Civil unrest, tourism and air transport

Dr Ruwantissa Abeyratne

Tourism and transport combined forms the largest industry in the world. Air transport is a significant driver of tourism and visitors arriving by air directly support approximately 6.7 million jobs worldwide in the tourism industry with the foreign exchange they spend during their travels. Both the tourism industry and air transport industry depend on the policies of Governments and the individual stability of States for their sustenance and development.

The unrest wrought by mass protests in North Africa and the Middle East in 2011 seriously disrupted tourism and air transport. This article examines that disruption and addresses the issues involved pertaining to the role of States and International Organizations in ensuring the sustainable development of tourism and air transport in the context of civil unrest.

Most, if not all countries affected by the civil unrest in the Middle East and North Africa are tourist intensive and their income will suffer immensely. Many States issued travel advisories on Tunisia, Egypt and Libya.

At the time of the unrest in early 2011, Tunisia was recovering from the devastating effects on its tourism industry brought about by the terrorist attacks of 2001 and 2002 when the country lost a substantial number of tourists from its traditional markets of France, Germany, Italy and the United Kingdom. The 500,000 German tourists lost in the process was a big blow to Tunisia’s tourism. With regard to Egypt, hotel capacity increased by approximately 7,000 rooms between 2009 and 2010 to a total of 220.000 hotel rooms.

In December 2010 the United Nations World Tourism Organization (UNWTO) increased its collaboration with Egypt in enhancing the country’s tourist intake worked closely with Egypt in enhancing its capacity to measure the economic impact of tourism and provide consistent, internationally benchmarked tourism statistics.

With such an upsurge in tourism promotion, it is therefore heartening that tourism in Tunisia and Egypt, States that carried out a successful revolution in overthrowing their existing regimes, did not suffer for too long and recovered quickly. UNWTO has expressed its appreciation of proactive efforts by national authorities to restore confidence among tourists and by foreign governments to update travel advisories accordingly. Tourism is a significant contributor to both countries’ economies and, as tourism returns to normalcy, overall economic recovery can be stimulated.

As the situation in both Egypt and Tunisia returned to normal, tourism stakeholders from the private and public sectors reacted accordingly. Major tourism sites are now open to the public, airlines have resumed flights, tour operators in many of the main source markets have restarted selling holidays and governments have updated their travel advisories to reflect the unfolding situation.

From an air transport and tourism perspective the unrest in these regions has impelled the markets to respond with oil prices shooting skywards to $ 119 a barrel for Brent crude. These higher oil prices is highly worrying for airlines. Having retrenched and cut back, airlines were hoping for a return to profitability in 2011 as growth returns following the downturn.

However, the latest rise in oil prices could, as IATA forecasts extinguish any airline gains this year, causing a global domino effect on aviation. leaving carriers with heavy losses. Airlines were hoping for a return to profitability in 2011 as growth returns following the downturn.

Issues involved

The Convention on International Civil Aviation (Chicago Convention) requires States to keep their airports open to all airlines operating into and out of their territories and provide meteorological, radio and other information as well as facilities such as ground services. Of course, one might argue that 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. It also allows a State which has declared a state of national emergency (and notifies the ICAO Council of such) 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.

The first duty of a 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.

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.

Although Article 27 of the Vienna Convention on the Law of Treaties signed in 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.

States could well consider the role of aviation in bringing about peace.

The importance of aviation toward maintaining peace has been accepted since World War 2 and is aptly reflected in the Statement of the British at that time, that civil aviation holds the key to power and importance of a nation and therefore it must be regulated or controlled by international authority. Lord Beaverbrook for the British Government of that time stated in Parliament: “Our first concern will be to gain general acceptance of certain broad principles whereby civil aviation can be made into a benign influence for welding the nations of the world together into a closer cooperation...it will be our aim to make civil aviation a guarantee of international solidarity, a mainstay of world peace”.

The intensely political overtones that moulded the incipient civil aviation system of the world immediately after the War, thereby incontrovertibly establishing the relevance of diplomacy, international politics and international relations in civil aviation, is borne out by the statement of the first President of the ICAO Council, Edward Warner, when he said: “It is well that we should be reminded...if the extent of the part which diplomatic and military considerations have played in international air transport, even in periods of undisturbed peace.

We shall have a false idea of air transport’s history, and a very false view of the problems of planning its future, if we think of it purely as a commercial enterprise, or neglect the extent to which political considerations have been controlling in shaping its course”.

In retrospect, it must be noted that this statement is a true reflection of what civil aviation stood for at that time, and, more importantly, that the statement has weathered the passage of time and is true even in the present context.

A more recent commentator correctly observes that over the past decades, civil aviation has had to serve the political and economic interests of States and that, in this regard, ICAO has alternated between two positions, in its unobtrusive diplomatic role and its more pronounced regulatory role.