HIJACKING [AN ACTIVIST]: On 23 May 2021, the Flight FR4978 from Greece to Lithuania was diverted to Belarus for several hours. Arriving passengers said that they had been given no information about the reason for the abrupt diversion to Minsk.
· In a statement, the airline said that the crew of the flight had been “notified by Belarus (Air Traffic Control) of a potential security threat onboard and were instructed to divert to the nearest airport, Minsk”.
· While in Belarusian airspace, it was diverted by the Belarusian government to Minsk National Airport where two of its passengers, opposition activist and journalist Roman Protasevich and his girlfriend Sofia Sapega, were arrested by authorities.
· The flight was escorted to Minsk by a Belarusian fighter jet, under the pretence of a bomb threat, on the orders of the President of Belarus, Alexander Lukashenko. The aircraft was allowed to depart after seven hours, reaching Vilnius eight and a half hours behind schedule.
· Following the ”hijacking”, both Latvia and Lithuania said that the airspace over Belarus should be recognised as unsafe. Latvia’s Foreign Minister even said that the Belarusian airspace should be closed to all international flight.
· The act was condemned by the European Union (EU), NATO, the United Kingdom, and the United States, among others, and by some civil aviation authorities, while Russian officials backed Belarus.
· While taking to Twitter, the ICAO said that the incident may have contravened a core aviation treaty, part of the international order created after World War II. The UN aviation agency said that it is now looking forward to more information and confirmation by the countries concerned.
INTERNATIONAL LAW | THE RELEVANT TREATIES
From the perspective of international law, it is difficult to overstate the seriousness of Belarus’ actions. International law, often criticised as unenforceable, does have clearly defined obligations to defend interests essential to the functioning of international society on a day-to-day basis, combined with appropriate routes for adjudication.
One such example is the network of treaties governing international civil aviation—
· 1944 Chicago Convention on International Civil Aviation and
· 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.
Article 1 of the Chicago Convention provides that a state has "complete and exclusive sovereignty over the airspace above its territory".
· When overflying a state’s national airspace, therefore, civil aircraft are subject to the full jurisdiction of that state and can be intercepted and ordered to land at the indicated airport.
· Article 3 bis (a) of the Chicago Convention, however, also specifies that "in case of interception, the lives of persons on board and the safety of aircraft must not be endangered".
· As to the fake bomb threat claimed by Belarus as the reason for the interception, Article 1 of the 1970 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (ratified by Belarus) 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".
· Under Article 10 of the Montreal Convention, a state must take ‘all practicable measures’ to prevent the commission of this and other acts. If, in spite of this, the offence is committed, the state must "facilitate the continuation of the journey of the passengers and crew as soon as practicable".
· It follows that, in contriving an emergency landing of Flight FR4978 off the back of a fake bomb threat, Belarus committed an outrageous breach of the Montreal Convention.
· In the ordinary course of events, Poland, as the flag-state of the aircraft, or any of the Montreal Convention’s 186 other relevant member states, could bring a case against Belarus before the International Court of Justice (ICJ) in The Hague.[1]
VIOLATION OF INTERNATIONAL LAW :
· This can be done under Article 87 of the Chicago Convention. It provides that
· And further, by breaching Article 10 of the Montreal Convention in persuading Flight FR4978 to land, Belarus appears to have equally breached Article 3bis(b) of the Chicago Convention. That provision provides that
NOW WHAT CAN BE DONE?
· Poland or any of the other 191 members of the Chicago Convention would conceivably have standing to commence such proceedings.
· This act of Belarus can be termed as a clear breach of two respected international treaties by a state, combined with a clear route to the jurisdiction of an international court or tribunal.
FULL REPARATION IS THE REMEDY : Poland, as the flag state of the aircraft—and, in international law terms, the victim of Belarus’ unlawful act—is entitled to full reparation. As the forerunner of the ICJ, the Permanent Court of International Justice, put it in the Chorzów Factory case in 1928, this means that Belarus “must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, would have existed if that had not been committed.”
[1] Article 14—the Montreal Convention’s dispute settlement provision is reserved by Belarus. Hence, if a state attempted to bring a case against Belarus, the ICJ would most likely dismiss it for lack of jurisdiction.
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