Public Policy and Human Rights

Abstract

The human being at international law is collectively referred to as “humankind” encompassing all members of the human species as a whole, and it is in this context that the aviation perspective should look at the people affected by it both as a whole and in the singular context of the passenger carried by air. The Universal Declaration of Human Rights of the United Nations recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, and provides that everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country, including his own, and to return to his country. The Declaration also provides that everyone has the right to life, liberty and security of person, implying that such rights should not be arbitrarily taken away by any means.

1.1 Human Rights Covenants Relevant to Aviation

The human being at international law is collectively referred to as “humankind” encompassing all members of the human species as a whole,¹ and it is in this context that the aviation perspective should look at the people affected by it both as a whole and in the singular context of the passenger carried by air. The Universal Declaration of Human Rights of the United Nations recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, and provides that everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country, including his own, and to return to his country.² The Declaration also provides that everyone has the right to life, liberty and security of person,³ implying that such rights should not be arbitrarily taken away by any means.

The protection of human rights is the most significant and important task for the modern world, particularly since multi ethnic States are the norm in today’s world. The traditional nation State in which a district national group rules over a territorial unit is fast receding to history. Globalization and increased migration across borders is gradually putting an end to the concept of the nation State, although resistance to reality can be still seen in instances where majority or dominant cultures impose their identity and interests on groups with whom they share a territory. In such instances, minorities frequently intensify their efforts to preserve and protect their identity, in order to avoid marginalization.

In the above context, and in the perspective of the misuse of aviation in particular, Article 1 of the United Nations Charter provides that the aim of the Charter is to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Another aim of the Charter is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace and to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, while ensuring that the United Nations will be a centre for harmonizing the actions of nations in the attainment of the aforesaid common ends.

Article 2.4 of the Charter explicitly prohibits intervention (which includes aerial intervention) when it provides that all Members of the United Nations are required to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

The Geneva Convention relative to the Protection of Civilian Persons in Time of War adopted on 12 August 1949⁴ stipulates that In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall in all circumstances treat humanely persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the Convention prohibits inter alia violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment.

The 1984 Declaration on the Right of Peoples to Peace, approved by General Assembly Resolution 39/11 of 12 November 1984 reaffirmed that the principal aim of the United Nations is the maintenance of international peace and security, bearing in mind the fundamental principles of international law set forth in the Charter of the United Nations, expressing the will and the aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide nuclear catastrophe. The Resolution also reflected the belief of the United Nations that life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations. The Resolution solemnly proclaimed that the peoples of planet Earth have a sacred right to peace and declared that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State. The resolution appealed to all States and international organizations to do their utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at both the national and the international level.

The World Conference on Human Rights held in Vienna in 1993 recognized and affirmed that all human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms, and consequently should be the principal beneficiary and should participate actively in the realization of these rights and freedoms. The Conference also reaffirmed the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law, stating that the universal nature of these rights and freedoms is beyond question.

The United Nations Millennium Declaration, contained in General Assembly Resolution 55/2 of 8 September 2000, recognizes that, in addition to separate responsibilities of States to their individual societies, they have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. States leaders recognized that as leaders, they had a duty therefore to all the world’s people, especially the most vulnerable and, in particular, the children of the world, to whom the future belongs. States reaffirmed their commitment to the purposes and principles of the Charter of the United Nations, which have proved timeless and universal, concluding that their relevance and capacity to inspire have increased, as nations and peoples have become increasingly interconnected and interdependent.

In the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms adopted by General Assembly Resolution 53/144 of 9 December 1998, participating States recognized in Article 1 that everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. Article 2 of the Declaration states that each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice and to that extent each State is bound to adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the Declaration are effectively guaranteed.

Against the backdrop of the aforementioned international approach aimed at ensuring human rights and eschewing violence against nations and people, one of the worst incursions of human rights in the perspective of aviation has been unlawful interference with civil aviation. These acts have affected human rights and entitlement to the peaceful enjoyment of life and good health.

During its 24th Session on December 1969, the United Nations General Assembly discussed the problem of “forcible diversion of civil aircraft” and adopted Resolution 2551 (XXIV),⁵ in which the General Assembly stated its deep concern over acts of unlawful interference with international civil aviation. The General Assembly also called upon States to take every appropriate measure to see that their respective national legislation provides an adequate framework for effective legal measures against all kinds of acts of unlawful seizure of civil aircraft. It furthermore called upon States to ensure that persons on board who perpetrate such acts are prosecuted. The General Assembly urged that States give their fullest support to the International Civil Aviation Organisation in its endeavours towards the speedy preparation and adoption of a convention which would provide for appropriate measures which would make the offence of unlawful seizure of aircraft punishable. The commission of the offence would lead to the prosecution of persons who commit it. By this resolution, the General Assembly also invited States to ratify and accede to the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, signed in Tokyo on 14 September 1963.

On 25 November 1970 the General Assembly adopted Resolution 2645 (XXV)⁶ which condemned without exception whatsoever all aerial hijacking or other interference with civil air travel caused through the threat or use of force. The Resolution also condemned all acts of violence which may be directed against passengers, crew and aircraft engaged in, and air navigation facilities and aeronautical communication used by civil air transport. The Assembly called upon States to take all appropriate measures to deter, prevent or suppress such acts within their jurisdiction, at every stage of the execution of those acts, and to provide for the prosecution and punishment of persons who perpetrate such acts, in a measure commensurate with the gravity of those crimes, or extradite such persons for the purpose of their prosecution and punishment. Furthermore, the Assembly condemned the exploitation of unlawful seizure of aircraft for the purpose of taking of hostages, calling upon States to take joint and separate action, in accordance with the United Nations Charter and in co-operation with the United Nations and International Civil Aviation Organisation so that passengers, crew and aircraft engaged in civil aviation are not used for purposes of extortion.

The international community thus condemned terrorism against air transport by giving official recognition to such condemnation and called upon all States to contribute to the eradication of the offence by taking effective, preventive and deterrent measures. Notwithstanding the weight of these resolutions the General Assembly has seemingly deprived itself of the opportunity of declaring the offence of hijacking an international crime under international law. The world condemnation of the offence has left the question open to States as to whether the international community would collectively respond in the face of a crisis related to unlawful interference with civil aviation. Another blatant weakness of the Resolution is that the provisions of the resolution regarding extradition are ambivalent. The Resolution has also remained silent as to whether political motive would be a valid ground against extradition or not. It is submitted that the General Assembly should have considered adopting the principle that political motive will not be a factor affecting the extradition of hijackers.

The Resolution, with all its lapses, has many advantages, such as its condemnation of the offence of unlawful interference and call for international action against the offence. The persuasive nature of Resolutions will facilitate nations in interacting with each other and assisting each other.

The United Nations has, over the past two decades extended an invitation to nations, to co-operate with each other in eradicating or controlling international terrorism. For instance Resolution 2645 (XXV) recognized that international civil aviation is a vital link in the promotion and preservation of friendly relations among States, and that the Assembly was gravely concerned over acts of aerial hijacking or other wrongful interference with civil air travel. The resolution condemned without exception, all acts of aerial hijacking or other interference with civil air travel and called upon States to take all appropriate measures to deter, prevent or suppress such acts within their jurisdiction.⁷ Earlier, the Security Council had adopted Resolution 286 (1970) which expressed the Council’s grave concern at the threat to innocent civilian lives from the hijacking of aircraft and any other interference in international travel. The Security Council appealed to all parties concerned for the immediate release of all passengers and crews without exceptions, held as a result of hijackings and other interference in international travel, and called on States to take all possible legal steps to prevent further hijackings or any other interference with international civil air travel.⁸

On 18 December 1972, the United Nations General Assembly, at its 27th Session adopted a resolution⁹ expressing the deep concern of the Assembly over acts of international terrorism which are occurring with increasing frequency and recalled the declaration on principles of international law which called for friendly relations and co-operation among States in accordance with the Charter of the United Nations. The resolution urged States to devote their immediate attention to finding quick and peaceful solutions to the underlying causes which give rise to such acts of violence.¹⁰

One of the salutary effects of this resolution was the sense of urgency it reflected in reaffirming the inalienable right to self-determination and independence of all people and the condemnation it issued on the continuation of repressive acts by colonial, racist and alien regimes in denying peoples their legitimate right to the enforcement of their human rights. The resolution followed up with the invitation to States to become parties to the existing international Conventions which relate to various aspects of the problem of international terrorism.¹¹

On 21 January 1977, the General Assembly commenced drafting an international convention against the taking of hostages, which was authorized by Resolution A/RES/31/103 which broadly invoked the Universal Declaration of Human Rights; and the International Convention on Civil and Political Rights which provides that everyone has the right to life, liberty and security. The resolution established an ad hoc Committee on the drafting of an international convention against the taking of hostages. The Committee was mandated to draft, as early as possible, an international convention. The President of the General Assembly was requested by the Assembly to appoint the members of the ad hoc Committee on the basis of equitable geographical distribution and representing the principal legal systems of the world.¹² The resolution was adopted on 15 December 1976.

Three years later in December 1979, the General Assembly adopted a resolution¹³ which revised the work of the ad hoc Committee and called for international co-operation dealing with acts of international terrorism. The resolution, while welcoming the results achieved by the Committee, called upon States to fulfil their obligations under international law to refrain from organizing, instigating, assisting or participating in civil strife or terrorist acts in another State, or acquiescing in organized activities within their territory directed towards consensus of such acts.¹⁴

A major contribution of this Resolution was its recognition that in order to contribute to the elimination of the causes and the problem of international terrorism, both the General Assembly and the Security Council should pay special attention to all situations, including, inter alia, colonialism, racism and situations involving alien occupation, that may give rise to international terrorism and may endanger international peace and security. The application, when feasible and necessary, of the relevant provisions of the Chapter of the United Nations, was also recommended. The resolution also requested the Secretary General of the United Nations to prepare a compilation on the basis of material provided by Mentor States of relevant provisions of material legislation dealing with the combating of international terrorism.

In December 1985 the United Nations General Assembly adopted Resolution 40/61 which unequivocally condemned as criminal, all acts, methods and practices of terrorism, whenever committed, including those which jeopardise international peace and security which affect States or their property.¹⁵ The Resolution referred to the international conventions that had been adopted in relation to unlawful interference with civil aviation and called upon States to fulfil their obligations under international law to refrain from organizing, instigating, assisting or participating in any terrorist acts against other States, their people or property.

The Resolution, while citing the relevant conventions relating to unlawful interference with international civil aviation (a discussion of which will follow), once again appealed through the General Assembly to States that had not done so, to become parties to such conventions, including others which related to the suppression of international terrorism. While encouraging ICAO to continue its efforts aimed at promoting universal acceptance of and strict compliance with the international air services conventions, the Resolution also called upon all States to adhere to the ICAO conventions that provide for the suppression of terrorist attacks against civil aviation transport and other forms of public transport.¹⁶

Simultaneously, the Security Council, in December 1985 adopted Resolution S/RES/579 which expressed deep concern at the prevalence of incidents of hostage taking and abduction following terrorist acts. The Resolution appealed to all States to become parties inter alia to the ICAO Conventions. This resolution further urged the development of international co-operation among States according to international law, in the facilitation of prevention, prosecution, and punishment of all acts of hostage taking and abduction which were identified as manifestations of international terrorism.¹⁷

The General Assembly, in December 1987, adopted another Resolution¹⁸ which referred to the recommendations of the ad hoc Committee which had called for stringent measures of international co-operation in curbing international terrorism, which repeated the appeal of the previous resolutions for more participation by States in controlling the problem and welcomed the efforts of ICAO and IMO (International Maritime Organization) to curb unlawful interference with civil aviation and shipping respectively. The Resolution also called upon other specialized agencies and inter-governmental organizations, in particular, the Universal Postal Union, the World Tourism Organization and the International Atomic Energy Agency, within their respective spheres of competence, to consider what further measures could usefully be taken to combat and eliminate terrorism.¹⁹ This resolution was followed by another, in December 1989, which called for a universal policy of firmness and effective measures to be taken in accordance with international law in order that all acts, methods and practices of international terrorism may be brought to an end.²⁰ The Resolution also expressed the grave concern of the United Nations Mentor States at the growing and dangerous link between terrorist groups, condemned traffickers of drugs and paramilitary gangs which had been known to perpetrate all types of violence, and thereby endanger the constitutional order of States and violating basic human rights.²¹

In 1991, the United Nations General Assembly once again unanimously condemned as criminal and unjustifiable all acts, methods and practices of terrorism; called firmly for the immediate and safe release of all hostages and abducted persons; and called upon all States to use their political influence in accordance with the Charter of the United Nations and the principles of international law to secure the safe release of all hostages and abducted persons and do their utmost to prevent commission of acts of hostage-taking and abduction.²² The plea for international co-operation was reviewed by the General Assembly in December 1993 where the Assembly urged the international community to enhance co-operation in the fight against the threat of terrorism at national, regional and international levels.²³

In Resolution 2178 (2014) adopted by the Security Council at its 7,272nd meeting, on 24 September 2014 The Security Council reaffirmed that all States were required to prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents, underscores, in this regard, the importance of addressing, in accordance with their relevant international obligations, the threat posed by foreign terrorist fighters, and encouraged Member States to employ evidence-based traveller risk assessment and screening procedures including collection and analysis of travel data, without resorting to profiling based on stereotypes founded on grounds of discrimination prohibited by international law.

In the aftermath of the shooting down by unidentified individuals of Malaysian Airlines Flight MH 17, The UN Security Council adopted Resolution 2175 (2014) at its 7,256th meeting, on 29 August 2014, reiterating that the primary responsibility of the United Nations was to maintain international peace and security and, in this context, the need to promote and ensure respect for the principles and rules of international humanitarian law.

1.1.1 Flight MH 17

On Tuesday 29 July 2014 the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA), Airports Council International (ACI) and the Civil Air Navigation Services Organization (CANSO) met at ICAO’s headquarters to address risks to civil aviation arising from conflict zones. The meeting was a direct response to the shooting down of a Malaysian Airlines Boeing 777 aircraft operating flight MH 17 from Amsterdam to Kuala Lumpur on 17 July 2014, and carrying 283 passengers and 15 crew. All on board perished. The four Organizations, in a joint statement issued at the end of the meeting said: “we have met at ICAO today with collective resolve to urgently review the issues and potential responses to be pursued”. The statement recognized that in the aftermath of the MH 17 disaster and as a response, ICAO had reminded its member States of their responsibilities to address any potential risks to civil aviation in their airspace.

The four parties to the meeting agreed upon the importance of ICAO’s work, in the context of the subject, in urgently working with its member States, in coordination with the aviation industry and other bodies within the United Nations, to ensure “the right information reaches the right people at the right time”. The following discussion examines the legal principles applicable to the shooting down of the aircraft and the regulatory background relating to the possibilities of the objective of ensuring the timely dissemination of threat information.

The shooting down in July 2014 of Flight MH 17 in the territory of Ukraine is a recent example of the vulnerability of human rights from an aviation perspective. It amply demonstrated the erosion of public security that could affect aviation and how aviation could be used to threaten public security both within and beyond national borders. As the discussion to follow reflects, much work needs to be done by the regulators concerned in obviating the possibility of persons with ill intent using aviation to attack human lives and destabilize societies.

Malaysian Airlines Flight MH 17, operated by a Boeing 777-200ER aircraft flying from Amsterdam to Kuala Lumpur on 17 July 2014, and carrying 283 passengers and 15 crew, was shot down by a BUK surface to air missile over Donest Oblast in Eastern Ukraine, while at an altitude of 10,000 m. Two thirds of the passengers on board were of Dutch origin. All those on board perished.

A similar event had occurred in September 1983 when a Russian SU-15 Interceptor plane shot down a Korean Airlines Boeing 747 aircraft operating flight KE 007 bound from New York City to Seoul via Anchorage. The plane was destroyed over Sakhalin Island while navigating over prohibited Russian airspace. All 269 passengers and crew on board died.

Consequent upon the 1983 shooting down of KL 007, and amidst a vociferous international outcry, the ICAO convened a special Assembly of ICAO member States which adopted article 3 bis to the Convention on International Civil Aviation (Chicago Convention)²⁴ which now provides that ICAO member States undertake to refrain from using force against civil aircraft. Arguably, this provision ex facie does not apply to the destruction of the aircraft which operated flight MH 17. At the time of writing, there was no formal pronouncement, unlike in the KE 007 disaster, that a State was involved in bringing down flight MH 17. Some alleged that it had been brought down by pro-Russian rebels, which left both Ukraine and Russia as presumed innocent.

Although the destruction of aircraft at high altitude was addressed in Article 3 bis ²⁵ of the Chicago Convention, the ICAO Assembly, in addition, addressed the analogous issue of Man Portable Air Defence Systems (MANPADS) at its 36th Session of the Assembly held from 18 to 28 September 2007, where member States of the Organization adopted Resolution A36-19 [threat to civil aviation posed by man-portable air defence systems (MANPADS)]. In this Resolution, States expressed their deep concern regarding the global threat posed to civil aviation by terrorist acts, in particular the threat posed by MANPADS, other surface to air missiles systems light weapons and rocket propelled grenades. The Assembly urged all member States to take the necessary measures to exercise strict and effective controls on the import, export, transfer or retransfer and stockpile management of MANPADS and associated training and technologies, as well as limiting the transfer of MANPADS production capabilities; It also called upon all Contracting States to cooperate at the international, regional and sub-regional levels with a view to enhancing and coordinating international efforts aimed at implementing countermeasures carefully chosen with regard to their effectiveness and cost, and combating the threat posed by MANPADS.

Relevant to the adoption of Resolution A36-19 was the fact that the United Nations General Assembly, on 8 September 2006, had adopted its Counter-Terrorism Strategy, which is a unique global instrument that was calculated to enhance national, regional and international efforts to counter terrorism. The Strategy emphasizes the need to combat the illicit arms trade, in particular small arms and light weapons, including MANPADS. Member States have agreed to a common strategic approach to fight terrorism, not only by sending a clear message that terrorism is unacceptable but also resolving to take practical steps individually and collectively to prevent and combat it. These steps include a wide range of measures ranging from strengthening State capacity to counter terrorist threats, to better coordinating United Nations System’s counter-terrorism activities.

The use of surface to air missiles and anti-tank rockets by terrorists goes back to 1973. On 5 September 1973 Italian police arrested five Middle-Eastern terrorists armed with SA-7 s. The terrorists had rented an apartment under the flight path to Rome Fumicino Airport and were planning to shoot down an El Al airliner coming in to land at the airport. This arrest proved a considerable embarrassment to Egypt because the SA-7 s were later traced back to a batch supplied to it by the Soviet Union. It was alleged that the Egyptian government was supplying some of the missiles to the Libyan army but inexplicably, the SA-7 s had been directly rerouted to the terrorists. This incident also placed the Soviet Union in an awkward position because of the possibility that its new missile and its policy of the proxy use of surrogate warfare against democratic states were revealed to the West.

Another significant incident occurred on 13 January 1975 when an attempt by terrorists to shoot down an El Al plane with a missile was believed to have brought civil aviation to the brink of disaster. Two terrorists drove their car onto the apron at Orly airport, where they set up a rocket launcher and fired at an El Al airliner which was about to take off for New York with 136 passengers. The first round missed the target thanks to the pilot’s evasive action and hit the fuselage of a Yugoslav DC-9 aeroplane waiting nearby to embark passengers for Zagreb. The rocket failed to explode and no serious casualties were reported. After firing again and hitting an administration building, which caused some damage, the terrorists escaped by car. A phone call from an individual claiming responsibility for the attack was received at Reuters. The caller clearly implied that there would be another such operation, saying ‘Next time we will hit the target’.

Missile attacks are common.²⁶ There was a marked increase in missile attacks since 1984. On 21 September 1984 Afghan counter-revolutionaries fired a surface-to-air missile and hit a DC-10 Ariana Airliner carrying 308 passengers. The explosion tore through the aircraft’s left engine, damaging its hydraulic system and a wing containing a fuel tank. The captain of the aircraft, however, managed to land the aircraft safely at Kabul International Airport. Another significant incident took place on 4 April 1985, when a member of Abu Nidal group fired an RPG rocket at an Alia airliner as it took off from Athens Airport. Although the rocket did not explode, it left a hole in the fuselage.

Advanced missiles and rockets have been found in many terrorist and insurgent armouries. It is suspected that some terrorist organizations, including Iranian militia in Lebanon, the Provisional Irish Republican Army and various African and Latin American insurgents, possess the sophisticated Russian-made RPG-7 portable rocket launcher, but it is disturbing to note that some terrorist organizations, most notably Palestinian groups, have their own RPG-7-manufacturing facilities. In addition, more than a dozen other terrorist and insurgent groups were known to possess portable surface-to-air missiles. These groups included various Cuban surrogates, Colombian drug dealers, and a number of African, European and Palestinian terrorist organizations.

1.1.1.1 Some Counter Measures

The gathering of reliable intelligence remains the first line of defence. Although modern technologies clearly aid terrorists in terms of weapons and targets, technology can also be used against terrorists. Governments which are endowed with the necessary technology can keep track of terrorist organizations and their movements with the aid of computers. At the same time, electronic collection methods and signals intelligence afford the possibility of eavesdropping on and intercepting terrorist communications, leading to better predictions of their operations. One of the instances where intelligence gathering worked well to prevent terrorism occurred in September 1984, when the Provisional IRA spent an estimated £1.5 million in the United States on a massive shipment of seven tons of arms. With the help of an informer about a forthcoming shipment of weapons, including rockets, to the Provisional IRA from the United States, the FBI informed British intelligence, who in turn contacted the Irish, and the ship carrying the arms was tracked by a US satellite orbiting 300 km above the earth. The satellite photographed the transfer of the arms to a trawler. Finally, two Irish Navy vessels intercepted the trawler and British security forces arrested the crew. This incident shows that intelligence gathering with the help of high technology can cut off the transfer of missiles and other weapons to terrorists.

The installation of a sophisticated antimissile system similar to that employed on military aircraft to divert surface-to-air missiles is an effective deterrent. One good example is the measure taken by the British government which, immediately after the discovery of 20 SA-7 s in the coaster Eksund, which was intercepted by French authorities off the coast of Brittany in November 1987 when bound for the IRA, fitted all British Army helicopters flying in Northern Ireland with electronic and other decoy systems to confuse the missile’s heat-seeking guidance system. These included the US-made Saunders, AN/ALG 144. This system, when linked to the Tracor AN/ALE 40 chaff dispenser, works by jamming the missile’s homing radar and sending infra-red flares and chaff to act as a decoy for the heat-seeking device. The system is used by both the US and the Israeli Armies, which have been well-pleased with its performance. Until the British realised that the IRA might be in possession of SAMs, the Ministry of Defense hesitated to install such a system because of the high cost involved, and its decision to do so shows the seriousness of the threat. Another example of a good counter-measure is the response of El Al airlines to the threat of such an attack which included the installation of electronic countermeasure equipment similar to that employed on military aircraft to divert surface-to-air missiles.

1.1.1.2 The Legal Fallout

The aircraft was shot down in the air space over Ukraine. Therefore technically, according to the Chicago Convention, Article 3 bis, Ukraine was obligated to make every effort to refrain from using force against the Malaysian aircraft. One could argue that, in the exercise of its sovereignty, Ukraine should have required the landing of Flight MH 17 at some designated airport If Ukraine believed that the aircraft was flying above its territory without authority or if there were reasonable grounds to conclude that it was being used for any purpose inconsistent with the aims of the Convention; it was also entitled to give such aircraft any other instructions to put an end to such violations. For this purpose, Ukraine could have resorted to any appropriate means consistent with relevant rules of international law, including the relevant provisions of the Chicago Convention. Also, Ukraine was required to specifically publish its regulations in force regarding the interception of civil aircraft.

According to Article 28 of the Chicago Convention, Ukraine was required to provide in its territory air navigation facilities inter alia to facilitate international air navigation. This provision imputes to Ukraine the obligation to provide air traffic services.

It has been reported that Malaysia accused Ukraine of being responsible for the loss of all on board the aircraft and the destruction of the aircraft, on the ground that the air traffic controllers of Ukraine had directed the flight towards the flight path it was on and that Ukraine had a duty to warn the aircraft not to traverse the particular flight path.²⁷ From the perspective of State responsibility, separatists or no, the aircraft was shot down over Ukraine and it is relevant to examine its legal responsibility towards the aircraft in its territory.²⁸ Responsibility would devolve upon a State in whose territory an act of unlawful interference against civil aviation might occur, to other States that are threatened by such acts. The International Court of Justice (ICJ) recognised in the famous Corfu Channel Case:

Every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.²⁹

Ukraine may anchor itself on the judicial dictum in the Corfu Channel case, where the International Court of Justice applied the subjective test and applied the fault theory. The Court was of the view that:

It cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that the State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.³⁰

Malcolm Shaw is of the view:

The rights accorded to states under international law imply responsibilities. States are liable for breaches of their obligations, provided that the breach is attributable to the state itself. A state is responsible for direct violations of international law—e.g., the breach of a treaty or the violation of another state’s territory. A state also is liable for breaches committed by its internal institutions, however they are defined by its domestic law; by entities and persons exercising governmental authority; and by persons acting under the direction or control of the state. These responsibilities exist even if the organ or entity exceeded its authority. Further, the state is internationally responsible for the private activities of persons to the extent that they are subsequently adopted by the state.³¹

The Malaysian accusation brings to mind the shooting down on 3 July 1988 of Iran Air Flight 655 which was operated by an Airbus A-300B aircraft, and the killing of its 290 passengers and crew by two surface-to-air missiles launched from the U.S.S. Vincennes, a guided-missile cruiser on duty with the United States Persian Gulf/Middle East Force in the Iranian airspace over the Islamic Republic’s territorial waters in the Persian Gulf. The incident occurred in the midst of an armed engagement between U.S. and Iranian forces, in the context of a long series of attacks on U.S. and other vessels in the Gulf. While the United States sought the intervention of the ICAO Council in considering the attack, Iran sought the United Nations Security Council’s condemnation of the United States. The latter did not materialize. In July 1988, the ICAO Council convened an extraordinary session of the Council at which it resolved inter alia to conduct a fact-finding investigation to determine all relevant facts and technical aspects of the incident. The direction and purpose of the investigation was based on the theme of ensuring the safeguarding of civil aviation, particularly with a view to determining the feasibility of introducing possible revisions to ICAO standards and recommended practices, as necessary. Accordingly, a team of experts was assembled which later submitted its Report to the Council. Upon discussion of the Report by the Council, in December 1988, the Government of Iran sought to have the Report examined to identify any violations of the Chicago Convention and drew the Council’s attention to Article 54³² of the Convention. However, Iran did not request that the Council undertake dispute-resolution procedures under Article 84³³ of the Chicago Convention, nor did Iran seek to apply the comprehensive and exclusive ICAO Rules for the Settlement of Differences promulgated to address disputes arising under that Article 84 of the Chicago Convention.

If, as the Malaysian authorities claimed, the Ukranian air traffic controllers were negligent in not warning the aircraft against flying over separatist held territory, one could argue that the principle of objective responsibility could apply to Ukraine. Brownlie states:

Technically, objective responsibility rests on the doctrine of the voluntary act: provided that agency and causal connection are established, there is a breach of duty by result alone. Defences such as act of third party are available, but the defendant has to exculpate himself.³⁴

In the famous Caire claim of 1929,³⁵ The President of the Claims Commission stated that according to the objective responsibility principle, a State has to accept responsibility for the actions of their officials whether such officials were at fault or not, on delictual (tortious) principles under international law, regardless of whether such officials exceeded their parameters of competency or not.³⁶

However, over Donetsk Oblast in Eastern Ukraine where the aircraft was shot down, armed separatist groups had taken over the territory and Ukraine was therefore not in control. In other words, the area concerned was a “conflict zone”. These armed separatist groups were in full control of the crash site, even preventing international investigators from entering the site which prompted the the United Nations Security Council to unanimously adopt Resolution 2166 (2014) calling on those controlling the MH 17 crash site to allow unfettered access to international investigators. It must be noted in this context that the Chicago Convention provides that in case of war,³⁷ the provisions of the Convention do not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same applies in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council.³⁸ It is therefore arguable that Article 3 bis of the Chicago Convention would not apply to Ukraine in the circumstances of Flight MH 17.

In the Home Missionary Society case³⁹ of 1920 the tribunal stated that it was a well established principle of international law that no State could be held accountable or responsible for the acts of rebellious bodies of men committed in violation of its authority where the State is not guilty of a breach of good faith or of no negligent in suppressing insurrection.⁴⁰

1.1.1.3 The Regulatory Fallout

ICAO identifies air routes but 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 Chicago Convention prescribes in Articles 9 and 12 the 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 2⁴¹ to the Convention. Technically, 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.

According to the Joint Statement issued by ICAO, IATA, ACI and CANSO in July 2014, ICAO has agreed to immediately establish, together with industry partners, a senior level Task Force composed of State and industry experts to address the civil aviation and national security aspects of this challenge, in particular how information can be effectively collected and disseminated. The findings of the task force are expected to be submitted with the greatest urgency to a special meeting of the ICAO Council for action.

ICAO has also been requested (by the industry) to address fail-safe channels for essential threat information to be made available to civil aviation authorities and industry as well as the need to incorporate into international law, through appropriate UN frameworks, measures to govern the design, manufacture and deployment of modern anti-aircraft weaponry.

The entire joint statement boils down to one objective: avoidance of risk through information sharing. A noteworthy feature of the statement is the recognition that ICAO has an important role to play to “ensure” the right threat information reaches the right people at the right time.

The Joint Statement, although reflecting a sound approach to the issue, is deficient in not requiring the task force to address the individual role to be played by each international and industry partner and the legal justification and legitimacy of those roles. Without this the Council would not get the purpose and direction of the thrust of the task force’s findings.

Another consideration is that if, as the joint statement seemingly requires, ICAO were to ensure disseminating threat information, it would make the Organization go way beyond the basic expectations of its aims and objectives, which is to develop principles and techniques of air navigation. There is also the issue of what is required in the entire process of developing an efficient and effective threat information sharing system. The key players responsible for ensuring the success of this process would have to be given sufficient resources, be able to identify problems early, engage in detailed training and continuous practice, maintain excellent flows of communication, and encourage trust and shared value amongst all concerned.

Drazenovich and Skovira ⁴² state that “open communications and the free flow of shared information should lead to the development of shared mental models of the system, its hazards, and its warning systems. A strong organizational culture and shared values are important…⁴³” In order to achieve these objectives, the political will of States is essential and obtaining it collectively will be ICAO’s first challenge. The second challenge would be to obtain continuous commitment of all States concerned to treat the issue of safety of flight over conflict areas as their absolute priority.

As for the Industry request contained in the Joint Statement: that ICAO address the need to incorporate into international law, through appropriate UN frameworks, measures to govern the design, manufacture and deployment of modern anti-aircraft weaponry, one wonders how this request fits within ICAO’s aim and objective to develop principles and techniques of air navigation. Perhaps ICAO, IATA, ACI and CANSO should have given this more serious thought, as to how ICAO could dabble in the design, manufacture and deployment of modern anti-aircraft weaponry.

The way forward in responding to the unfortunate and sad fate of the lives on board Flight MH 17 and the total destruction of the aircraft seems to rest on the critical need for sharing threat information in a timely and efficient manner. If Malaysian Airlines Flight MH 370 is anything to go by, where both ICAO and the International Criminal Police Organization (INTERPOL) failed to advise both States and airlines of the existence of a database at INTERPOL on forged or fraudulent passports,⁴⁴ ICAO and other key players concerned would have to adopt a more serious approach to the problem. Information sharing is a central process through which team members collectively utilize their available informational resources. Information retrieval becomes a key element in information sharing. The ICAO appointed Task Force would have to perform their task on the basis that, as digitally mediated communication and information sharing increase, collaborative information retrieval merits greater attention and support.

The question therefore is: how does ICAO ensure the timely dissemination of threat information and to whom should this information be relayed? Since threat information must essentially and exclusively come from States, does the joint statement mean that ICAO should be a mere conduit in transmitting information to its member States?

Risk avoidance has been defined to involve the risk assessment technique that entails eliminating hazards, activities and exposures that place valuable assets at risk. In the case of civil aviation within the context of conflict zones this would mean eliminating hazards by avoiding the airspace over that zone entirely. Unlike risk management, which is calculated to control dangers and risks, risk avoidance totally bypasses a risk. The information to States on threats posed to their civil aviation over conflict zones would therefore have to be disseminated through policy and procedure, training and education and technology implementations.

Therefore firstly, ICAO would have to, with the involvement of industry partners and other relevant players, establish the policy and procedure involved in information sharing. It would also have to consider the best way in which adequate training and knowledge can be passed on.

The important issue though is not the logistics of establishing a senior level task force. Nor is it to have the task force come up with assessments and recommendations. The critical factor is who in the end “ensures” that the information disseminated is timely and reaches the right people at the right time. In the ultimate analysis, it should be the States themselves and this is already being accomplished through NOTAMs (notices to airmen) issued by the States in accordance with guidelines of ICAO in Annex 15 to the Chicago Convention (Aeronautical Information Services). One has to take it that the Joint Statement envisions an extension to this process through a more efficient system.

In this context, it is incontrovertible that the most critical factor in achieving the objective of ensuring “the right information reaches the right people at the right time” would be the political will and commitment of every one of the 191 member States of ICAO. These States must act along the bottom line which is that those who perished in Flight MH were not involved in the situation between the Russian Federation and Ukraine. One of the cardinal principles enunciated by the International Committee of the Red Cross (ICRC) is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity.⁴⁵ They should, in all circumstances, be protected and treated humanely without any adverse distinctions. It is obvious that the “protection” referred to must come from the State and no one else.

1.1.2 Risk Management

On 28 October 2014, the ICAO Council adopted a resolution in response to the shooting down of Flight MH 17 in July 2014,⁴⁶ stating inter alia, that the Council welcomed the leading role and efforts of ICAO, supported by States, organizations and industry players, for further improvement of international standards and sharing of best practices in relation to the safety of civil aircraft at or near conflict zones to prevent recurrence of such tragic events in future. The Council urged States to take all necessary measures to safeguard the safety of air navigation, including the establishment of robust arrangements to identify, assess and share information and respond to risks to civil aircraft from activities in conflict zones, through, inter alia, effective coordination of civil and military activities within conflict zones and, if considered necessary when the safety of civil aircraft is deemed to be compromised, take appropriate airspace management measures within their jurisdictions such as access restrictions or the closure of airspace, or the issuance of advisories to airspace users.

What follows from the gist of this resolution is that while States are ultimately responsible for measures to safeguard the safety of air navigation ICAO has the responsibility of taking a leadership role in enunciating the best practices and standards that would direct and guide the States in preventing future MH 17 type disasters. Therefore ICAO has the daunting task of being a beacon to States in such areas as coordination of civil and military activities within conflict zones and air space management and the issuance of advisories.

Surprisingly, the Council Resolution mentioned above does not make reference in its Preamble to Article 9 of the Chicago Convention⁴⁷ which provides inter alia that each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, which explicitly recognizes the overall responsibility of States to be vigilant of military danger to civil aviation and divert civil aircraft accordingly.⁴⁸ In the context of the daunting role ICAO has ascribed to itself, the Council earlier examined a report of an ICAO appointed Task Force on Risks to Civil Aviation Arising from Conflict Zones ⁴⁹ which intriguingly said that one of the objectives of the Task Force was to ensure that arrangernents apply and relevant information is available to assure the safety of passengers and crew on civil aircraft irrespective of which airline they are travelling with or which cities they are travelling between. In other words, ICAO has taken it upon itself to ensure that arrangements are in place and information is available that would enable States to invoke Article 9 of the Chicago Convention.

The report waffles between pragmatism and impracticality, often bordering on startling incongruence and careless disregard to the roles to be played by States and industry. While on the one hand the report supports proactively the necessity to augment risk management so as to provide guidance and to mentor States on exchange of risk assessments and supporting information,⁵⁰ it somewhat frivolously advocates enhancing transparency by developing best practices on the provision of information to passengers and flight crew regarding the use of airspace over or near conflict zones.⁵¹

It boggles the mind as to why ICAO, any State or other organization or any airline would develop best practices to advise an airline passenger of the flight plan of his flight or of conflict zones that he would possibly fly over. Although several jurisdictions have adopted passenger rights charters and legislation pertaining to the rights of the passenger to be advised of flight delays, weather delays, lost luggage and to be provided food and drink, none has alluded to the need to inform the travelling public on risks regarding the use of airspace over conflict zones. If the intention is to assist passengers in choosing a safe airline that does not fly over conflict zones, airlines should be required to assure passengers that they do not fly over conflict zones, without providing advise on the risk of flying over conflict zones.

Bolivia and the Russian federation submitted a working paper to the ICAO Council at its 203rd Session⁵² which sensibly focused on risk assessment and risk management, calling for tighter responsibility to be devolved upon States, which, in the ultimate analysis should be accountable for the safety of air navigation within their territories. The two States suggested that:

Each State in order to eliminate the threat to lives of persons on board civil aircrafts (shall) make all possible efforts for timely and proper restriction of flights of civil aircraft in the national or delegated airspace over zones where military activity, potentially hazardous to civil aircraft operations take place, at a minimum, within the radius of the possible destruction by used types of weaponry. In this way, Contracting States would agree to inform ICAO immediately and other Contracting States on the existence of threats or on the probability of the emergence of such threats, while understanding their full responsibility for the possible consequences in case of concealment of such information or delays in its distribution.⁵³

The two States suggested that the matter of enhanced State responsibility be remanded to the ICAO Working Group on Governance and Efficiency (WGGE) in the course of the current session of the ICAO Council, where the WGGE could undertake a preliminary discussion on the feasibility of developing an amendment to the Chicago Convention, and that the matter be brought to the attention of the High Level Safety Conference to be held in February 2015.⁵⁴

Although the adoption of an amendment may be a cumbersome process⁵⁵ the overall thrust of the proposal of insistence on enhanced State responsibility is both practical and consistent with the attendant duties of States to ensure safety of air navigation over their territories.

1.1.2.1 Principles of Military and Civil Aviation

1.1.2.1.1 ICAO Guidance

ICAO’s Air Traffic Management Operational Concept is grounded on the principle that airspace management is the process by which airspace options are selected and applied to meet the needs of the air traffic management (ATM) community. Key conceptual principles include: (a) all airspace will be the concern of ATM and will be a usable resource; (b) airspace management will be dynamic and flexible; (c) any restriction on the use of any particular volume of airspace will be considered transitory; and (d) all airspace will be managed flexibly. Airspace boundaries are required to be adjusted to particular traffic flows and should not be constrained by national or facility boundaries.⁵⁶ The Concept recognizes that the accommodation of mixed capabilities and worldwide implementation needs should be addressed to enhance safety and efficiency; relevant ATM data will be fused for an airspace user’s general, tactical and strategic situational awareness and conflict management; and (c) relevant airspace user operational information will be made available to the ATM system.⁵⁷

Part of the ICAO Council Resolution alluded to⁵⁸ refers to vigilance over military and civil aviation activities in conflict zones. ICAO’s Circular 330-AN/189 focuses on the global interoperability of the ATM system on the basis that air space management should follow the principles and strategies that admit of all available airspace being managed flexibly; air space management processes accommodate dynamic flight trajectories and provide optimum operational solutions; different types of traffic be segregated as required by airspace organization; airspace use be coordinated and monitored; and airspace reservations be planned in advance.⁵⁹

Another ICAO principle provides that States are required to ensure that the level of air traffic services (ATS) and communications, navigation and surveillance, as well as the ATS procedures applicable to the airspace or aerodrome concerned, are appropriate and adequate for maintaining an acceptable level of safety in the provision of ATS.⁶⁰ Where this is deemed necessary by the appropriate ATS authority or authorities, co-ordination between ATS units providing flight information service in adjacent flight information regions (FIRs) shall be effected in respect of IFR and VFR flights, in order to ensure continued flight information service to such aircraft in specified areas or along specified routes. Such co-ordination shall be effected in accordance with an agreement between the ATS units concerned.⁶¹ Air traffic services authorities are required to establish and maintain close cooperation with military authorities responsible for activities that may affect flights of civil aircraft.⁶² The arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, are required to be co-ordinated with the appropriate air traffic services authorities.⁶³ The Global Air Navigation Capacity and Efficiency Plan (GANP)⁶⁴ of ICAO recommends the achievement of service improvement through integration of all digital air traffic management information that would result in enhanced global interoperability and greater and timelier access to up-to-date information by a wider set of users.⁶⁵

Some examples of military activities that may pose a threat to civil aviation are: (a) practice firing or testing of any weapons air-to-air, air-to-surface, surface-to-air or surface-to-surface in an area or in a manner that could affect civil air traffic; (b) certain military aircraft operations such as air displays, training exercises, and the intentional dropping of objects or of paratroopers; (c) launch and recovery of space vehicles; and (d) operations in areas of conflict, or the potential for armed conflict, when such operations include a potential threat to civil air traffic.⁶⁶ ATS authorities should be alert to military operations in areas of conflict, or the potential for armed conflict, when such operations include a potential for hazardous activity, and react accordingly. If the potentially hazardous activities are planned to take place on a regular or continuing basis, a co-ordinating group should be given the task of ensuring that the operational needs of all parties concerned are adequately co-ordinated. This group should consist of representatives of the military organization(s) concerned, the appropriate ATS authorities and the operators of civil aircraft.⁶⁷

Although the Chicago Convention does not constrain States or require them to apply provisions of the Convention in instances of armed conflict,⁶⁸ nonetheless close coordination between civil and military authorities become critical. The responsibility for initiating the co-ordination process rests with the States whose military forces are engaged in the conflict. The responsibility for instituting special measures to ensure the safety of international civil aircraft operations remains with the States responsible for providing air traffic services in the airspace affected by the conflict, even in cases where co-ordination is not initiated or completed. Based on the information which is available, the State responsible for providing air traffic services should identify the geographical area of the conflict, assess the hazards or potential hazards to international civil aircraft operations, and determine whether such operations in or through the area of conflict should be avoided or may be continued under specified conditions. An international Notice to Airmen (NOTAM) containing the necessary information, advice and safety measures to be taken should then be issued and subsequently updated in the light of developments. All those concerned with initiating and issuing of NOTAM should be aware of the provisions governing the duration of the published NOTAM. Annex 15, 5.3.1.2 states that a NOTAM given Class I distribution shall be superseded by a NOTAM given Class II distribution when the duration of the circumstances notified is likely to exceed 3 months or the NOTAM has remained in force for three months. A copy of the NOTAM should be forwarded to the appropriate regional office of ICAO.⁶⁹

1.1.2.1.2 Resolutions and Annex Provisions

Airspace is a resource common to both civil and military aviation, and given that many air navigation facilities and services are provided and used by both civil and military aviation, the ICAO Assembly, at its 38th Session (September/October 2013) adopted Resolution A38-12⁷⁰ which laid down that the common use by civil and military aviation of airspace and of certain facilities and services shall be arranged so as to ensure the safety, regularity and efficiency of civil aviation as well as to ensure the requirements of military air traffic are met. It was also resolved that the regulations and procedures established by Member States to govern the operation of their state aircraft over the high seas are required to ensure that these operations do not compromise the safety, regularity and efficiency of international civil air traffic and that, to the extent practicable, these operations comply with the rules in Annex 2 to the Chicago Convention (Rules of the Air). The State concerned should coordinate the matter with all States responsible for the provision of air traffic services over the high seas in the area in question. The Secretary General of ICAO would provide guidance on best practices for civil/military coordination and cooperation.

Annex 11 to the Chicago Convention, which addresses the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft. The International Standards and Recommended Practices in the Annex, Chapter 2 (2.17 and 2.18 in particular), contain provisions for co-ordination between military authorities and air traffic services and co-ordination of activities potentially hazardous to civil aircraft. These provisions specify that air traffic services authorities are required to establish and maintain close co-operation with military authorities responsible for activities that may affect flights of civil aircraft. The provisions also prescribe that the arrangements for activities potentially hazardous to civil aircraft shall be co-ordinated with the appropriate air traffic services authorities and that the objective of this co-ordination shall be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft. Standard 2.17.1 stipulates that arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention. Standard 2.17.2 of Annex 11 explains that the objective of the coordination referred to in the earlier provision is to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft. One must of course hasten to add that Article 89 of the Convention stipulates that in case of war, the provisions of the Convention (and, by implication its Annexes) shall not affect the freedom of action of any of ICAO’s member States affected, whether as belligerents or as neutrals. The same principle would apply in the case of any member State which declares a state of national emergency and notifies the fact to the ICAO Council.

Another challenge would lie in the testing by States of missiles. If the response of State authorities who fire missiles into the air without paying heed to applicable regulations and guidelines were to be that, since the State concerned has sovereignty over its airspace (as recognized by Article 1 of the Chicago Convention) and that whatever it does over its airspace is its concern, it must be pointed out that air routes are used by airlines of various nationalities carrying persons of various nationalities and that there must be recognition that the concept of sovereignty, in its pristine purity and simplistic interpretation cannot be sustained in this instance. The role of the State in the modern world is a complex one. According to legal theory, each State is sovereign and equal. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of States can be entirely sovereign. Interdependence and the close knit character of contemporary international commercial and political society ensures that virtually any action of a State could well have profound repercussions upon the system as a whole and the decisions under consideration by other States.

1.1.2.2 Managing Risk

1.1.2.2.1 ICAO’s Role

One of the key tasks that the ICAO Task Force has identified in its report is the identification of types of information required for making reliable risk assessments, including reputable open source information which could augment existing risk assessments.⁷¹ The preceding discussion reflects the many creditable initiatives and efforts of ICAO with regard to issuing guidance material on the safety of air navigation. However, ICAO should start by assessing its own risk of plunging into an abyss of uncertainty as to its role in leading the aviation community with regard to conflict zones and aviation. A perceived inadequacy of the Report of the Task Force is that it ascribes and allocates every function in regard to aviation over conflict zones primarily to the ICAO Secretariat, which the report claims would be supported by States and the industry. By doing so the Task Force has upended the legal situation. Instead of placing the main focus on States and their responsibility, the Task Force has devolved the entire responsibility on the ICAO Secretariat.

ICAO’s aims and objectives in this regard are clear under the Chicago Convention: it has to develop principles and techniques of air navigation⁷² and, in this regard inter alia meet the needs of the people of the world for safe, regular, efficient and economical air transport.⁷³ Risk management and providing advice to the traveller on how to avoid risk does not come anywhere near these objectives. Safety, which is one of ICAO’s aims, relates to the safety of the act of aeronautical navigation of the aircraft according to technical requirements specified and not in accordance with principles of avoidance of political risks that may be posed as a result of conflict. Besides, Article 9 of the Convention (which has already been discussed) clearly lays down the principle of State responsibility in terms of diverting aircraft in times of military necessity. Article 89 effectively precludes the application of the Chicago Convention in war situations in the context of the Convention prescribing the manner in which States should act, thus obviating any involvement of ICAO (which was established by the Convention and derives its authority therefrom). Therefore it is the States that should take the initiative and agree on strengthening risk management and ensuring the safety of aircraft over their territories and of course, by all means, they could call upon the expertise of the ICAO Secretariat to support them in this endeavour.

ICAO is a club of States and its activities and output are determined by the extent to which the member States empower ICAO. That does not mean that a matter in which the sole responsibility devolves upon the States should be thrown back at the ICAO Secretariat when the Council—a representative body of States—is resident at ICAO. It is also somewhat surprising and indeed confusing that, in this instance, the Council did not establish a subordinate body of experts representing the ICAO member States to take on the task of developing risk management principles for the States to follow. The Committee on Aviation Environmental Protection (CAEP)—a group of experts that develops recommendations for States—and the ICAO Legal Committee (representing ICAO member States) that by itself develops and drafts multilateral treaties with only the support of the ICAO Secretariat, are examples.

1.1.2.2.2 Understanding Risk Management

The ICAO Task Force Report speaks of “risk assessments”. Current societal thinking is more geared toward considering risk as danger. Whoever takes on the task of developing best practices based on risk management of air transport over conflict zones has first to have a clear concept of what risk means. One philosopher has argued that the western world is moving towards creating a society that is risk based which hovers between security and destruction, where one’s overriding perception of threatening risks drives the thinking process that eventually leads to action.⁷⁴ Today’s risk society is the result of globalization where boundaries have been lifted and interaction between the State and private actors are both seamless and prolific. The air transport industry is no different. On the one hand there is the State with its legally entrenched claim to sovereignty and resultant political calluses. On the other hand is the airline, often a private economic entity trying to ply its trade through sovereign State territory. The risk assessment should therefore be founded on the fundamental postulate of State responsibility to the airline in ensuring that persons and property on board are free of risk of danger while its aircraft traverses over State territory.

Here again responsibility devolves squarely on the State and the risk is often attributable to the State. One commentator observes:

In the global risk society, no one any longer knows with certainty the extent of the risks we face through our collective technologies and innovations. Science now fails us, with conflicting reports, contradictory assessments and wide variance in risk calculations. Faith in the risk technocrats evaporates, the hegemony of experts dissolves and risk assessment becomes no more than a political game that advances sectional interests.⁷⁵

In the air transport context the responsibility of the State becomes even more prominent since it is the air carrier that has to make amends to the injured or the deceased’s family when an accident on board occurs.⁷⁶ Conflict zones often portend danger to civil aviation as has been demonstrated in recent events where the airport of Israel was threatened by rockets fired by HAMAS and man portable air defence systems (MANPADS) have been used against aircraft elsewhere. The evaluators of risk assessment and risk management have therefore to measure risk to civil air transport in terms of geo political reality as well as the true meaning of war and conflict which appear to be blurred at law. War is conventionally defined as a behaviour pattern of organized violent conflict typified by extreme aggression, societal disruption, and high mortality. This behaviour pattern involves two or more organized groups War has also been defined as a course of hostility engaged in by entities that have at least significant attributes of sovereignty.⁷⁷ Courts have recognized that there could be war between quasi sovereign entities⁷⁸ and that undeclared de facto war could exist between sovereign States.

The term hostilities, as in the case of the situation in Donetsk when Flight MH 17 was shot down, has been defined as acts or operations of war committed by belligerents.⁷⁹ Justice Bailhache, in handing down his decision in the 1919 case of Atlantic Mutual Insurance Co. v. R ⁸⁰ said:

The word “hostilities” means hostile acts by persons acting as the agents of sovereign powers, or of such organized and considerable forces as are entitled to the dignified name of rebels as contrasted with mobs or rioters and does not cover the act of a mere private individual acting entirely on his own initiative, however hostile his action may be.⁸¹

Therefore the terms “war”, “conflict” and “hostilities” bring to bear the essential link with the State as the protagonist which has to take primary responsibility for promulgating best practices in risk assessment and management.⁸² One commentator, who has proposed a treaty that would impose State liability for acts of unlawful interference against aircraft, has commented that the distinctive feature of his proposed treaty is that it would make States, as opposed to operators, answerable for damage caused on the surface of the earth by aircraft as a result of hijacking or other unlawful interference. He goes on to say that holding governments fiscally responsible and accountable and therefore liable for aircraft hijackings and terrorism is not in-and-of-itself a novel idea.⁸³ One such precedent cited is the Libyan Government’s agreement to settle lawsuits concerning the destruction of PANAM flight 103 over Lockerbie, Scotland in 1988.⁸⁴

The overriding and fundamental theme of risk avoidance should involve the realization that current political and diplomatic problems mostly emerge as a result of the inability of the world to veer from its self-serving concentration on individual perspectives to collective societal focus. This distorted approach gives rise to undue emphasis being placed on rights rather than duties; on short-term benefits rather than long-term progress and advantage and on purely mercantile perspectives and values rather than higher human values. Another sensitivity is the thin line which exists between international law and international politics, which, when applied to aviation becomes even thinner and the responsibility of the State becomes even stronger.

Two fundamental issues emerge from the foregoing discussion: whether, in the face of Articles 9 and 89 of the Chicago Convention, ICAO stands stultified in taking the “lead” as so far claimed, in prescribing best practices in risk management and providing advice to travellers on how to avoid conflict zones; and whether the approach that so far stands on its head—that primary responsibility which devolves on the ICAO Secretariat—should be shifted to the States themselves so that they could come up with an appropriate scheme of prevention and pre-emption of attacks against aircraft in conflict zones through geo political risk assessment and management.

As the discussion in this article reflects, the vast number of initiatives of ICAO in providing manuals and guidance to States on the safety of aircraft over their territories and the harmonized use of a common airspace by both civil and military aviation are indeed worthy of credit of an Organization which has amply fulfilled its role in the field of air navigation. However, in some instances, ICAO has shown a feckless tendency to jump in too soon without preliminary assessment of the legality of its ventures, whether it be on the subject of commercial space transport or risk management over conflict zones. This should be rectified as any ICAO venture should start primarily with an examination of locus standi and legal justification.

1.2 Cyber Threats to Human Rights in Aviation

The disappearance of Malaysia Airlines Flight 370 in March 2014 brought to bear the fearful possibility that the event could be the start of cyber attacks on aircraft. Philip Ross writing in the International Business Times of 16 March 2014 said: “As the search for the missing Malaysia Airlines Flight MH 370 continues, investigators have come across some startling evidence that the plane could have been hijacked using a mobile phone or even a USB stick. The theory comes from a British anti-terrorism expert who says cyber terrorists could have used a series of ‘codes’ to hack the plane’s in-flight entertainment system and infiltrate the security software. According to Sally Leivesley, a former scientific adviser to the UK’s Home Office, the Boeing 777’s speed, direction and altitude could have been changed using radio signals sent from a small device. The theory comes after investigators determined that someone with knowledge of the plane’s system intentionally flew the jet off course”.

Author Michael Hanlon envisions the consequences of a cyber attack: “at first, it would be no more than a nuisance. No burning skyscrapers, no underground explosions, just a million electronic irritations up and down the land. Thousands of government web pages suddenly vanish… the disruption continues: thousands of popular websites, from eBay to YouTube, start malfunctioning or are replaced by malicious parodies. Tens of millions of pounds are wiped off the share price of companies like Amazon as fears grow that the whole Internet credit card payment network is now vulnerable and insecure… eventually, reports start to flood in that hundreds of thousands of personal bank accounts have been raided overnight”.⁸⁵

James D. Zirin, writing to the Washington Times said: “It is an irony of the digital age that technology has aided the security forces in detecting and thwarting terrorist operations and has helped terrorists do their evil” (http://bit.ly/d41gsV).

In taking action against cyber crimes, then US President Bill Clinton, in a 1999 speech to the National Academy of Sciences said: “open borders and revolutions in technology have spread the message and the gifts of freedom, but have also given new opportunities to freedom’s enemies… we must be ready… ready if our adversaries try to use computers to disable power grids, banking, communications and transportation networks, police, fire, and health services—or military assets”.

Jack Phillips writing to EpochTimes of 17 March 2014 recounts the instance in 2013, at a conference entitled “the Hack in the Box Conference”, that: “security researcher Hugo Teso went on stage and took out his phone. He accessed an app, Planesploit, that he coded himself, which he said could affect a plane’s navigation systems. Teso, who is a researcher, said that he could theoretically change a plane’s route and make it crash with the app. He reportedly did a demonstration on stage to show that systems on board planes are vulnerable”.

This was reportedly discounted by regulators of the United States as impossible on the ground that such a hacking technique would not work on certified flight hardware incorporated into the avionics system of a certified commercial jetliner. It was reported in the article that the authorities had further said: “the described technique cannot engage or control the aircraft’s autopilot system using the FMS or prevent a pilot from overriding the autopilot. Therefore, a hacker cannot obtain ‘full control of an aircraft’ as the technology consultant has claimed”. This view had been corroborated by the European Aviation Safety Agency (EASA) which had downplayed Teso’s findings, on the basis that embedded software has a “robustness that is not present on ground-based simulation software”.

Be that as it may, and since anything is up for grabs in the search for the missing aircraft, with theories galore, the cyber attack theory deserves at least a cursory discussion.

Cyber crimes and cyber terrorism are becoming increasingly menacing and the latter has been identified internationally as a distinct threat requiring attention. At the 21st Aviation Security Panel Meeting of The International Civil Aviation Organization (ICAO) (AVSECP/21, 22–26 March 2010) a new Recommended Practice related to cyber threats was proposed for adoption by the Council as part of amendment 12 to Annex 17 (Security) to the Convention on International Civil Aviation (Chicago Convention). It was adopted on 17 November 2010, became effective on 26 March 2011 and applicable on 1 July 2011. This Recommended Practice suggests that each Contracting State develop measures in order to protect information and communication technology systems used for civil aviation purposes from interference that may jeopardize the safety of civil aviation. At the 22nd Meeting of the Panel, conducted by ICAO from 21 to 25 March 2011, the Panel noted the value of vulnerability assessments pertaining to cyber security in aviation whose objectives are to evaluate the efficiency of existing mitigation measures and identify any vulnerabilities from a threat-based perspective and further noted that better understanding of residual risks will support a State’s efforts to refine its risk response.

Member States of ICAO, at ICAO’s 38th Session of the Assembly (September/October 2013) adopted Resolution A38-15 (Consolidated statement of continuing ICAO policies related to aviation security) which inter alia strongly condemned all acts of unlawful interference against civil aviation wherever and by whomsoever and for whatever reason they are perpetrated. The Resolution noted with abhorrence acts and attempted acts of unlawful interference aimed at the destruction in flight of civil aircraft including any misuse of civil aircraft as a weapon of destruction and the death of persons on board and on the ground and reaffirmed that aviation security must continue to be treated as a matter of highest priority and appropriate resources should be made available by ICAO and its Member States.

The first international convention which addressed the subject of interference with aviation by cyber hacking was the 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation adopted in Beijing (which unhappily is not in force, still begging for 22 ratifications) which China has signed (but not ratified) and Malaysia is yet to sign. The Convention states in Article 1d) that an offence is committed when a person destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight. This clearly refers, inter alia, to cyber terrorism, yet anomalously links the offence exclusively to the safety of aircraft in flight. Article 2a) of the Convention provides that an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. In the event of a forced landing, the flight would be deemed to continue until the competent authorities take over responsibility for the aircraft and for persons and property on board.

Perhaps the events unfolding from MH 370 would spur more States to ratify the Beijing Convention?

More generally, yet with relevance to the field of aviation, are the activities conducted since the 1980s by international organizations such as the United Nations, Council of Europe, INTERPOL, and the Organization for Economic Co-operation and Development in response to the challenges posed by cyber crime. A significant result of such collective efforts was the publication of the United Nations Manual on Cybercrime and 2001 United Nations Resolution (United Nations Resolution on Combating the Criminal Misuse of Information Technologies General Assembly Resolution 55/63) exhorting States, in the context of an earlier United Nations Resolution on Millennium Goals, which recognized that the benefits of new technologies, especially information and communication-related technologies, are available to all, to ensure that their laws and practices eliminate safe havens for those who criminally misuse information technology. The Resolution also urged States to ensure the cooperation of law enforcement authorities in the investigation and prosecution of international cases of the criminal misuse of information technology, and that this should be coordinated among all concerned States. The Resolution further required information to be exchanged between States regarding the challenges faced in combating such criminal misuse and stated that law enforcement personnel should be trained and equipped to address any criminal misuse of information technology.

A particular feature of cyber terrorism is that the threat is enhanced by globalization and the ubiquity of the Internet. Given such a global problem, requiring a global solution, the one forum that can provide a global framework against cyber terrorism is ICAO. A sustained global process of security risk assessment is the first necessary step. One definition of security risk assessment considered by the ICAO Aviation Security Panel at its Twenty-second Meeting was: “an outcome based process, coordinated by the Appropriate Authority utilising all appropriate resources, consisting of an analysis of prevailing threat factors compared against current mitigation measures, with a view to determining levels of risk that result in the application of appropriate mitigation measures”.

In pursuance of these objectives, ICAO, in collaboration with its Member States, could undertake a study to identify critical aviation information systems; review the effectiveness of existing mitigation measures established for such systems; identify any vulnerabilities in current security arrangements; analyse best practices on how to address these vulnerabilities; and determine how to better manage identified residual risks.

1.3 MH 370 and Other Threats to Human Rights

Every now and then, the world of aviation gets a rude awakening which makes the aviation community spring into action to take steps in closing loopholes in aviation security. One such example was the attempt by shoe bomber Richard Reid who in December 2001 tried to blow up an American Airlines jet flying from Paris to Miami. He was foiled as he fumbled with matches and attempted to detonate a bomb hidden in his shoe. Reid was spotted by a stewardess and overpowered just in time. The ICAO Council sprang into action immediately after this event and that is how the prohibition of liquids, aerosols and gels on aircraft came into being as an international requirement. Malaysia Airlines Flight MH 370 is another disturbing wake-up call which brings to bear the need for cohesive and coherent international requirements that mandate States to check the genuineness and integrity of travel documents of those who board aircraft in their territories. ICAO’s attempts to address this problem in its Annexes and Security Manual are non-existent, except perhaps for a jumbled and convoluted approach of confining travel documents purely to the realm of facilitation, thereby relegating them to the background.

A Malaysian Airlines aircraft which took off from Kuala Lumpur for Beijing at 12.41 a.m. on Saturday, 8 March 2014 lost contact with air traffic control 2 h into the flight. The Boeing 777-200 carrying 239 people including 12 crew members carried 14 nationalities (mostly Chinese but Malaysian, Indonesian and Australians as well) on board. There were infants and toddlers on board. It was reported that the plane had lost contact with Vietnamese air traffic control in Ho Chi Minh City at 1.21 a.m. and that it had deviated course from the North to the West and down towards the Southern Indian Ocean. At the time of writing—more than 2 weeks later—the Prime Minister of Malaysia officially announced (on 24 March 2014) that it was assumed that Flight MH 370 had terminated in the Southern Indian Ocean and that there were no survivors. The search however, went on.

1.3.1 Malaysia Airlines

Malaysia Airlines has a good record of operational safety and efficiency since its first commercial flight in 1947 as Malayan Airways and many iterations thereafter.⁸⁶ Malaysia was formed in 1963 causing the airline to change its name to Malaysian Airlines Limited (MAL), which, almost immediately thereafter incorporated Borneo Airways into MAL.

In 1965, with the separation of Singapore from Malaysia, MAL became a bi-national airline with a tie up between Malaysia and Singapore and was renamed Malaysia–Singapore Airlines (MSA). A new logo was introduced and the airline grew exponentially with new services to Perth, Taipei, Rome and London. However, in 1972, the partners went separate ways. Malaysia introduced Malaysian Airlines Limited, with its establishment as a standalone airline. Malaysia Airlines which was subsequently renamed Malaysian Airline System and took to the skies on 1 October 1972. It was later branded Malaysia Airlines and continues to be the country’s national flag carrier.

In 2012, Malaysia Airlines operated 105,077 flights, averaging 292 flights per day system-wide. With a fleet of 109 aircraft, the airline carried 13.4 million passengers to 60 destinations in 30 countries across Asia, Australasia, Europe, and North America. On Time Performance (OTP) improved considerably to 87.22 % in 2012, the best in 5 years.⁸⁷ On 1 February 2013, Malaysia Airlines became a full-fledged member of O ne world alliance and is now connected to some 850 destinations in 150 countries across the O ne world alliance network. The airline holds a lengthy record of service and best practices excellence, having received more than 100 awards in the last 10 years.

1.3.2 Flight MH 370

At the time of writing, it was assumed by all concerned (for lack of any specific information or data that might lead to credible scenarios) that the ill-fated aircraft operating Flight MH 370 had plunged into the sea. No one ventured to even hazard a conjecture as to what could have happened, except that aviation experts who were interviewed by the media confirmed that both Malaysia Airlines and the B 777 aircraft had splendid safety records. There were two troubling enigmas that surfaced: there were no distress calls at all from the flight deck in an aircraft flying at an altitude of 35,000 ft; and two of the passengers were travelling with stolen passports of Austrian and Italian nationality (both Austria and Italy have reportedly confirmed that none of their nationals were on board). Both had bought their tickets simultaneously. Although this led to a possible terrorist angle, this theory was abandoned on the ground that at least one of the two (both being Iranian nationals) may have been travelling to Germany for purposes of immigration and that none of the two was connected to any terrorist group. However, the fact that the plane had veered course to the left instead of proceeding north to Beijing brought in various possible scenarios and theories: that it may have been a crew problem; a passenger illness that necessitated landing at the nearest airport; or even a hijacking attempt and all these left speculation open. The stark and incontrovertible fact behind all this intrigue was the portentous danger of stolen passports being used prolifically in international air travel that may be a serious threat to aviation security.

Of course neither the Malaysian civil aviation authorities nor Malaysia Airlines stands alone in the omission of not properly checking the passports against available databases, as claimed by several experts. A formal statement issued by the International Criminal Police Organization (INTERPOL)⁸⁸ INTERPOL confirmed that at least two passports—Austrian and Italian—recorded in its Stolen and Lost Travel Documents (SLTD) database⁸⁹ were used by passengers on board missing Malaysia Airlines flight MH 370. The Austrian and Italian passports were added to the database of SLTD database after their theft in Thailand in 2012 and 2013 respectively. After the disappearance of flight MH 370 INTERPOL conducted checks on all other passports used to board flight MH 370 which may have been reported stolen. INTERPOL further stated that there had been no checks of the stolen Austrian and Italian passports carried out by any country between the time they were entered into INTERPOL’s database and the departure of flight MH 370. Therefore, INTERPOL was unable to determine as to how many other occasions these passports had been used to board flights or cross borders.⁹⁰

1.3.3 Issues Involved

1.3.3.1 The Stolen Passports

Two persons travelled on Flight MH 370 on stolen passports⁹¹ belonging to an Austrian national and an Italian national who had reported the thefts almost immediately after they were stolen a considerable time before the flight took off. As already mentioned, details of these passports were registered in the database of stolen passports maintained by INTERPOL. However, at the time of check-in, these passports had not been checked against the INTERPOL database. The Secretary General of INTERPOL stated:

Whilst it is too soon to speculate about any connection between these stolen passports and the missing plane, it is clearly of great concern that any passenger was able to board an international flight using a stolen passport listed in INTERPOL’s databases…This is a situation we had hoped never to see. For years INTERPOL has asked why should countries wait for a tragedy to put prudent security measures in place at borders and boarding gates…Now, we have a real case where the world is speculating whether the stolen passport holders were terrorists, while INTERPOL is asking why only a handful of countries worldwide are taking care to make sure that persons possessing stolen passports are not boarding international flights.⁹²

The stolen passports issue, whether or not it had a link to the disappearance of the aircraft, is nonetheless worrying, as eloquently explained by the chief of INTERPOL. He clearly equivocated INTERPOL’s concern over the years as to why countries should wait for a tragedy to happen to take security measures at borders and gates.

First of all, for States to take such security measures, they have to have the necessary guidance from whoever gives that guidance and direction. The United Nations specialized agency that has the responsibility to provide that guidance and direction is the International Civil Aviation Organization (ICAO).⁹³ At the 38th Session of the ICAO Assembly Member States endorsed five Strategic Objectives for ICAO among which is one concerning Security and Facilitation where ICAO “enhances global civil aviation security and facilitation. This Strategic Objective reflects the need for ICAO’s leadership in aviation security, facilitation and related border security matters”.⁹⁴

In this context ICAO states that:

With the collaboration of Member States, ICAO plays an essential leadership role in the field of aviation security with the ultimate goal of enhancing civil aviation security worldwide. To this end, its efforts are focused primarily on developing and coordinating an effective global policy and legal framework in response to the evolving threat to civil aviation, conducting audits that identify aviation security shortcomings, and assisting States in implementing security Standards and resolving deficiencies.⁹⁵

1.3.3.2 The ICAO Annexes

In the field of facilitation, ICAO’s Standards and Recommended Practices (SARPs)⁹⁶ are contained in Annex 9 to the Chicago Convention.⁹⁷ Annex 9, in Standard 3.7 requires ICAO member States to regularly update security features in new versions of their travel documents, to guard against their misuse and to facilitate detection of cases where such documents have been unlawfully altered, replicated or issued. Recommended Practice 3.9 suggests that member States incorporate biometric data in their machine readable passports, visas and other official travel documents, using one or more optional data storage technologies to supplement the machine readable zone, as specified in Doc 9303, Machine Readable Travel Documents. The required data stored on the integrated circuit chip is the same as that printed on the data page, that is, the data contained in the machine-readable zone plus the digitized photographic image. Fingerprint image(s) and/or iris image(s) are optional biometrics for member States wishing to supplement the facial image with another biometric in the passport. Member States incorporating biometric data in their Machine Readable Passports are to store the data in a contactless integrated circuit chip complying with ISO/IEC 14443 and programmed according to the Logical Data Structure as specified by ICAO.

Recommended Practice 6.9.1 of the Annex (which is not a mandatory requirement but a recommendation) provides that each Contracting State, in consultation with airport and aircraft operators, should notify travellers, via signage, leaflets, video, audio, internet websites or other media, of the penalties for breaching regulations with regard to entry and departure and attempting to import or export any banned or restricted item. There is also Recommended Practice 6.17 which suggests that each Contracting State should ensure that airport operators and the State’s security or border control personnel use efficient screening and examination techniques, in security and border control examinations of passengers and their baggage, in order to facilitate aircraft departure. As to why this was a mere recommendation for States to choose or not to implement is a mystery.

There are of course no SARPs in the Annex requiring that States check the passports of checking-in passengers with any database maintained by a criminal police organization or institution. The only provision that might be applicable is Standard 3.46 which requires the public authorities of each Contracting State to seize fraudulent, falsified or counterfeit travel documents. This includes seizing the travel document of a person impersonating the rightful owner of the travel document. As to how the authorities would determine that a travel document is counterfeit or that a person is impersonating the rightful owner of the travel document is not specified or even hinted at. However, worthy of note is Recommended Practice 3.47 (again, just a recommendation) which suggests that wherever appropriate, Contracting States should introduce a system of advance passenger information which involves the capture of certain passport or visa details prior to departure and their transmission of electronic details to the destination prior to departure.

1.3.3.3 Inconsistencies and Inadequacies

There are glaring disconnects in these ambivalent provisions that detract from what was expected of ICAO as the central regulatory forum in the MH 370 context. The first is that these provisions are contained in the Facilitation Annex (Annex 9) and not in the Security Annex (Annex 17) where ICAO clearly veers from the security relevance of the provisions. They are merely given as an Attachment to Annex 17 as extracts of Annex 9. The second is that, apart from Recommended Practice 3.47 which is on advance passenger information that is relayed to the destination—explicitly as the recommendation says “to expedite clearance” at the destination—there is no provision for information to be determined prior to departure.

The jumble of provisions in two separate Annexes where provisions are irrelevantly placed in one Annex instead of the other, while the Strategic Objective of ICAO pertains to Security and facilitation, where common sense would require one consolidated Annex, seriously calls to question ICAO’s claim of its “leadership” role in “responding to the evolving threat to civil aviation”. Annex 17 to the Chicago Convention contains SARPs on aviation security. ICAO knows, or ought to know that in 2013 stolen passports were used over a billion times and that INTERPOL’s SLTD records over a million stolen passports, as confirmed by INTERPOL in the aftermath of the disappearance of Flight MH 370.⁹⁸ In such a scenario, should Annex 17 have specific Standards requiring States to check and screen embarking passengers with measures that are specified and certain?

Ironically, Standard 3.4.1 of Annex 17 requires each State to ensure that the persons implementing security controls are subject to background checks. The Annex also requires such persons to possess all competencies required to perform their duties⁹⁹ and be certified according to a national civil aviation programme.¹⁰⁰ There is also Recommended Practice 4.2.7 (again, not a Standard requiring compliance) pertaining only to airline crew which recommends that each Contracting State should ensure that identity documents issued to aircraft crew members provide a harmonized and reliable international basis for recognition and validation of documentation to permit authorized access to airside and security restricted areas.

The only provision in Annex 17 which is even remotely connected to the screening of passports is found in Standard 4.4.1 which requires Contracting States to establish measures to ensure that originating passengers of commercial air transport operations and their cabin baggage are screened prior to boarding an aircraft departing from a security restricted area.¹⁰¹ Ironically, the word “screening” is defined in the Annex as “the application of technical or other means which are intended to identify/and or detect weapons, explosives or other dangerous devices, articles or substances which may be used to commit an act of unlawful interference”,¹⁰² effectively ignoring the screening of passports. Without a specific requirement in Annex 17 that Contracting States should link their software to the INTERPOL SLTD, how could one expect any State to have a mandatory directive to screen passports of checking in passengers?

1.3.3.4 The ICAO Security Manual

If the provisions of Annex 9 and Annex 17 are too vague and inadequate to sufficiently direct States to ensure that stolen passports are not used, at least the ICAO Security Manual¹⁰³ should, as it claims in its introduction that it “provides details of how States can comply with the various SARPs of Annex 17 of the Chicago Convention” should have filled this lacuna. Regrettably, there is no mention in the Manual of stolen, fraudulent or altered passports being a threat to security or their proper identification and screening against available databases or lists. Chapter 4 addresses preventive security measures which involve passenger terminal security; surveillance; briefing of public; terminal personnel; VIP facilities; extra security measures (which do not address passengers) and a host of other security resources with no mention of passengers or their travel documents. The same chapter has a sub paragraph on screening of passengers and cabin baggage. Here “screening” is defined by the Manual the same as in Annex 17 as:

The application of technical or other means which are intended to identify and/or detect weapons, explosives or other dangerous devices which may be used to commit an act of unlawful interference.¹⁰⁴

The Manual states that the screening of all passengers and their cabin baggage is recognized as an essential element in the fabric of safeguarding measures advocated by ICAO, the basic rule being that all passengers and all their cabin baggage must undergo screening before being allowed access to an aircraft Such screening may be carried out by the use of metal detectors, X-ray equipment or other explosive detection devices, by manual search or a combination of equipment and manual search.¹⁰⁵ There is no mention in the Manual of a tie up between States and INTERPOL that could strengthen aviation security and minimize threats to unlawful interference with civil aviation.

The 38th Session of the ICAO Assembly, held in September/October of 2013 in one of its Resolutions urges ICAO Member States to intensify their efforts for implementation of existing SARPs and procedures relating to aviation security, to monitor such implementation, to take all necessary steps to prevent acts of unlawful interference against international civil aviation and to give appropriate attention to the guidance material contained in the Aviation Security Manual.¹⁰⁶ This does not mean anything at all in terms of the threat posed by stolen passports as the Manual deals with physical screening of the person of the passenger and his baggage.

Interestingly, the same Resolution recognizes that machine readable travel documents strengthen security by improving the integrity of the documents which verify the identity of the travellers and air crew, and that they enable high level cooperation among States to strengthen resistance to passport fraud, including, inter alia the use of valid passports by imposters and the use of fraudulently obtained passports. There is no mention in the Resolution of cooperation between States and INTERPOL although, on the subject of cargo, the Resolution makes mention of such organizations as the World Customs Organization, Universal Postal Union and the International Maritime Organization.¹⁰⁷

Consistent with its practice of confining travel documents solely to the area of facilitation, as the preceding discussion showed, and totally ignoring the relevance of the need to check passports against international databases, another Resolution of the 38th Assembly—on facilitation—waxes eloquent on national and international action in ensuring the security and integrity of traveller identification and border controls. Ironically, this Resolution¹⁰⁸ although calling for national and international cooperation, focuses only on cooperation between States on machine readable travel documents (e-Passports) and the Public Key Directory (PKD)¹⁰⁹ as tools that strengthen the security and integrity of border control. The problem with the PKD is that it is limited in usage among ICAO’s Member States where, by summer 2013 only 37 e-Passport issuers have already decided to join the PKD and take advantage of its benefits.¹¹⁰

1.3.3.5 Interaction Between States

During the first few days of searching for debris in the ocean by several countries including China, Malaysia and Vietnam, the Chinese Foreign Ministry in a press conference made the statement that China considered its responsibility to request Malaysia to step up its search and rescue operations. By this statement the Chinese authorities were implying that Malaysia and its national carrier had a responsibility towards ensuring that the Chinese citizens (and passengers of other nationalities of course) are found. Flight MH 370 was presumably operated on the legitimacy it was awarded under a bilateral air services agreement (BASA) between Malaysia and China. Typically the BASA does not specify what nationalities are to be carried between Kuala Lumpur and Beijing in a flight such as MH 370. However such agreements fall under the Vienna Convention on the Law of Treaties,¹¹¹ Article 2 of which defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

The Vienna Convention while recognizing treaties as a source of law, accepts free consent, good faith and the pacta sunt servanda as universally recognized elements of a treaty.¹¹² Article 11 of the Vienna Convention provides that the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means agreed upon. A State demonstrates its adherence to a treaty by means of the pacta sunt servanda, whereby Article 26 of the Vienna Convention reflects the fact that every treaty in force is binding upon the parties and must be performed by them in good faith.

Based on the above, one could argue that the principles of State responsibility would be critical in the operation of air services from one country to another and that a given State is obligated to take all necessary measures to ensure the safety of persons and property carried by its national carrier. State responsibility is a recognized principle of international law. The law of international responsibility involves the incidence and consequence of acts which are irregular at international law, leading to the payment of compensation for the loss caused. The sustainability of aviation security measures and arrangements is an important strategic issue for all entities with aviation security-related responsibilities and risk-based security measures, outcomes-focused security measures, rationalization of security measures, optimization of technology, mutual recognition of equivalence and one-stop security, harmonization, and preparedness for crisis events are policy principles and practices whose implementation can contribute significantly to the sustainability of aviation security measures and arrangements.

The need for each State to carry out continuous risk assessments as a preliminary measure is paramount for the sustainability of security. Aviation security has to be sustained in a balanced manner so that, on the one hand, the application of security measures to mitigate identified threats, and on the other hand, the essential task of facilitating operations, passengers’ experience and trade could be ensured. Security should not accumulate layer upon layer of controls and associated costs, but should rather ensure the sustainability of the system from the perspectives of cost, efficiency, and acceptability by passengers and air transport operators, which should be a central consideration when designing security processes. In the case of a BASA a proactive measure to be adopted by both State Parties concerned would be to achieve and retain sustainability by following the practice of reciprocal acceptance of equivalent security measures across the board, with due regard to the principle of host State responsibility. In that respect, the need for any one State to require extra security measures of another State can be avoided by their working together to align international requirements to the global threat environment. It is this kind of approach that could sit well with Annex 17 to the Chicago Convention.

There is a breach of international obligation when an act or omission of a State is not in conformity with what is required of it by that obligation, regardless of its origin or character.¹¹³ In the case of Flight MH 370, in the absence of an international obligation imposed by explicit requirements either by ICAO or INTERPOL as already discussed, it is highly questionable whether any country involved in the case would be guilty of a derogation of their international responsibility.

The above discussions both with regard to Flight MH 17 as well as to MH 370 demonstrate that there could be numerous lapses in aviation regulatory structures that could result in breaches of human rights both to individuals as well as whole societies. Both unfortunate events touched a wider range of persons than the passengers themselves who were involved. For instance, as the flaw in the MH 370 situation demonstrated, the passport is a basic document in the transport by air of persons. Its use therefore is of fundamental importance as a travel document, not only because it reflects the importance of the sovereignty of a State and the nationality of its citizens but also because it stands for the inviolability of relations between States that are linked through air transport. A passport asserts that the person holding the passport is a citizen of the issuing State while a visa confirms that the State issuing the visa has granted the visa holder the non-citizen privilege of entering and remaining in the territory of the issuing State for a specified time and purpose. An ePassport is a type of Machine Readable Passport¹¹⁴ with an embedded microchip that contains data printed on the data page of the passport, including biographic and biometric information of the holder, and passport data. The chip also contains security features for preventing passport fraud and forgery and misuse of data stored on the chip. ePassports are easily recognised by the international ePassport symbol on the front cover.¹¹⁵

Stolen or forged passports portend a serious threat to aviation security, whether they are used by individuals or States. The assassination of a leader of Hamas on 19 January 2010 by a group of individuals in Dubai who used forged passports belonging to various nations, raised a diplomatic outcry and brought to bear an important facet of air transport that is vulnerable to abuse and contention among States.¹¹⁶

Although ICAO’s disjointed references in its Annexes and Security Manual and the glaring lack of mention of the threat to the integrity of passports and the need for States to link themselves to the SLTD of INTERPOL is apparent, one must hasten to add that INTERPOL should also bear some responsibility towards urging States to use its database. INTERPOL should also have a monitoring system to evaluate the use of the database by States. Merely attending meetings of each other as observers simply will not do for both ICAO and INTERPOL. Ideally an audit system should develop between ICAO and INTERPOL with both as equally responsible partners. MH 370 was a good enough wake up call for this purpose.

1.4 Does Global Tracking of Aircraft Ensure a Human Right?

The dangers that could be posed to life and limb on the ground as well as to the passengers on board if an aircraft suddenly vanishes off the skies would be ominous. At the time of writing, 9 months had passed since the disappearance of Malaysia Airlines Flight 370. Australian authorities had stopped searching for debris related to the disappearance of the aircraft in the area where the Australian Defence Vessel Ocean Shield (ADV Ocean Shield) detected acoustic signals in early April. Developments in the search led to a specific focus on the southern corridor, particularly areas of the southern Indian Ocean, about 2,000 km west of the Australian coastal city of Perth. In late May 2014 the Australian Transport Safety Bureau (ATSB) advised that the search in the vicinity of the acoustic detections was considered complete and in its professional judgement, the area was being discounted as the final resting place of MH 370.¹¹⁷ However, the overall search for the debris will not stop and was said to recommence in August.¹¹⁸

Over 2 months had passed after the disappearance of the flight when the ICAO, after a long period of silence, convened on 12–13 May 2014 what was called a Multi Disciplinary Meeting Regarding Global Tracking of Aircraft. The meeting resulted in what ICAO called “Conclusions and Recommendations” which regrettably lacked specific details.

1.4.1 Search for the Aircraft

The first question would be, for how long would States involved in the search and recover operations be obligated to go on searching?

The Chicago Convention requires contracting States of the International Civil Aviation Organization to fulfil their obligations under Article 25 which provides:

Each Contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable, and to permit, subject to control by its own authorities, the owners of aircraft or authorities of the State in which the aircraft is registered to provide such measures of assistance as may be necessitated by the circumstances. Each Contracting State, when undertaking search for missing aircraft, will collaborate in coordinated measures which may be recommended from time to time pursuant to this Convention.

Annex 12 to the Chicago Convention elaborates on this fundamental requirement by qualifying that Contracting States are required to arrange for the establishment and provision of search and rescue (SAR) services within their territories on a 24 h basis. Contracting States are further requested to delineate the SAR process under the Annex on the basis of regional air navigation agreements and provide such services on a regional basis without overlap. A search and rescue region has been defined in the Annex as “an area of defined dimensions within which SAR service is provided”. Annex 12 to the Chicago Convention requires Contracting States to coordinate their SAR organizations with those of neighbouring Contracting States with a recommendation that such States should, whenever necessary, coordinate their SAR operations with those of neighbouring States and develop common SAR procedures to facilitate coordination of SAR operations with those of neighbouring States. These provisions collectively call upon all Contracting States to bond together in coordinating both their SAR organizations and operations.

At the 32nd Session of the Assembly, held in 1998, ICAO adopted Resolution A32-14, Appendix O which addresses the provision of SAR services. This Resolution refers to Article 25 of the Convention in which each Contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable and to collaborate in coordinated measures which may be recommended from time to time pursuant to the Convention.

The Resolution mentions Annex 12 which contains specifications relating to the establishment and provision of SAR services within the territories of Contracting States as well as within areas over the high seas. The resolution recognizes that Annex 12 specifies that those portions of the high seas where SAR services will be provided shall be determined on the basis of regional air navigation agreements, which are agreements approved by the Council normally on the advice of regional air navigation meetings. Annex 12 also recommends that boundaries of SAR regions should, insofar as practicable, be coincident with the boundaries of corresponding flight information regions.

In the case of the Africa-Indian Ocean Region, the ICAO Regional Air Navigation Plan, in Part V addresses issues of Search and Rescue by pointing to the provisions of the ICAO Search and Rescue Manual (Doc 7333), referring in particular to the need for aircraft to carry specified equipment, carry out paper and communications exercises and, more importantly, for the need for States to pool their resources and provide mutual assistance in the case of SAR operations. The Plan calls for precise agreements between States to implement these measures. The ICAO Regional Plan also calls upon States, in order to ensure compatibility between aeronautical and maritime search and rescue regions (SRRs), and aeronautical search and rescue authorities, to maintain close liaison with their maritime counterparts and the International Maritime Organization (IMO).

Since the RAN Plan specifies such aspects State cooperation in SAR—and in the case of MH 370 it might not be search and rescue anymore but (sadly) search and recover—and also since the RAN Plan for the AFI region specifies a formula for costs of the SAR to be apportioned among the States participating in the operations, it would be for the States to decide as to the time limit of the operations. As a last resort, they can come to the ICAO Council, which is obligated by the Chicago Convention to consider “any matter referred to it”¹¹⁹ by a State/s.

1.4.2 The ICAO Multi Disciplinary Meeting on Global Tracking

1.4.2.1 ICAO and Global Tracking

Technically, ICAO has been working on surveillance of aircraft under the Communications, Navigation, Surveillance and Air Traffic Management (CNS/ATM) system since 1972 when the Air Navigation Commission of ICAO recommended at its Seventh Air Navigation Conference that satellites be used for tracking civilian aircraft. This gave way in the early 1980s to the Future Air Navigations System (FANS). The culmination of this initiative came in 1991 at ICAO’s Twelfth Air Navigation Conference which approved and endorsed the implementation of CNS/ATM system. It was inevitable that, after this endorsement, global tracking of aircraft would therefore technically come within the purview of the Global Navigation Satellite System (GNSS) which has three main players: the Global Positioning System (GPS) of the United States; the GLONASS system of the Russian Federation and Galileo of the European Commission. There are certain shortcomings of the GPS system which may affect the accuracy and timing of aircraft by satellites and augmentation systems, both ground based and satellite based, have been used to rectify these lapses.¹²⁰

The Global Positioning System (GPS) is founded on a constellation of 21 satellites orbiting the Earth at extremely high altitude. These satellites have been called “man made stars” that replace stars traditionally used for navigation through centuries in time.¹²¹ The satellites in the GPS are known to use technology sufficiently accurate to pinpoint positions anywhere in the world around the clock.¹²² This is achieved by using satellites and computers to triangulate positions anywhere on Earth. From an aviation perspective, GPS is considered to be the most expeditious and cost effective way that a fool-proof air collision avoidance system could be designed.

GPS uses a technique called “satellite ranging”, which is based on measuring the distance of a target from a group of satellites in space, which become a precise reference point in the process of tracking. The distance to a satellite is determined by measuring the time taken by a radio signal to reach the tracking position on Earth from the satellite contacted.

1.4.2.2 ICAO’s Response to Flight MH 370

As stated earlier, the ICAO reaction (one could not justifiably call it an initiative) to the disappearance of Flight MH 370 came after 2 months of the event. ICAO decided to convene a Multidisciplinary Meeting Regarding Global Flight Tracking of Aircraft on 12–13 May 2014. The meeting resulted in what ICAO called “Conclusions and Recommendations” which regrettably were riddled with ambivalent statements that lacked specific tasks and other details. The Conclusions and Recommendations are categorized into three time zones: near term; midterm; and long term. In the near term there is a blanket statement that “global tracking of airline flights will be pursued as a matter of priority to provide early notice of and response to abnormal flight behaviour”. There is no explanation as to who will do the tracking and how it will be done. Then there is another statement for the near term that a draft concept of operations on flight tracking will be developed that includes a clear definition of the objectives of flight tracking that ensures that information is provided in a timely fashion to the right people to support search and rescue, recovery and accident investigation activities, as well as, the roles and responsibilities of all stakeholders. One is baffled by the term “draft concept of operations” as to what exactly it means. Who will develop this mysterious document or process?

Another unclear statement is “under the ICAO framework, the contribution by the industry through an Aircraft Tracking Task Force (ATTF) will help address the near-term needs for flight tracking”. What is this “ICAO framework”? And what is the “industry” referred to here? Is it the manufacturing industry, the air transport industry or the service providers? Or is it the entire aviation industry which comprises all the above?

Perhaps the most confusing statement for the near term is “ICAO will consider establishing a short term joint ICAO/IATA advisory group to support the global tracking initiative”. What is there to consider? When will ICAO make up its mind?

Some of the other befuddled statements are that ICAO should increase its resources allocated to the Search and Rescue in order to improve the effectiveness across national and regional boundaries; ICAO should, in collaboration with a pool of search and rescue experts, identify and address operational search and rescue challenges with implementation of existing Annex 12 provisions, and provide assistance to States, including aiding in the setting of priorities for the mid and long term; ICAO should facilitate the sharing of experience and lessons learned from States that were recently involved in accidents where flight tracking could have facilitated search and rescue efforts to all other States; and ICAO should strongly encourage States to regularly run practice exercises involving airlines operation centres, air navigation service providers (ANSPs) and rescue coordination centres (RCCs) to test and verify their ability to respond and coordinate together in an integrated manner to abnormal flight behaviour scenarios.

The use of the word “should” seems to give ICAO the choice and one wonders why these statements did not say “ICAO will…”. The word “should” occurs throughout the mid-term and long term goals making confusion worse confounded.¹²³

Tracking of airline flights essentially involves the ability of an airline to know the location of its aircraft at any given time, anywhere in the world. Tracking of airline flights are totally different from the provision of air traffic services (ATS), although ATS could be used in certain instances to provide necessary data in the tracking process. The ICAO High Level Safety Conference of 2010 examined instances of accidents over the high seas, responding to a request by the Accident Investigation Bureau of France following the Air France AF 447 disaster,¹²⁴ for an ICAO study on the possibility of making it mandatory for aircraft engaged in transporting the public to regularly transmit basic flight parameters. As expected, the Conference came up with a Declaration which stated that States have a collective responsibility to ensure aviation safety and that there was an increasing awareness of a compelling need for improvements in communications over oceanic and remote areas.¹²⁵

Based on the premise that States and airlines have responsibility towards tracking aircraft under their realm of responsibility, and that there are some airlines that already have tracking systems in place, the ICAO Special Meeting on Global Flight Tracking of Aircraft concluded that there is a near term need for air operators to track their flights. It must be noted that Annex 6 to the Chicago Convention (Operations of Aircraft) obligates an air operator to establish and maintain a method of control and supervision of flight operations, but the Annex does not make it mandatory that an air operator track its flights. At the Special Meeting on Global Flight Tracking of Aircraft ICAO suggested that in developing new Standards for flight tracking a holistic review of other related Standards should be conducted. A performance-based approach to global flight tracking may be conducive to a system that could support other requirements, both current and under development, such as: transmission of basic flight data; implementation of triggered transmission of flight data; new generation of emergency locator transmitters (ELTs); deployable flight data recorders; and identification of the location of an accident site. ICAO also recommended that any future flight tracking Standards should also leverage the emergence of new technologies to support air traffic services (ATS) surveillance systems. The emergence of new technologies may not only provide increased capacity and efficiency in remote/oceanic airspace, but may also provide a future data source for flight tracking purposes. Consequently, the development of any future Standards addressing global flight tracking will require a multidisciplinary approach involving, at a minimum, expertise in such areas as flight operations, airworthiness, flight data and air traffic control.¹²⁶ ICAO invited the meeting to consider a multidisciplinary and performance-based approach towards the development and the formulation of any international Standards requiring global flight tracking; and also consider the various options for future Standards such as incorporation into Annex 6 and/or Annex 2 to the Chicago Convention. ¹²⁷

1.4.2.3 Views of Other Key Players

At the Conference, the International Air Transport Association (IATA)¹²⁸ proposed that an expert Task Force be convened to address the issue of global tracking of aircraft, such task force to include but not be limited to personnel from ICAO, airlines, flight safety organizations, manufacturers, air navigation service providers, flight tracking equipment and service providers, pilots and air traffic management experts. IATA will ensure that participation is limited to a manageable number and has the required skill mix to achieve desired outcomes.

IATA suggested that the Task Force examine available options for tracking commercial airplanes, considering implementation, time, complexity and cost efficiency to achieve the desired coverage. In particular, the Task Force will assess the responses to the ICAO vendor survey and examine existing capabilities to determine potential solutions against elements such as reporting parameters and intervals, reliability, accuracy and coverage. The Task Force will develop recommended options based on performance requirements to implement global airplane tracking. It was IATA’s recommendation that the Task Force would develop a draft report with recommendations within 120 days. Following required coordination, the Task Force will issue its final report within 150 days of the Multidisciplinary Meeting.¹²⁹

The European Union (EU) highlighted the fact that one obvious vulnerability of flight was brought to bear by Flight MH 370 in that there was possible intentional disconnection of airborne air traffic management (ATM) systems. The EU focused on a number of incidents that led to aircraft losses as a result of deliberate action of the pilot and stated that ground control should be alerted to the emergence of an unusual situation in flight. The EU strongly suggested that an approach be followed that addresses the needs of all relevant stakeholders (search and rescue specialists, accident investigators; air traffic controllers; flight safety/airworthiness/maintenance services) rather than letting them develop separate and incomplete solutions, in particular where their technological needs are rather similar, taking into account the current means already in place for search and rescue (COSPAS-SARSAT¹³⁰ infrastructure and current ELT requirements) and for locating the wreckage and the flight recorders under water.¹³¹

France submitted to the meeting that short-term cost-effective solutions exist to address the issue of enhanced aircraft tracking and should be encouraged; vulnerabilities in relation to aircraft security have to be addressed; mid-/long-term solutions should be considered in terms of cost efficiency, having in mind the benefit in terms of safety and security; and mid-term solutions, as the activation at distance of new generation ELTs combined to airborne triggering in flight in case of unusual situations, is one example of solutions that should be envisaged.¹³²

The International Council of Aircraft Owner and Pilot Associations (IAOPA) issued a note of caution against ICAO Standards and Recommended Practices (SARPs) that required the use of emergency locator transmitters (ELTs) as the approved equipage for SAR as being not suitable while at the same time claiming that mandating specific equipment would pose the trap of forcing aircraft owners to purchase new equipment each time the technology is updated or new technology is developed. Another danger envisioned by IAOPA is that such a move would preclude pilots and owners from using new technologies—even though the new technology may be better suited to their flight operations—simply because it “does not meet the regulatory requirement”. As well, technology manufacturers are likely not to invest in research and development of new and more efficient technology when ICAO standards mandate the use of a specific and older technology.¹³³

1.4.3 Legal Issues

1.4.3.1 Historical Background of ICAO’s Work

In its Conclusions and Recommendations following the meeting on tracking aircraft, ICAO once again committed the usual blunder of not making any reference to the legal framework that might be developed simultaneously to implement some of the recommendations. For instance for the short term, ICAO is required to develop guidance material, based on available flight tracking best practices. Of what nature would these guidance material be and what compulsion or discretion of States might they carry? For the midterm, ICAO is expected to develop performance based “provisions”. What legal effect or credibility would these provisions have unless their nature and application are laid out? At the least, ICAO could have declared that these guidelines and provisions would be developed, keeping in mind the relevant legal aspects.

The 31st Session of the ICAO Assembly, in December 1995, adopted Resolution A31-7 pursuant to which the Council established a Panel of Experts on the Establishment of a Legal Framework with Regard to Global Navigation Satellite Systems (LTEP). The Panel was charged, inter alia, to develop a legal framework of conduct regarding the use of the GNSS. The framework developed by the LTEP took the form of a Charter containing various principles for the implementation and operation of GNSS, such as recognition of the paramount nature of safety in international civil aviation; non-discrimination and universal applicability and accessibility of GNSS; inviolability of States’ sovereign rights; continuity, integrity, availability and reliability of services; and international cooperation. The Charter was recognized by the ICAO Council, at its 153rd Session in March 1998, as being worthy of submission to the 32nd Session of the Assembly, which in turn adopted the text of the Charter in a Resolution. The ICAO Assembly, at its 32nd Session in 1998, adopted Resolution A32-19 (Charter on the Rights and Obligations of States Relating to GNSS Services) containing fundamental principles of a Charter of Rights and Obligations of States in relation to GNSS Services.¹³⁴ In the Resolution, States, whilst recognizing that the primary use of GNSS services is to maintain safety in international civil aviation, reaffirm the principle that every State and aircraft of all States shall have access, on a non-discriminatory basis, and under uniform conditions to the use of GNSS services. The Resolution also grants every State authority and control over aircraft operations over their territory, and, inter alia, imposes obligations on provider States to ensure continuity, availability, integrity, accuracy and reliability of such services.

It is at this point that the problem arises, and legal discourse begins. The mere fact that the Charter is now an ICAO Assembly Resolution has prompted the comment:

Adopted in the form of an Assembly Resolution, the Charter cannot be accorded any legal force and therefore must be regarded as legally not binding. Some commentators, having expressed serious doubts as to the usefulness of the instrument, seem to be somewhat displeased with the nomenclature employed which would be indicative of a legal instrument of fundamental importance.¹³⁵

The significance of the legal status regarding the current principles on the conduct of States in using space based applications in civil aviation management lies in the compelling need to inquire as to whether rigid fragmentation of law and policy is really necessary, particularly in such an important area as aviation safety. Does one dismiss policy in this critical area purely on the inflexible notion that it is not enforceable? On the other hand, do States need to abandon rigid demarcations in instances such as these and agree to global adherence?

The 32nd Session of the ICAO Assembly also adopted Resolution A32-20 (Development and Elaboration of an Appropriate Long Term Legal Framework to Govern the Implementation of GNSS). This resolution, which recognizes that GNSS is an important element of the ICAO CNS/ATM System, is aimed at providing a framework governing safety critical services for aircraft navigation with worldwide coverage. It also recognized, inter alia, the need for an appropriate long term legal framework to govern the implementation of GNSS and endorsed the Council decision taken earlier to authorize the ICAO Secretary General to establish a Study Group on Legal Aspects of CNS/ATM systems. The Assembly instructed the Council and the Secretary General to consider the elaboration of an appropriate long term legal framework to govern the operation of GNSS including consideration of an international convention.

Resolution A32-20 was a signal development in global recognition of the need to inquire into a liability regime regarding damage caused by the GPS process through signals transmitted to air navigation facilities. The Resolution resulted in an ICAO Secretariat Study Group being established to elaborate proposals for a liability framework. The Study Group reported to the 33rd Session of the Assembly (held in September–October 2001) in a somewhat divided way, some members recommending that the applicable regime under domestic law was adequate and appropriate to cope with the global navigation satellite system and others being of the view that a global international law instrument, such as a Convention, might be required to address issues of liability in the long term. A compromise between these two views, representing a model contractual framework, was also suggested to the Assembly as an alternative. The Assembly further remanded the matter to the Study Group to finalize the concept of a contractual framework as a first step, with a view to later considering the development of an international convention as a long term measure.

At the ICAO Eleventh Air Navigation Conference, held in Montreal from 22nd September to 3rd October 2003, the European Organization for the Safety of Air Navigation (EUROCONTROL), on behalf of its members and those of the European Civil Aviation Conference (ECAC), presented such a contractual framework to the Conference.¹³⁶ The framework contained main elements developed while taking into consideration regional requirements. The Conference was advised that, in the face of increased advancement and development of GNSS, there was a compelling need for an adequate legal and institutional framework to cover liability issues, inter alia, concerning GNSS. The main reason for this need, as was identified in support of the proposal, was that, as most States would not have direct involvement in the operation of the GNSS System or sub systems, air navigation services provided within their sovereign airspace will be compelled to rely on facilities which were beyond their control. It was also contended by EUROCONTROL and others presenting the contractual framework that States needed to be satisfied, inter alia, that there was an appropriate and adequate performance level of the GNSS signals and services offered within their airspace, ensuring their integrity, reliability, accuracy and continuity and that such services should come within a clearly defined liability framework.

1.4.3.2 Positions of Other Key Players

The African States who presented an alternate proposal to the Conference of an international convention to cover liability issues of GNSS,¹³⁷ reiterated the European concern that there was a large constituent of user States who by themselves could not provide GNSS services (as required by Article 28 of the Chicago Convention) but were nonetheless responsible for the provision of those services under international treaty. As such, it was the view of the African States that an international convention was needed in order to establish and adopt principles regarding provider and user responsibility and rights in the event of damage. Such a Convention, according to the African States, would also serve to provide for an international institutionalized safety and security oversight process. The African States further suggested that the Convention should be based on ICAO’s central responsibility to develop principles and techniques and foster planning and development of international air transportation, with safety as a paramount concern. The suggested Convention would involve mandatory submission to arbitration by parties concerned with an accident or damage and oblige providers to assure continuity, availability, accuracy and transparency while being liable for damage caused by GNSS services provided by them.¹³⁸

It must be noted that Galileo, the European second-generation navigation satellite system—an outcome of collaborative work between the European Union (accomplished through the European Commission) and the European Space Agency, has done quite some work on developing an adequate legal regime. One suggestion has been to establish a Galileo Supervisory Authority (GSA) which would provide the political basis to enhance opportunities for the industry; introduce a fair and reasonable liability regime; ensure a proper certification scheme for providers; and establish safeguards against financial crises such as bankruptcy.¹³⁹

The United States, on the other hand, recommended¹⁴⁰ to the Eleventh ICAO Air Navigation Conference that there was no need for either a new contractual framework or international convention. The United States was of the view that ICAO has flexible legal tools (such as SARPs) together with a sustained and long term institutional framework and experience that would enable the Organization to continue to serve without major problems, as it had, through such major aviation landmarks as the advent of the jet engine, radar and many other scientific advancements without legal or institutional problems. As such, the United States invited the Conference to agree that work on GNSS has progressed steadily over the past several years and no deficiencies had been found to impede technical implementation of CNS/ATM and that such work should not be impeded or delayed by work on legal and institutional issues.

Another school of thought, represented by the LTEP, was inclined to tie in the responsibility of States under Article 28 of the Chicago Convention to adherence to SARPs. The LTEP suggested that States providing signals in space or under whose jurisdiction such signals are provided should certify the signals in space by attesting that such provision is in conformity with SARPs. The LTEP went on to recommend that the States having jurisdiction under the Chicago Convention should ensure that avionics, ground facilities and training and licences requirements comply with ICAO SARPs.¹⁴¹ These recommendations were based on the LTEP’s considered view that, irrespective of whether or not a State handed over the provision of air navigation services to a privatized entity, ultimate responsibility continued to devolve upon the State for the provision of such services under Article 28 of the Convention.¹⁴² The LTEP favoured an international convention on liability as an ultimate and long term measure, taking into consideration that a GNSS induced incident may, in certain circumstances, involve multiple and complex actions in several jurisdictions, thus requiring an internationally harmonized legal regime containing a simple, clear and speedy procedure.¹⁴³

The LTEP presented its findings to the ICAO Council at the 170th Session of the Council in November 2003. In its Report,¹⁴⁴ the LTEP advised the Council that the Panel had finalized the draft text of a Contractual Framework Relating to the Provision of GNSS Services containing obligations of the GNSS signal provider as well as those of the air traffic service provider which makes use of the signal for the provision of its services. Essentially, the draft contractual framework foresees a series of contracts between the various stakeholders while stipulating that the signal provider is obligated to provide the signals with regularity, continuity, integrity, accuracy and uninterrupted availability.¹⁴⁵

In 2004 the LTEP submitted its final Report to the Council of ICAO, concluding that there was no legal obstacle to the implementation of the CNS/ATM system and that it was not inconsistent with any of the provisions of the Chicago Convention. The LTEP has not been heard of since.

The trouble with ICAO is that it has artificially created individual turfs that consider silo interests. At the time of writing in early June 2014 it was still not too late to view the Conclusions and Recommendations relating to the global tracking of aircraft through a holistic approach that would consider those “provisions” and measures referred to in the Conclusions and Recommendations in the context of the legal implications and aspects involved. Admittedly, the preeminent considerations would be technical but technical aspects could by no means be considered in isolation in the context of global policy.

It has already been established (within the scope of the Eleventh Air Navigation Conference of ICAO) that since the authorization of GNSS would require the involvement, participation and agreement by many States, both users and providers would have to agree to a binding legal agreement.¹⁴⁶ Furthermore, the Conference recognized that a contractual framework containing mandatory common elements could serve as the interim solution between the status quo and the long-term elaboration of a GNSS international convention. The framework would require, inter alia, a framework agreement among States at governmental level and that ICAO’s long-term legal framework, namely the Chicago Convention, its Annexes and ICAO guidance material, was adequate and no deficiencies had been found to impede the technical implementation of CNS/ATM systems. While legal issues had been discussed in various bodies of ICAO, at no point did any ICAO body achieve consensus on a proposal for a new global conventional law.¹⁴⁷

Since it has already been agreed that a legal framework could exist within the existing ICAO regime, it behoves ICAO to revisit the legal aspect of satellite communications and surveillance with a view to providing the ICAO High Level Safety Conference in February 2015 with a well rounded picture of both the technical, legal and policy aspects of global tracking of aircraft. The problem is that no one has agreed on what a “binding legal agreement” within the ICAO regime is. There are of course Assembly resolutions which are no more than results of political compromises to which no legal legitimacy can be ascribed¹⁴⁸; procedures such as PANS-OPS¹⁴⁹; SARPs which do not have any mandatory effect; Regional Air Navigation Plans; model legislation; model clauses and guidance material, all of which offer a whole range of useful purpose and direction that could result in the assurance of enforcement.¹⁵⁰ As to which of these, or a completely new animal that would define a “draft concept of operations” as referred to in the Conclusions and Recommendations of the ICAO meeting on global tracking of aircraft can be used, it is yet to be seen.

The philosophy of air law hinges on the fundamental premise that States have sovereignty over the airspace above its territory and adjacent territorial waters.¹⁵¹ Under this principle, seemingly a State is not answerable to their people for measures they take in the context of aviation within their territories. However, current approaches to international law brings to bear the primacy of humanity’s law. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, states:

“sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”. This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach¹⁵²”.

There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare. Let us take the chronological evolution first. After World War II, the world has, over the past 70 years or so, gone through three global political and economic stages. The first was the modernist era, where naturally, State sovereignty was considered paramount over any other consideration in the immediate and proximate aftermath of the War where nations and States were attacked. This lasted until the 1960s.

From then on the trend shifted to the post-modernist era where the focus veered from the interests of the State to the welfare of the citizen. Post modernism, which was a characteristic of the 1960s and 1970s, progressed steadily toward the twenty-first century. Post modernist thinking was geared to accepting that human culture, as we knew it from a social and economic perspective, was reaching an end. This school of thought associated itself with the momentum of industrial society, drawing on an image of pluralism of cultures and a multitude of groups. The interaction between political modernism, which brought to bear the globalization of nations and deconstruction of separatism of human society, while at the same time ascribing to the individual certain rights at international law that transcended natural legislation parameters, has been symbiotic and essentially economic. In the post modernist era, the fundamental modernist philosophy of state sovereignty and peace gave way to an industrial culture that emphasized economic coexistence for the betterment of the global citizen.

The neo post modernist era was signalled as an immediate consequence of the attacks of 11 September 2001 where close to 3,000 human beings were decimated by terrorist activities within a few minutes. The principle of State Responsibility with regard to world peace and security which lies primarily in Article 24 of the United Nations Charter which calls upon all members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations, was immediately resuscitated in the minds of the international community.

This principle is embodied in the work of the International Law Commission, through Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts which provides that international responsibility of a State, which is referred to in Article 1, is attributable to that State if conduct of the State constitutes a breach of an international obligation of that State. The document also provides that the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations. The State responsible for an internationally wrongful act is under an obligation to compensate for damage caused, including reparation for financially assessable damage including loss of profits.

In addition to State responsibility for conduct attributable to that State, the International Law Commission has established that a crime against the peace and security of mankind entails individual responsibility, and is a crime of aggression. The Rome Statute of the International Criminal court, defines a war crime, inter alia, as intentionally directing attacks against civilian objects; attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objects; employing weapons, projectiles, and material and methods of warfare that cause injury The Statute also defines as a war crime, any act which is intentionally directed at buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.

Security of the human being, although the focus of international attention at the present time, has its roots in years gone by. The rule of law has always been intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule and is diametrically opposed to both dictatorship and anarchy.

Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, “In free governments the rulers are the servants and the people their superiors and sovereigns.” The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable.

The essence of a nation should be founded on human rights that are contrived from single instances of wrongs committed against the people. According to this principle, a right becomes something that is legitimately due to a person which he can justly claim as secured to him by law, and which ensures that some wrong committed in the past is effectively precluded by the right so secured. A right should not be confused with power, the former being based on moral justification and expectation and the latter being based on enforceability. Protection by the state of an individual, freedom to attend church or temple, and freedom to educate oneself are examples of a right where as sovereignty of State, authority to censor speech and enforce martial law are examples of power. A wise nation distinguishes between the two and maintains a balance.

Human rights should be viewed as something more than a concept which acts as a cultural artifact. They transcend fundamental rights, which are essentially political and civil rights, and expand to more basic rights such as the right to be equal to anyone with regard to the basic universal need for nourishment, shelter, clothing and education. In order to make sure that they are enjoyed by all of humanity, any community will have to make sure that human rights are a matter of course and are ensured by a guaranteed and contrived effort by all. Human rights and their worth cannot strictly be evaluated. Traditional modes of evaluation, with which the voter usually goes to the polls in a democratic environment to select the government, are “value for money”, efficiency of service delivery and customer satisfaction. At best, these yardsticks have largely been political and economic abstractions which have prompted some academics and practitioners to consider the subject of governance-evaluation as being immeasurable or too much trouble. The issue is further aggravated by the fact that there is no scientifically approved or accepted model to assess the quality of public governance.

The bottom line is that human rights are enjoyed by the citizen through good governance. The first conclusion that one can reach is that good governance is no longer assessed by the provision of services by a government or other governing body but rather by the extent to which improvements were made possible to the quality of life of the individual. The second is that good governance has an international connotation, in that it should be assessed with the assistance and application of international standards. Also, good governance must be rewarded, for example through rewards along the lines of the Nobel Peace Price for “best practices” in good governance. Recognition should be given through “satisfaction surveys” where a direct causal nexus could be drawn between the manner in which the governed was enabled to reach a level of satisfaction with governance provided. Positive changes in expectation and results obtained should be weighed against perceived adequacies of government in the provision of services. Trust in government, through increased levels of health and well being (which must necessarily include a sense of security of life, habitation and movement) both from cultural and religious perspectives should be a primary indicator. The elimination of corruption is a key to good governance, and civil society, which has been overwhelmingly proactive in building awareness on human rights issues, has succeeded in persuading the international community of the value for transparency and honesty in public transactions. Arguably, the most important key to good governance is benevolence and understanding. A good government must assure its people that it has their well being at heart and pro actively move towards achieving that goal.

Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard University, in his book “Rights from Wrongs”¹⁵³ states that rights do not come from nature, as nature is value neutral, nor do they come from logic or law alone because, if rights emanated from law, there would be no basis to judge a given legal system. Dershowitz maintains that rights come from human experience, particularly experience with injustice. Our experience has taught us never again to tolerate a holocaust, never to curb freedom of expression and freedom of faith, and from that experience has stemmed the Universal Declaration of Human Rights and the United Nations Charter.¹⁵⁴ These documents, which embody fundamental rights are just pieces of paper if experience is not joined by logic. The marriage of logic and experience in the wisdom of human relations is ingrained in ancient Jewish philosophy, which, according to Isaac Abravanal, recognized that experience is more forceful than logic but logic and experience are not mutually exclusive. Without being applied to experience, logic tends to be hollow and directionless, but without the focus of logic, experience becomes multi directional and out of focus. Good decisions come from experience and experience comes from bad decisions. In other words, rights emerge from wrongs and not from ancient parchments or tomes of wisdom hidden away in a forgotten memory that is subsequently revived.

All this brings one to the irrefutable conclusion that the enforcement of human rights is a peremptory norm or jus cogens at international law. This means that the application of human rights takes precedence over any treaty, as enunciated by Article 53 of the Vienna Convention on the law of treaties, which states that whenever a jus cogens clashes with a treaty provision the former prevails. human rights.¹⁵⁵ Obligations pertaining to a jus cogens are applicable erga omnes or to the world at large irrespective of national or parochial interests. Aviation is no exception.