Sri Lanka Guardian
Ruwantissa Abeyratne
July 23, 2014

( July 23, 2014, Montreal, Sri Lanka Guardian) When the aircraft operating Flight MH 17 was shot down last week, I was vacationing in Melbourne. The ever vigilant media lost no time in tracking me down from my home in Montreal all the way to Australia within a few hours of the disaster with a list of questions. I thought I would share with the reader the questions that were put to me and my answers.

Q. Would the International Civil aviation Organization (ICAO) be able to issue warnings about a route related to potential dangers from violence/war? Would ICAO be able to issue warnings about a route related to potential dangers from violence/war?

A. ICAO has no mandate or competence to issue warnings based on political and war situations. This is entirely dependent on the State concerned which has the responsibility to issue what is called a NOTAM (Notice to Airmen) which advises aircraft which airspace to traverse and which not to. If a pilot traverses many airspaces he/she has to consider all relevant NOTAMs .

The Convention on International Civil Aviation (Chicago Convention) prescribes in Articles 9 and 12 this principle of the right of States to prescribe where aircraft should go and should not, in accordance with requirements set by such States. Article 12 on rules of the air provides that where flights over the high seas are concerned the rules prescribed under the Chicago Convention shall prevail. Those rules are contained in Annex 2 to the Convention.

Q. Does ICAO usually inform states about what other countries’ authorities are doing. For example the FAA’s April Notice to Airmen advising U.S. airlines to avoid eastern Ukraine?

A. No, it is not ICAO’s duty to advise States. NOTAMs are strictly between States and airlines.

Q. Which body inside ICAO takes the decisions on what warnings to issue?

A. ICAO does not usually issue warnings. The Council may, if it wishe,s pronounce on some issue relating to a principle or technique of air navigation.

Q. On a technical matter, given that the ICAO does not “close” routes, what kind of advice/warnings can it give?

A. ICAO does not issue “warnings” (nor is it obligated to) based on political friction or war if the exigency is formulated on the mere possibility of damage. This is purely the within purview of the State concerned ( e.g. precaution taken by the US FAA). However, the ICAO Council, if it is aware of an inevitable or imminent threat to civil aviation, could issue notification to States. In this case the President of the Council and Secretary General could notify States through an electronic message.

Q. Does ICAO usually inform states about what other countries’ authorities are doing. For example the FAA’s April Notice to Airmen advising U.S. airlines to avoid eastern Ukraine?

A. ICAO does not advise States on Notices to Airmen (NOTAMs)..

Q. many organizations are still calling for change in the way we regulate the safety of our skies, in cases where governments in war-torn states aren’t equipped to do the job. If ICAO is not the best group to do it, than what other options do we have? Any thoughts?

A. I have pointed out in my publications that ICAO is an “epiphenomenon” which Nazim Nicholas Taleb in his book Black Swan describes as a causal illusion that gives the perception that someone or something is giving direction to a process. The example Taleb cites is a compass in a ship which seems to give direction for the ship’s course but is actually only showing where the north is.

ICAO is very similar and is largely a reactive organization, although in the technical side it has taken some significant initiatives over the years. People may cancel their plush foreign trips and rush to Montreal just to give the illusion that they are hastening to give direction and a solution. The lack of anticipation and risk management is a stark fact, two glaring recent examples being ICAO scrambling to appear to be taking action in the global tracking of aircraft after the disappearance of MH 370, and appearing to take action on fraudulent passports when it could have, together with INTERPOL, advised States of the database of fraudulent passports maintained by INTERPOL. NATO or similar strategic organization is the best to handle advisories. Civil aviation will change after MH 17 just as it changed after 9/11. I suspect ICAO will keep on reacting. There is no area in the organization that evaluates risk to the safety of air navigation and recommends how to address such risks.

Q. We are hearing calls for ICAO to take a bigger role in terms of oversight. In other words publishing advisories over airspace deemed unsafe. What are your views of that and what potential would that have in opening ICAO up to liability in a case like MH17?

A. ICAO cannot take on the task of publishing advisories on navigation in airspace. That is not ICAO’s job, which is clearly enshrined in Article 44 of the Chicago Convention. According to this provision, ICAO is only required to develop principles and techniques of air navigation and foster the development of air transport. Advisories are purely matters of State which have sovereignty over the airspace above their territories.

ICAO, as a specialized agency of the UN enjoys immunity from liability, in performing its functions.

Q. We are looking into a story in Canada on whether international carriers are exposed to liability due to code share agreements with partners who suffer tragedies such as the Malaysian one.

Does it represent a risk for carriers who would not/do not themselves fly over conflict zones but have sold tickets to passengers for a partner airline that does. And would airlines need to change their practices/inject some sort of legal protection to take this in account, given what has happened with MH17?

A. The liability of a carrier is prescribed in the Montreal Convention of 1999. According to this Convention it is carrier who liable for damage sustained in the event of death or injury. It is usually the actual carrier that is liable and code sharing does not come into play or who sold the ticket (if it is a carrier other than the actual carrier).

Q. One aviation lawyer said the question of negligence would arise: can a carrier be deemed negligent for continuing a flight over territory where a conflict was going on. As an example, Air Canada said it made a decision to avoid the region (still not clear whether just Crimea or also eastern Ukraine) three months ago. But, until a couple of weeks ago, its code share partner Jet Airways of India was still flying over eastern Ukraine. In the MH17 crash, KLM was the code share partner.

A. The lawyer is absolutely right. Negligence is definitely a factor if the conduct of the carrier was consistent with the legally acceptable criteria for negligence.

Post Scriptum: In the MH 17 disaster, there are currently more questions than answers, and issues will unravel with the ongoing investigation. In the meanwhile there are several misconceptions tfloating around, one of which is that the shooting down of the aircraft operating Flight MH 17 was ICAO’s fault in that ICAO should have issued warnings to aircraft in the context of the air space concerned. This is an assumption that is absolutely without basis.

The author is an aviation consultant who worked as Senior Air Transport Officer and Senior Legal Officer during his tenure at the International Civil Aviation Organization