SOURCE : MONEY CONTROL
On May 16, a Ryanair flight from Greece to Lithuania was forcibly diverted to the Belarus capital Minsk. While the civil aircraft was flying through Belarus airspace, a fighter jet was sent to intercept it, claiming that there was a bomb threat on the aircraft. Once the plane landed in Minsk, all the bags onboard were checked but no bomb was found. All passengers except two – Belarusian journalist Roman Protasevich and his girlfriend – were allowed to board the aircraft which continued its journey to Lithuania.
Protasevich faces charges related to his reporting of last August’s disputed election and subsequent crackdown on mass opposition protests in Belarus, and has said he fears the death penalty after being placed on a terrorism list.
According to a former Indian representative to the Council of International Civil Aviation Organisation (ICAO), from a cursory glance at what appeared in the media, the incident appears to be unique, complex, not easy to understand, and intriguing in the history of civil aviation.
This representative adds that the entire event can be viewed and analyzed under the lens of Public International Law on Civil Aviation and the Chicago Convention of 1944.
Interestingly, such an incident has never before been seen or envisaged in aviation history, or under the framework of Chicago Convention and its related international treaties.
This is where the complexities raised by the incident surface. Commenting on the provisions inthe Chicago Convention, some experts say that every state is within its rightsto ask the commander of a civil aircraft to land at a designated airport if the aircraft is flying in the country’s air space without authorization or for purposes inconsistent with the Convention.
Other experts mention several other violationsof the Chicago Convention in the Ryanair incident which says that every signatory state recognizes that it must refrain from using a weapon against civil aircraft in flight, and, in an interception, the lives of people on board the aircraft must not be endangered.
It is important to recognize that normally a civilian aircraft is scrambled by military fighters only after it fails to obey the command or deviates from the designated path and is declared a rogue aircraft. If this was the case in the Ryanair flight, at least the media reports do not point in this direction.
Can such an incident take place in the Indian air space?
The Ryanair case is unprecedented, but it does raise some concerns for countries across the globe, including India.Sukun Chandele, partner, Mind Legal, a Delhi-based law firm, says that the Indian government does have the power to intercept an aircraft in this manner. However, the provisions clearly say that this should only be used as a last resort. The assumption here is that the interception and instruction to land would not be mala fide.
“But if this last resort is adopted as abuse of power, then that would surely be illegal and invite serious national and international repercussions,” Chandele says.
Dinesh Pednekar, partner, ELP (Economic Laws Practice), agrees. He points out that diversion of an aircraft for the purposes of arresting a dissenting passenger/citizen has not been provided for under any Indian legislation.
Pednekar adds that if any state wishes to make an arrest, it must look at extradition treaties and other reciprocatory agreements, and seek the intervention of international, cross-border agencies like the Interpol. He adds that ICAO issued a manual ‘ICAO recommendations and provisions relating to interception of Civil Aircraft’, which provides the circumstances under which interception of a civil aircraft is permitted, such as where it is suspected that an aircraft is engaged in an illegal flight and/or transportation of illicit goods or persons.
These conventions/manuals clearly provide the broad parameters within which a State’s sovereign right to cause diversion/interception of an aircraft can be exercised. Diversion of an aircraft to arrest a government dissident would fall outside the ambit of any of the limitations prescribed in the Chicago Convention, and as such could not be undertaken.
Chandele adds that if there is abuse of power or procedural abuse like officials fabricating information or evidence regarding a bomb on a plane only to get the plane to land so they can arrest a particular person, then an FIR can be registered by the police against the concerned officials on a complaint for offences such as furnishing false information under the Indian Penal Code. “If found guilty the concerned officials may face imprisonment as well,” he adds.
Could a passenger on the affected flight seek compensation from the Indian government?Chandele says that the government per se cannot be penalized. However, if people in the government are found to be guilty, they could be liable to face consequences under the law.
“(A)Writ petition may be filed before the Supreme Court or the concerned High Court under the Constitution. Under the Montreal Convention 1971, any person who commits an offence by unlawfully and intentionally communicating information which he knows to be false, thereby endangering safety of an aircraft in flight can be held responsible. India has ratified the convention and this provision has been adopted,” Chandele points out.
Mohit Kapoor, Universal Legal, gives a different perspective when he says that the Air Passengers Association of India’s website does not include the right of passengers to be compensated. Neither is there any mention of passenger compensation in the Anti-Hijacking Act, 2016.
Kapoor adds that in India, the Carriage by Air Act, 1972 governs passenger compensation in the event of air accidents during international carriage. Following India’s accession to the Montreal Convention, the law has been amended to provide greater liability and increased compensation by air carriers. However, this is more in theory, less in reality, he says.Asked whether other passengers on the flight can sue the Indian government for compensation for mental agony and delay in reaching their destinations, Kapoor says that judicial precedent in India on this issue is weak. “Typically, compensation, when meted out, is ‘too little, too late’, as is evidenced in the 1999 Kandahar hijacking case where passengers were given a compensation of Rs 1 lakh each almost nine years after the incident and the more recent 2017 Jet Airways hijacking where passengers were compensated a measly Rs25,000 for the misery suffered by them two years after the incident,” Kapoor says.