AIR TRANSPORT Air law and Belarus diversion
The interception of Ryanair Flight FR4978
Legal or not, carriers have been put on notice In May, Ryanair Flight FR4978 to Vilnius was intercepted by a Belarusian MiG-29 and diverted to Minsk where two passengers were removed. TONY PAYNE, Partner, and ERIC OEHY, Associate, DLA Piper UK LLP, discuss the implications.
A Boeing 737-800 of Ryanair. Ryanair
Belarusian authorities have been accused of fabricating a bomb threat for the purposes of diverting an aircraft to Minsk to apprehend a political opponent. If confirmed, has there been a violation of international civil aviation law and what should air carriers be doing about it?
On 23 May 2021, Ryanair Flight FR4978 from Athens, Greece, to Vilnius, Lithuania, made an emergency landing in Minsk, Belarus. The flight crew of FR4978 diverted the aircraft after being notified by Belarus air traffic controllers that a bomb may be on board the aircraft.
FR4978 was intercepted by a Belarusian Air Force MiG-29 fighter jet and escorted to Minsk National Airport. After the aircraft was inspected by authorities on the ground, it continued on its way to Vilnius. On departure from Minsk, however, the Boeing 737-800 had at least two fewer passengers on board than when it arrived – including Belarusian opposition journalist Roman Protasevich (previously living in exile in Lithuania) and his girlfriend Sofia Sapega. The couple had been arrested on arrival in Minsk, prompting strong condemnation from heads of state around the world and triggering a factfinding investigation by the International Civil Aviation Organization (ICAO).
On 21 June 2021, the UK, US, EU and Canada imposed sanctions on seven individuals and Belaeronavigatsia, the provider of air navigation services in Belarus, for what the UK called ‘the unlawful diversion of Ryanair flight FR4978’.
Application of international civil air law
The Convention on International Civil Aviation 1944, commonly referred to as the Chicago Convention, (which Belarus has ratified) establishes fundamental rules for international civil aviation. Critically, Article 1 of the Chicago Convention states:
‘The Contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.’
Carriers, and those on board, are therefore subject to the laws of the state which they are overflying at any given time. They are not, as some may believe, in international airspace.
Article 3 bis deals with intercepting aircraft and the entitlement of contracting states to require the landing of a civil aircraft at a designated airport if flying above its territory without authority or if there are reasonable grounds to conclude the aircraft is being used for any purpose that is inconsistent with the convention [emphasis added]. Flight crew are required to comply with an order to land, provided it is given in conformity with the aforementioned requirements.
Applying article 3 bis to FR4978 will be difficult for authorities, as well as ICAO, until the true purpose of the interception and diversion can be verified. If proven that FR4978 had been diverted to Minsk purely for political gain, it may be difficult for Belarus to defend accusations that it breached article 3 bis and unlawfully grounded FR4978.
Belarus has also ratified the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971, commonly referred to as the Montreal Convention 1971. Article 1(1)(e) of the convention states that a person commits an offence if he unlawfully and intentionally communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.
Above left: A MiG-29 of the Belarusian Air Force. Since 9/11 interceptions of civilian airliners by fighters has been associated with terrorism. Above right: The diverted flightpath of flight FR4978.
As above, further investigation will be required to determine whether the alleged bomb threat was real or not. As to whether the safety of the flight was endangered as a result, it can likely be said that, at the very least, there would be a significant increase in workload on the flight deck for crew unexpectedly diverting to an unfamiliar airport under a bomb threat – potentially adversely affecting flight safety.
Both the Chicago Convention and the Montreal Convention 1971 contain dispute resolution mechanisms. Under the Chicago Convention, contracting states concerned in a disagreement may apply to the ICAO Council for a decision on a particular issue. Following a decision, any contracting state may appeal to an ad hoc arbitral tribunal or the International Court of Justice (ICJ). Where a contracting state is in default of any of the dispute resolution provisions contained within Chapter XVIII, the ICAO Assembly shall suspend the voting power of that state in the Assembly and in the Council.
Similarly, Article 14(1) of the Montreal Convention 1971 provides a mechanism for disputes between contracting states concerning the interpretation or application of the convention. Where disputes cannot be resolved by way of negotiation, one of the states may request that the dispute be settled by arbitration. If, within six months, the parties cannot agree on the organisation of the arbitration, one of the parties may refer the dispute to the ICJ. Nevertheless, when Belarus ratified the Montreal Convention 1971, it declared that it did not consider itself bound by Article 14(1) – thereby removing the applicability of the dispute resolution mechanism to Belarus.1
In short, the Chicago Convention may provide a more formal, and perhaps threatening, route for contracting states to engage with Belarus if informal negotiations concerning any alleged breach do not yield a suitable resolution.
What do carriers need to be thinking about?
On 2 June 2021, the European Union Aviation Safety Agency (EASA) issued a Safety Directive calling on EASA member states to instruct aircraft operators with their principal place of business in their territories to not conduct operations in Belarus airspace. Other air carriers, including Singapore Airlines, have announced that they would be avoiding Belarus airspace as well.
In the aftermath of MH17, ICAO took steps to prevent similar accidents from occurring in the future, including the development of a central repository containing information relating to conflict zones. ICAO also published a Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones, intended to provide guidance material to air carriers. Nevertheless, these measures were designed for avoiding regions of armed conflict, not geo-political interference.
Air carriers today are responsible for monitoring route safety and often employ third-party security monitoring services to assist in the decision-making process. Carriers should continue to closely monitor state and regulator guidance on routing as well as review their own standard operating procedures for managing threats against aircraft and interceptions.
The interception of FR4978 has caused some air carriers (and state regulators) to deem overflying Belarus to be too great a risk. A question for air carriers and their advisors now becomes what other states might also seek to leverage civil aircraft for political gain and how can they manage such risks?
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1 Shawcross and Beaumont – Appendix A – Status of Conventions and Instruments.