The Weaponization of Airspace

By Roncevert Ganan Almond

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On September 25, 2018, U.S. President Donald J. Trump addressed the 73rd session of the United Nations General Assembly. Standing before arguably the world’s most representative international body, Trump rejected the “ideology of globalism” and offered the alternative “doctrine of patriotism” wherein “responsible nations” must defend against “threats to sovereignty” from “global governance” and other “new forms of coercion and domination.” Despite laughter from world leaders, Trump spoke without irony. In fact, the president’s call for a muscular nationalism – drawing on the “powerful love for your nation” and “intense loyalty to your homeland” – has found an audience. The argument for individualized homelands has a long history, of course. But Trump’s sovereignty mission goes even further, demanding the fencing-off of international relations and a devolution of global politics. In this regard, the United States is becoming the first among equals in revisionist powers.

Because interdependence and shared spaces are a fundamental reality of the modern international environment, a plea for sovereign absolutism – for extreme nationalism – is a cry for conflict. The great unwinding, if pursued, will be chaotic and potentially deadly. Additionally, as advanced technology intervenes in our daily lives and stretches the boundaries of global competition, America’s power to dictate terms and manage disputes is eroding. Indeed, Trump’s appeal for disorder may be self-fulfilling.

Within this new era, the weaponization of airspace is just one more harbinger of an increasingly anarchic world. This observation came into focus as I flew above the Straits of Hormuz into the Persian Gulf.

A Chasm In The Gulf 

Qatar Airways Flight 579 links Delhi with Doha. A direct route would normally include overflying the Persian Gulf through airspace controlled by the United Arab Emirates (UAE). However, in this case, we progressed west across Balochistan, Pakistan, and then past Bandar-e-Abbas, Iran into the Persian Gulf where we hooked awkwardly south toward Doha.

This curious flight path is the result of a heated row within the Gulf Cooperation Council (GCC) in which Saudi Arabia, UAE and Bahrain, along with Egypt, have sought to isolate Qatar. In addition to cutting diplomatic ties, since June 5, 2017, the Saudi-led bloc of countries has imposed severe economic restrictions on Qatar, including banning Qatari-registered aircraft from entering or transiting their respective airspaces. Because Qatar is surrounded by its GCC peers, the airspace embargo would be absolute but for limited routing rights across Bahrain’s Flight Information Region (OBBB), which involves international airspace administered pursuant to an arrangement with the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations. Even with this discrete easement, Qatar Airways, the country’s flag carrier, has suffered significant financial harm. The airline was forced to close nearly 20 percent of its routes, including the popular link to Dubai, and has incurred higher operational costs associated with circumnavigating the blockade.

The intra-GCC dispute erupted shortly after Trump attended the Arab Islamic American Summit in Riyadh in May 2017. During his first overseas visit as president, Trump called on the GCC to “conquer extremism and vanquish the forces of terrorism.” According to a Congressional report, the summit revived old tensions concerning Qatar’s active foreign policy to shape outcomes during the Arab Spring, its embrace of the Muslim Brotherhood, and its close relations with Iran. In the past, competing Arab states have taken issue with Doha’s attempts to mediate regional disputes through relationships with players like Hezbollah, Hamas, and the Taliban. Qatar had a falling out with its Gulf neighbors after the 2013 military overthrow of Egyptian President Muhammed Morsi, who was associated with the Muslim Brotherhood and supported by Doha. The parties temporarily resolved the conflict through a mutual exchange of non-interference pledges among GCC states, the so-called “Riyadh Agreement.”

But Qatar’s independent foreign policy continued to press against the fresh wounds of insecurity in the Middle East. On June 22, 2017, Saudi Arabia, the UAE, Bahrain, and Egypt presented Qatar with 13 demands, including shutting down the television network Al Jazeera, severing relations with the Muslim Brotherhood, scaling back relations with Iran, closing a Turkish military base in Qatar, and paying reparations. The Saudi-led bloc eventually consolidated these demands to comprise six principles, including commitments to combat extremism and terrorism, prevent financing and safe havens for such groups, and suspend all acts of provocation and speeches inciting hatred or violence. Despite repeated attempts, including presidential intervention, the Trump administration has been unable to resolve the conflict.

The White House’s failure to defuse the crisis among the GCC member states is particularly striking given the importance of Qatar and the GCC to U.S. strategic interests in the region. During his testimony before Congress, General Joseph L. Votel, Commander of U.S. Central Command (CENTCOM), noted that Qatar has provided “invaluable regional access” through basing and freedom of movement for U.S. forces at Camp As-Sayliyah and Al Udeid Air Base – home to the Combined Air Operations Center, U.S. Air Forces Central Command, U.S. Special Operations Command Central Forward, and the CENTCOM Forward Headquarters. Pursuant to a formal defense cooperation agreement dating back to 1992, Qatar hosts approximately 10,000 U.S. service members, and aircraft launched from Al Udeid Air Base support operations throughout the region. Qatar is also the second-largest foreign military sales customer, ranging from sophisticated arms to missile defense systems, with $25 billion in new sales and potentially over $40 billion in purchases over the next five years.

In turn, the White House is reviving plans to use the GCC to anchor a security and political alliance, the Middle East Strategic Alliance (MESA), to counter Iran’s expansion in the region. According to General Votel, even as the GCC represents the “most promising baseline effort for promoting collective defense initiatives” the still-unresolved rift within the GCC is the “most significant complicating factor in the unified deterrence to Iranian malign activity.” The dispute’s negative impact on diplomacy was evident at the 2017 annual GCC summit, which adjourned after two hours when only the leaders of Kuwait, the host, and Qatar showed up. Former White House spokesperson Sean Spicer called the intra-GCC dispute a “family issue” – an American analogy that does not bode well given U.S. divorce rates.

In short, Qatar has been effectively blocked from participating in Gulf coalition-building efforts and become increasingly dependent on Iran for access to the outside world. If the ongoing airspace blockade of Qatar is any indication, Trump’s MESA plans may be swiftly tabled at a proposed U.S.-GCC summit, which has been postponed yet again.

Your Space, My Space

The breakdown of the GCC and Washington’s inability to forge consensus demonstrate how much the geopolitical landscape has changed since the apex of U.S. influence in the region. During the first Gulf War in 1991, America led an international intervention sanctioned by the Security Council under Chapter VII of the UN Charter. In the aftermath, the U.S.-led coalition established “No Fly Zones” on humanitarian grounds, citing Security Council Resolution 688 for support. By contrast, in the intra-GCC conflict, the Saudi-led bloc has weaponized their airspace based on assertions of sovereignty that arguably transgress the purposes of international law governing aviation. Indeed, Qatar has petitioned the ICAO Council to resolve the dispute, but the Saudi-led bloc has argued that the international institution lacks jurisdiction. They may be taking a cue from Trump’s doctrine of muscular sovereignty.

Paradoxically, during the early stages of legal development, America argued for a restrained concept of sovereign airspace in favor of unfettered skies. In the reverberation of World War I, which first witnessed the promise of air power, the Paris Convention of 1919 recognized the legal principle that every state has “complete and exclusive sovereignty over national airspace above its territory.” In doing so, the international community rejected the alternative of the “freedom of the seas” under customary maritime law, which promoted the unencumbered use of the oceans. The proposal was analogous to a “maritime belt” where “freedom of the air” would exist beyond an upper limit of sovereign airspace. A similar concept is used in the United States where the federal government protects open access to the “national airspace system” from obstructions and interventions by state governments.

This question was revisited in the final stages of World War II, when aerospace capacity skyrocketed. Paul Dempsey, Director of McGill University’s Institute of Air & Space Law, has noted that before the war, the world’s entire fleet consisted of 2,388 airplanes flying regular routes, 1,200 of which included international flights. By 1944, the United States alone had 20,000 transport planes and controlled over 70 percent of global air commerce. At the helm of the world’s foremost aeronautical power, Washington revived the idea of an “air freedom” similar to the high seas freedoms and pressed for a multilateral arrangement promoting liberal access. American ambitions were checked most conspicuously by its close ally the United Kingdom, which feared a U.S. monopoly in international air commerce. The controlling postwar compact, the Chicago Convention of 1944, embedded the principle of exclusive sovereign airspace, but left commercial traffic rights to bilateral negotiations and established ICAO to manage the treaty. Notably, the preamble called for the “safe and orderly” development of international civil aviation.

During the Cold War, the superpower competitors negotiated new parameters on sovereign airspace. This history includes well-known events like the 1960 “U-2 incident” in which a CIA high-altitude spy plane piloted by Gary Powers was shot down over the Soviet Union while conducting a reconnaissance mission. Although Washington attempted to justify the incursion on self-defense grounds, the Eisenhower administration tacitly acknowledged the importance of sovereign airspace by seeking a bilateral agreement with the Soviets to allow unarmed observation flights like Captain Powers’ mission. At the Security Council debate on the U-2 incident, the Republic of China observed that with the advent of satellites and their capacity for observation, the concept of “air sovereignty” was more theory than fact. Although the upper boundary of airspace remains unresolved to this day, the United States and Soviet Union willingly put a cap on the space race through the Outer Space Treaty of 1967, which banned weapons in outer space and excluded it from national appropriation. When the Soviet Union shot down Korean Airlines Flight 007, a commercial flight, the United States led the movement to amend the Chicago Convention and further limit the scope of sovereign airspace. ICAO members were now expressly prohibited to use weapons against civil aircraft, whether in national or international airspace.

By the end of the Cold War, the United States had accepted the need to temper the exclusivity of sovereign airspace as a means of bridging the gaps of distrust between NATO and the Warsaw Pact. In 1992, President George H. W. Bush negotiated the Treaty on Open Skies, which willingly permits foreign spying over participants’ territory – “mutual aerial inspection” – as a form of international arms control. By 2008, the list of signatory states had grown to 34 members. But the pendulum is swinging away from international cooperation. On August 13, 2018, Trump signed legislation designed to defund America’s Open Skies program and most recently threatened to hobble Russia’s future participation.

New Forms of Coercion

While past airspace debates centered on self-defense and traditional national security concerns, many actors are increasingly wielding the principle of sovereign airspace as a coercive tool in the grey zone of economic and diplomatic warfare.

There are numerous examples in addition to the blockade of Qatar. For instance, Russia has utilized airspace as part of its hybrid warfare campaigns. After seizing Crimea in 2014, Moscow unilaterally established new controlled airspace as a means of asserting its disputed sovereignty claim. Disrupting international air transportation, the new Flight Information Region conflicts with existing sovereign Ukrainian airspace over the Crimean Peninsula and the associated Ukrainian territorial sea, as well as international airspace managed by Ukraine over the Black Sea and the Sea of Azov under a regional air navigation agreement approved by ICAO. Claims to airspace are enforced through aerial interception, typically by military aircraft, but sometimes through more direct means. On July 17, 2014, Malaysia Airlines Flight 17, a scheduled international commercial passenger flight traveling within Ukrainian airspace, was blown out of the sky by a ground-based anti-aircraft missile, killing all 298 passengers and crew on board. The Dutch-led international criminal investigation recently announced its finding that the missile came from Russia’s 53rd Anti-Aircraft Brigade.

China has also weaponized airspace. In the East China Sea, Beijing reinforced its territorial claims through the establishment of an Aircraft Defense Identification Zone (ADIZ). As I noted in these pages, China’s action effectively reverses the purpose of the ADIZ, turning it from a measure of anticipatory self-defense into a coercive extension of sovereignty. In the South China Sea, Beijing has resisted the temptation to establish an ADIZ; but China’s militarization of artificial islands, which includes installing anti-aircraft weaponry and runways for launching military intercepts, suggests plans for a de facto regime. As part of its ongoing struggle with Taiwan, earlier this year, China unilaterally established new flight routes above the disputed Taiwan Strait. Perturbed by the lack of prior consultation and obvious safety threat, Taipei responded in kind by effectively banning Chinese airline flights during the high-demand Lunar New Year holiday. Additionally, earlier this year, Beijing sent a demand letter to international air carriers, including U.S. airlines, requiring them to change their websites to indicate that Taiwan is part of China, not an independent country, or face a host of penalties. The White House dismissed Beijing’s ultimatum as “Orwellian nonsense” – but in the end U.S. carriers caved to Chinese pressure.

George Orwell once wrote: “All animals are equal, but some animals are more equal than others.” Trump’s UN address in Turtle Bay may be descriptive, capturing a movement toward coercive sovereignty. Yet, given America’s unique position as the guarantor of global security and primary author of the liberal project, presidential words have significant meaning and prescriptive effect. In the end, Trump’s call for more sovereign nationalism and less international cooperation, will only accelerate the trend toward devolution, away from American leadership. It is a flight to a disordered destination.

One immediate outcome could be empty airport runways in New York, the doorway to America and the United Nations. When the General Assembly is in session, overnight parking for foreign delegates’ state aircraft at John F. Kennedy International, Newark Liberty, and LaGuardia is forbidden. Given the volume of traffic, the foreign aircraft must depart within two hours of arrival and relocate to another location, sometimes as far away as Scott Air Force Base in Illinois, home to the U.S. Transportation Command. These state aircraft fly to the United States under diplomatic clearances – formal permissions to enter U.S. airspace – consistent with international law. If combatting global governance is actually a foreign policy goal, Trump may decide to lock the virtual gate in the sky.

Roncevert Ganan Almond is a Partner and Vice-President at The Wicks Group, based in Washington, D.C. He has counseled government authorities in Asia, Europe, the Middle East, Africa, and Latin America on issues of international law. He served as an aide to Hillary Clinton’s 2008 presidential campaign, but is not currently affiliated with any campaign. The views expressed here are strictly his own.