to and from Qatar via one entry and one exit point northbound from Qatar into Tehran FIR. In turn, to manage this additional air traffic, the Iranian Aeronautical Information Services has issued a revised NOTAM for Tehran FIR directing Qatar traffic heading north-west to Ankara FIR and east to Karachi FIR and Muscat FIR.
The Bahrain NOTAM also prohibits flights between Bahrain and Qatar. This follows Gulf Air’s announcement of the suspension of flights to and from Qatar effective 6 June and the Bahrain aviation regulator’s cancellation of all licenses granted to Qatar Airways.
In respect of passenger movements, according to the Bahrain News Agency, on 6 June 2017 the Bahrain Cabinet issued directives to all ministries and departments to take necessary measures to effect the severance of diplomatic ties which includes restricting all Qataris from entering or transiting through Bahrain and likewise Bahrainis from travelling to, staying in or transiting through Qatar.
Saudi Arabia
Saudi Arabia’s General Authority of Civil Aviation (GACA) has issued a NOTAM which prohibits all flights registered in Qatar from overflying, or landing in Saudi Arabia effective 6 June 2017. For all non-Saudi or non-Qatari registered aircraft intending to use Saudi airspace to or from Qatar airports are required to coordinate with the GACA within one week from 5 June to establish the procedures for continued use of Saudi airspace. Saudi Arabian Airlines, a member of the Skyteam alliance, suspended flight operations to Qatar from 5 June and the GACA revoked Qatar Airways’ operating license and ordered the closure of its office by 8 June.
In respect of passenger movements, Qatari citizens are prohibited from entering or transiting through Saudi Arabia and likewise Saudi citizens are prohibited from travelling to, residing in or transiting through Qatar. As an exception to this position, the Saudi Press Agency confirmed that Saudi Arabia would continue to “provide all facilities and services” to Qataris embarking on Hajj (which begins on 30 August) and Umrah pilgrimages.
UAE
The UAE’s General Civil Aviation Authority (GCAA) issued a NOTAM which prohibits aircraft registered in Qatar from overflying Emirates FIR or departing or landing at any UAE airports. Air operators not registered in the UAE which intend to use Emirates FIR from or to Qatar are required to obtain the prior approval of the security affairs department of the GCAA. There is no further guidance on the basis that the GCAA will avail such permissions. Whilst the UAE NOTAM does not prohibit UAE airlines from operating into Qatar, the UAE’s main carriers Emirates, Etihad, flydubai and Air Arabia all announced cessation of services to Doha with effect from 6 June.
In respect of passenger movements, on 7 June 2017, the Emirates New Agency (WAM) reported that, applicable to all airlines flying into the UAE, Qatari nationals are banned from travelling into or via the UAE and that expatriates holding Qatari residence visas would not be eligible for visa on arrival in the UAE. In response, both Qantas and Philippine Airlines announced that they would not carry Qataris to the UAE. This position now appears to have been slightly watered-down with UAE newspaper The National reporting on 11 June 2017 that “all UAE airports and borders have been ordered not to prevent any Qatari citizens who are first degree relatives of UAE nationals from passing through”. It remains unclear what sort of documentation Qatari citizens may be required to provide to enable this access.
Implications under international aviation law
Of the G4, Bahrain, Egypt and the UAE are parties to the International Air Services Transit Agreement which was signed in Chicago on 7 December 1944 (the Transit Agreement) pursuant to which contracting parties are availed the privilege of overflight and landing for non-traffic purposes into territories of other contracting parties, which includes Qatar. This, along with other privileges, are also conferred under the terms of each respective bilateral air services agreement (ASAs) between Qatar and the G4. Disputes under the Transit Agreement are to be resolved pursuant to Chapter XVIII of the Convention on International Civil Aviation (known as the Chicago Convention) and disputes under the ASAs are usually resolved pursuant to arbitration.
By consequence of the severing of diplomatic ties by the G4 and the limitation of air traffic rights, the G4 have essentially frozen Qatar’s rights under the Transit Agreement and each ASA. However, it is unlikely that Qatar will seek recourse under these agreements which demonstrates the feeble nature of international aviation law instruments in the event of broader diplomatic disputes. In the future Qatar may seek recourse to ICAO to have the Bahrain FIR divide so that it has its own FIR to enable broader operational control of its airspace.
Practical considerations for the airline industry
This crisis amongst the Arab states has various implications on the carriage of passenger and cargo into, out of and through the GCC. The airline most affected is Qatar Airways which on average, prior to this dispute, operated approximately 56 daily flights to the G4. Qatar Airways has had to significantly adjust its flight planning across most of its network to manage the revocation of overflight rights across the G4 and Yemen increasing flight times and fuel costs.
Passenger bookings
Airlines will need to consider the follow on effect in respect of presold tickets involving the exercise of 5th freedom rights via Qatar onward to the G4 and from the G4 to Qatar and possible re-routing options. This will affect Qatar Airways fellow Oneworld member airlines and other airlines it has commercial arrangements with including Royal Air Maroc and MEA. The GCC states of Oman and Kuwait have remained neutral in this dispute and will serve as alternative aviation gateways between the G4 and Qatar; with Oman Air announcing increased capacity into Doha.
Outside of the GCC, the Indonesian Government has announced that it would transfer Indonesian Umrah passengers booked on Qatar Airways to other airlines, with Garuda Indonesia to be one of the benefactors. If the crisis continues, similar intervention will be required by other Muslim nations in view of the forthcoming Hajj.
Air cargo
Air cargo consignments arranged for transit prior to the imposition of the flight restrictions involving carriage between or via the G4 and Qatar will be affected. In the event of spoliation or delay claims, the carriers will attempt to avail the “impossibility” defence under Article 19 of the Montreal Convention 1999 and the “force majeure” provisions under the applicable general conditions of carriage and airway bill conditions on the basis of a government order and/or embargo. Again, it is expected that Oman and Kuwait will serve as re-exporting hubs for air cargo into Qatar. Given that these logistics hubs are not as developed as those in the UAE, there would likely be significant increases in costs and delays associated with any redirected cargo including parcel and mail services. Such delays, particularly during the Middle East summer, may comprise the quality of perishable cargo. Many carriers have conditions of carriage exempting liability for loss of or to damage cargo resulting from the inherent defect, quality, nature or vice of the cargo which they may attempt to rely in such cases.
For air cargo carried subject to the Warsaw Convention as amended by The Hague 1955 and by Montreal Protocol No. 4 1975 (W/HP/MP4), under Article 18(3) a carriers is exempted from liability if it can prove that “the destruction, loss of, or damage to, the cargo resulted solely from … an act of public authority carried out in connexion with the entry, exit or transit of the cargo”, for example, the sanctions imposed by the G4 on Qatar (emphasis added). Given the inclusion of the term “solely” in Article 18(3), which was subsequently removed from the corresponding provision in the Montreal Convention 1999, it would be advised for carriers which are transporting cargo subject to the W/HP/MP4 liability regime to ensure that they are in a position to prove the steps they have taken to avoid any damage to the cargo, for example, the procedures employed in the cargo re-routing.
Finally, it remains unclear the extent of any embargo that will be imposed on either Qatari origin or transit cargo which is transited into the G4 via alternative routing such as Oman or Kuwait.
Final comment
Airlines, airports, passenger handling agents and travel agents should continue to review the developments on passenger, cargo and airline restrictions which are evolving on a daily basis. No formal decrees, orders or laws have been made publically available and the full effect and scope of liability for any unintended breach remains unclear. Should the position of the G4 and others against Qatar remain in place into the medium to long-term, it would be expected that formal guidance will be made available to the air transport industry.
The aviation team at Kennedys continues to monitor the situation and will issue further updates should there be any material developments.
