Kolkata, India: Governments have slammed Belarus’ diversion of a Ryanair plane as “terrorism” and “state-sponsored piracy,” but will the country face legal repercussions?
It’s not an easy question to answer.
“Civil aviation standards were not created with the notion that a state would act like a terrorist,” said Nathalie Younan of the FTPA Avocats law firm in Paris.
After a Ryanair flight was intercepted by a fighter jet and forced to land in Minsk on Sunday so that authorities could arrest opposition journalist Roman Protasevich, the European Union reacted angrily.
Belarusian planes have been barred from EU airspace, and EU airlines have been advised to avoid flying over the ex-Soviet country run by Alexander Lukashenko, called “Europe’s last dictator.”
When a plane receives bomb warnings or is intercepted by fighters, a commercial airline pilot told AFP on condition of anonymity that there are detailed procedures to follow.
“The scenario in which a state commits an act of piracy is not among the scenarios,” the pilot said.
“There was no doubt,” he said of the Ryanair pilots. “You don’t take the responsibility of being shot down.”
Could Belarus, on the other hand, face legal repercussions?
The diversion “could be in violation of the Chicago Convention,” according to the International Civil Aviation Organization, a UN agency.
The Chicago Convention, which was signed in 1944, established the International Civil Aviation Organization (ICAO), as well as the laws governing airspace rights, air transport, and security.
“Every state has complete and exclusive sovereignty over the airspace above its territory,” according to Article 1 of the treaty.
However, the text also states that signatories must “refrain from using weapons against civil aircraft in flight” and that “the lives of persons on board and the safety of aircraft must not be jeopardized in the event of interception.”
“I acted lawfully to protect our people,” Lukashenko said on Wednesday, dismissing the international outcry.
Belarus violated both the Chicago Convention and the Montreal Convention, according to Cameron Miles, a London-based international lawyer, who wrote on the Lawfare blog.
“In examining those treaties, one can immediately see the outline of a powerful case as to why Belarus’ actions violate international law,” Miles wrote.
Belarus claims that the plane was forced to divert due to a bomb threat.
Belarus “committed an outrageous breach of the Montreal Convention” by fabricating a “fake bomb threat,” according to Miles.
Belarus, on the other hand, made a reservation in a clause of the Montreal Convention’s dispute settlement provision when it signed up, implying that a complaint against Belarus would be dismissed by the International Court of Justice in The Hague for lack of jurisdiction, according to the expert.
Belarus did not seek such provisions in the Chicago Convention, leaving the matter open to referral to the ICAO Council, with any judgment subject to appeal to the International Court of Justice.
Because the plane was registered in Poland, Warsaw, or any of the other 191 Chicago Convention members, could initiate legal action.
According to Miles, Poland would be entitled to “full reparation.”
“If the international community fails to take action, other states, who are doubtlessly watching carefully, may get the idea that this kind of behavior will be generally tolerated without serious repercussions,” he said.
On Wednesday, members of the UN Security Council from the United States and Western Europe demanded that the ICAO investigate the incident that occurred on Sunday.
Even if it does, it lacks the authority to enforce punishments.
Its mission is to assist governments in conducting “any conversations, condemnations, or sanctions” that they may desire to pursue if a country violates international civil aviation agreements, according to the agency.
A political problem
When a commercial plane is caught by a military plane, a commercial pilot must follow instructions, according to a French civil aviation official.
“However, when an aircraft is authorized to enter (an airspace), fulfills the conditions, and pays its (overflight) fees, it can’t be stopped without a valid reason,” the official said on condition of anonymity.
“It is, therefore, the validity of the air force intervention which is in question.”
However, according to Younan, a French lawyer, it is improbable that a country will pursue legal action against Belarus.
“It’s more of a political issue than a legal one,” she said.
Experts note that while the ICAO can make recommendations, sanctions must be imposed by member states against other member nations because the UN organization has the capacity to do so.
The UN Security Council, of which Belarus’ loyal ally, Russia, is a permanent member with veto power, would have the final say.