The diversion of Ryanair flight 4978 by Belarusian air traffic control on the apparently spurious grounds of a bomb threat last month prompted an unusually rapid response from the international community.
Airlines have been advised not to fly over Belarus, the national carrier has been banned from EU airspace and sanctions on the Belarusian elite are being drawn up.
Belarus is widely believed to have fabricated a bomb threat in order to arrest a political dissident. This may not be the first time that a state has forced the landing of a jet for political purposes. But it is first time that many in the industry can recall civil air traffic control being weaponised — used by a state to pass a false message to a commercial airliner to force it to land.
Now that the way has been shown, others may follow. So what can be done?
It might be assumed that Belarus has broken international aviation law. But, in fact, the first article of the Convention on International Civil Aviation, which sets the global framework for safe and effective civil flight, states that: “every State has complete and exclusive sovereignty over the airspace above its territory”. That opening clause is the sine qua non that enables an international system of civil aviation to exist.
Yet it is also the greatest weakness in ensuring the integrity of global aviation, as the incident with Ryanair showed. “If the state decides there is good cause to ask an aircraft to land, it can do so with impunity,” says Jim Bell, co-head of aviation at law firm Watson Farley & Williams.
Belarus’s actions clearly contradict the spirit of the convention, and the precedent could have serious repercussions for the aviation industry. These go well beyond the need to avoid flying over Belarus, which will add cost in terms of fuel and emissions.
Pilots have to be able to trust what they are being told by controllers. If they have to second-guess the motives behind what they are being asked to do — and, in particular, in a stressful situation such as a bomb threat — this will only add to already complex procedures and will jeopardise safety.
“This unprecedented act of unlawful interference will potentially upend all the assumptions about the safest response to bomb threats on flights and interceptions,” said the International Federation of Air Line Pilots’ Associations.
The difficulty is that there is no obvious remedy to the problem. The ideal solution would be to create an independently managed international system for air navigation service provision.
That might not have stopped Belarus from falsifying a bomb threat and passing it on to flight 4978. But normal procedure in the event of a bomb threat is to land at the nearest airport. An independent air navigation service provider would have directed the aircraft to Vilnius, just 72km away when the pilot made his decision to land, instead of Minsk, 183km distant. At the very least, the young dissident and his partner would still be free.
Yet after decades of trying, the EU struggles to get member states to implement measures that fall short of that independent ideal. The Single European Sky initiative was launched about two decades ago to reduce fragmentation of European airspace and to improve the performance of air traffic management. A few weeks ago, Willie Walsh, head of the aviation industry trade body, Iata, warned that the initiative was on the brink of collapse due to “the intransigence and selfishness of key EU states and their air navigation service providers”.
Most countries are not willing to cede their sovereign right to manage their own airspace, even with substantial caveats to ensure the military’s freedom of action in cases of threat or conflict.
The EU acted with alacrity in cracking down on Belarus’s actions. But flight restrictions and possible sanctions may not be enough to stop others from following suit. It would be far better if the system itself were designed to make such actions more difficult.
Brussels has been developing an EU-wide external aviation policy, replacing member states’ bilateral agreements with other countries. These EU agreements deal with safety, security and competition. Perhaps they could also be used as leverage in an attempt to start reforming the way air navigation services are operated globally.
But first the EU will have to get its own hangar in order. As long as member states procrastinate over the Single European Sky, it will be difficult to argue that others should go even further.