The Aviation Law Review: Unlawful Interference in Civil Aviation Rights, and Remedies

At this time last year, I wrote about the unlawful diversion of Ryanair Flight FR4978 by the authorities of Belarus, forcing it to land in Minsk while en route from Greece to Lithuania. Since that time, there have been further developments and therefore I set out here the substance of what I wrote previously and then describe what has occurred since the previous edition was published.

Onboard that Ryanair aircraft was Belarusian journalist and opposition activist Raman Pratasevich and his girlfriend, Sofia Sapega, both of whom were arrested and taken to prison. Pratasevich was subsequently 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 explanation given by Belarus for its actions. The Belarusian authorities originally said the aircraft was the object of a bomb threat by Hamas that had been passed on by the Swiss authorities, but this has subsequently been denied by both Hamas and the Swiss authorities.

Russia has defended Belarus in an exercise of 'whataboutery' by making reference to the diversion of Bolivian President Evo Morales's plane to Vienna in July 2013, following suspicions by US authorities that the aircraft was carrying Edward Snowden, the National Security Agency contractor who leaked classified intelligence information. This comparison suffers from some major differences in terms of 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 the true purpose of the diversion of Ryanair FR4978 was to seize a successful and vocal opponent of Belarusian President Alexander Lukaschenko's regime (as seems likely in the absence of the production of any evidence to support the allegation by Belarus that it had been informed by Switzerland of a bomb planted on the aircraft by Hamas), then its purpose was clearly of a different order from that of the United States in obtaining the assistance of its allies to force President Morales's aircraft to land and allow a search to be conducted for Snowden, whose actions have certainly threatened the interests of the United States 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 intended 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 United States and possibly other governments for actions of this sort, 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 is available in the way of legal redress in a situation of this kind? Since the perpetrator of the act was Belarus, and accepting for this purpose that President Lukaschenko heads a legitimately elected government (although this is disputed by numerous other states), action on behalf of injured parties in such a situation can be taken in a few states such as Spain and the United States, which permit international acts of terrorism to be litigated against state offenders in their courts.

At an international level, the United Nations and the International Civil Aviation Organization (ICAO) represent the two world bodies by whom action can most appropriately be taken. The United Nations 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 has apparently prohibited European carriers from changing their fight plans to bypass Belarusian airspace in respect of flights to Russia.

Belarus acceded to the Chicago Convention on 4 June 1993. The Convention recognises both 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 Ryanair FR4978), the overflight rights and the safety of the aircraft are protected by the Convention. The right is reserved to states in Article 9(a) of the Convention to require aircraft to land at a designated airport within their territory in certain circumstances, including for public safety. Public safety might have been argued as a legitimate reason for the Belarusian actions had there been a genuine and credible threat, but any interception itself 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'. Thus the issue becomes how to force Belarus to produce evidence that convincingly demonstrates its receipt of a credible bomb threat and, if it fails to do so, how its actions can be sanctioned.

Any Member State can refer suspected breaches of the Convention to the ICAO Council. 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, 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 United States, the United Kingdom, Estonia, France, Ireland, Belgium and Germany. The ICAO Council is empowered to resolve any disagreement between states; its decisions are made by a majority of the members of the Council2 and this authority includes the power to investigate and adjudicate. Most importantly, the majority-decision rule precludes the possibility that Belarusian allies (who do not make up the majority of members of ICAO or its Council) will have the power to block decisions as they could in the Security Council. There is a right of appeal against 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.

Steps have already been taken at the European level as 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 the recommendation that Member States prohibit their carriers from operating within the airspace of Belarus and bar Belarusian carriers from operating in the bloc's airspace. While this comes at a cost for the carriers concerned, in having to operate longer flights at greater expense, there are also 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 have a much greater impact on civil society than on the members of an authoritarian regime. One can but hope that the disgrace of being ousted from an international organisation such as ICAO might also have a significant impact on President Lukaschenko rather than merely increasing the financial hardship of the country and citizens over which he presides.

Notably, in this context, the Preamble to Chicago provides the following:

WHEREAS the future development of international civil 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; and
WHEREAS it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends;
THEREFORE, 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.

As explained in the Preface to this edition, Russia has, of course, now invaded Ukraine and, among other breaches of international treaties, has reregistered hundreds of aircraft in Russia, with potential consequences under the Chicago Convention. At the time of writing, news has also recently broken that Sofia Sapega has been sentenced to six years in prison in Belarus for inciting social hatred. Raman Pratasevich has also been held under house arrest, reportedly awaiting trial.

Following events in Belarus, the ICAO Council requested a report from its Secretariat on the facts of the matter and the Council considered that report at its 225th meeting on 31 January 2022. Among others, Belarus participated in that meeting. According to the official report of the meeting:

The Council expressed concern at the gaps in information provided by Belarus and the inconsistencies contained in the evidence available at the time of the investigation in relation to crucial aspects of the factual reconstruction of the events and highlighted that the bomb threat against FR4978 was deliberately false and had endangered the safety of an aircraft in flight. The Council further recalled that communicating false information which endangers the safety of an aircraft is an offence under the Montreal Convention and, in this connection, strongly condemned such practices. In light of some newly emerging information relating to the FR4978 events and timeline, the Council requested the ICAO investigation team to continue its work with a view to establishing the missing facts, including in connection with the related ongoing criminal and other investigations, and to report to it any further findings.

Clearly, international bodies move slowly in addressing their concerns, but, in view of the latest developments in this matter and in Ukraine, one might hope that progress would be expedited in this, as in other arenas, and that the obligations into which states have entered freely are enforced with the sanctions to which those states have also acceded by their ratification of the Chicago Convention.


Footnotes

1 Sean Gates is the chief executive officer of Gates Aviation Ltd.

2 Article 84.

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