Civil unrest and role of migrant workers
Dr Ruwantissa ABEYRATNE
What started on December 17, 2010 with an act of self immolation by
Mohammed Bouazizi, a 26-year-old man trying to support his family by
selling fruits and vegetables in the central town of Sidi Bouzid in
Tunisia, led to massive protests in the country, resulting in the
overthrow of Zine El Abidine Ben Ali, the country’s President on January
14, 2011.
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Sri Lankan migrant workers returning
from Libya. Picture by Kumarasiri Prasad |
On January 25, 2011 protests, at least partly inspired by the
toppling of the authoritarian government in Tunisia, erupted in Egypt
and grew increasingly worse. As a result, Hosni Mubarak, President of
Egypt, was deposed within weeks of a virulent people’s uprising.
Contemporaneous protests went on other States such as in Algeria, Yemen
and Bahrain, the last of which held a day of rage on February 14,
instigated by youths and inspired by events in Egypt and Tunisia.
Furthermore, at the time of writing, there was acute unrest in Libya as
a result of mass civil unrest and clashes between protesters and the
government forces.
Chicago Convention
Thousands of migrant workers in Libya were displayed and scrambled to
get out of the country. Many landed in the Libya-Tunisia border as
refugees. The question that comes to mind is what is the international
mechanism that would assist those in distress in situations such as this
in getting back to safety in their own countries? The first answer that
pops up is relief flights. There were some sent by countries and ships
were chartered by others to ferry migrant workers to safety from Libya.
From an aviation perspective, the operative international treaty that
applies to such situations is the Chicago Convention of 1944. The
Convention has some provisions that require States to have their
airports and ground services open to all airlines.
Article 89 of the Chicago Convention enables Contracting States to
have freedom of action irrespective of the provisions of the Convention
in case of war, whether belligerents or neutrals.
National emergency
It also allows a State which has declared a state of national
emergency to have the same freedom of action notwithstanding the
provisions of the Convention. Therefore, unless a State is at war (which
the Convention does not define) or has declared a state of national
emergency, it would be bound by the provisions of the Convention.
War is conventionally defined as a behaviour pattern of organized
violent conflict typified by extreme aggression, societal disruption and
high mortality. This behaviour pattern involves two or more organized
groups. The first duty of a Contracting State not falling within the
purview of Article 89 of the Chicago Convention is to keep its airport
open to all incoming aircraft.
Article 15 of the Convention requires inter alia that, uniform
conditions shall apply to the use, by aircraft of every contracting
State, of all air navigation facilities, including radio and
meteorological services, which may be provided for public use for the
safety and expedition of air navigation.
State reserves
This condition is subject to Article 9 which stipulates that each
contracting State may, for reasons of military necessity or public
safety, restrict or prohibit uniformly the aircraft of other States from
flying over certain areas of its territory, provided that no distinction
in this respect is made between the aircraft of the State whose
territory is involved, engaged in international scheduled airline
services and the aircraft of the other contracting States likewise
engaged.
The provision goes on to say that each contracting State reserves
also the right, in exceptional circumstances or during a period of
emergency, or in the interest of public safety and with immediate
effect, temporarily to restrict or prohibit flying over the whole or any
part of its territory, on condition that such restriction or prohibition
will be applicable without distinction of nationality to aircraft of all
other States. The question arises as to whether a State in which there
is acute civil unrest is bound to follow the abovementioned principles
of the Chicago Convention.
States or international organizations which are parties to such
treaties have to apply the treaties they have signed and therefore have
to interpret them.
Although the conclusion of a treaty is generally governed by
international customary law to accord with accepted rules and practices
of national constitutional law of the signatory States, the application
of treaties are governed by principles of international law. If however,
the application or performance of a requirement in an international
treaty poses problems to a State, the Constitutional law of that State
would be applied by courts of that State to settle the problem.
Vienna Convention
Although Article 27 of the Vienna Convention on the Law of Treaties
of 1969 requires States not to invoke provisions of their internal laws
as justification for failure to comply with the provisions of a treaty,
States are free to choose the means of implementation they see fit
according to their traditions and political organization. The overriding
rule is that treaties are juristic acts and have to be performed.
The operation of relief flights, either by States or such bodies as
the United Nations, to alleviate human suffering in times of war,
natural or manmade catastrophe, is yet another area in which the role of
civil aviation is brought to bear in securing peace and security.
There is a specific provision in Annex 9 to the Chicago Convention
for provision by State of relief flights. Contracting States are
required, by Standard 8.8 of Chapter 8 of the Annex, to facilitate the
entry into, departure from and transit through their territories of
aircraft engaged in relief flights performed by or on behalf of
international organizations recognized by the United Nations or by or on
behalf of States themselves and to take all possible measures to ensure
their safe operation.
The relief flights referred to should be undertaken to respond to
natural and man-made disasters which seriously endanger human health or
the environment. An emergency is acknowledged in the Annex as a sudden
and usually unforeseen event that calls for immediate measures to
minimize its adverse consequences.
United Nations Charter
A disaster is described in the Annex as a serious disruption of the
functioning of society, causing widespread human, material or
environmental losses which exceed the ability of the affected society to
cope using its own resources.
The United Nations Charter lists the achievement of international
cooperation in solving international problems of an economic, social,
cultural or humanitarian character, as one of the purposes of the United
Nations.
The problems that the United Nations is mandated by its Charter to
solve should therefore be necessarily of an international nature.
Natural disasters
Article 2(7) of the Charter expands the scope of this philosophy
further when it provides that the United Nations is not authorized to
intervene in matters which are essentially within the domestic
jurisdiction of any State, without prejudice to the right of the United
Nations to intervene in matters which are within the domestic
jurisdiction of any State, and apply enforcement measures where there is
an occurrence of acts of aggression, a threat to the peace or breach
thereof.
Therefore stricto sensu, the United Nations cannot intervene in
instances where natural disasters such as famine, drought or earthquakes
render the citizens of a State homeless, destitute and dying of
starvation unless invited by the States concerned. The principle however
cannot be too strictly interpreted, as natural disasters may usually
lead to breaches of the peace.
In such instances the United Nations Security Council may take such
actions by air, sea or land as may be necessary to maintain or restore
international peace and security. To be continued
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