The interception of an airliner by Belarus, beyond the geopolitical crisis, poses a rare legal problem in civil aviation, according to specialists in the sector: the use of force by a state, potentially badly. carefully.
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“The rules of civil aviation were not drafted by providing that a State behaves like a terrorist”, summarizes Me Nathalie Younan, partner specializing in air law at the Parisian firm FTPA Avocats, in an interview.
The regime of Alexander Lukashenko is accused of having hijacked a Ryanair aircraft on Sunday to arrest an opponent on board, by means of a fighter plane, which resulted in the country being excluded from European airspace, among other penalties.
Convention de Chicago
The indignation of Western countries has been commensurate with the perceived violation of the Chicago Convention of 1944, which establishes the rules of international civil aviation and to which Minsk has been a signatory since 1993, according to the Aviation Organization international civil (ICAO).
This body, which depends on the UN, said Sunday to have received a request for an investigation into this incident and expressed its “deep concern”.
The Convention, from its first article, certainly provides that “each State has complete and exclusive sovereignty over the airspace above its territory”.
But “the Contracting States recognize that each State must refrain from resorting to the use of weapons against civil aircraft in flight and that in the event of interception, the lives of persons on board the aircraft and the safety of those on board the aircraft. aircraft must not be endangered ”, also provides for the Convention.
“During an interception by a fighter plane, the captain must obey the instructions given, France defends this principle like all the States of the world, because it is a question of safety”, explains the General Directorate of French civil aviation (DGAC).
“On the other hand, when an aircraft is authorized to enter, that it meets the conditions, that it pays its royalties (to have the right to fly over a country, Editor’s note), it is not intended to be stopped without a valid reason . It is therefore the question of the validity of the intervention of the Air Force which is in question ”, according to the same source.
The text of the Chicago Convention indicates that “each Contracting State agrees not to use civil aviation for any purpose incompatible with the purposes of this Convention”. However, for the DGAC, “the Ryanair flight was rerouted for reasons that have nothing to do with civil aviation”.
So many legal angles of attack against the Lukashenko regime, which claimed to have acted within the framework of the law by evoking a bomb threat, which was ultimately false.
UN Security Council
But, warns Me Younan, “it is still necessary that these rules do not remain a dead letter, and that someone implements the actions and the prosecutions, which seems rather unlikely, because in these cases it is necessary to deals more with political subjects than legal subjects ”.
Any recommendations made within the framework of the ICAO would emanate from certain Member States against other Member States, the organization not being “endowed with a sanctioning power strictly speaking”, explains for its part Sonia Merad, associate specializing in air law at FTPA.
The last word, in the most serious cases, would go to the UN Security Council, where Russia’s allied Minsk has a veto.
An airline pilot, interviewed by AFP on condition of anonymity, noted that there are on board very detailed procedures on the attitude to adopt in the face of a bomb threat and “very precise international regulations on the ‘interception by a fighter plane’. But “the case of a State which acts of piracy, it is not envisaged in the scenarios”.
And he believes that for his colleagues at Ryanair, who “had a fighter plane with missiles under the wings which came to intercept them, the question did not even arise (…). You do not take the responsibility to bring yourself down ”.
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