Yollari & Anor, R (on the application of) v Secretary of State for Transport & Anor

A State’s treaty rights concerning international aviation are not suspended merely because it lacks effective control over part of its territory. Under the Chicago Convention, sovereignty and territory retain their ordinary meanings in public international law. A State may therefore refuse permission for scheduled services, impose limitations on non-scheduled services, and decline to designate airports for customs purposes throughout its sovereign territory.

Domestic authorities may recognise limited private or administrative acts of an unrecognised regime where necessary to protect inhabitants’ day-to-day affairs. That exception does not extend to public acts regulating international aviation. A United Kingdom authority must also avoid conduct amounting to implied recognition of an unrecognised State.

The claimants operated or arranged flights between the United Kingdom, Turkey and Northern Cyprus. They challenged the Secretary of State’s refusal to vary an operating permit and to grant permits for specified charter flights to Ercan airport.

The Secretary of State and the Republic of Cyprus contended that authorising the flights would conflict with the United Kingdom’s obligations under the Chicago Convention, would amount to recognition of the Turkish Republic of Northern Cyprus, and would require the United Kingdom court to give effect to acts of an unrecognised regime.

The central issues were whether the Republic of Cyprus retained relevant treaty rights over the whole island despite lacking effective control in the north, and whether the requested permits would unlawfully recognise or give effect to the acts of the Turkish Cypriot administration.

1. Chicago Convention. The claim was dismissed. The Chicago Convention was to be interpreted in accordance with article 31(1) of the Vienna Convention on the Law of Treaties, giving the treaty’s words their ordinary meaning in context and in light of its object and purpose. The word “sovereignty” did not have a special meaning requiring effective control. The territory of the Republic of Cyprus therefore included the whole island and adjacent territorial waters.
2. Under article 6, the Republic of Cyprus could refuse permission for scheduled international services over or into its territory. Under article 5, it could impose the limitation that non-scheduled services should not land at Ercan. Under article 10, it could refuse to designate Ercan as a customs airport. The same reasoning applied to article 68. The United Kingdom was obliged to respect those rights, and granting the permits would breach that obligation.
3. The asserted suspension of the Republic’s treaty rights failed. Article 61(1) of the Vienna Convention required impossibility of performance to be invoked; suspension did not occur automatically. In any event, the relevant rights remained capable of exercise despite the absence of effective control in Northern Cyprus. No applicable doctrine of customary international law suspended those rights against the Republic’s will.
4. Recognition and domestic law. The United Kingdom was under a legal duty not to recognise the Turkish Republic of Northern Cyprus. Granting the permits would amount to implied recognition because the Turkish Cypriot administration purported to exercise international aviation rights under the Chicago Convention, including the designation of air routes and Ercan as a customs airport.
5. The domestic exception permitting recognition of routine acts affecting private rights or the day-to-day affairs of inhabitants did not apply. Acts regulating international aviation were public and international in character. The Secretary of State was therefore also bound to refuse the permits on domestic-law and recognition grounds.
6. The claim for judicial review was dismissed. The court did not need to determine the remaining issues comprehensively. The Secretary of State’s decisions were properly subject to judicial review.