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 states 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 two fold 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 justified its practice on the basis of its entitlement to extend its territorial waters to 12 nautical miles pursuant to Article 3 of UNCLOS III which 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.
Turkey opposes the 10 nautical mile national airspace claim articulated by Greece on the basis that it exceeds the territorial sea of Greece and as such is a breach of international law. Turkey contends that the Greek claims lack any precedents and viewed 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 which, according to Turkey, permits Turkish military planes to enter such space without any permission from Greece. Furthermore, Turkey denies that it had in any way acquiesced to the Greek claim since, according to Turkey, it was only notified of Greece’s claim on June 2, 1974 and it had persistently objected to it ever since.
Indeed, to best demonstrate this objection Turkey has, unfortunately, adopted a policy of “repeated violations” whereby without any permission from Greece it uses the airspace beyond the 6 nautical mile territorial sea of Greece for military flights. In turn, such actions are constantly met by protests from Greece which perceives them as violation of Greek sovereignty. Both countries engaged in aerial fights which, most tragically, resulted in mid-air collisions and in May 2006 the unfortunate death of a Greek pilot.
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.
Greece has continuously accused Turkey of intentionally infringing 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 currently holds the view 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. According to Greece 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 expressing the view that Greece is abusing its FIR responsibility to monitor Turkish planes.
Vasilis Giavris is a Lawyer and Political Scientist