Common use of Interim conclusions Clause in Contracts

Interim conclusions. A Contracting State enjoys sovereignty over its territory and can exercise the sovereignty to establish prohibited/restricted airspace over its territory, subject to conditions and requirements in Article 9 of the Chicago Convention. Under Article 9 of the Chicago Convention, establishing prohibited airspace is an exercise of right rather than obligation. The conditions, or justifications for closing airspace, include military necessity, public safety, exceptional circum- stances, and emergency; these conditions are to be interpreted narrowly so that they do not cover the airspace restrictions in times of war or in national emergency. The requirements in Article 9 of the Chicago Convention include two aspects: the national treatment in Article 9(a) and the most-favored-nation treatment in Article 9(b). The benchmark for measuring distinction is based on the nationality of the aircraft. Therefore, a Contracting State’s prohibition of one particular airline’s transit rights might not necessarily create distinction as to the nationality of the aircraft, taking note of flexible arrangements under Article 83bis of the Chicago Convention. Furthermore, a prohibited/restricted area should be “as small as practicable” and “contained within simple geo- metrical limits.” The normative analysis is the foundation upon which this study answers the three research questions on prohibited airspace. As explained in Chapter I, this interpretation of a treaty provision is to be complemented by subsequent practices. Real-life examples of prohibited airspace help further understand the application for these conditions and requirements in Article 9. 216 See further in Chapter V. 217 On Article 89 and national emergency, see Section 2.4 of Chapter V. TION This section examines examples of prohibited airspace to confirm the meaning of terms as explained in previous sections. The following cases will be dis- cussed: – Pasir Gudang restricted area (2019) in Section 3.1; – India-Pakistan dispute (1950s and 2010s) in Section 3.2; – Qatar ‘blockade’ case (2017-2021) in Section 3.3. 3.1 Pasir Gudang restricted area (2019) Malaysia announced to establish a permanent Restricted Area for military activities over Pasir Gudang, a port town of Malaysia, from 2 January 2019.218 Singapore objected to this initiative and described the restricted area being in a “controlled and congested airspace” that will impact the existing and normal operations of aircraft transiting through.219 Pasir Gudang is located within 3km from Singapore’s Seletar airport. The airspace over Pasir Gudang is controlled by Malaysia. Figure 4: The Pasir Gudang Port220 218 ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/singapore-protests-new-malaysian-airspace-restriction/ 130820.article 219 ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/news/singapore/singapore-malaysia-southern-johor- airspace-seletar-airport-10997022, last accessed 9 April 2020. 220 Source: ▇▇▇▇▇://▇▇▇.▇▇▇▇▇/blog/malaysia-shuts-down-plans-for-ils-approach-at-singapores- seletar-airport/, last accessed 8 August 2020. The Malaysian announcement to establish the airspace over Pasir Gudang as a restricted area, according to public news information, is a response to Singa- pore’s plan to implement procedures for an instrument landing system (ILS) at Seletar airport;221 Malaysia considered that Singapore’s plan would “stunt development” around the Pasir Gudang industrial area, including imposing height restrictions on buildings and affecting port activities.222