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Main question

In the aftermath of the Evo Morales grounding incident there was some international outcry. According to Wikipedia:

In the aftermath of the incident, seven Latin American countries – Bolivia, Argentina, Cuba, Ecuador, Nicaragua, Uruguay, and Venezuela – voiced their concerns to UN Secretary-General Ban Ki-Moon, who stated that "a Head of State and his or her aircraft enjoy immunity and inviolability". Ban also emphasized that it is important to prevent such incidents from occurring in the future.

On what basis do heads of state enjoy "immunity and inviolability" while in the air flying over other countries? How far does that immunity reach? Does it apply only after a country has given permission for flying over or are countries supposed to consider requests for flying over in a timely manner?

Or is Ban Ki-Moon's statement not meant literally?

Some background

According to article 3(a) of the Chicago Convention:

This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.

It's my understanding that the Chicago Convention is the treaty that regulates civil aviation. In reporting on the forced landing of Ryanair flight 4978, a parallel is sometimes drawn to the Morales incident, however, it is then noted that it's slightly different because state aircraft are not afforded the same protections under the Chicago Convention. For example, the BBC reported (in the aftermath of the Belarus incident):

In July 2013 Evo Morales was flying back to Bolivia from a summit in Moscow, when his jet had to divert to Vienna airport in Austria after several other European countries apparently refused it permission to enter their airspace.

Bolivia said that there had been a "huge lie" that US intelligence leaker Edward Snowden - at that time holed up in a Moscow airport - was on board the presidential aircraft.

France later apologised to the Bolivian government for the "late confirmation of permission" to enter French airspace, blaming "conflicting information".

However, the analogy to Sunday's incident in Belarus is not perfect, as Mr Morales's plane was not intercepted by fighter jets and forced to land - it was not granted permission to enter the other countries' airspace in the first place.

The Bolivian president was also travelling on a state aircraft rather than a commercial, civilian passenger plane.

The UN's agency for civil aviation, ICAO, said it was strongly concerned about an "apparent forced landing" in the Belarus incident which could be "in contravention of the Chicago Convention" setting out the rules on accessing airspace and aircraft safety.

The 1944 Chicago convention applies to civilian planes, such as the Ryanair flight, but not to state aircraft such as presidential or military planes.

The Huffington Post further reported that President Morales threatened to sue the US over blocking the Venezuelan presidential jet for flying over the US:

Bolivian President Evo Morales said Thursday that he will file a lawsuit against the US government for crimes against humanity. Morales decried the United States, calling President Obama a “criminal” and blasting the government for its intimidation tactics and fear-mongering after the Venezuelan presidential jet was blocked from entering U.S. airspace.

“I want to communicate...that we are going to prepare an international lawsuit so that Obama and his government are judged for their crimes against humanity,” Morales said.

I haven't been able to find the lawsuit or what specific (treaty) violations it alleges.

I found an (older) PowerPoint by the US Air Force, while it doesn't provide new references, it does have a few interesting bullet points:

  • State aircraft must be considered and accommodated to the maximum extent possible
  • “State” designation does not preclude compliance with civil airspace access rules and procedures -- State aircraft can be restricted/denied access to civil controlled airspace

It seems that there are many statements decrying the refusal to grant state aircraft permission to fly over. Nevertheless, I'm not able to find any concrete treaty or commitment that covers state aircraft.

Back to the question: on what basis do state / presidential aircraft flying over enjoy immunity and inviolability?

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A head of state traveling by air is, essentially, a diplomatic mission and is therefore granted the same privileges and protections as would their diplomats and embassy.

The plane itself falls under the "means of transport of the mission," protected as part of the diplomatic mission. The following comes from Article 22 of the Vienna Convention on Diplomatic Relations (1961):

The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

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  • Are you sure a head of state is considered part of the diplomatic mission even if they're just flying over? For example, then (per article 10) they would have to communicate their arrival and departure to all the ministries of foreign affairs of all the countries they fly over. In a way it makes sense that such flights would be considered diplomatic missions, but it doesn't really seem to fit with the convention text (which is aimed at missions from one state to another).
    – JJJ ♦
    Commented Jun 22, 2021 at 20:38
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    They only need to communicate with the receiving state. Diplomats fly over, drive through, and ride trains through other countries going to/from their host and sending nations all the time. I don't see anything that requires them to communicate with non-receiving states. But under this context, intercepting said head of state is an in-spirit violation of this treaty, even if not in-letter. I can't find any part of this that says you can't intercept a diplomatic mission between two other states, but it'd obviously be a hostile act.
    – William Walker III
    Commented Jun 22, 2021 at 20:42
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    Thanks, it makes more sense if you look at it from the perspective of a diplomatic mission to a receiving state somewhere else. So then the transport would be protected even if there are no diplomatic relations with the country below (assuming they are both party to the treaty)? Still, you would have to communicate that the head of state is on-board, because there are also state aircraft that aren't covered by immunity (e.g. military planes without diplomats).
    – JJJ ♦
    Commented Jun 22, 2021 at 20:50
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    @JJJ: I sincerely doubt that a head of state would fly over (or drive through, or so much as step into) a state with which there were no diplomatic relations. There's no practical reason to do so that would outweigh the list of problems that act might generate. It would almost certainly be interpreted as espionage and a violation of the offended state's sovereignty, if not an outright aggression. Heads of state are not like tourists; they don't get to go where they like without consequence.
    – Ted Wrigley
    Commented Jun 23, 2021 at 5:23
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    @JJJ: I just think that neither heads of state nor their aides and advisers are likely to put the HoS over (potentially) lawless, oppositional, or hostile territory without cause. I can't see (say) Putin opting for that Santa Barbara Bed and Breakfast vacation, if you follow me...
    – Ted Wrigley
    Commented Jun 23, 2021 at 5:41

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