The Role of the ICAO in Maintaining Safe Skies

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.  

The World Athletics DSD Regulations and their Human Rights Implications

By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL

Two young Namibian track and field athletes have recently had their hopes of competing in one of the events at the 2020 Tokyo Olympics shattered.  After achieving exceptional results in 400-meter races, 18-year-olds Christine Mboma and Beatrice Masilingi underwent hormone testing conducted by World Athletics (WA, formerly the IAAF).  The tests revealed that both athletes had high levels of naturally occurring testosterone which, according to the WA’s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the DSD Regulations), makes them ineligible to compete in international women’s short track events. 

Three years ago, South African runner and two-time Olympic champion, Caster Semenya, unsuccessfully challenged the DSD Regulations at the Court of Arbitration for Sport and the Swiss Federal Supreme Court.  Semenya has now taken her case to the European Court of Human Rights (ECtHR) challenging the DSD Regulations on human rights grounds under Articles 3, 6, 8, 13, and 14 of the European Convention on Human Rights (ECHR). 

This blog post will examine the DSD Regulations’ human rights ramifications concerning the right to private and family life and the prohibition on discrimination under Articles 8 and 14 of the ECHR respectively.

The Regulations and their Justifications 

WA is the official governing institution for all international track, field, and athletics competitions.  It is also responsible for all aspects concerning athletes’ eligibility to participate in worldwide sporting events, such as the Olympics.  As such, the DSD Regulations address the eligibility of female runners with differences in sexual development (DSDs).  According to the Regulations, there “is a broad medical and scientific consensus, […] that the high levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance” in distance events between 400 meters and 1 mile.  Hence, WA established a maximum threshold of circulating testosterone “to ensure fair and meaningful competition in the sport of athletics.”  Where it has “reasonable grounds” to believe that a female athlete may have DSDs, the Regulations authorize WA to investigate and conduct mandatory medical tests.  If found to have elevated levels of testosterone, the athlete is prohibited from competing in women’s events unless she undergoes at least six months of medical hormone treatment and continuously keeps her testosterones at permissible levels thereafter.  

The Regulations’ Human Rights Implications 

Aside from the fact that there is conflicting science concerning the actual advantage that women with high levels of testosterone have in running events, WA’s Regulations are controversial from a human rights perspective.  In 2020, the UN Human Rights Council (HRC) published a Report on the Intersection of Race and Discrimination in Sports, which identified that the DSD Regulations jeopardized specific human rights.  These rights included the “right to respect for dignity, bodily integrity and bodily autonomy of the person” as well as the “right to sexual and reproductive health.”  Such principles are encompassed under Article 8 of the ECHR, which concerns the right to private and family life.  

The ECtHR has held that Article 8 includes the protection of individuals’ bodily integrity.  Because all medical procedures, even seemingly minor ones such as tests and exams, are by their nature invasive of bodily integrity, the Council of Europe requires that all patients provide free and informed consent.  Since the DSD Regulations allow WA to order periodic blood tests and medical evaluations by panels of experts, female athletes should freely and knowingly consent to these procedures.  Nevertheless, while WA does not formally require athletes to undergo such testing, they may give women little choice if they wish to continue competing.  

Furthermore, there are significant power imbalances between WA and athletes who rely on the organization’s acceptance to compete in international events, especially for women who are economically dependent on their athletic careers.  This is especially relevant for female athletes of color from the global south who may lack the political capital to challenge decisions made by international sporting associations.  Lastly, women who comply with the DSD Regulations and submit to testosterone-reducing medical treatments may unknowingly jeopardize their reproductive health and ability to have children.  Since Article 8 also encompasses an individual’s decision to become a parent, the DSD Regulations may have far-reaching implications on female athletes’ family rights. 

While they may prima facie infringe Article 8 of the ECHR, the DSD Regulations may nevertheless be justified if they serve a legitimate aim and if the measures are proportionate in achieving that aim.  As described above, the chief aim of WA’s Regulations is to ensure fairness in international women’s short track competitions.  The ECtHR has held that actions taken by sporting associations, such as medical testing to uncover doping, are legitimate and proportionate measures in achieving  “equal and meaningful competition in sports.”  However, unlike addressing deliberate cheating, the DSD Regulations allow WA to monitor female athletes’ blood levels and place significant restrictions in response to naturally occurring hormone levels whose effects on sports performance remain inconclusive.  Due to these nuances and to the human rights at stake, the ECtHR will be adjudicating a rather unique issue concerning international sports in the case of Caster Semenya.

Moreover, while all athletes have to submit to anti-doping tests, only female runners are subject to the DSD Regulations.  This means that the DSD Regulations may also contravene Article 14 of the ECHR, which prohibits discrimination on the basis of sex and other statuses, including medical conditions.  The ECtHR has held that differences in treatment between males and females can only be justified in light of “very weighty reasons.”  In this case, female runners with high levels of testosterone are subject to specific testosterone thresholds, medical tests, and hormonal treatments over extended periods of time, while no such equivalent rules are applied to male athletes.

Conclusion 

The Olympic Charter provides that the “practice of sport is a human right [and] [e]very individual must have the possibility of practicing sport without discrimination of any kind.”  While ensuring fair play in sports is a laudable goal, the DSD Regulations may encroach too far on this principle of non-discrimination by subjecting female athletes to a specific set of rules on account of their sex and natural biological conditions.  These rules may also jeopardize their rights to their personal bodily integrity and family life as articulated under Article 8 of the ECHR.  Semenya’s case at the ECtHR may provide more clarity on the intersectionality of health, sports, and human rights law.  As for Mboma and Masilingi, both athletes achieved noteworthy results in the women's 200m race in Tokyo, with Mbona taking the podium with the silver medal in the event. 

The Bangladesh Accord: Unfinished Business?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On April 24, 2013, the Rana Plaza factory building, which housed five garment factories, collapsed.  More than 1,100 people died in the incident and many others were critically injured.  The International Labour Organization (ILO) has described the Rana Plaza collapse as one of the worst industrial accidents on record.  This incident highlighted the deficient conditions of the ready-made garment sector in Bangladesh.  

A few weeks after the incident, global brands, retailers, and trade unions adopted the Accord on Fire and Building Safety in Bangladesh (the Bangladesh Accord), the first modern legally binding agreement of its kind.  The Bangladesh Accord’s term was meant to end on June 1, 2021, when the Ready-Made-Garment (RMG) Sustainability Council (RSC) would replace it.  Instead, the Accord’s term was extended by three months as trade unions threatened to leave the RSC, which they considered to be less effective than the Bangladesh Accord.  This blog post will examine if the RSC is a suitable replacement for the Bangladesh Accord or whether a more adequate solution can result from the ongoing negotiations.

The Achievements of the Bangladesh Accord

The Bangladesh Accord, signed on May 13, 2013, rendered it mandatory for brands and retailers to ensure that workers in the garment industry carry out their work in safe conditions.  It includes obligations for companies to open their supplier factories to independent inspections, to allow the results of these inspections to be reported publicly, and to help pay for essential safety renovations.  The Bangladesh Accord also provides a complaint mechanism, through which workers can anonymously report potential violations at factories, as well as an enforcement mechanism for workers to bring legal action against signatories.  A Steering Committee with equal representation of trade unions and signatory companies governs the Bangladesh Accord and the ILO provides a neutral chair to the Steering Committee. 

Originally, the Bangladesh Accord’s term expired in 2018, but the parties extended it until 2021 through a Transition Accord to ensure that the collaboration between companies and unions would continue.  Since 2013, over 200 brands and retailers have signed the Bangladesh Accord.  As a result, inspections and monitoring have been carried out in 2,000 factories.  Also, over two million workers have gone through health and safety training.  This has significantly improved the working conditions in the garment industry and has increased the protection of workers in factories across Bangladesh.  

The RMG Sustainability Council 

The RSC, the envisaged successor of the Bangladesh Accord, is a national monitoring compliance system.  The Bangladesh Accord’s Steering Committee and the Bangladesh Garment Manufacturers Employers’ Association (BGMEA) created the RSC through a Memorandum of Understanding (MoU).  Its main goal is to continue the work of the Bangladesh Accord while maintaining the same transparency levels.  

The question that arises is whether the RSC is an effective successor of the Bangladesh Accord.  The MoU does not provide clarity on the institution’s decision-making and finance mechanisms.  The RSC also lacks the enforcement mechanism necessary to ensure that brands and retailers meet their obligations.  Furthermore, in the RSC, trade unions would hold only one-third of the governance seats, instead of half.  This would significantly limit the powers of trade unions and essentially create a system of self-monitoring by companies.  Most importantly, the RSC deal does not include binding commitments.  As such, this mechanism relies on brands and retailers voluntarily complying with their commitments.  These are significant changes compared to the Bangladesh Accord.  The RSC has abandoned the core elements of the Bangladesh Accord which made it efficient and enforceable.  In its current form, the RSC does not appear as effective as the Bangladesh Accord in ensuring the protection of workers’ rights.

Conclusion

The parties have temporarily extended the Bangladesh Accord, while trade unions and retailers come to an agreement.  It is uncertain what will happen next.  While trade unions insist on a binding agreement, brands argue for abandoning key elements of the Bangladesh Accord, such as independent monitoring.  It remains to be seen what the results of the negotiations will be and whether or not the parties will reach an agreement within three months.  An effective agreement will ensure the continued protection of workers in the garment industry.  Mechanisms such as the RSC, however, raise problems of enforcement and limit the powers of trade unions.  Therefore, they fail to consider the core elements that made the Bangladesh Accord effective.

July 2021

Monthly News Updates: Southern Cameroons – July 2021

By: Fabiana Nuñez del Prado Nieto, Junior Research Associate, PILPG-NL

This post collects updates from the past month concerning developments in Southern Cameroons.  The information is drawn from local and international online sources.

VIOLENCE IN ANGLOPHONE REGIONS

Killings | Murder of teacher in South-West region

On July 1, 2021, a group of gunmen fired shots at a 52-year-old physics schoolteacher from Kumba (South-West region).  The blasts killed him instantly at his home, in front of his children.  No group has claimed responsibility for the murder, but local people believe separatist fighters are responsible for targeting schools, teachers, and schoolchildren.  [July 2, 2021] 

Separatist Violence | Separatists allegedly killed more than 40 people

According to Cameroonian officials, separatists killed more than 40 people and torched 70 houses in June.  It was the most violent month of the year so far.  A military spokesman claimed that anglophone separatists massacred dozens of civilians and attempted to blame the military.  Army Captain Cyrille Serge Atonfack Guemo alleged that the separatists killed three military men in Bamali, an English-speaking northwestern village.  The public reacted to the increased violence with widespread condemnation.  [July 2, 2021] 

GOVERNMENT RESPONSES

Separatist Violence | Government sent Defense Minister to francophone region

During the first week of July, Cameroon’s government sent Defense Minister Joseph Beti Assomo to the border between the anglophone and francophone regions due to increased separatist incursions into French-speaking towns and villages.  Warrant Officer Bouba Dawanga Syraye, the ranking officer at the military post in Foumban village, said that the government troops had recently arrested ten suspects and recovered guns, ammunition, and several locally made explosives.

According to the military, the proliferation of arms in the French-speaking West region has been rising since 2017.  Many locals have abandoned their businesses, and construction work on government buildings has stopped due to the increased separatist attacks.  [July 24, 2021] 

Campaign | Campaign against hate speech online

In July, Cameroon launched a campaign against online hate speech.  The officials in charge of the campaign blame hate speech for the current social conflict and the damage to Cameroon's international image.  The government maintains that the campaign will reduce the tensions if the youth, who constitute about 65% of the population, stop damaging the image of Cameroon online and instead show love for their country and its institutions on social media.  [July 9, 2021] 

HUMAN RIGHTS 

LGBTQ+ Rights | Transgender women released from jail

On July 13, a judge from a Yaoundé court ordered the release of two transgender women convicted of "attempted homosexuality," pending their appeals.  The local police arrested Shakiro and Patricia on February 8, 2021, for wearing women's clothing in a restaurant.  Shakiro is a celebrity influencer in Cameroon, with thousands of social media followers.  Her status brought additional attention to the case.  According to Shakiro’s and Patricia’s lawyer, the women received a maximum sentence of five years in prison and a fine of 200,000 CFA for "attempted homosexuality," public indecency, and failing to carry identification.  [July 13, 2021] 

SCHOOLS IN SOUTHERN CAMEROONS

Reopening of Schools | Over 70,000 children return to school

According to Cameroonian authorities, around 70,000 children returned to school this year in the Western regions.  The schools had closed due to threats from some anglophone separatist groups.  Armed separatists attacked more than 200 schools between 2017 and 2019, and nearly all schools in the North and Southwest regions had to be permanently shut down as teachers left their jobs due to insecurity.  [July 19, 2021] 

CIVILIAN RESPONSES

Muslim community in Cameroon prays for an end to the conflict

From July 19 to July 23, the Muslim community in Cameroon celebrated Eid al-Adha, Festival of the Sacrifice, by praying for an end to the anglophone conflict.  The conflict has killed more than 3,000 people since 2017.  Muslim leaders also called on separatist Muslim fighters to drop their weapons and encourage their peers to stop fighting.  [July 20, 2021] 

REGIONAL VIOLENCE

Nigeria/Cameroon | Boko Haram attack kills eight soldiers in Cameroon

On July 24, Boko Haram launched an attack in the Far North Region of Cameroon.  According to a police report confirmed by several local sources, the attack killed eight soldiers.  The Governor of the region, Bakari Midjiyawa, said that heavily armed Boko Haram fighters hit the military base in the locality of Sagme at around four in the morning using six vehicles.  [July 24, 2021] 

July 2021

Monthly News Update: International Criminal Court – July 2021

By: Inne Flies, Junior Research Associate, PILPG-NL 

This news update synthesizes information concerning the International Criminal Court (ICC).  This month included, among others, the celebration of the Day of International Criminal Justice, two confirmation of charges rulings, and an Appeals Chamber decision on a possible re-characterization of alleged facts.  The presented information is drawn from different online news platforms and ICC documents.

ICC

ICC hosts Third Asia-Pacific Forum of The Hague

The ICC hosted the Third Asia-Pacific Forum of The Hague, which brought together judges and staff from the Court, as well as around 200 students and young professionals from the Asia-Pacific region.  The event aimed to facilitate a dialogue on the contribution of international justice for the Asia-Pacific region, as well as to encourage students and young professionals from the region to consider a career in the field of international justice.  This Forum is part of a broader effort to enhance global understanding and support for the ICC and to promote cooperation at the regional level.  [July 19, 2021]

Adoption of the Rome Statute 19 years ago

July 17, 2021, the Day of International Criminal Justice, marked the 19th anniversary of the Rome Statute of the International Criminal Court.  States adopted the Rome Statute, which establishes the Court and the Trust Fund for Victims, on July 17, 1998.  Various virtual events took place to mark the anniversary, and information campaigns continue online and via the ICC’s country offices.  [July 17, 2021]

Voices of support for the ICC

On the Day of International Criminal Justice, various countries and institutions (such as Mexico, Canada, France, Belgium, European Union, and the United Nations Secretary-General) voiced their support for the ICC and its mission.  [July 17, 2021] 

ICC launches #MoreJustWorld digital campaign in lead up to Day of International Criminal Justice

The ICC launched a #MoreJustWorld digital campaign to mark the Day of International Criminal Justice.  According to the ICC, the campaign aims to encourage people to reflect, act, learn, and connect for the cause of peace and justice.  It includes, among others, campaign videos, quizzes, and human interest stories.  [July 14, 2021]

ICC commits to adopt a strategy on gender equality and workplace culture at the Generation Equality Forum

During the Generation Equality Forum Summit (June 30 – July 2), the ICC joined the Generation Equality Forum, which is a global gathering for gender equality.  The ICC made a concrete commitment to adopt, implement, and review its first Strategy on Gender Equality and Workplace Culture by 2025.  As already enumerated earlier in its High-Level Statement on Gender Equality (April 2021), the ICC Principals are committed to achieving gender equality and safe and inclusive workplace culture and environment at the Court.  Based on this Strategy, specific action plans will be further identified.  This identification process will include consultations with internal and external stakeholders.  [July 9, 2021]

AFRICA

Kenya | Gicheru case: ICC Pre-Trial Chamber confirms charges of offenses against the administration of justice and commits suspect to trial

ICC Pre-Trial Chamber A confirmed the charges brought against Paul Gicheru and committed him to trial.  The judges found that there are substantial grounds to believe that Mr. Gicheru committed offenses against the administration of justice.  These consist of corruptly influencing ICC Prosecution witnesses in Kenya between April 2013 and the closure of the Ruto and Sang case on September 10, 2015.  It is alleged that the offenses were committed in furtherance of a common plan implemented by a group of persons, including Mr. Gicheru, to undermine the Prosecution’s case in the Ruto and Sang case.  [July 15, 2021]

Sudan | Abd-Al-Rahman case: ICC Pre-Trial Chamber confirms the charges of war crimes and crimes against humanity and commits suspect to trial 

ICC Pre-Trial Chamber II unanimously confirmed all charges brought by the Prosecutor against Ali Muhammad Ali Abd-Al-Rahman and committed him to trial.  The judges found that there are substantial grounds to believe that Mr. Abd-Al-Rahman is responsible for 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 and at least April 2004 in Darfur, Sudan.  Mr. Abd-Al-Rahman is the alleged leader “Ali Kushayb” of the Janjaweed militia.  [July 9, 2021]

Mali | Al Hassan: Appeals Chamber confirms the decision on possible re-characterization of alleged facts 

The ICC Appeals Chamber unanimously confirmed Trial Chamber X’s “Decision on application for notice of possibility of variation of legal characterization pursuant to Regulation 55(2) of the Regulations of the Court” in the Al Hassan case.  The decision rejected the possible re-characterization of acts of sexual violence as torture, cruel treatment, and other crimes, as well as the possible legal re-characterization of police reports allegedly drafted or signed by Mr. Al Hassan and relied upon by the Islamic Tribunal to pass sentences.  The Chamber denied both grounds of appeal brought by the Defense.  [July 1, 2021]

ASIA

Philippines Supreme Court rules ICC has jurisdiction

The Supreme Court of the Philippines’ ruled that the ICC can prosecute government actors for alleged crimes committed before the state withdrew from the ICC’s jurisdiction.  This contradicts statements by President Rodrigo Duterte who asserts that the ICC does not have jurisdiction.  Earlier, in June, then ICC Prosecutor Fatou Bensouda requested judicial authorization to proceed with an official investigation arguing that there is a reasonable basis to believe that the crime against humanity of murder had been committed between 1 July 2016 and 16 March 2019 in the context of the Government of Philippines ‘war on drugs’ campaign.  [July 21, 2021]