How India’s legal-political actions have prompted Pakistan to open its air space

In the aviation industry, airspace is that portion of the atmosphere which is controlled by a country above its territory. By international law, regulated by International Civil Aviation Organisation (ICAO), a state has complete and exclusive sovereignty over the airspace above its territory which extends to 12 nautical miles or about 22.2 km.


It is the international agreement which governs the control of the international airspace. For instance, airspace over the oceans, also called high seas, is also governed by international agreements. Such agreements are governed and moderated by ICAO, the specialised agency of the United Nations. The operational control in the flying corridor over such land territory and high seas are called Flight Information Region (FIR). Thus, for any country, the FIR will include the airspace above its land and sea territory and additionally, the international airspace in respect of which ICAO has assigned responsibility. The countries which have control over FIR and which enter into an international agreement also get a commercial consideration from the flights flying in this FIR. The commercial consideration is mainly because the countries regulate and direct such flights. This commercial consideration may be a big revenue for a country which has larger FIR control. For instance, if Air India flies over the airspace of Pakistan in the FIR then Air India has to pay a commercial consideration to the Pakistani government as per the ICAO agreement.

Pakistan air corridor or the FIR is a key route for many flights with destinations in Europe and the United States. Pakistan had shut down its airspace post Balakot air strike by the Indian Air Force. Subsequently, India had also shut down its airspace for all Pakistani flights. The cost of flights to Europe and the United States increased because of the airspace shutdown by Pakistan. All airlines in India with routes over Pakistan airspace had to shell out additional fuel cost. The already fragile Pakistani economy too had to incur additional cost because of the shutdown of Indian airspace for Pakistani flights. All Pakistan flights to southeast countries had to change their route or cancel thus incurring additional costs. Pakistan economy had to suffer two-fold
-- firstly because of loss of revenue from other flights over its airspace and secondly because of loss of revenue on its own flight to south eastern countries.

So what legal-political options did India exercise which made Pakistan open its air space? India would have most probably approached ICAO for such restrictive policies of Pakistan which ultimately is detrimental to the global economy. India in most probability would have made a strong written representation to ICAO calling such action of Pakistan as fowl and near-breach of the ICAO agreement. India also had the option of invoking the mediation/arbitration clause or any other dispute resolution clause contained in the agreement. Such representation by India to ICAO is a representation to the United Nations, since ICAO is an arm of the UN. India would also have represented to the US and other powerful western countries which would have persuaded Pakistan to reopen its airspace. Pakistan may just be looking at some excuse to shore up its revenue stream and Indian legal political actions would just have made it easier for them to open the airspace.

K Satish Kumar is a keynote speaker, author, the Global Head of Legal and Chief Data Protection Officer of Ramco Systems. He has received the coveted ‘Legal Counsel of the Year -2018’ by INBA, and is also featured in ‘GC PowerList India 2018’ by Legal 500. He is actively involved in many pro bono activities through Chennai Lawyers. The author can be reached at getksk@gmail.com.