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Aviation Responsibility in times of War

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It is very similar to driving a car. If the road is open, you assume that it is safe. If it’s closed you find an alternate route.
-Tony Tyler, International Air Transport Association, Jul 20, 2014

Political mileage, extension, and much noise continues to be made about the shooting down of MH17. It has, for instance, become the perfect distraction for an astonishingly unpopular prime minister in Australia. While asylum seekers historically vanish on the high seas in the name of Tony Abbott’s humanitarian sense of worth, much noise can be made about civilians lost because of the exploits of separatists, engaged in a conflict most Australians would struggle finding on a map.

The urge to blame has become nastily comic, with British news crews scouring the Sussex countryside for clues about the whereabouts of one of Vladimir Putin’s daughters. (Seek the Russki in the county, and you shall find.) Dutch voices, egged on by Ukrainian support, have called for the expulsion of the other daughter in the Netherlands, suggesting that offspring must carry within them the seeds of responsibility for the alleged roles of their fathers.

While vendettas are being sought and ordered, and the campaign in Donetsk intensifies, there is another dimension of potential blame, or, to use the legal language of the moment, culpability. Does responsibility lie, for instance, with the smattering of aviation organisations, staffed by desk clerks who examine air routes, and consult the book of regulations? Or is it ultimately states who jealously guard air routes as expressions of power?

A group that is involved in investigating the crash site is the Montreal-based International Civil Aviation Organisation (ICAO). It is an organisation that does take interest in aviation safety, but it is one without fangs, a fairly typical state of affairs. The ICAO tends to come across as a bit rarefied, distant from the actual play of flight travel. Safety advisories do not fall into its remit, the feeling being that such statements should come from another source. The most it did last Wednesday was issue a statement from ICAO Council President Olumuyima Benard Aliu that, “The use of weapons against international civil aviation absolutely cannot be tolerated.”

This, it has to be said, is the standing problem with international aviation in general. It lags in other areas of international regulation. The ICAO, in a statement, claims it is consulting the International Transport Association and other aviation bodies “on the respective roles of states, airlines and international organisations for assessing the risk of airspace affected by armed conflict.” The general assumption had been that zones deemed safe by the sages at IATA and ICAO was good enough for any airline to reply upon, though such assumptions, in the absence of context, are dangerous. The Ukrainian case was particularly perilous, given the downing of a cargo jet some days prior at 21,000.

For those who believe that the state is withering away before the corrosions of the company boardroom, vigorous banksters and the overheating financial sector in general, such incidents as MH17 reveal the opposite problem: that states find the air above their soil distinctly precious, and worth holding. The surrender of any such airspace to an international body reeks of sovereign impingement, though it renders the burden of aviation safety far more onerous.

At the time MH17 fell out of the skies, Ukrainian authorities had closed the airspace above Donetsk to a height of 32,000 feet (9,800 metres). But other airlines preferred to avoid the entire area altogether, suggesting a whole range of responses at work. MH17 did, however, have company, be it Lufthansa’s flights to Bangkok, or Thai Airways and KLM itself. Russia’s own Aeroflot flew through the area 86 times, while Singapore Airlines came in second at 75. This veritable mash suggests both the chaos, and unevenness of decisions behind aviation routes and war zones.

There is a gathering awareness, in the legal direction, that Ukraine does bear ultimately responsibility for its airspace. Just as states desire to remain sovereign of the air that hovers above their territories, it follows that responsibility ultimately falls to countries to maintain the safety of its air routes. As Tony Tyler, chief executive of the International Air Transport Association, has suggested, “Airlines depend on governments and air traffic control authorities to advise which air space is available for flight, and they plan within those limits.”

His analogy of the road that is closed, necessitating the need to find another one, is only partly useful. In the Ukrainian case, the analogy of a toll road1 is better. A case of human lives becomes a matter of cash, empty pockets and regulation. The Ukrainian authorities, ever short of cash, have been receiving overflight flees from commercial flights above the territory, an unhealthy state of affairs when it comes to safety. Something tends to give in such cases.

RIA Novosti (Jul 24), while being a Russian source, reached for the Chicago Convention on International Civil Aviation and the ICAO regulation DOC 9554/932. Once Ukraine ratified the Chicago Convention in 2003, it became a member of the ICAO, binding it to “associated legal obligations”. While the paper does venture into speculating that Ukrainian authorities may well have initiated the strike on MH17, it does outline a few pertinent points. For one, “ongoing military confrontation” is no excuse for belligerents to attack commercial aircraft.

The clinger, however, is the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations. As the manual states, “the responsibility for initiating the coordination process rests with the States whose military forces are engaged in the conflict” (para 10.2). Safety falls squarely on Ukraine’s broad, if troubled shoulders.

And just in case there was any doubt, poor coordination of such safety measures is no exemption. “[T]he responsibility for instituting special measures to ensure the safety for international civil aircraft operations remainswith the states responsible for providing air traffic services in the airspace affected by the conflict, even in cases where coordination is not initiated or completed.” While international civil aviation may well have ended up with bloodied egg on its face, the dock of inquiry and blame will have to be filled with more than just those who pulled the fateful trigger.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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