14/10/2010
R (Kibris Turk Hava Yollari and another) v Secretary of State for Transport and The Republic of Cyprus (interested party), [2010] EWCA Civ 1093
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On 12 October 2010, the Court of Appeal (Ward LJ, Richard LJ, Sir David Keene) handed down judgment in a case with important foreign policy implications and profound effect on the negotiations for a settlement of the Cyprus conflict.
The appellants, a Turkish airline and a travel company, had sought an operating permit under the Air Navigation Order 2005 to allow them to operate direct flights between the United Kingdom and Ercan airport in the northern part of the island of Cyprus where in 1983 the Turkish Cypriot authorities had declared an independent state called the Turkish Republic of Northern Cyprus (“the TRNC”) which is not recognized by any State with the exception of Turkey.
The Court of Appeal decided that the grant of permission by the Secretary of State for Transport for such direct flights would constitute a breach of the United Kingdom’s obligation to respect the rights of the Republic of Cyprus under the Chicago Convention on International Civil Aviation and would in consequence be unlawful as a matter of domestic law.
The case clarifies important questions of international treaty law and the level of dealings the United Kingdom may have with entities it is obligated under international law not to recognize as sovereign States. The Court, after an extensive review of the relevant provisions of the Vienna Convention on the Law of Treaties and international legal authorities, found that there is no general principle of automatic suspension of sovereign rights, including treaty rights, without any invocation of suspension, in cases of loss of control over parts of a State’s territory, and that, consequently, the Republic of Cyprus continued to be entitled to exercise the rights of a party to the Chicago Convention under articles 5, 6, 10, and 68 with regard to the northern part of Cyprus that is currently removed from its control.
The Court of Appeal also clarified the scope of the so-called Namibia exception, which it regarded as an acknowledged exception to the general rule that effect must not be given to the acts of non-recognised States. The Court held that the exception is limited to private rights, acts of everyday occurrence, routine acts of administration, day to day activities having legal consequences, or matters of that kind, and that it does not cover public law functions in the field of international civil aviation.
Professor Stefan Talmon (instructed by Herbert Smith) acted as junior counsel, together with Charles Haddon-Cave QC and Robert Lawson QC, for the appellants.
