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

Treaty rights under the Chicago Convention are not automatically suspended merely because a contracting state has lost effective control over part of its territory. Where those rights remain capable of exercise, the recognised state remains entitled to exercise them, and other contracting states must respect them. Customary rules concerning the closure of seaports cannot displace detailed treaty provisions governing international aviation. The Namibia exception, which may permit recognition of acts concerning private rights or routine administration, does not extend to a public-law decision authorising international flights to or from territory controlled by an unrecognised regime. A public authority may therefore refuse aviation permits where granting them would breach the United Kingdom’s treaty obligations.

The appellants, a Turkish airline and its subsidiary, sought judicial review of the Secretary of State’s refusal to vary an operating permit and to grant permits for scheduled and charter flights between the United Kingdom and Ercan airport in northern Cyprus.

Wyn Williams J dismissed the claim, holding that the proposed permits would breach the Republic of Cyprus’s rights under the Chicago Convention. He also held, obiter, that granting the permits would contravene domestic law’s rule against giving effect to the purported laws and acts of the Turkish Republic of Northern Cyprus. The appeal concerned the alleged suspension of the Republic’s treaty rights following loss of effective control, the scope of the non-recognition and Namibia exceptions, and the order for the Republic’s costs.

1. Appeal dismissed. The refusal of the permits was lawful. The court agreed with Wyn Williams J that granting them would breach the United Kingdom’s obligation to respect the Republic of Cyprus’s rights under the Chicago Convention.
2. The Convention’s treaty rights were not suspended. Part V of the Vienna Convention on the Law of Treaties provides the applicable code for suspension of treaty operation. None of the relevant grounds, including supervening impossibility or fundamental change of circumstances, applied or had been invoked. The Republic could still exercise its rights by refusing permission for scheduled services, imposing limitations on non-scheduled services, and declining to designate Ercan as a customs airport.
3. The alleged customary international-law principle of effectiveness did not produce automatic suspension. The material concerning war and armed hostilities concerned a distinct situation excluded by Article 73 of the Vienna Convention on the Law of Treaties, and did not govern the continuing political situation in northern Cyprus.
4. The entitlement to exercise the Convention rights had not passed to the authorities of the Turkish Republic of Northern Cyprus. The Republic remained the relevant contracting state and was represented under the Convention by its recognised government. The TRNC’s aviation system merely replicated ICAO-style arrangements and gave its authorities no status under the Convention.
5. The court assumed, without deciding, that a customary rule concerning the closure of seaports existed in the form advanced by the appellants. That rule could not be transferred to aviation, because the Convention specifically regulated international air transport.
6. The alternative non-recognition issue was unnecessary to decide and any conclusion would be obiter. The Namibia exception did not apply in any event. It concerns private rights, everyday activities and routine administration, whereas this case concerned public functions, international civil aviation and the lawfulness of a public-law decision.
7. The costs order was within the judge’s discretion. The Republic, as a sovereign state protecting its sovereignty and international-law rights, had an interest requiring separate representation, despite the Secretary of State taking a substantially similar position.

• Court of Appeal (Civil Division): Appeal dismissed on the substantive claim and on costs; the order requiring payment of the Republic of Cyprus’s costs was upheld.
• Administrative Court, Queen’s Bench Division: Wyn Williams J dismissed the judicial-review claim in [2009] EWHC 1918 (Admin).