MH17 is believed to have been destroyed by a surface-to-air missile (SAM) while flying at 33,000 feet over Ukraine. The Boeing 777-200ER was on a scheduled flight from Amsterdam to Kuala Lumpur July 17. All 298 people on board were killed. The US says the SAM was of Russian origin and was fired by pro-Russian separatists in the Ukraine area where fighting has been taking place since spring. The aircraft had been authorized for the route it was flying, initially by European air traffic controllers and then by Ukraine ATC.
The chiefs of ICAO, IATA, Airports Council International (ACI) and the Civil Air Navigation Services Organization (CANSO) held an emergency meeting in Montreal July 29 to discuss the ramifications of MH17 and how intelligence on potential military threats to airliners can be better collected and disseminated. They and other major global aviation organizations are forming a high-level international task force of state and industry experts to look at airspace security. Findings of the task force will be submitted to a special meeting of the ICAO Council within weeks and a high-level safety conference of all 191 ICAO member states will be held in February.
“While aviation is the safest form of transport, the MH17 incident has raised troubling concerns with respect to civilian aircraft operating to, from and over conflict zones,” ICAO, IATA, ACI and CANSO said in a joint statement. “We have met at ICAO with collective resolve to urgently review the issues and potential responses to be pursued. As a first step, states have been reminded by ICAO of their responsibilities to address any potential risks to civil aviation in their airspace.”
Article 9 of the Convention on International Civil Aviation, commonly known as the Chicago Convention, states that individual states are responsible for the safety and security of civil aircraft operating through their airspace and where there is armed conflict. Doc. 7300 of the article specifies 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 its territory … Notices to airmen (NOTAM) or other communications containing the necessary information, advice and measures to be taken should then be issued.”
IATA CEO and DG Tony Tyler said at a media briefing after the Montreal meeting that MH17 had “exposed a gap” in the air transportation system. “Airlines need clear guidelines and information on where to operate safely,” Tyler said. “This is the responsibility of states and there can be no excuses. We need essential and actionable information. [The] industry is ready to assist in any way possible to make this happen.”
ACI DG Angela Gittens said the task force would work to “connect the dots”with military and intelligence organizations. “We need to engage outside of [commercial] aviation because the solution lies outside,” she said.
Wrong place, wrong time
In August, Malaysia Airlines’ COO Hugh Dunleavy spoke out about the need to improve information sharing about where it is safe to fly.
“There is a critically urgent need for more [information] sharing,” Dunleavy said. “This is a risk assessment issue that is nothing to do with commercial operations or national security. The situation has to change.”
Dunleavy defended the airline’s decision to fly that route. “We were told it was safe to fly MH17 over the Ukraine at that height, at that time, on that day,” he said. “If we can’t get government bodies to tell us what is safe, who can we rely on?”
He pointed out there were some 400 flights a day flying over Ukraine at that time of the attack on MH17, and that any one of them could have been shot down: “But we were in the wrong place at the wrong time.”
Dunleavy was also critical of the fact that some airlines had already decided not to overfly Ukraine using flight corridor L980—but had allegedly not shared any of the reasons with any of the relevant advisory bodies.
“If some airlines had the information [that it was unsafe to overfly], we have to ask why they did not share it,” he said. Dunleavy also questioned the way that such “covert” information is considered to fall into a gray area between government sensitivity and commercial safety.
“But 289 people died here—this can’t be treated as confidential information. Military and intelligence information as well as commercial input should be shared to avoid this kind of thing ever happening again,” he said.
Dunleavy said the ideal solution for the industry, most likely driven by ICAO and IATA, would be to coordinate all flight safety information and then disseminate important notifications across all carriers on the basis of them being from “a reliable source.” This, he said, would help protect sensitive or confidential sources.
Dunleavy said it was hard for operators to know where to seek reliable information—ANSPs, the airlines’ own information networks, regional bodies like Eurocontrol, or ICAO. “If operators can’t rely on these sources, who else is there to rely on?” he asked.
To address that question, the air transport industry wants to establish fail-safe channels via ICAO for essential threat information to civil aviation authorities and industry. But given the potential sensitivity of that information, this will be a very difficult task to achieve. Even if some of the world’s state-owned military and intelligence forces are willing to cooperate and share information, some will not.
“Intelligence sharing is part of the challenges that the industry now faces,” ICAO Council president Olumuyiwa Benard Aliu said. “We have to talk to the military authorities and we anticipate they will be invited to take part in the task force. The challenge we have is to find ways for world aviation to coordinate with military authorities.”
Even more problematic is how to ensure safe passage for airliners through airspace over conflicts where weaponry such as the SAM thought to have brought down MH17 are in the control of non-state rebels. These so-called “small wars” have now become a potential, albeit statistically tiny, threat to commercial air transport. But players in these wars are typically not signatories to either the Chicago or the Geneva Convention.
ICAO can therefore press states to step up to their Chicago responsibilities, but it does not have enforcement powers and, in some cases, neither do the states.
And if ensuring state compliance with Chicago will prove difficult, it will be even harder to implement and enforce a second call by the air transport organizations. They are seeking, through a United Nations framework, measures that would “govern the design, manufacture and deployment of modern anti-aircraft weaponry.” Effectively, that’s a call by commercial aviation for global arms control. Although understandable, it likely will not be an achievable solution to what is a political problem.