By: Adam DiSimine, Junior Research Associate, PILPG-NL
On May 23, 2021, Ryanair Flight 4978 was traveling from Athens, Greece to Vilnius, Lithuania through Belarusian airspace. Roughly 10 kilometers from the Lithuanian border, Belarusian air traffic control contacted the pilots, warning them about a potential bomb threat on board. The Belarusian authorities ordered the aircraft to divert to Minsk, the capital of Belarus. A Belarusian fighter jet scrambled to intercept the passenger jet and forced it to land at the airport. Upon landing, police arrested Roman Protasevich, a known critic of Belarusian President Alexander Lukashenko, and his girlfriend, Sofia Sapega. After this arrest, the flight was permitted to continue on to its destination.
The grounding of the aircraft was quickly met with international condemnation. United Kingdom Foreign Secretary Dominic Raab called the incident “a grave violation of international law.” In addition, the European Union banned Belarusian flights from EU airspace, discouraged airlines from flying in the Belarusian airspace, and imposed sanctions on dozens of individuals, including those connected to what it called the “forced and unlawful landing” of Ryanair Flight 4978. Just a few days after the incident, the United Nations International Civil Aviation Organization (ICAO) announced that it would be conducting an independent fact-finding investigation into the incident. This piece will examine the role of the ICAO when international aviation incidents occur, what steps have been taken in the Belarusian case thus far, and analyze why such investigations are necessary in maintaining safe skies.
The International Civil Aviation Organization
The ICAO is a specialized agency of the United Nations. ICAO supports the diplomacy and cooperation in air transport of the 193 signatory states to the 1944 Chicago Convention, the fundamental treaty of international aviation law. Its primary function is “to maintain an administrative and expert bureaucracy” and “research new air transport policy and standardization innovations.” Articles 54 and 55 of the Chicago Convention lay out the functions of the ICAO. The functions include the authority to initiate investigations into “any situation which may appear to present avoidable obstacles to the development of international aviation.” The ultimate goal of the ICAO and its subsidiary bodies is to ensure safe and efficient air operations across the entire globe.
The Belarus Investigation
In response to the diversion and forced landing of Ryanair Flight 4978, the ICAO Council was quick to express concern over the events that transpired in Belarus. The ICAO noted that it was of critical importance to develop a clear understanding of the facts of the incident as well as ascertain whether there had been any breaches of international aviation law, including the Chicago Convention. Pursuant to Article 55(e) of the Chicago Convention, the ICAO Council announced it would be conducting a fact-finding investigation into the incident. It called on the ICAO Secretariat to prepare an interim report and requested the cooperation of member states and other relevant stakeholders.
The investigation is still ongoing. In mid-June, the ICAO provided an update announcing it had submitted official requests for information to several states. Belarus and Poland had provided some details and requested further information from Greece, Ireland, Lithuania, and Switzerland. A report is expected to be presented at the ICAO’s Council’s next session in September.
The ICAO’s Role
Notably, the ICAO is not a global regulator of international aviation law: sovereign states are responsible for establishing and enforcing national regulatory requirements. The ICAO does not have any type of authority or power over member states and thus cannot initiate concrete action in response to violations of international aviation law. However, the ICAO can decide disputes on the interpretation and application of the Chicago Convention if its members submit such disputes to it following failed negotiations. These decisions are binding and can be appealed to the International Court of Justice. As a result, the ICAO plays the role of a facilitator, helping states “conduct any discussions, condemnations, sanctions, etc. they may wish to pursue.” In addition, the ICAO partakes in neutral activities such as the above mentioned fact-finding investigation.
International organizations like the ICAO do not have to possess strong enforcement capabilities or authority over member states to be valuable institutions. In the case of the incident in Belarus, by helping establish the objective facts of the situation, the ICAO may play a critical role in the peaceful resolution of the incident. The diversion and forced landing of Ryanair Flight 4978 involves numerous states, from nationals on board, to the flag state of the airline (Ireland), to states of departure (Greece) and destination (Lithuania). In particular, while the state in which the incident took place is often responsible for conducting the investigation, this is problematic as Belarus is “the prime suspect in this case.” As a result, the ICAO can serve as an objective investigator to help states, and the general public, distill the circumstances that led to the incident and identify potential legal implications. While resolution of the matter still rests with states, the contributions of the ICAO to helping reach a resolution include establishing the facts of the case and, if requested, hearing a case on the interpretation and application of the Chicago Convention.
Conclusion
International aviation law is one of the great success stories of international cooperation. It is an international regime that allows over 4 billion passengers to travel globally each year. The diversion and forced landing of Ryanair Flight 4978 was a “serious incident” that required an international response. Such incidents may threaten the stability of this system. The role of the ICAO in helping establish a clear record of facts and in providing frameworks to help states resolve any resulting disputes from this incident may play a key role in maintaining the integrity of international aviation law.