Published: 04 October 2023 Author: Stefan Talmon
On 23 May 2021, Ryanair Flight FR4978, a commercial passenger aircraft flying from Greece to Lithuania, was diverted by Belarusian air traffic control under the pretext of a bomb threat to Minsk Airport while passing through the airspace of the Republic of Belarus. Upon landing, the Belarusian authorities arrested two passengers on board – Belarusian blogger and political activist Roman Protasevich and his then partner Sofia Sapega – on charges of inciting unrest against the government of Belarussian President Alexander Lukashenko. Protasevich was a co-founder and editor of the Telegram messaging application Nexta, which played a key role in the massive protests against President Lukashenko after the rigged presidential elections in August 2020. After having been placed under house arrest for almost two years, Protasevich was sentenced on 3 May 2023 to eight years in prison for organising mass riots, preparing public disorder and creating or leading an extremist group. Sapega had earlier been sentenced to six years. Both were later pardoned by President Lukashenko.
Upon the diversion of Ryanair flight FR4978 on 23 May 2021, Federal Foreign Minister Heiko Maas issued the following statement:
Diverting a flight between two EU states under the pretext of a bomb threat is a serious interference in civil aviation in Europe. We are very concerned about reports that journalist Roman Protasevich was arrested as a result of this operation. Such an act cannot remain without clear consequences on the part of the European Union. We are in close exchange on this with affected EU partners. The upcoming informal European Council should also discuss the incident. In any case, Belarus must immediately ensure the safety, integrity and freedom of all passengers and release Roman Protasevich.
Germany considered the Belarussian government’s explanations for the diversion of the plane ‘implausible and not credible.’ The Belarussian ambassador to Berlin was therefore summoned to the Federal Foreign Office. It was emphasised that this ‘transgression cannot remain without consequences.’
At a meeting of the European Council in Brussels on 24 May 2021, the heads of State and government of the EU Member States strongly condemned the unprecedented and unacceptable incident involving Ryanair Flight FR4978 endangering aviation safety, and the detention of Roman Protasevich and Sofia Sapega. The European Council, inter alia, called on the Council of the European Union
to adopt the necessary measures to ban overflight of EU airspace by Belarussian airlines and prevent access to EU airports of flights operated by such airlines.
The European Council also called on the International Civil Aviation Organization (ICAO) to urgently investigate this ‘unprecedented and unacceptable incident’.
On 26 May 2021, Germany joined a group of seven current and future members of the UN Security Council in a statement on the incident, which read:
We … strongly condemn the forced landing of a Ryanair flight in Minsk, Belarus, on 23 May 2021 endangering aviation safety, and the detention by Belarusian authorities of journalist Raman Pratasevich and Sofia Sapega.
The airplane, owned by a European Union company, carrying more than 100 passengers from one EU Member State’s capital to another, was forced to land based on false grounds by a Belarusian military aircraft.
These acts are a blatant attack on international civilian aviation safety and on European security and show flagrant disregard for international law.
We call on the International Civil Aviation Organization to urgently investigate this unprecedented and unacceptable incident and for full accountability for those responsible.
Despite the popular outrage on the part of the Federal Government and the European Council’s call for a ban on Belarussian airlines, Belavia, Belarus’ national airline, continued to fly to Berlin and Frankfurt. Questioned about these flights, the Federal Foreign Office stated on 26 May 2021:
According to the legal situation in Germany, the European Council’s decision to ban the Belarusian State airline from landing and overflights requires a decision by the Council of the European Union within the framework of the EU’s common foreign and security policy. The consultations for the preparation of the necessary legal texts started in Brussels today.
On 27 May 2021, Belavia announced the suspension of all flights to Germany. The reasons for that, however, was not the closure of German airspace or the revocation of landing rights at German airports to Belarussian airlines but the fact that all countries bordering Belarus with the exception of Russia had closed their airspace to Belarussian airlines so that flights to Germany were no longer feasible.
On 27 May 2021, Federal Foreign Minister Maas also joined his counterparts from G7 countries in a statement on Belarus, which read:
This action jeopardised the safety of the passengers and crew of the flight. It was also a serious attack on the rules governing civil aviation. All our countries, and our citizens, depend on every state acting responsibly in fulfilling their duties under the Chicago Convention so that civil aircraft can operate safely and securely. We call on the International Civil Aviation Organisation (ICAO) to urgently address this challenge to its rules and standards.
On the same day, the ICAO Council considered the item ‘Incident involving Ryanair Flight FR4978 in Belarus airspace on 23 May 2021’ and decided by majority vote to undertake an investigation of the incident in order to establish whether there had been any breach by any ICAO Member State of international aviation law, including the Chicago Convention and its Annexes.
In response to a parliamentary question, the Secretary of State at the Federal Foreign Office Miguel Berger stated on 4 June 2021:
In view of the serious threat to civil aviation that emanated from the forced landing of the Ryanair flight in Minsk and whose repetition cannot be ruled out, measures to protect European citizens are absolutely necessary. Ensuring this is the primary goal of the decisions of the European Council of 24 May 2021, which ban Belarusian airlines from overflights of EU airspace and prevent Belarusian airlines from accessing EU airports.
It was, however, not immediately obvious how banning Belarusian airlines from overflights of EU airspace and from accessing EU airports was ‘to protect European citizens’ considering that the events happened in Belarussian airspace to an EU airline.
On 4 June 2021 the Council of the European Union finally implemented the decision of the European Council. On that day, the Council first adopted Decision (CFSP) 2021/908, which read in the relevant part:
Member States shall deny permission to land in, take off from or overfly their territories to any aircraft operated by Belarusian air carriers, including as a marketing carrier, in accordance with their national rules and laws and consistent with international law, in particular relevant international civil aviation agreements.
This was followed by Regulation (EU) 2021/907 in which the Council prescribed as directly applicable EU law that
It shall be prohibited for any aircraft operated by Belarusian air carriers, including as a marketing carrier in code- sharing or blocked-space arrangements, to land in, take off from or overfly the territory of the Union.
In answer to a parliamentary question, the Secretary of State at the Federal Foreign Office stated that ‘[t]he Federal Government supports the comprehensive flight ban for Belarusian airlines in the European Union which came into force on 5 June 2021.’
Germany also seized upon the incident during the 47th session of the UN Human Rights Council on 5 July 2021, when the German representative stated:
The forced landing of a commercial Ryanair flight between two EU member States in Minsk on 23 May 2021 and the politically motivated arrest of independent journalist Roman Protasevich and his partner was an attack on international civil aviation, which Germany condemns in the strongest terms.
In July 2022, the ICAO Secretariat published the report of the fact-finding investigation into the ‘Event Involving Ryanair Flight FR4978 in Belarus Airspace on 23 May 2021.’ The report found that there was no ‘forced landing’, as claimed by Germany. Flight FR4978 was neither intercepted nor escorted by military aircraft. There was ‘no communication, interaction, visual sighting or other knowledge of military aircraft involvement with the flight.’ Belarus officials, however, orchestrated the deliberate diversion of the flight under the false pretext of a bomb threat. Under Article 1(1)(e) of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), which had been ratified by Belarus, ‘any person commits an offence if he unlawfully and intentionally communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.’ Contracting States were to ‘endeavour to take all practicable measure for the purpose of preventing the offences mentioned in Article 1.’ In addition, ‘when, due to the commission of one of the offences mentioned in Article 1, a flight has been interrupted, any Contracting State in whose territory the aircraft or passengers or crew are present shall facilitate the continuation of the journey of the passengers and crew as soon as practicable.’ The report also found that the safety of Flight FR4978 was endangered when the false bomb threat was communicated to the crew leading to its diversion. The event thus also implicated the Convention on International Civil Aviation (Chicago Convention) to which Belarus was a party. The aims of the Convention include the safe and orderly development of international civil aviation and promoting the safety of flight in international air navigation. The report noted that the ‘use of civil aviation by any State for any purpose inconsistent with the aims of the Convention would therefore contravene the spirit of the Convention as well as Article 4.’
On 18 July 2022, the ICAO Council considered the Report into the Event Involving Ryanair Flight FR4978 in Belarus Airspace on 23 May 2021, and strongly condemned the actions of the Government of Belarus in committing an act of unlawful interference against the safety and security of international civil aviation that deliberately endangered the safety and security of Ryanair Flight FR 4978 and the lives of all those on board. The Council determined that these actions represented a flagrant and serious violation by the Republic of Belarus of the Chicago Convention. As a consequence, the Council reported to the ICAO Assembly an infraction of the Chicago Convention by the Republic of Belarus.
At its meeting on 7 October 2022, the ICAO Assembly endorsed the determination of the ICAO Council that Belarus’ use of civil aviation for a purpose inconsistent with the aims of the Chicago Convention amounted to a flagrant and serious violation of its Article 4, and condemned the actions of the Belarusian Government in committing an act of unlawful interference that deliberately endangered the safety and security of Ryanair Flight FR 4978 and the lives of all those on board.
On 31 October 2022, the President of the ICAO Council briefed the UN Security Council on the diversion of Ryanair Flight FR-4978 by Belarus. Germany, that participated in the Security Council meeting under rule 37 of the Council’s provisional rules of procedure, stated:
We take note that the ICAO Council condemned the actions of the Government of Belarus and designated them an act of unlawful interference. Germany agrees with that assessment and condemns in the strongest terms the forced diversion and landing of the flight. Also, as acknowledged by the ICAO Council, the claim of a bomb threat was deliberately false and communicated on the instructions of senior Government officials of Belarus. The sole purpose of that egregious act, which seriously endangered the safety of more than 100 passengers and crew personnel, was the pre-planned arrest of activist Roman Protasevich and his companion, Sofia Sapega. That shocking incident shows the true nature of the Belarusian regime, which does everything in its power to silence the voices of the people.
The unilateral measures taken by the European Union in response to the deliberate diversion of Ryanair Flight FR4978 raised the question of their legality under international law. In its decision of 4 June 2021, the Council of the European Union determined that EU Member States should deny permission to land in, take off from or overfly their territories to any aircraft operated by Belarusian air carriers ‘consistent with international law.’ That proviso, however, was not included in the subsequent regulation implementing the decision. While EU regulations were directly applicable in all Member States and, in the event of a conflict, prevailed over any conflicting law of the Member States, including their bilateral or multilateral treaties, they could not serve as a justification under international law for the failure of the Member States to perform their treaty obligations towards non-EU Member States.
On 3 December 1997, Germany and Belarus had concluded an air services agreement in which the parties granted each other air service rights for the purposes of operating international air services by their designated airlines. These air service rights included the right of overflight, the right to make stops in the territory of the other party for non-traffic purposes, and the right to land at appointed points in the other party to take on board and discharge passengers, baggage, cargo or mail for commercial purpose. The agreement did not provide any legal basis to suspend or revoke these rights in response to the diversion of Ryanair Flight FR4978. By implementing the EU regulation, Germany would thus have violated its obligations under the air services agreement with Belarus if Belarusian airlines had actually sought to exercise these rights. In practice, the Belarusian airlines, however, were prevented from doing so by the fact that all countries bordering Belarus with the exception of Russia had closed their airspace to Belarussian airlines so that they could not get anywhere near German airspace and airports. That the denial of overflight and landing rights for Belarusian airlines would, in principle, have constituted a violation of the air services agreement with Belarus was also shown by the fact that the United States on 28 May 2021 announced the suspension of the ‘discretionary application’ of the 2019 US-Belarus Air Services Agreement. That suspension was unproblematic in terms of international law because the US-Belarus air services agreement had been signed but not yet ratified and was applied on the basis of comity and reciprocity only.
EU Member States, especially those bordering Belarus, which had concluded bilateral air services agreements with Belarus similar to the one between Germany and Belarus, and which actually denied overflight and landing rights to Belarusian airlines were in breach of these agreements. The same was true for the Chicago Convention and the International Air Services Transit Agreement which also provided for air service rights of Belarusian airlines. Both agreements were binding on Belarus and all EU Member States, but not the European Union.
The wrongfulness of the ban on Belarusian airlines was precluded if and to the extent that the ban constituted a countermeasure by the European Union and/or its Member States in response to a violation of the Chicago Convention by Belarus. However, only an injured State or an injured international organisation may take countermeasures. Ryanair Flight FR4978 was operated by Ryanair’s Polish subsidiary Buzz. The aircraft that carried out the flight was registered in Poland. The injured State thus was Poland as the flag State of the affected aircraft as air service rights and other rights under international air services agreements exercised by aircraft are incumbent upon their flag State. The fact that the flight crew was licensed by Ireland, that the plane was owned by an EU company, that the aircraft was flying between to EU capitals and that nationals from several EU member States, including Germany, were among the passengers onboard the aircraft was immaterial for the determination of the State or organisation injured by the diversion of the aircraft.
Despite the fact that the European Union and its Member States, with the exception of Poland, were not injured by Belarus’ flagrant and serious violation of the Chicago Convention, the ban on Belarusian airlines by the European Union was widely accepted. In the UN Security Council on 31 October 2022, discussing the diversion of Ryanair Flight FR4978 by Belarus, only Russia and China criticised the unilateral sanctions against Belarusian airlines imposed by the European Union.
Similarly, during the meeting of the Executive Committee of the ICAO Assembly on 1 October 2022, only ‘a few delegations’ expressed support for a Working Paper submitted by Belarus, which criticised the adoption by the European Union of Council Regulation (EU) 2021/907 of 4 June 2021 and Council Decision (CFSP) 2021/908 of 4 June 2021 as contrary to the Chicago Convention. In doing so, only one delegation expressed concern about the imposition by other States of unilateral and coercive measures against other States. A small number of States also expressed concern that sanctions and unilateral measures adopted by States are incompatible with the principles and provisions of the Chicago Convention. A large majority of delegations who took the floor did not support the actions indicated in the Working Paper. Belarus had appended a draft Resolution to the Working Paper, which read in part:
Emphasizing that any restrictions on the use of airspace based on the nationality of aircraft and restrictions on their movement undermine the principles of the Convention on International Civil Aviation and violate one of the fundamental human rights to freedom of movement enshrined in the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, and are conducive to lowering the overall safety level of civil aviation;
1. Calls on the Member States of ICAO to take measures aimed at halting the imposition and application of sanctions, which are inconsistent with the universally recognized principles and standards of international law, including the UN Charter, and override the legal mechanism established by the Convention on International Civil Aviation.
The draft resolution received support only from ‘a small number of States’ and, consequently, the Executive Committee did not agree to recommend to the Plenary of the ICAO Assembly the adoption of the resolution text proposed by Belarus. Instead, the Executive Committee recommended to the Plenary a draft resolution endorsing the determination of the ICAO Council that the diversion of Ryanair Flight FR4978 was ‘a flagrant and serious violation’ of Article 4 of the Chicago Convention, and condemning the actions of the Government of the Republic of Belarus in committing an act of unlawful interference. During the discussion in the Executive Committee, a few delegations emphasized that the international community should not tolerate conduct such as that exhibited by the Government of Belarus and that there should be consequences when a contracting State violates the Chicago Convention.
The deliberate diversion of Ryanair Flight FR4978 under the false pretext of a bomb threat in order to arrest two passengers on board did not only affect the flag State of the affected aircraft but the entire international community. The incident had implications for all nations involved in international civil aviation. A fundamental object of the Chicago Convention is to ensure the safety of civil aircraft in international flights. A flagrant and serious violation of the Convention endangering the safety and security of a civil aircraft is thus of concern to all States. For that reason, obligations under the Chicago Convention ensuring the safety and security of international civil aviation may be considered obligations erga omnes. In the present case, the response to Belarus’ action went beyond the verbal invocation of responsibility, and involved a violation of bilateral air services agreements with Belarus as well as a violation of the air service rights under the Chicago Convention and the Air Services Transit Agreement. The violation of these agreements by Germany and the other EU Member States may thus serve as another example of a third-party countermeasure that was considered lawful.
Category: Coercive measures short of the use of force
DOI: 10.17176/20231004-113447-0
