This article is written by Bhavyika Jain, a student at Symbiosis Law School, NOIDA. This article deals with the recent incident of air hijacking in Belarus and how it violated international aviation Laws.
Skyjacking is another term for hijacking an airplane. In Peru, the first occurrence of hijacking was reported in 1931. The first aerial hijacking in Asia occurred in 1948 on a flight bound from Macau to Hong Kong; all 25 people aboard were killed when the airplane crashed into the Pacific Ocean.
Recently, Belarus has been accused of hijacking a European airliner and is responsible for committing state terrorism. They have forced a Ryanair flight to make an emergency landing in Minsk following a bomb threat and arresting an opposition blogger critical of autocratic President Alexander Lukashenko.
Today, hijacking of planes is uncommon. This is due in part to international rules and agreements enacted to deter them. The majority of international accords against plane hijackings date from the late 1960s and early 1970s when the number of hijackings was at its highest. Individual and nonstate hijackers were in mind when these agreements were made, not state-sponsored plane diversions.
Hijacking: All that happened
In May 2021 the Ryanair flight was en route from Athens, Greece to Vilnius, Lithuania. While flying into Belarusian airspace, an air traffic controller notified the crew of a bomb on board and asked them to land. In no time, a Belarusian MiG 29 fighter jet intercepted the flight and directed it towards the capital city of Minsk. There was no bomb present in the aircraft, the real reason behind the forced landing of the civilian flight was to arrest Roman Protasevich.
Lukashenko has imprisoned and tortured thousands of Belarusians since the most recent rigged election in August, with the West largely offering thoughts and prayers. Lukashenko’s paranoia has reached ludicrous extremes, ranging from appearing in public with a gun to imprisoning people for wearing white and red socks, the opposition flag’s colors. The fact that his dictatorship went to such an extent to apprehend Protasevich demonstrates how important independent journalists have been in the country’s continuing revolution.
About Roman Protasevich
Protasevich is the co-founder of the Telegram-based NEXTA media source. In Belarus, the media does not have absolute freedom and are restricted under Lukashenko’s long rule, notably following the 2020 election, when most publications were outlawed, the channel provides a rare source of independent news. As a result, NEXTA has developed as a critical venue for opposition forces to share information and coordinate their opposition against Lukashenko.
His anti-Lukashenko activities date back to 2011 when he was dismissed from school for engaging in a rally as a teenager. He was eventually admitted to Belarusian State University’s Journalism School but was expelled from there as well. He was in eastern Ukraine in 2014-15, fighting alongside the ultra-nationalist Azov Battalion against Russian-backed separatists. Belarusian state media have seized upon it in an attempt to portray Mr. Protasevich as an extremist. The blogger left Belarus in 2019 and in January 2020 applied for Polish citizenship.
Leaders and international organizations alike expressed their shock and condemnation of the incident. A non-EU country compelled an Irish plane, registered in Poland, to land in its capital while flying between two EU countries. The safety of hundreds of passengers was put at risk by the use of MiG 29 in order to arrest only one passenger on board. Passengers’ safety is unimportant, as evidenced by the plane’s proximity to Vilnius rather than Minsk. If safety had been an issue, the plane would have had made a fast landing in Vilnius. From the perspective of international aviation law, it was a sort of ‘hijacking’.
The incident has invited serious criticism and backlash from many nations. Most importantly, the actions have been labelled “piracy” and “hijacking” by the European Union. It has announced that economic and other penalties imposed earlier in 2020 will be reinstated. Potash and oil, both of which are crucial to Belarus, could be targeted. The North Atlantic Treaty Organization (NATO) and the EU have urged a halt to international aircraft over Belarus; the United Kingdom has already halted its flights over the country for international investigations and collective action.
Sanctions have evolved into a key component of foreign policy. They may, however, have unforeseen consequences. The sanctions can be used as a rallying cry at home, against the imposing nations, to reclaim their dwindling popularity. Sanctions can also aid rivals in advancing their foreign goals. Escalation is also a possibility. Counter-sanctions and indirect retaliation, such as consumer boycotts, cyber attacks, and smear efforts, resulting from sanctions. Another threat is the targeted country’s long-term isolation and measures to minimise its economic reliance on Western and other sanctioning nations. The more sanctions are applied, the more their target countries will seek other ways to protect themselves from their effects.
International aviation law
The Chicago Convention on International Civil Aviation, 1944, and the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971, are the two most important international treaties governing international civil aviation, to which Belarus is a signatory. According to Article 1 of the Chicago Convention and customary international law, states enjoy sovereignty over their airspace. States, on the other hand, ‘recognise’ their commitment to refrain from employing weapons against civil aircraft in flight, as stated in Article 3 bis (a) of the Convention, which is a direct reference to the UN Charter’s requirements. This is (in part) a reiteration of Article 2(4) of the Charter’s prohibition on the threat or use of force (though it goes beyond that as it prohibits the use of force even against civil aircraft registered in the territorial state). A state may order a civil aircraft flying above its territory to land at a designated airport only if it is flying “without authorisation” or “where there are reasonable grounds to believe that it is being utilised for any purpose inconsistent with the goals of this Convention.”
Annex 2 of the Convention also stipulates that interception should be used as a last resort. As a result, fighter jets intercepting Ryanair planes and forcing them to land at a different location could threaten the lives of the crew and passengers. According to Article 1(e) of the Montreal Convention, any person who unlawfully and willfully provides information that he knows to be incorrect, endangering the safety of an aircraft in flight, commits an infraction.
Furthermore, in line with Article 10(1) of the Chicago Convention, contracting states must take all practical measures to prevent the offences listed in Article 1 in conformity with international and national laws. To summarise, Belarus is also in violation of the Montreal Convention by forcing an airplane to land under the guise of a phoney bomb hoax. When a flight is delayed or interrupted due to the commission of one of the offences listed in Article 1, any contracting state in whose territory the aircraft or passengers and crew as soon as possible, and shall without delay return the aircraft and its cargo to the persons lawfully entitled to it. Protasevich should be released from jail and permitted to proceed to his intended flight destination, Vilnius, under this rule.
Under established international law canons, the aspect of detention is also debatable. Despite being a Belarussian citizen, Protasevich was held on Polish soil as the flag state of the aircraft that was still in transit. According to this argument, he was protected under the European Human Rights Convention. Belarus is not a signatory to the pact, although Poland is. The European Court of Human Rights has already ruled that the convention applies to aircraft and ships registered or flying the flag of a member state. The onus is on Poland to take diplomatic and legal action to achieve Protasevich’s release.
A case against Belarus may be initiated by the nations such as Poland, Ireland, and other nations (who are part of the Montreal Convention) in the International Court of Justice. The problem of dispute resolution is addressed in Article 14 of the Montreal Convention. Article 14(1) states that any dispute over the interpretation or application of the convention that cannot be resolved through negotiation shall 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, shall be referred to the International Court of Justice by any of the parties. Belarus, on the other hand, has declared that it is not bound by this clause, as it is clearly permitted to do under Article 14(2). However, this does not preclude governments invoking Belarussian responsibility from concluding that Belarus has become accountable for a violation of the convention and taking countermeasures as a result.
Belarus has not taken steps to protect itself from the Chicago Convention’s Article 87, which states that any dispute arising under the treaty can be referred to the council of the International Civil Aviation Organization, the UN body in charge of civil aviation and that any decision made by the body can be appealed to the International Court of Justice. Poland and other EU countries have the right to bring legal action against Belarus. It is worth noting that all UN members are ipso facto parties to the ICJ statute, implying that they ‘accept’ it. Consent to the court’s jurisdiction is expressed through their acceptance of the Chicago Convention and Article 84.
Belarus has clearly broken both the Chicago and Montreal conventions by forcing the Ryanair plane to land in Minsk. Belarus, in particular, violated the Chicago Convention because there appear to be no reasonable reasons for concluding that the Ryanair flight was being “used for any purpose inconsistent with the purposes of this convention.” Poland, as the aircraft’s flag state, is entitled to compensation from Belarus. In the Chorzow Factory Case (1927), the Permanent Court of International Justice, the forerunner of the ICJ, rendered a significant judgment, stating, among other things, that restitution must be provided for violations of international law. “Reparation must, as far as practicable, wipe away all the consequences of the illegal act and re-establish the scenario that would have been, in all probability, if that act had not been committed,” the court ruled. Beyond the civil aviation component, the impacted parties may investigate grounds for international human rights violations.
One reason for broadening the scope of its sanctions against Belarus is a concern that international law lacks binding dispute resolution and enforcement procedures. International law is based on the ideas of voluntarism, collaboration, and different treaties that allow member countries to self-regulate. There have been calls to incorporate aviation accords in post-World War II international trade treaties, arguing that any violations would be subject to the WTO’s dispute settlement mechanism. The procedure, however, is slow and is designed to deal with conflicts involving international business rather than flagrant mid-air hijackings.
Air travel, like international shipping, is a vital aspect of the international economic order, despite being restricted due to Covid 19. Though Belarus’ acts will have to be dealt with more politically than legally, the international community should not be afraid to shock Belarus. If overlooked, such activities may become routine, resulting in serious consequences. It is up to the guardians of international law to prevent a new system from emerging, in which piracy begins in the air rather than on the high seas, and the targets are dissenters, protestors, and individuals rather than gold.
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