Thread by @cmiles3vb

So here we see in relation to #RomanProtasevich and @Ryanair flight FR4978 what appears to be an outrageous breach by #Belarus of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (available here: bit.ly/3wniZbe).

https://twitter.com/Andrew__Roth/status/1396485156920303620

For the most part, I'll assume anyone reading this has done the pre-reading, and is aware of the facts. @BBCNews has a good primer here: bbc.co.uk/news/world-eur…

The Montreal Convention was concluded in the 1970s - when the highjacking of civilian aircraft by non-state entities (for any number of reasons) was far more common than it is today. By the standards of international treaties, it is immensely successful - with 188 parties.

As we can see here, it came into force for #Belarus (then the Byelorussian Soviet Socialist Republic) in 1973, following deposit of an instrument of accession with the USSR. Next slide, please.

Article 1 of the Montreal Convention provides for a number of criminal offences under international law, which states parties are required (per Article 3) to make punishable "by severe penalties".

Take note of Article 1(1)(e), class. An offence will be committed where a person "communicated information which he knows to be false, thereby endangering the safety of the aircraft in flight". Like, you know. Calling in a fake bomb threat to force an aircraft to land.

And now let's look at Article 10(1), which provides that states have to do everything in their (practical) power to prevent Article 1 offences from occurring. This (presumably) would include not having your secret police commit those offences...

Now, unlike some other international aviation conventions, the Montreal Convention, in case of a dispute, does not provide for reference to the ICAO Council (looking at you, 1944 Chicago Convention on International Civil Aviation).

No, no - Article 14 allows an aggrieved state to (following presumably failed negotiations) bring a claim to arbitration or (following presumably failed negotiations about the structure of the arbitration) head to The Hague for a hearing before the @CIJ_ICJ .

(Subject to the respondent not having made a reservation to dispute settlement, which #Belarus appears not to have done.)

So, on the facts as we know them, we appear to have a pretty serious breach of Article 10 of the Montreal Convention by #Belarus - combined with very clear jurisdiction for multiple forms of international dispute settlement. Basically the international lawyer's dream scenario.

But who brings the claim? Article 5 of the Montreal Convention sets out who has jurisdiction over a particular offence occurring under Article 1.

We're not sure what leasing arrangements @Ryanair may apply to the aircraft - so we will put para (d) to one side. And if the aircraft was in #Belarus airspace and landed in Minsk - per the flightplan - we can rule out paras (a) and (c) (as states don't tend to sue themselves).

Which leaves us with para (b). Now, despite @Ryanair being proudly Irish, it does rather looks like the aircraft is registered in #Poland - at least based on this photo of the aircraft with the Polish flag on the tail.

What this means is that #Poland has first dibs on this by virtue of being the state specially affected by #Belarus's breach of the Montreal Convention under Article 42(b)(i) of the ILC's Articles on State Responsibility.

But also, under Article 48(1)(a) of the Articles on State Responsibility, it seems to me that any *other* state party to the Montreal Convention could also bring a claim against #Belarus.

And as I said before, the Montreal Convention has 188 states parties... including #Ireland. @Ryanair is almost certainly in touch with its government already on this score.

Now, if someone were to be successful in bringing a claim against #Belarus, what would the remedy be? Well, Article 35 of the Articles on State Responsibility tells us that the primary remedy is restitution.

Basically, as the Permanent Court of International Justice said in 1928 in the Chorzów Factory case (in which #Poland was the respondent), this means that everything needs to be put back the way it was before the breach occurred - wiping out the consequences of the illegal act.

This would mean putting everyone - including the detained dissident, #RomanProtasevich - back on the aircraft, and allowing everyone to leave #Belarus forthwith.

Indeed, if the matter were to end up before the @CIJ_ICJ, it is possible that the Court could make this order on an interim basis by way of a provisional measure under Article 41 of its Statute - similar to what @ITLOS_TIDM did in its 2013 order in the Arctic Sunrise case.

To sum up, this something that happens relatively rarely in international law. A case of a clear breach of an important international treaty by a state, combined with a clear route to the jurisdiction of an international court or tribunal, combined with a clear remedy.

All that remains is for a party to the Montreal Convention to take up the challenge, and initiate dispute settlement procedures against #Belarus under Article 14. ENDS.

🚨 CORRECTION KLAXON 🚨

@OriPomson has uncovered a Belarus reservation made on its behalf by the USSR (which is maybe why it doesn’t show up in the UNTC database). So while there is still clear state responsibility, this one will not be going to The Hague.