Diversions of Civilian Aircraft: A Preliminary International Law Analysis of Belarus’ Forced Diversion of Ryanair Flight 4978
The forced diversion of Ryanair Flight 4987 between two Member States of the European Union (“EU”) by Belarus, and the subsequent removal and arrest of Raman Protasevich, have been described as “a direct affront to international norms.”
While the diversion in itself would be of mild significance, it is the alleged artificiality and subsequent arrest of the journalist that have undoubtedly garnered wider and more dramatic importance. This is owing to several human rights and international law issues including: alleged violations of international civil aviation law, the threat or use of force by states, state-sponsored terrorism, freedom of political protest, the jurisdiction of the International Court of Justice (“ICJ”) and, more broadly, the international rule of law. This article will provide a brief background to the incident and a preliminary analysis of some of the potentially relevant international law issues, focusing on the International Civil Aviation framework and the ICJ’s jurisdiction. It will also discuss the relevance of the presence of Roman Protasevich – a Belarusian journalist – on the flight, and the implications of Belarus’ action on freedoms, human rights and the international rule of law.
Background to the Incident
On the afternoon of May 24, 2021, Ryanair Flight FR4978 was en route from Athens, Greece to Vilnius, Lithuania. The aircraft, bearing tail number SP-RSW, was registered in Poland. One of its passengers was Protasevich, a Belarusian journalist and dissident who played a key role in protests against the regime of the current President of Belarus, Alexander Lukashenko, in the wake of the contested 2020 presidential elections. Protasevich was detained before the plane was allowed to resume its flight from Minsk National Airport to Vilnius. Media in Belarus said an MiG-29 jet fighter escorted the jet to Minsk because of a bomb scare; however, no such explosives were found on the plane. The plane finally landed in the Lithuanian capital, Vilnius, its original destination, at 21:25 local time – more than seven hours after its scheduled arrival. Arriving passengers said they had been given no information about the reason for the abrupt diversion to Minsk. One said Mr Protasevich looked “super scared. I looked directly to his eyes and it was very sad.” Another, Monika Simkiene, said: “He just turned to people and said he was facing the death penalty.”
There have been numerous insinuations, even among Belarusian media, that Belarus seems to have used a fake bomb threat to force the plane to land upon the personal command of President Lukashenko, so that it could grab a political dissident. The US Ambassador to Belarus, Her Excellency Mrs Julie Fisher, called the act “dangerous and abhorrent.” Officials from other countries are beginning to react. Polish Prime Minister, Mr Mateusz Morawiecki, said the “hijacking of a civilian plane is an unprecedented act of state terrorism,” which “cannot go unpunished.” European Commission President, Mrs Ursula von der Leyen, said that those responsible for the “hijacking must be sanctioned.” She wrote on Twitter that European leaders would discuss what “action to take” at a scheduled meeting in Brussels. NATO Secretary-General, Mr Jens Stoltenberg, commented that “this is a serious [and] dangerous incident which requires international investigation.” British Foreign Secretary, Mr Dominic Raab, described the incident as an “outlandish action by Lukashenko [which] will have serious implications.”
The International Civil Aviation Legal Framework
There is no doubt that the aforementioned are strong statements – nonetheless, it is important to assess whether there are any legal justifications behind Belarus’ action. Belarus is a state party to the 1971 Montreal Civil Aviation Convention and the 1988 Airport Protocol, which oblige states to suppress unlawful acts to civil aviation. The two provisions explicitly prohibit threats to the safety of passengers and crew including “[performing] an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft” and “[communicating] information which he knows to be false, thereby endangering the safety of an aircraft in flight.”
As such, if Belarus used force to divert a civilian aircraft from its intended destination for a political purpose unrelated to physical security, then it may have committed a state-sanctioned hijacking and sabotage of civil aviation. It follows that, in contriving an emergency landing of Flight FR4978 off the back of a fake bomb threat, Belarus is possibly in breach of the Montreal Convention.
When governments break the strong international norms against disturbing civil aviation, they are subject to international condemnation, including for shoot-downs – as was the case with the Soviet Union in 1983, the United States in 1988, Russia in 2014 and Iran in 2020, when the guilty parties claimed mistakes. On that note, it is important to note that there is no generally recognised doctrine of mistake in international law. In those instances, those who denied responsibility have been punished with economic sanctions. In 2013, several European countries blocked Evo Morales’ Bolivian state plane from using their airspace because of suspicions that Edward Snowden, who had leaked U.S. intelligence files, was on the plane. Although governmental airplanes are not covered by the relevant conventions, the countries apologised when the plane landed in Vienna and it turned out that Snowden was not on board.
The International Civil Aviation Organisation (“ICAO”) “has standards governing the interception of commercial aircraft by the military.” ICAO was established in 1944 by an international agreement called the Chicago Convention on International Civil Aviation. The Chicago Convention is the foundational document of international aviation law and has been ratified by 193 States, including Belarus. It specifically prohibits the use of military force against passenger flights, stating: “the contracting States recognise that every State must refrain from resorting to the use of weapons against civil aircraft in flight.” There are situations in which a state can use force against a civil aircraft, such as self-defence or if a plane violates its airspace without permission, but neither applies in this case. On the day, the ICAO tweeted that it was “strongly concerned” by Belarus’ actions, “which could be in contravention of the Chicago Convention.” As a result, it is possible that Belarus’ action constitutes a blatant violation of international law, and at worst, a provocative hostile act against a sovereign state.
International Court of Justice Jurisdiction
A case against Belarus before the ICJ could be brought by Poland, the flag-state of the aircraft, or any of the other states party to the relevant treaties allegedly breached. Yet ICJ jurisdiction could in fact be redundant , since the then Byelorussian Soviet Socialist Republic put in a reservation to Article 14 of the Montreal Convention – the dispute settlement provision – which provides for ICJ jurisdiction. Hence, if a state attempted to bring a case against Belarus based on the Montreal Convention, the ICJ would most likely dismiss it for lack of jurisdiction.
However, not all avenues are closed. Belarus failed to make a similar reservation to Article 87 of the Chicago Convention, providing that any dispute under that treaty can be referred to the ICAO Council, with any decision of the ICAO Council subject to appeal before the ICJ. Moreover, by breaching Article 10 of the Montreal Convention in persuading Flight FR4978 to land, Belarus appears to have equally breached Article 3bis(b) of the Chicago Convention which provides that, in exercising its right to ground an aircraft in transit over its territory, a state can only do so by resorting to “appropriate means consistent with relevant rules of international law.”
As a result, Poland, both as the flag state of the aircraft and, in international law terms, the victim of Belarus’ unlawful act, is entitled to full reparation. As the Permanent Court of International Justice (forerunner of the ICJ) articulated in the 1928 Chorzów Factory case, this means that Belarus “must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” This would mean that Protasevich and his partner Sapega would have to be released from Belarusian custody where it is feared that they face torture or even the death penalty. Protasevich’s status as a Belarusian national does not alter this conclusion. There is precedent for this, with Russia being made subject to similar orders by the International Tribunal for the Law of the Sea at the request of the Netherlands in the 2013 Arctic Sunrise case. That case concerned the interception of a Dutch-flagged Greenpeace vessel in the Russian exclusive economic zone with Russian nationals aboard.
The author, of course, merely provides an early and brief analysis of how one international controversy appears to involve a violation of international law in a manner that can be brought before the ICJ. More articulated responses by the EU and other ministries and institutions may well be produced in the days to come. Some may find grounds for international wrongfulness beyond the civil aviation context – most likely concerning the human rights of Protasevich and Sapega. This scramble to find an appropriate jurisdictional angle on the case sheds light upon one of the persistent weaknesses of international law, particularly in the context of compulsory dispute settlement and enforcement mechanisms.
One thing, however, is clear. Belarus’ decision to ground flight FR4978 under a false pretext to take a dissident and his partner into custody should cause profound disquiet within the international community and invite immediate consequences.
Potential Implications
We are not yet aware of the full details of the incident; however, its implications could be profound. A number of unanswered questions remain, including: how vulnerable may other flights be to this kind of behaviour? In how much danger were the passengers placed? What precedent may be set? Should flights be diverted away from Belarus airspace? Some are already calling it an act of aggression or state terrorism, a form of hijacking.There are questions for international law: to what extent was this act unlawful and if so, what consequences should there be? There are queries about freedom of speech: must critics of other authoritarian regimes fear this could happen to them?
There are demands for further sanctions to be imposed on the government of Belarus, whose legitimacy has already been questioned after disputed elections last year. President Lukashenko is often described as Europe’s last dictator. Will the word “pirate” now be added to his list of titles?
Author: Evgenia Chamilou
LLB Law (University of Warwick), LLM Public International Law (London School of Economics and Political Science)
Sources
https://www.france24.com/en/europe/20210524-how-belarus-s-aviation-piracy-broke-international-law
Команду принять в Минске "заминированный" самолет Ryanair дал лично Лукашенко (belta.by)