On May 24th, 2021, Ryan Air Flight FR 4978 (“FR 4978”) was en route from Athens, Greece, to Vilnius, Lithuania. One of the passengers on the flight was Roman Protasevich, a Belarus journalist and a key dissident against Belarus’ President Alexander Lukashenko. His partner Sofia Sapega was on board the flight as well, in addition to two officers of the Belarusian secret police (the KGB).
The agents onboard claimed an explosive device was on board and ensured an emergency landing. A Belarusian Air Force MiG-29 appeared beside the plane and escorted it to Minsk, Belarus. Upon reaching Minsk, both Protasevich and Sapega were detained. Interestingly, no explosive device was found, and it was believed that the story was a concoction by Belarus, which claimed their intelligence was based on a threat made by Hamas to ensure a ceasefire with Israel in Gaza.
This pretext and the consequent events constituted violations of international aviation law. In this piece, we argue that Belarus violated its obligations under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (“Montreal Convention”) and the 1944 Chicago Convention on International Civil Aviation (“Chicago Convention”).
Breach of Obligations under Montreal Convention
Belarus, party to the Montreal Convention, has allegedly violated its obligations under Article 5 of the Convention. Article 5 requires parties to establish jurisdiction over select offences that operate against civil aviation safety. Article 1(e) of the Convention defines these offences:
“Any person commits an offence if he unlawfully and intentionally… (e) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.”
Further, Article 10(1) of the Convention requires states to endeavour to take all practicable measures to prevent offences provided under Article 1 whilst complying with the international and national law.
In Belarus’ case, the Air Traffic Control notified FR 4978’s crew of a potential security threat on board, and thus they were instructed to divert to the nearest airport at Minsk. However, the nearest airport at the time was Vilnius. There is a case to be made that time is of the essence in the case of a bomb threat, and it was more reasonable to reach Vilnius in that context. Even if the debunked bomb threat was that the bomb would be set off over Vilnius, there is no reason to think that the bomb could not be triggered over Minsk instead.
The KGB agents onboard informed the passengers that there was an ‘improvised explosive device’ onboard. It was nonetheless discovered that there was no risk. Instead, the flight was forced to land, through false information communicated, for the arrest of Protasevich. Further, subsequent emails by the Belarussian authorities had shown that the flight was diverted before the purported bomb threat was communicated.
Thus, by endangering FR 4978’s safety, Belarus violated its state responsibility under Article 10(1) of the Montreal Convention by communicating false information.
Obligations under the Chicago Convention
The Chicago Convention established the International Civil Aviation Organization (“ICAO”). ICAO is an international aviation regulatory body. With 193 members, it plays a cardinal role in ensuring international aviation security. Following Belarus’ activities, the ICAO expressed its concern on the potential violation of the Chicago Convention.
Under Article 1 of the Chicago Convention and customary international law, a State is guaranteed sovereignty over its airspace. However, Article 3bis (a) of the Chicago Convention requires states to acknowledge their obligation to refrain from using civil aircraft. If in case of direct interference, the lives on board should not be endangered. Belarus, although, may pursue Article 3bis (b) to justify its actions. Article 3bis(b) entitles a state to require a civil aircraft flying over its territory to land at a designated authority if either the flight does not have proper authority or if there are reasonable grounds to conclude that the flight was being used for purposes inconsistent with the aims of the Chicago Convention. Article 44 lists the aims of the Chicago Convention, most notably Article 44(a), which aims to “insure the safe and orderly growth of civil aviation throughout the world,” and Article 44(h), which aims to “promote safety of flight in international air navigation.”
Firstly, state-sanctioned bomb hoaxes disrupted civil aviation in the European Union (“EU”) as flights started to avoid the Belarussian airspace. Thus, the unsafe environment disrupted the safe and orderly growth of civil aviation. Secondly, the use of Belarussian MiG-29s to intimidate those onboard constituted a ‘threat of force’ because the airline had no other option but to comply.
Considering these objectives, Belarus’ diversion of FR 4978 to Minsk under false pretences violates Belarus’ obligations under Article 3bis of the Chicago Convention.
The Course of Action Against Belarus
Albeit a case being made out for Belarus’ violation of Article 10 of the Montreal Convention, the same cannot be used to bring action against Belarus. Belarus has a reservation to Article 14 of the Montreal Convention, which concerns dispute settlement. In the Case Concerning Armed Activities in Congo, Rwanda had inserted a reservation against Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The International Court of Justice (“ICJ”) accepted the validity of the reservation and dismissed the case. Thus, the ICJ is likely to dismiss this case on the grounds of lack of jurisdiction.
However, a case against Belarus exists under the Chicago Convention. A dispute can be raised to the ICAO with the decision of the ICAO Council being subject to appeal before the ICJ. Poland has the right to pursue this dispute before the ICJ, considering that FR 4978 was registered in Poland. Additionally, Ireland, where Ryanair is headquartered, has a cause of action. However, any of the 190 other nations who are members of the Chicago Convention can commence proceedings as well. Belarus violated Article 3bis, a duty owed to all contracting parties (erga omnes partes), as the grounding of FR 4978 was not by “appropriate means consistent with relevant rules of international law.” Thus, Article 3bis contains an obligation, the contravention of which empowers all contracting parties to invoke the state responsibility of Belarus.
Over the past few decades, multiple nations have partaken in ‘countermeasures’ in the general interest against a state they feel has injured another. In this case, firstly, various nations have already asserted that they will avoid the Belarussian airspace. Secondly, the United States has already drawn up a list of targeted sanctions against key members of the Belarussian government following this incident. Thirdly, the EU as well is currently in the midst of deciding which sanctions to impose. All 27 EU leaders have already agreed to toughen sanctions against President Lukashenko’s government, bar EU airlines from traversing Belarussian airspace and prevent Belarus’ national airline, Belavia, from flying over and landing on EU territory.
Countermeasures are responses to an internationally wrongful act. These responses, although unlawful, are justified by the initial failure to which they are a response. The actions taken by the abovementioned nations amount to ‘countermeasures of general interest’. They are adopted when states that have not suffered any harm in the classical sense respond to the breach of certain obligations that are “essential to the international community’s security as a whole.”
Here, the proposed measure by the EU has the possibility of breaching Article 5 of the Chicago Convention. Article 5 provided contracting states with the right to make flights into, transit non-stops and stops for non-traffic purposes without the necessity of obtaining prior permission of other contracting states.
These freedoms, when restricted, can classify as countermeasures only in the case of the violation of the Chicago Convention by Belarus. Failing that, restrictions on Article 5 by the EU becomes a cause of action for Belarus to approach the ICAO Council.
The Chicago Convention has delicately maintained aviation safety and growth for the past 75 years. This was made possible due to the essential principle of ‘reciprocity’. Contracting states open their airspace to others without fear of safety in want of the other states pursuing the same. However, Belarus has violated this sanctity. In addition to violating both the Chicago Convention and Montreal Convention, it sets a terrible precedent. The actions of Belarus need to be sufficiently faulted. Belarus has violated Article 3bis, and therefore a cause of action exists before the ICAO. Other means of retribution, although effective, have the possibility of adversely impacting the nation pursuing such measures.
Akshay Luhadia and Saiesh Kamath are fourth year law students at West Bengal National University of Juridical Sciences, Kolkata, India.
Image: Mahima Balaji (AP/Reuters/USAToday).