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?
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?