Leiden Law Blog

How ‘safe’ airspace was not safe: the downing of flight MH17

Posted on by Wouter Oude Alink in Public Law , 1
How ‘safe’ airspace was not safe: the downing of flight MH17

Aircraft accidents do happen, but luckily not often. In 2012 aircraft accidents caused 414 fatalities on a total of 2.97 billion air passengers. Even more rare are aircraft crashes caused by human interference. A recent tragic example of the latter is flight MH17, which was shot down on 17 July 2014 in Ukrainian airspace. This sad event revealed a major shortcoming in the safety oversight of airspace, as clearly unsafe airspace was being used by civil aircraft.

Although the downing of MH17 is a very complex matter, with many points and angles deserving attention, this blog will try to highlight the principal reasons why it was possible that a civil aircraft was downed in apparently unsafe airspace that was however considered safe.

The Chicago Convention

The 1944 Convention on International Civil Aviation (Chicago Convention) regulates international civil aviation. Its article 1 provides that States are sovereign in the airspace above their territory, while article 28 obliges them to provide air navigation facilities “to facilitate international air navigation.” According to article 9, “States 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,” but there is no obligation to close the airspace. In this case, Ukraine had closed its airspace below 32,000 feet, while leaving it open above this threshold – MH17 was flying at 33,000 feet. Does this mean that Ukraine considered its airspace above this threshold safe enough, or was it perhaps afraid that recognizing the unsafety of its airspace would be considered as a sign of weakness in its ongoing conflict with pro-Russian separatists?

ICAO

In a communication dating 24 July 2014 to its Member States, a week after the disaster, the International Civil Aviation Organization (ICAO) emphasized the responsibility of States “to assess the hazards or potential hazards to civil aircraft operations,” and that each State should “keep under constant review the level of threat to civil aviation within its territory.”

Following a joint-meeting of ICAO, IATA, ACI and CANSO, these four organisations decided “to establish 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.

Indeed!

In the week before the downing of MH17, many airlines were still flying over the airspace over eastern Ukraine, while others such as Qantas and British Airways were avoiding the area. Does that mean they had information Malaysia Airlines and other airlines did not have? And if so, where did that information come from? Was this information considered secret? But then why, since it could potentially affect international civil aviation?

To summarize, States are responsible for the facilitation of air navigation in their airspace and have the power to close (parts of) their airspace. In the case of MH17, Ukraine apparently considered the airspace above 32,000 feet safe enough. The fact that many airlines were still overflying the area in the week preceding the downing of MH17 shows that there was no common knowledge of the risks and potential unsafety. However, on the other hand some airlines were already avoiding the area for some time, which gives the impression that they had other information concerning the safety of the airspace. The four principal global organisations dealing with civil aviation indeed acknowledged the need for improved gaining and sharing of information.

Hopefully the official report of the accident investigation will eventually shed a satisfying light on the many questions that surround this tragic event. In the meantime, the importance of maintaining airspace safe for civilian use through continuous and extensive international cooperation has become painfully clear once again.

1 Comment

Wouter Oude Alink
Posted by Wouter Oude Alink on September 9, 2014 at 17:30

And today, September 9, 2014, a preliminary report has been published by the Dutch Safety Board that has been investigating the crash - see (in Dutch): http://www.onderzoeksraad.nl/nl/onderzoek/2048/onderzoek-crash-mh17-17-juli-2014

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