Turkish refusal to refuel El Al flight: An offensive violation of intl. obligations - opinion

As reported in the media last Sunday, an El Al flight from Warsaw en route to Tel Aviv was not allowed to refuel in Antalya, Turkey after making an emergency landing to evacuate a passenger in need of urgent and vital medical attention.

Apparently, due to political hostility generated by the Turkish leadership, local workers at Antalya airport refused to refuel the flight before it could take off for Israel, despite the medical emergency that required the impromptu landing in Antalya and the emergency evacuation of the sick passenger.

Without entering into the regrettable and bitter state of affairs in the political relationship between Turkey and Israel, including the constant and pervasive incitement against Israel by Turkish President Recep Tayyip Erdogan and his Islamist regime, this offensive action by the Turkish airport authorities at Antalya airport points to several substantive violations by Turkey of its international legal and aviation obligations.

Furthermore, there appear to be adequate grounds entitling El Al to initiate legal action against the Antalya airport authorities for the various damages and expenses incurred in violating their professional responsibilities, including the risks and dangers involved both to the plane and its passengers, in El Al’s having to resume the flight in order to find an alternative venue for refueling.

Additionally, this reprehensible behavior on the part of the workers at the Antalya airport could give rise to damage and tort claims by individual passengers forced to endure several hours of delay and physical and mental discomfort while this unfortunate incident played out.

The immediate reaction by the former head of Israel’s Civil Aviation Authority (CAA), Neri Yarkony was to accuse Turkey of committing an unimaginable act and a “blatant violation of the bilateral aviation agreement between Israel and Turkey, which is still in effect,” echoes the seriousness of this incident.

Against the rules

Indeed, the 1944 Chicago International Convention on Civil Aviation, as amended over the years and to which Turkey is party, obligates all states to “adopt all practicable measures, through the issuance of special regulations or otherwise, to facilitate and expedite navigation by aircraft between the territories of contracting States, and to prevent unnecessary delays to aircraft, crews, passengers and cargo …” (Article 22).

It goes on to require that contracting states “provide such measures of assistance to aircraft in distress in its territory as it may find practicable, and to permit, subject to control by its own authorities, the owners of the aircraft or authorities of the State in which the aircraft is registered to provide such measures of assistance as may be necessitated by the circumstances” (Article 25).

The International Civil Aviation Organization, established by the Convention, is required to “Ensure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines” (Article 43(f)).

In the bilateral aviation relations between Israel and Turkey, as agreed in the still-valid 1953 bilateral aviation agreement and in the new, updated agreement signed in 2022, applicable but yet to enter into force, the two parties undertook to “ensure that neutral and non-discriminatory access to airport facilities and all related services is granted to the airlines of the other party” (Article 13 titled “Principles Governing Operation of Agreed Services”).

Clearly, the legal consequences of this regrettable incident must be taken up at all the relevant levels – whether between the two states, their respective civil aviation authorities, between El Al and the Antalya airport authorities and employees, or by the passengers of the aircraft who suffered the indignity, inconvenience, and discomfort caused by the impulsive, arbitrary, and blatantly illegal actions of the workers at Antalya airport in refusing to refuel the plane after an emergency landing.

The writer, an international lawyer, served as legal adviser to Israel’s Foreign Ministry, participated in negotiating and drafting bilateral aviation agreements between Israel and other states; represented Israel at conferences and meetings of the International Civil Aviation Organization; served as Israeli ambassador to Canada; and presently heads the international law program at the Jerusalem Center for Foreign Affairs.