The Aviation Law Review: Unlawful Interference in Civil Aviation Rights and Remedies
At the time of going to press, the issue that is dominating the world's headlines and exercising aviation law experts around the world arises from the action by Belarus in forcing a Ryanair aircraft overflying its territory to land in Minsk while en route from Greece to Lithuania. Onboard the aircraft was an opposition activist, Raman Pratasevich, and his girlfriend, both of whom were arrested and taken to prison. Pratasevich has since been seen on television showing signs of injuries to his face and apparently confessing to his 'misdeeds'. International outrage has been sparked by serious doubts as to the Belarussian explanation for its actions. The authorities originally said there was a bomb threat to the aircraft by Hamas passed on by the Swiss authorities, which has subsequently been denied both by Hamas and the Swiss authorities, Russia has defended Belarus in an exercise of 'whataboutery' by referencing the diversion of Bolivian President Morales's plane to Vienna in July 2013, arising from suspicions by US authorities that the aircraft was carrying Edward Snowdon, the National Security Agency contractor who leaked classified intelligence information.
This comparison suffers from some major differences by reference to the legality of the actions of the states concerned. Overflight rights of civilian aircraft are guaranteed by the Convention on International Civil Aviation 1944, known as the Chicago Convention, but this does not apply to governmental aircraft such as that of President Morales, in respect of which overflight rights are negotiated on a state-by-state basis and which are subject to withdrawal. If, as seems likely in the absence of the production of any evidence of the allegation by Belarus that the authorities had been informed by Switzerland that the aircraft had a bomb planted in it by Hamas, the true purpose was to seize a successful and vocal opponent of Belarus President Lukaschenko's regime, then its purpose was clearly of a different order from the US obtaining the assistance of its allies to force Morales's aircraft to land so it could search for Snowdon, whose actions have certainly threatened the interests of the US and probably jeopardised the personal safety of US personnel around the world. If Belarus cannot prove its allegations and indeed had a malign purpose, this would amount to a breach of the freedoms granted by the Chicago Convention, unlawful interference in civil aviation and arguably unlawful jeopardising of the safety of the flight. One can also point to the difference between actions designed to inhibit free speech in Ukraine versus actions to protect the safety of American citizens jeopardised by acts of espionage.
Regardless of whether criticism can be laid against the US and possibly other governments for actions of this sort, however, what is clear is that legitimate international civil aviation should not be subject to the whims of states in the airspace in which those aircraft properly operate. What, then, can the legal redress be? Since the perpetrator of the act was Belarus, accepting for this purpose that Lukaschenko heads a legitimately elected government (although this is disputed by numerous other states), then action on behalf of injured parties can be taken in a few states such as Spain and the US that permit international acts of terrorism to be litigated in their courts against state offenders.
At an international level, the United Nations and the International Civil Aviation Organization represent the two world bodies where action can most appropriately be taken. The UN is however customarily blocked from taking decisive action against non-democratic states by the blocking powers of Security Council members such as Russia. Russia has, as indicated, already defended Lukaschenko's regime and most recently is apparently prohibiting European carriers seeking to bypass Belarussian airspace from changing their fight plans in respect of flights to Russia.
Belarus acceded to the Chicago Convention on 4 June 1993. The Convention recognises the sovereignty of states over their own airspace and that aircraft shall not operate in that airspace except with authorisation by the state concerned, but once that authorisation has been given, as was of course the case with the Ryanair aircraft, the overflight rights and the safety of the aircraft are protected by the Convention. The right is reserved in Article 9(a) to states to require aircraft to land at a designated airport within its territory in certain circumstances, including for public safety. Public safety might have been argued as a legitimate reason for the Belarussian actions if there was a genuine and credible threat, but any interception carries a risk to the safety of the civilian aircraft and crew. In particular, Article 3 bis (a) specifies that 'the lives of persons on board and the safety of aircraft must not be endangered'. So the issue becomes how to force Belarus to produce evidence that convincingly demonstrates the receipt of a credible bomb threat, and how, if it fails to do so, its actions can be sanctioned.
Any Member State of the Convention can refer to the Council of International Civil Aviation Organization (ICAO) suspected breaches of the Convention. In this case, Ireland as the place where the Ryanair aircraft was registered and where Ryanair has its headquarters would seem to be the most obvious state to make such a referral to, although Greece and Lithuania are also potential complainants along with those states whose citizens were passengers on the aircraft. A number of countries have already called for an investigation by ICAO, including the US, the UK, Estonia, France, Ireland, Belgium and Germany. The Council is empowered to decide any disagreement between states; its decisions are made by a majority of the members of the Council (Article 84). This carries with it the power to investigate and adjudicate. Most importantly, the majority decision rule precludes the possibility that Belarussian allies, who do not make up the majority of members of ICAO or the Council, will have the power to block decisions as they could in the Security Council. There is a right of appeal from any decision of the Council, either to the permanent Court of International Justice or an arbitral tribunal agreed upon by the parties, and the decision of the arbitral tribunal or the Court shall be final. Under Article 88, if a state is found in default, the General Assembly shall suspend the voting power of that state in the Assembly and in the Council.
Some steps have already been taken at the European level since the Community is directly affected by this incident, the flight having started in and having its destination within European states and the operator being headquartered in another such state. These measures include sanctions to be decided and recommending that Member States prohibit their carriers from operating within the airspace of Belarus and bar Belarussian carriers from operating in the bloc's airspace. While this comes at a cost for the carriers concerned in operating longer flights at greater expense, there are financial consequences for Belarus in terms of a loss of connectivity and not being entitled to collect overflight fees, which are likely to amount to millions of euros per year. Of course, financial sanctions of this nature impact much more on civil society than on the members of an authoritarian regime. One can hope that the disgrace of being ousted from an international organisation such as ICAO might also have a significant impact on Lukaschenko other than merely increasing the financial hardship of the country and its citizens over which he presides.
The Preamble to Chicago provides the following:
Aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security;
it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends;
the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner
and that international air transport services may be established on the basis of equality of opportunity and operated soundly transport and economically;
Have accordingly concluded this Convention to that end.
Hopefully those noble sentiments will not be undermined by Russia's recent actions taken in support of Lukaschenko, failing which there is a real risk of escalating tensions and disruption to civilian air traffic and the very friction that the Convention was designed to avoid.
1 Sean Gates is the CEO of Gates Aviation Ltd.