Joku tämmönen Lawfare niminen julkaisu wrote:
Belarus and the Hijacking of Ryanair Flight FR4978: A Preliminary International Law Analysis
By Cameron Miles Monday, May 24, 2021, 3:55 PM
From the perspective of international law, it is difficult to overstate the seriousness of Belarus’ actions. While international law as a whole is often criticized as vague, unenforceable and prone to manipulation or convenient reinterpretation by powerful actors, not all of it operates that way. Some regimes of international law, by the agreement of states, are quite straightforward. They 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 regime is the network of treaties governing international civil aviation—most notably the 1944 Chicago Convention on International Civil Aviation and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, both of which Belarus is a party to.
In examining those treaties, one can immediately see the outline of a powerful case as to why Belarus’ actions violate international law. Article 1(1)(e) of the Montreal Convention creates an international crime where a person unlawfully and intentionally “communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.” Secondly, per Article 10 of the Montreal Convention, a state must “in accordance with international and national law, endeavour to take all practicable measures for the purpose of preventing the offenses mentioned in Article 1.”
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. But that is precluded in this case by the fact that, on signature, Belarus (then the Byelorussian Soviet Socialist Republic) put in a reservation to Article 14—the Montreal Convention’s dispute settlement provision, which provides for ICJ jurisdiction. Hence, if a state attempted to bring a case against Belarus, the ICJ would most likely dismiss it for lack of jurisdiction.
But not all avenues are closed. Belarus failed to make a similar reservation to Article 87 of the Chicago Convention, providing that any dispute under that treaty can be referred to the Council of the International Civil Aviation Organization (ICAO)—the specialized agency of the United Nations (U.N.) charged with coordinating civil air travel—with any decision of the ICAO Council subject to appeal before the ICJ. And, moreover, 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 in exercising its right to ground an aircraft in transit over its territory, a state can only do so by resorting to “appropriate means consistent with relevant rules of international law.” Poland or any of the other 191 members of the Chicago Convention would conceivably have standing to commence such proceedings.
What we therefore see here is a comparative rarity in international law—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. The remedy under international law is similarly clear. Poland, as the flag state of the aircraft—and, in international law terms, the victim of Belarus’ unlawful act—is entitled to full reparation. Other states may have similar claims. 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 reestablish the situation which would, in all probability, would have existed if that had not been committed.”
In bluntly practical terms, this means that Protasevich and Sapega must be released from Belarusian custody and allowed to continue to Vilnius—as they would have done if Belarus had not behaved as it did. That Protasevich is a Belarusian national does not alter this conclusion. For Poland (or any other qualifying state) to be made whole in the Chorzów Factory sense, he must be permitted to leave Belarus. There is precedent for this, with Russia being made subject to similar orders by the International Tribunal for the Law of the Sea at the request of the Netherlands in the Arctic Sunrise case in 2013. That case concerned the interception of a Dutch-flagged Greenpeace vessel in the Russian exclusive economic zone with Russian nationals aboard.
Of course, this is merely an early analysis of how one international controversy appears to involve a violation of international law in a manner that can be brought before the ICJ. Various foreign ministries will have commenced their own analyses already, and more articulated cases may well be produced in the days and weeks to come. Some may find grounds for international wrongfulness beyond the civil aviation context—most likely concerning the human rights of Protasevich and Sapega. Of course, this scramble to find an appropriate jurisdictional angle on the case sheds light on one of the persistent weaknesses of international law—its lack of compulsory dispute settlement and enforcement mechanisms. As Lawfare readers know, there is often no real way around this reality: international law is rooted in concepts of voluntarism and cooperation, which are usually the first things to go when dealing with any inter-state dispute.
One thing, however, is clear. Belarus’ decision to ground Flight FR4978 on a pretext to take a dissident and his partner into custody should cause profound disquiet within the international community and invite immediate consequences. The network of agreements governing international civil aviation is rightly seen as one of the most significant achievements of the wave of post-1945 treaty-making that converted international law from a relatively narrow and ad hoc discipline into the comprehensive rules-based system of today. Moreover, although somewhat truncated in the era of COVID-19, air travel is a central part of international commercial life, in much the same way as international shipping, which is regulated by a similarly dense network of international treaties, most notably the 1982 UN Convention on the Law of the Sea. Were the international community to tolerate aerial piracy, then other state actors could well form the view that such action is a permissible way of seizing political dissidents (or any other individual they want to detain, for that matter). Regardless of the formal jurisdictional question, that cannot be permitted if states want to maintain safe and reliable international air travel as a feature of the international system.
In the first instance, the burden falls greatest on the EU. Flight FR4978 was an intra-EU flight by an EU-flagged plane operated by an EU-domiciled airline. For the EU, this question is more than about ensuring freedom of overflight in the general sense. It is about its capacity to protect those who operate within its Member States from a rogue and isolated state on the bloc’s eastern border. If the EU cannot do that, then one begins to wonder what its value is, in terms of collective security.
Early signs that the EU and the wider international community is taking this seriously are encouraging. The President of the EU Commission, Ursula von der Leyen, immediately described Belarus’ actions as a “hijacking”. The EU summoned the Belarusian ambassador to the EU, presumably in anticipation of a formal diplomatic demand or demarche (the expulsion of the ambassador via a declaration of persona non grata or even the severing of diplomatic relations being a measure of last resort). Sanctions—additional to those imposed in relation to the 2020 elections—are also being discussed, and are expected to be announced on the evening of May 24. At the same time, the parliamentary foreign affairs committees of a number of NATO and EU states have called for the stopping of international flights over Belarus, an investigation by ICAO and the release of Protasevich and Sapega. Some states are not waiting. The UK, for example, has suspended UK-flagged flights to and over Belarus, and has revoked landing rights for Belarus’ national carrier, Belavia. Across the Atlantic, the U.S. has also expressed grave concern, with Secretary of State Anthony Blinken also calling for an international inquiry and pledging support for collective action. ICAO itself has also expressed its willingness to undertake further action if asked, in the form of a potential investigation.
totta kyllä.
