| by Ruwantissa Abeyratne

( March 17, 2014, Montreal, Sri Lanka Guardian) At the time of writing, the disappearance of Malaysia Airlines flight MH 370 was attributed to the diversion of the B 777aircraft by a person or persons who had good knowledge of how the avionics of the aircraft operated, thereby implicitly pointing the finger at a member of the flight crew and in particular the commander of the aircraft. A curious development at the same time was the accusation aimed at Malaysia - that it was in dereliction of its duty in the aftermath of the disappearance. One significant consideration is that we are still in the search and rescue (SAR) mode and not in an accident investigation mode as there is still no conclusive evidence of an accident having occurred.

So how can Malaysia be guilty of dereliction of duty in the search and rescue operations?

The dilemma facing many States extending both to airports and airlines, relates to the lack of rapid response, adequate equipment and well trained crews, all of which are critical to passenger survival in the event of an aircraft disaster. Although most States are particularly mindful of these compelling needs, they are by no means confined to the a particular region.
From a social and political perspective, the world has to prepare for eventualities leading up to search and rescue of aircraft that may need to be located without loss of time and the passengers and crew rescued. There are already two international treaties on the subject, although one - the Brussels Convention of 1938, has unfortunately not been ratified by the requisite number of States and has therefore not come into effect. The Brussels Convention contemplated only assistance and salvage operations at sea. The other Convention is Chicago Convention of 1944, which requires member States of the International Civil Aviation Organization (ICAO) to fulfil their obligations under Article 25 of the which provides that 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 the Convention.

In the MH 370 case, there are some unknowns with regard to Article 25. For one, no one knows where and in whose territory the aircraft is. Another is that the recommendations (from time to time) pursuant to the Chicago Convention are not known. ICAO's position has, after 9 days of the disappearance, has not appeared in any media material. In fact ICAO's webpage has been silent, as though the disappearance never occurred.

Annex 12 to the Chicago Convention elaborates on SAR operations qualifying that Contracting States shall arrange for the establishment and provision of SAR services within their territories on a 24‑hour 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”.

The dilemma facing many States extending both to airports and airlines, relates to the lack of rapid response, adequate equipment and well trained crews, all of which are critical to passenger survival in the event of an aircraft disaster. Although most States are particularly mindful of these compelling needs, they are by no means confined to the a particular region. An example of this crisis can be cited with the 1980 incident of a Saudi Arabian Airlines L-1011 catching fire shortly after leaving Riyadh Airport. Although the pilot turned back for an emergency landing and made a perfect touchdown, nearly 30 minutes passed before firemen managed to go in, by which time all passengers and crew had perished. This could have been a survivable accident. To the contrary, a hijacking incident involving a Boeing 767 aircraft on the shores of Comoros, in November 1996, when the aircraft crashed due to lack of fuel, showed how spontaneous reaction from even non‑trained professionals at rescue efforts could help. In this instance, the quick response of tourists at the scene ensured that 51 of the 175 passengers on board were saved.

Malaysia has yet to reach this point in the case of MH 370 for others to determine the extent of its fulfilment of duty.

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 to the Convention 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.

Article 69 of the Convention, which is also outlined in the Resolution, specifies that, if the Council is of the opinion that the air navigation services of a Contracting State are not reasonably adequate for the safe operation of international air services, present or contemplated, the Council shall consult with the State directly concerned, and other States affected, with a view to finding means by which the situation may be remedied, and may make recommendations for that purpose; and the air navigation services referred to in Article 69 of the Convention include, inter alia, SAR services.

In taking into consideration the above facts, the Assembly resolves in A32‑14 that the boundaries of SAR regions, whether over States’ territories or over the high seas, shall be determined on the basis of technical and operational considerations, including the desirability of coincident flight information regions and SAR regions, with the aim of ensuring optimum efficiency with the least overall cost. If any SAR regions need to extend over the territories of two or more States, or parts thereof, agreement thereon should be negotiated between the States concerned.

The Resolution also calls upon the providing State, in implementing SAR services over the territory of the delegating State, to do so in accordance with the requirements of the delegating State, which shall establish and maintain in operation such facilities and services for the use of the providing State as are mutually agreed to be necessary. Any delegation of responsibility by one State to another or any assignment of responsibility over the high seas shall be limited to technical and operational functions pertaining to the provision of SAR services in the area concerned. Remedies to any inadequacies in the provision of efficient SAR services, particularly over the high seas, should be sought through negotiations with States which may be able to give operational or financial assistance in SAR operations, with a view to concluding agreements to that effect.

Furthermore, the Resolution declares that any Contracting State which delegates to another State the responsibility for providing SAR services within its territory does so without derogation of its sovereignty; and the approval by Council of regional air navigation agreements relating to the provision by a State of SAR services within areas over the high seas does not imply recognition of sovereignty of that State over the area concerned.

It is also stated in the Resolution that Contracting States should, in cooperation with other States and the Organization, seek the most efficient delineation of SAR regions and consider, as necessary, pooling available resources or establishing jointly a single SAR organization to be responsible for the provision of SAR services within areas extending over the territories of two or more States or over the high seas.

Finally, the Resolution calls on the Council to encourage States, whose air coverage of the SAR regions for which they are responsible cannot be ensured because of a lack of adequate facilities, to request assistance from other States to remedy the situation and to negotiate agreements with appropriate States regarding the assistance to be provided during SAR operations.

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).

In 1985, ICAO signed a memorandum of understanding (MOU) with the IMO concerning cooperation in respect of safety of aircraft operations to and from ships and other marine vehicles and of aeronautical and maritime SAR activities. Both ICAO and IMO signed this understanding with a view to ensuring the best possible coordination of activities between the Organizations in matters concerned with the safety of aircraft operations to and from ships and other marine vehicles and with aeronautical and maritime search and rescue operations, agreeing to make arrangements for consultations between the Secretariats of the two Organizations in regard to these matters, with a view to ensuring consistency or compatibility between services and procedures in all cases where joint efforts or close cooperation may be required and in order to avoid any unnecessary duplication of efforts by them.

In determining the allocation of responsibilities of the two Organizations to ensure safety of aircraft operations to and from ships and other marine vehicles, the MOU states that all matters which are directly connected with the design, construction, equipment and operation of aircraft in general, and of helicopters in particular, should be regarded as falling primarily within the field of responsibility of ICAO.

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.

However, as in the Gabcikove-Nagymaros Project case, (ICJ Reports 1997) where the International Court of Justice ruled that 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, it hs to be clearly shown that Malaysia had a certain obligation, and that obligation was not honoured.

The above discussion pointed out that there are several parties to the MH 370 search and rescue operations, some of whom have not even addressed the issue in the eyes of the public. Under the circumstances, one could argue that general statements or accusations against Malaysia at this point may not be credible. At the least, such accusations must be elaborated upon.

The author is an aviation consultant with 30 years work experience in aviation. He worked for 23 years at the International Civil Aviation Organization as Senior Air Transport Officer and Senior Legal Officer respectively.

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