Legality of the diversion of Ryanair Flight FR4978

Vikrant Pachnanda comments on the legality of the recent diversion of Ryanair Flight FR 4978 by the Belarusian Government.

‘Acts of unlawful interference with civil aviation continue to have an adverse effect on the safety and efficiency of international air transport and endangering the lives of aircraft passengers and crews engaged in air transport.’- ICAO Resolution A 26

Introduction

As per media reports on 23rd May 2021, Ryanair Flight 4978 was travelling en-route from Athens, Greece to Vilnius. Lithuania. The aircraft being operated was registered in Poland and its passengers included one Roman Protasevich who is a Belarusian journalist and his partner Russian law student Sofia Sapega as well as two Belarusian police officers. Once the plane had entered Belarusian airspace, these police officers apparently told the pilot of the flight that there was an explosive device on board and that an immediate emergency landing was required. The fight was escorted thereafter by a Belarusian fighter jet to Minsk in Belarus and not Vilnius.

Upon the aircraft’s landing, both Roman and Sofia were detained indicating that this act was only done in order to force the plane to land so that the two could be arrested by Belarusian authorities. Roman was a dissident who had played a key role in protests against the Belarusian President Alexander Lukashenko’s regime in the 2020 presidential polls. News reports suggest that Belarus has admitted that there was no bomb on board and instead stated that the organization Hamas had made a threat so that a ceasefire could be secured with Israel in Gaza although this ceasefire was actually obtained two days prior to the incident i.e. 21st May. Hence this article looks to ascertain whether this interception would be in contravention of international aviation law.

Legal issues that would arise

(a) Whether Belarus committed a breach of the Montreal Convention as the bomb threat turned out to be hoax?

Belarus is a Party to both the Convention on International Civil Aviation, 1944 (hereinafter referred to as “Chicago Convention”) and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971 (hereinafter referred to as “Montreal Convention”). Article 1(1)(e) of the Montreal Convention categorically lists any person communicating any information to be false, thereby endangering the safety of an aircraft in flight as an offence. Moreover as per Article 10(1) of this Convention, a state must act in accordance with international and national law and endeavour to take all practicable measures for the purpose of preventing the offences mention in Article 1 including the above offence.

Therefore the Belarus Government would have to justify the reasonable grounds on which it believed that a civil aircraft was being used to violate the aims of the Montreal Convention. Moreover as per Article 3bis(a) of the Chicago Convention, it would also have to prove that while intercepting the plane, it did not at any point of time endanger the lives of the people on board and the safety of the aircraft.

(b) Whether Belarus could order the diversion of the aircraft in light of the principle of ‘sovereignty’ over its airspace?

Article 1 of the Chicago Convention states that 'The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory'. The distinguished jurist Max Huber, in his opinion in the Island of Palmas arbitration between the United States of America and the Netherlands case stated that 'Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State the functions of a State.’ Thus in exercise of its sovereign rights, Belarus has the right to regulate its airspace. However as per Recital 3 of the Preamble to the Chicago Convention read with Article 44 (d), the State of Belarus has agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner.

Hence the Belarusian Government would have to prove this act of diverting Ryanair Flight FR 4978 was in accordance with protecting its sovereign right over its airspace as per Article 3bis(b) of the Chicago Convention especially since Annex 2 of the Chicago Convention lays down that interception of an aircraft would be the last resort. Furthermore it would have to also been as to whether the Belarusian Government has published any regulations in force regarding the interception of civil aircraft as it has agreed to do so as per Article 3bis(b).

(c) Whether Belarus could be taken to the International Court of Justice?

Belarus did put in a reservation to Article 14 of the Montreal Convention which deals with dispute settlement thus ordinarily precluding Belarus from being taken to the International Court of Justice. However it is pertinent to note that it failed to make a similar reservation to Article 87 of the Chicago Convention which provides that any dispute could be referred to the Council of the International Civil Aviation Organization-the United Nation’s aviation watchdog, mandated to coordinate civil air travel. Furthermore any decision made by this Council would be subject to appeal before the International Court thereby preventing Belarus from completely ousting its jurisdiction.

Conclusion

Today, the problem of air transport safety and security is more critical than ever before especially with the increase in terrorism which will exist as long as humanity does. By virtue of its functional significance and vulnerability, civil aviation has become the focus of operational activity of different terrorist structures as a subject of their actions. Hence the onus is on all nations especially Member States to ensure compliance with the principles enshrined in the different Conventions to which they are signatories and responsibly enact domestic laws in this regard.