Chicago Convention of 1944
Recently, a Ryanair flight was forced to make an emergency landing in Minsk by a MiG-29 fighter jet of Belarus.
The incident received considerable global attention. The European Union (EU) and the U.S. denounced it and called for a thorough investigation by the International Civil Aviation Organization (ICAO).
An issue with many dimensions
- The issue of the use of military aircraft to neutralise potential threats posed by civilian aircraft acquired a different kind of urgency in the aftermath of terrorist attacks in the U.S. on September 11, 2001.
- Generally speaking, international law grants sovereignty to nations over their airspace as it does in territorial waters.
What is Chicago Convention of 1944
- The Convention on International Civil Aviation, better known as the Chicago Convention of 1944, to which Belarus is a signatory state, prohibits any unlawful intervention against a civilian aircraft.
- At the same time, it has various provisions under Article 9 which permit a sovereign state the right to impose restrictions, including enforced landings at a designated airport in its territory, in “exceptional circumstances or during a period of emergency, or in the interest of public safety”.
- Once a flight has landed, Article 16 provides the host country the right to board/search the aircraft.
- This is probably the clause that provided cover for the local authorities to board Mr. Morales’s aircraft in Austria in 2013.
- But the Chicago Convention of 1994 applies only to civilian aircraft of the contracting parties.
International Air Services Transit Agreement (IASTA)
- International law might also have to be examined in light of the International Air Services Transit Agreement (IASTA), also concluded in Chicago in 1944.
- According to this agreement, contracting states grant to one another the freedom of air transit in respect of scheduled international air services, that is, the privilege to fly across territories without landing.
- Belarus is not a signatory of IASTA.
- India is a signatory of IASTA.
- Given the multiple interpretations possible under the Chicago Convention and related agreements, the investigation could be a long-drawn-out affair.
- The International Court of Justice does consider ICAO-related cases, but it cannot enforce its decisions.
- The United Nations Security Council is a divided house and, in any case, does not consider unlisted agenda unless the case constitutes a major threat to international peace and security. This is not a matter that easily lends itself to technical consideration, given that it goes beyond the issue of a forced landing of a civilian airliner to encompass broader geopolitical issues. A meaningful outcome from the ICAO investigation may therefore prove evasive.
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