Aerial Incident of 23 May 2021: Belarus and the Ryanair Flight 4978

It was widely reported on Sunday that the government of Belarus forced a Ryanair flight bound for Vilnius to land in Minsk on account of a ‘potential security risk’. The flight was escorted to Minsk by Belarussian MiG-29 fighters. As the BBC put it:

Flight FR4978 was en route from Athens to the Lithuanian capital Vilnius on Sunday when it turned east to Minsk shortly before it reached the Lithuanian border. Greece and Lithuania put the number of passengers on board at 171.

            …

The flight path, visible on the Flightradar24 website, suggests the plane was actually nearer to Vilnius than Minsk when it turned.

Ryanair said checks in Minsk found ‘nothing untoward’ and the aircraft was cleared to depart after about five hours on the ground.

The reports further state the Belarusian President Alexander Lukashenko gave the order for the plane to be diverted, and scrambled fighters to intercept and escort it to Minsk, citing a bomb threat. On board the plane was Roman Protasevich, a 26-year-old journalist who is a staunch critic of the regime in Belarus and who has been declared a terrorist by it and charged with a number of crimes under Belarusian law. Upon landing in Minsk, Protasevich was taken from the plane and detained. Condemnation by political leaders has been swift. There is much to be said about ongoing human rights violations in Belarus, including the persecution of journalists.

In this post, however, we focus on certain legal issues in relation to the diversion itself. In particular, we discuss whether states may order civil aircraft flying over their territory to land for certain purposes, eg to determine whether there are explosives on board or to detain a criminal suspect, and whether they are entitled to compel them to do so – questions that arise under the Chicago Convention. We also discuss briefly responsibility under the Montreal Convention, as well as the use of ‘hijacking’ language and The Hague Convention. We finally raise issues of invocation and implementation of state responsibility for the internationally wrongful acts potentially committed.

The Chicago Convention

The place to start is the Chicago Convention of 1944. Indeed, ICAO itself reacted on twitter:

ICAO is strongly concerned by the apparent forced landing of a Ryanair flight and its passengers, which could be in contravention of the Chicago Convention. We look forward to more information being officially confirmed by the countries and operators concerned.

There is no doubt that states have sovereignty over their airspace, as per Article 1 of the Convention and customary international law. However, in accordance with Article 3 bis (a) of the Convention, states ‘recognise’ their obligation to refrain from using weapons against civil aircraft in flight, the provision making direct reference to the obligations under the UN Charter. This is (in part) a reiteration of the prohibition of threat or use of force in Article 2(4) of the Charter (though it goes beyond that as it prohibits use of force even against civil aircraft registered in the territorial state). Under 3 bis (b), a state is entitled to require landing at a designated airport of a civil aircraft flying above its territory only when the latter is flying ‘without authority’ (which was not the case here), or ‘if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this Convention’. A bomb on board a plane may qualify as that plane being used for purposes inconsistent with the aims of the Convention, which include avoidance of ‘abuse [of civil aviation that] can become a threat to the general security’, as per the Preamble.

However, it appears that there was no bomb on the Ryanair flight, nor has Belarus provided any evidence that it had any ‘reasonable grounds to conclude’ that there was—there is so far merely an assertion. The next question is whether the presence of an alleged criminal (or terrorist) on board a flight would constitute an (ab)use of civil aviation that is inconsistent the Chicago Convention aims mentioned above. That is doubtful: if it were so, then every state could interfere with civil aircraft traversing its airspace if it had ‘reasonable grounds to conclude’ that a suspected criminal/terrorist was on board the flight, which would no doubt wreak havoc on air travel. That does not seem to us to be a plausible interpretation of the provision or of the aim of avoiding abuse of civil aviation to safeguard ‘general security’. Rather, it seems as an abuse of powers over civil aviation on the part of the territorial state.

There is no doubt that if Protasevich were driving through Belarus, his car (even a foreign-registered car) could be stopped and he could be detained, and that would be a commonplace exercise of jurisdiction. One may ask why it should not be so in the case of air travel. The reason is that airspace is not fully assimilated to land territory in terms of the exercise of sovereignty and thus jurisdiction. It is the Chicago Convention and customary law that determine the extent of state powers over airspace, much like it is the UN Convention on the Law of the Sea and customary law that determine the extent of state powers over the territorial sea. And even though there is no right of innocent passage through national airspace (as there is in the case of the territorial sea), the Chicago Convention does establish a form of right of unencumbered passage once permission to enter/traverse has been given, otherwise all civil aviation would be at the whim of each and every territorial state.

If that is so, then the Belarusian requirement that the plane divert and land at Minsk under false pretences, and indeed even more so the scrambling of fighters to intercept and escort the flight to the airport, which must constitute at least a threat of force, are in breach of Belarusian obligations under Article 3 bis of the Chicago Convention. We note that interception, in particular, will likely entail a threat of force when undertaken by fighters: the flight commander must comply with instructions of interceptors or risk action against the aircraft.

The Montreal Convention

A second legal basis upon which the international responsibility of Belarus can be established is the Montreal Convention of 1971. Article 5 of the Convention requires state parties to establish jurisdiction over certain offences against the safety of civil aviation. Article 1 of the Convention defines those offences, and includes in paragraph 1(e):

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.

On the face of the reports, it appears that such an offence was committed. As the BBC reported, Ryanair said that the crew was ‘notified by Belarus (Air Traffic Control) of a potential security threat on board and were instructed to divert to the nearest airport, Minsk’. On the other hand, the editor-in-chief of NEXTA, of which Protasevich was the co-founder, reported on twitter that Belarusian KGB agents on board the aircraft insisted that there was an improvised explosive device. In the instance, there is no indication that there was any risk to the plane at all, and in the light of the reports that there was an ulterior motive for the diversion, we can reasonably assume that it was the information communicated was knowingly false, and thus endangered the safety of the aircraft.  

If an offence as defined in the Convention has been committed, the next question is responsibility. We do not deal here with individual criminal responsibility, other than to note that any state organ that perpetrated the offence (eg the KGB agents on board, if they were the ones to relay the false information) will certainly enjoy at least immunity ratione materiae. In this respect, one possibility is a broad application of the reasoning in Pinochet – the assumption by state parties of a duty to establish jurisdiction over the offences in the Montreal Convention entails an implied waiver of immunity ratione materiae. One problem here, however, is that the Convention against Torture, at issue in Pinochet, is not quite analogous. In relation to CAT, it is the definition of torture as requiring state involvement that drives the argument that without waiver the relevant provisions of the Convention would be frustrated. By contrast, the Montreal Convention was adopted precisely to deal with non-state action against the safety of civil aviation. Even though state action is also conceivably captured by the Convention, it is more difficult to make the argument that waiver of immunity is necessarily implied.

As to state responsibility, Article 10(1) of the Montreal Convention provides:

Contracting States shall, in accordance with international and national law, endeavour to take all practicable measure [sic] for the purpose of preventing the offences mentioned in Article 1.

The facts, as reported, seem to be a relatively straightforward breach of Article 10(1) by Belarus – a failure to prevent the relevant offence from taking place.

In addition, there is the tricky question of whether the Montreal Convention also imposes on states an obligation not to commit the offences set out in Article 1 – an obligation that might be implied from the obligation to prevent in Article 10(1). In this respect, the decisions of the ICJ in the Bosnian Genocide case (para 166) and on Preliminary Objections in Ukraine v Russia (para 59) seem to point in different directions. Determining the better view of the position under the Montreal Convention would require further work. In any event, however, the preventive duty remains applicable.

‘State Hijacking’ and The Hague Convention

 The BBC and NYT both reported statements by Lithuania that the civilian aircraft was ‘hijacked by military force’, and by the Greek Foreign Ministry that this was a ‘state hijacking’. This language has also been used in reporting the events. However, we should note here that in accordance with the Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague 1970), there is such unlawful seizure if a person on board an aircraft in flight seizes or exercises control of that aircraft (or attempts to do so) by means of threat or force or through other form of intimidation (Article 1). This is what is colloquially referred to as hijacking, and it does not appear that this happened in the instance. Even though the Guardian reports that there were Belarusian KGB agents on the flight, there is no indication that they used intimidation or threats or force in order to seize control of the aircraft. Had the agents actually seized control of the aircraft, then we could be dealing with a breach of the obligation of the state under Article 9 of The Hague Convention to ‘preserve the control’ of the lawful commander of the aircraft.

 Questions of the Invocation of Responsibility

Assuming that there is an arguable case that Belarus has breached its obligation under the Chicago and the Montreal Conventions, the question is who can invoke the state’s responsibility for the internationally wrongful acts. If Poland is the state of registration of the aircraft, then it can certainly invoke that responsibility in accordance with the rule reflected in Article 42 of the Articles on State Responsibility. Potentially so can the Republic of Ireland as the state of incorporation of Ryanair by means of diplomatic protection, once Ryanair at least attempts to exhaust any remedies available under Belarussian law.

However, and more importantly, we argue here that the relevant obligations in the Montreal Convention are actually established for the protection of collective interests of the group of states parties to the Convention. They thus constitute obligations erga omnes partes, meaning that all parties to the Convention can invoke the responsibility of Belarus in accordance with the rule reflected in Article 48(1)(a) ASR. This is not a claim we make lightly: the obligations in the Montreal Convention are multilateral obligations that can be bilateralised in any given instance. To argue that they constitute obligations erga omnes partes requires some anchoring in the text and/or the object and purpose of the Convention. We argue that this anchoring is provided by the ‘extradite-or-prosecute’ obligation in Article 7 of the Convention. This obligation, noted as being applicable ‘without exception whatsoever’, aims to cast a net over all state parties to the Convention in order to secure its implementation. This must be taken to signify that the obligations in the Convention are not merely owed to individual state parties through bilateralisation, but are also owed to all states-parties as they have been established for the protection of a collective interest of the group, namely the protection of safety of civil aviation. As such, any one of the other 187 state parties to the Montreal Convention can invoke Belarusian responsibility for the breach, and demand that it comply with its secondary obligations to cease the breach if it is continuing (it is, as long as the relevant offenders are not prosecuted), to offer assurances and guarantees of non-repetition (eg through adoption or amendment of relevant domestic legislation), and to offer reparation to the directly injured state (eg Poland and/or the Republic of Ireland).

Assuming that Belarus rejects the invocation of its responsibility along the lines described above, this would give rise to a dispute between the state invoking Belarusian responsibility and Belarus under the Montreal Convention. Article 14(1) of the Convention provides for any dispute as to the interpretation or application of the Convention that cannot be settled by negotiation to be submitted to arbitration at the request of any of the parties and, if such arbitration cannot be organised by agreement of the parties within six months, to be referred to the ICJ by any of the parties. However, Belarus has declared that it does not consider itself bound by this provision, as it is explicitly entitled to do under Article 14(2).

This does not mean that the state(s) invoking Belarussian responsibility cannot determine for themselves and at their own risk that Belarus has not only become responsible for a breach of the Convention, but has also failed to comply with its secondary obligation, and thus resort to countermeasures—a matter which is taken up in the next section.

Before turning to that, however, it is worth mentioning that recourse to international adjudication may not be fully precluded in the instance. Invocation of responsibility under the Chicago Convention would follow similar lines as the ones under the Montreal Convention. The obligations under Article 3 bis, being as they are but an implementation of the prohibition of the threat or use of force under the UN Charter and customary law, must be seen again as an obligation owed erga omnes partes, entitling any of the other 190 state parties to the Chicago Convention to invoke the responsibility of Belarus. As per Article 84 of the Chicago Convention, any ‘disagreement’ (which the ICJ has interpreted as ‘dispute’, and which indeed is referred to as dispute later in that provision and in Article 85) as to the interpretation or application of the Convention that cannot be settled by negotiation shall be decided by the ICAO Council ‘on the application of any state concerned in the disagreement’. Any decision of the ICAO Council (including, as per the jurisprudence of the ICJ, on preliminary objections) can be appealed to either an arbitral tribunal agreed upon by the state parties to the dispute, or, if no such agreement is forthcoming, to the ICJ (by operation of Article 37 of the ICJ Statute, as the reference in the Chicago Convention is to the PCIJ, adopted as it was in 1944).

We note thus that the road to the International Court of Justice is still open in this case, even if it is a rather winding road. We stress further that the provision of Article 85 of the Chicago Convention is likely not applicable, as it refers to states that have not accepted ‘the Statute’ of the [PCIJ/ICJ], and not to states that do not accept the court’s jurisdiction. All Members of the UN are ipso facto parties to the ICJ Statute, and thus ‘accept’ it. Consent to the jurisdiction of the Court is given by means of their consent to the Chicago Convention and its Article 84. There appear to be no reservations to the Chicago Convention. We shall return to another route to the ICJ in the next section.

Questions of Implementation of Responsibility

Whether invoking Belarussian responsibility under the Montreal Convention or under the Chicago Convention, both injured states (eg Poland) and states ‘other than the injured state’ in the sense of Article 48 of the Articles on State Responsibility may resort to countermeasures in order to implement Belarussian responsibility and induce Belarus to comply with its secondary obligations of cessation, assurances and guarantees of non-repetition, and reparation, as described above.

If it is states ‘other than the injured state’ that will resort to countermeasures, then these would have to be classified as countermeasures ‘in the general interest’, a matter notoriously avoided by the ILC in the ‘no-prejudice clause’ that is Article 54 ASR, but arguably a practice that is much favoured by (at least some) states (and the EU) in the last couple of decades. The interesting thing here is that such countermeasures may take the form of breaches of not just trade and other obligations, but also of breaches of obligations under the Chicago Convention, if calls to avoid Belarussian airspace and to take other relevant measures, reported by the BBC and NYT, are to be believed (and to materialise). This would make for an interesting turning of the tables: in that case, it may be Belarus that resorts to the ICAO Council, much like Qatar did in response to measures taken against it by Saudi Arabia and other states, leading to an appeal to the ICJ in the Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), culminating in the Court’s judgment of 14 July 2020.

Conclusion

Depending on further clarification on the facts, it appears likely that Belarus has breached the Chicago Convention as well as the Montreal Convention in forcing FR4978 to land in Minsk. In particular, Belarus breached the Chicago Convention because there appears to have been no reasonable grounds for it to conclude that the Ryanair flight was being ‘used for any purpose inconsistent with the aims of this Convention’. This however is not ‘state hijacking’ or ‘piracy’; it is a breach of Belarusian obligations under the aforementioned international treaties. Even though the route to adjudication is precluded in the case of the Montreal Convention due to Belarusian reservation, it remains open in the case of the Chicago Convention. All states parties to the two Conventions have standing, we argue, to bring claims against Belarus for these alleged violations, and thus also to adopt ‘sanctions’ (countermeasures) against it. Such actions may also fall to be tested in international adjudication.