by Vasilis Giavris (Lawyer & Political Scientist)
The recent decision by Turkey to shoot down a Russian military plane for allegedly entering Turkish airspace for a few seconds and the statement by US President Obama that Turkey had a right to defend its airspace has rightly raised the issue of the continued violation of Greek airspace by Turkey. After all, despite inherent inadequacies international law cannot be selectively applied and must not equate to the rendering of justice with double standards.
Turkish Violations of Greek Airspace
Turkey violates Greek Airspace daily. Indeed, it has been well published that only in 2014 Turkey violated Greek Airspace 2,244 times! As a result, for many years both Greece and Turkey have engaged in aerial fights which have resulted in mid-air collisions and in May 2006 the unfortunate death of a Greek pilot.
Issues of Legal Dispute:
- Demarcation of Aegean Sea Airspace
It is a customary rule of international law that a state is entitled to the sovereignty of the airspace above its territory and its territorial waters. This is reflected in Article 2 of UNCLOS III which expands the sovereignty of a state to include the airspace above its territorial waters. Similarly, Article 1 of the Convention on International Civil Aviation 1944 (ICAO) provides that “every state has complete and exclusive sovereignty over the airspace of its territory”, whilst Article 2 of the ICAO defines territory as including the land areas and territorial waters adjacent thereto that are within a state's sovereignty.
Greece established its air zone in 1931 by Presidential Decree 5017/1931 pursuant to which Greece declared a 10 nautical mile territorial sea and air defence zone for aviation and air policing purposes. In effect Greece has established two different limits for its territorial sea. It retained a 3 nautical mile territorial zone of general application, which was expanded to 6 nautical miles in 1936, and a ten nautical mile limit for aviation and air control. Greece justifies its practice of having a twofold hybrid arrangement on acquired historic rights and local customs founded on long standing practices. It should be noted that these practices did not raise any objection or protestation from any other state including Turkey until 1975, that is, 44 years after the 10 nautical mile air zone was established. As such, Greece correctly maintains that Turkey is legally prevented from objecting to such practice.
Greece further justifies its practice on the basis of its entitlement to extend its territorial waters to 12 nautical miles pursuant to Article 3 of UNCLOS III. This does not preclude Greece, under international law, from defining its territorial waters at a distance of 10 nautical miles from its coasts for aviation and air policing purposes. As such Greece contends that it had chosen to exercise its full sovereignty with regard to the six nautical mile limit and less than full sovereignty to the belt between six and ten nautical miles from its coasts.
It should be noted that the only reason Greece has not extended its territorial waters to 12 nautical miles (but has always reserved the right to do so in the future) is the declaration by the Turkish Parliament that such extension would constitute a casus belli, i.e. reason to go to war.
Turkey opposes the 10 nautical mile national airspace claim articulated by Greece on the basis that it exceeds the territorial sea of Greece. Turkey contends that the Greek claims lack any precedents and views the airspace between Greece’s 6 nautical mile territorial waters and it’s declared 10 nautical miles national airspace as being part of international airspace. This, according to Turkey, permits Turkish military planes to enter such space without any permission from Greece.
- Flight Information Centre (FIR’S)
The dispute over airspace use is not limited to territorial airspace but rather extends to the Flight Information Regime (FIR) in the Aegean. In 1951 the International Civil Aviation Organisation (ICAO) granted air traffic control responsibility for the Aegean FIR to Greece and fixed the demarcation line between Istanbul and the Athens FIR at the median line between the eastern Aegean Greek islands and the Turkish coast. Turkey did not oppose this demarcation until 1974 when, subsequent to the Turkish invasion of Cyprus, it protested over the Greek ten nautical mile territorial airspace claim and issued a Notice to Airmen (NOTAM) 714 demanding that all aircraft provide a flight plan to Turkey when crossing the median line in the Aegean between Greece and Turkey. Greece immediately responded by issuing NOTAM 1018 which deemed the Turkish notice to be in breach of ICAO rules and as lacking legal merit. Greece followed this with NOTAM 1157 which, subject to some minor exceptions, declared the airspace in the Aegean Sea a danger zone resulting in all international airlines suspending routes between Turkey and Greece. These were only reinstated in 1980 when both countries withdrew their respective NOTAM’s and the established FIR status quo was returned.
It is commonly accepted that Turkey intentionally infringes air traffic regulations in a concerted effort to link the airspace issue with the continental shelf dispute and challenge the existing status quo in the Aegean Sea. Greece maintains that Article 3(d) and Article 39(3) of UNCLOSS III requires military planes to observe the rules of the air as established by the ICAO and as such requires Turkish military planes to submit their military flight plans to Greece prior to entering the Athens FIR. This is required so that the safety of civilian flights can be secured and effectively applied. Not surprisingly, Turkey continues to refuse to submit flight plans for its military aircraft to Greece.
The adoption of a policy of “repeated violations” whereby without any permission from Greece Turkey continues to use the airspace beyond the 6 nautical mile territorial sea of Greece for military flights needs to immediately end. The US, NATO and the EU need to insist on the uniform application of international law. After all "what's good for the goose must be good for the gander".
