| by Dr. Ruwantissa Abeyratne

( March 29, 2014, Montreal, Sri Lanka Guardian) It is now three weeks since Malaysia Airlines Flight 370 vanished off the radar after taking off from Kuala Lumpur to Beijing on 8 March. So far, all that is known is that the aircraft never arrived in Beijing, and that it may have changed course towards West and then Southwards, and that some objects have been spotted in the ocean (with the use of satellite imagery) that may turn out to be debris from the missing aircraft. Inevitably, theory abounds in the absence of fact.

At a point during the search for the missing aircraft the Malaysian authorities said that someone on board had deliberately changed the course of the airline. It could have either been the flight crew, or even a hacker, as some scientists claim that there is absolutely no security for communications between the aircraft in flight and air traffic control and communication channels between the two are vulnerable to attack. Assuming it was one or both members of the flight crew who deliberately altered course, could a sky marshal or, as officially named, an In-flight Security Officer (IFSO) have intervened if he or she was on board?

Coincidentally, there is a Diplomatic Conference on Air Law going on right now (26 March to 4 April) at the International Civil Aviation Organization (ICAO) where the IFSO is a subject of discussion. The Conference is trying to adopt a Protocol to the Tokyo Convention of 1963 which addresses the issue of offences and other acts committed on board aircraft. The issue of introducing an IFSO in an aircraft under the Tokyo Convention has been contentious, mainly because ICAO documentation, particularly Annex 6 to the Chicago Convention, states that the pilot-in-command is responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time, which casts a doubt on the sensibility of placing an IFSO on board, merely to be ineffective unless he/she acts under the authority of the aircraft commander.

The Conference is faced with two options: Option 1 introduces a provision which says the aircraft commander or the IFSO may take necessary measures to respond to offences on board the aircraft. This ascribes to the IFSO equal status as the aircraft commander, and seemingly takes away the sole authority of the aircraft commander. In Option 2 the aircraft commander retains the overall sole control of and authority in the aircraft and an IFSO or any other crew member could be requested by the aircraft commander to render assistance when an offence is about to be committed or is being committed.

There is of course no mention of the specific functions of an IFSO in either option; nor is there any text which says what action an IFSO can take against an offence being committed by a member of the crew, except that Option 1 provides that the IFSO can take reasonable measures against any "person", presumably including a member of the flight crew.

At the Conference on Air Law, Japan made the pertinent point that IFSOs' primary purpose should be to prevent or address serious offences such as terrorism including hijacking and therefore they should conceal their presence. Japan suggested that having IFSOs handle minor incursions of security and intervening in acts of unruly persons on board would leave their identities exposed to potential terrorists who could target them first. On this latter point, one would be aghast at the thought of an IFSO, armed to the teeth, approaching an unruly passenger whose offence would have been that he verbally abused a member of cabin crew in anger wrought by an illness, fatigue or even fear of flying. Apart from the very vision of an armed man or woman approaching him, such a passenger would be confused as to whether the IFSO was in command or in charge of the aircraft.

Qatar queried the logistics of States having to train IFSOs on procedures and the use of firearms if Option 1 were to be accepted as an appropriate provision in a multilateral treaty. Qatar also questioned the wisdom of having weapons on board a civilian aircraft, and, more importantly, asked the inevitable question as to where in the Draft Protocol were the exact provisions detailing the position of the IFSO vis a vis the aircraft commander.

The United States, in its submission to the Conference, disagreed with many States who held that IFSOs should be subject to the authority of the aircraft commander, saying that an IFSO, to be effective, should be more than one of several categories of actors and that IFSOs should be granted a status appropriate to their role and functions, with appropriate protection as well. Furthermore, the United States submitted that IFSOs should authorized in certain circumstances to take reasonable measures that are necessary to protect the safety of the aircraft and persons or property on board and to maintain good order and discipline on board.

The United States was very clear in its paper that that the duties of the IFSO should not be carried out under the authorization of the commander, and that the latter's final authority and responsibility was restricted to the operation and safety of the aircraft (and therefore impliedly not the safety of the persons on board) and full authority for the conduct of the flight.

There are two areas that are unclear in the submission of the United States. The first is, if the IFSO is solely responsible for the safety of the persons and property on board, what would the status of Article 1 of the Tokyo Convention be, which grants the aircraft commander the authority to take measures inter alia to: protect the safety of the aircraft or of the persons or property on board; and to maintain good order and discipline on board? Should Article 1 be deleted? The second area of concern lies in the suggestion that the IFSO should be the sole authority that maintains good order and discipline on board.

Also, if the United States proposal were to be accepted, would it mean that the absolute authority granted to the aircraft commander in Annex 6 to the Chicago Convention should be revoked?

The point made by the United States - that a passenger who may present a mere nuisance one minute, may disrupt good order and discipline on board the next, and may ultimately endanger the safe operations of the aircraft - is a valid one. However, in totally excluding the aircraft commander from the equation at the point where the passenger is a mere nuisance, would tantamount to giving the IFSO the authority to say to the commander at the commencement of the flight: "you handle the flight deck and I will handle the rest of the aircraft." If the United States elaborated more and explained that the IFSO could take a decision that required his/her spontaneous action to ensure the safety of persons and property on board, it may have helped the Conference in evaluating the two options better.

Indonesia covered this last question clearly in its paper to the Conference saying that an IFSO is a person who is hired, trained and approved by the Government of the State of the aircraft operator to travel on the aircraft in order to protect the aircraft and its passengers against unlawful acts. The main mandate of the IFSO is to prevent acts of unlawful interference with civil aviation. The Government may also include in the mandate the duty to assist the crew, if necessary, in dealing with act of unruly passengers in particular those which endanger the safety of flight.

It was Indonesia's view that in Option 1 the roles of the aircraft commander and the IFSO overlap each other which might constitute serious issues and problems of control on board the aircraft. Therefore Indonesia interpreted Option 2 favourably, saying that in that option there is no possibility of an overlap as the aircraft commander would retain full authority over the safety and good order on board aircraft, and he/she may command and require the assistance of any crew member, or the IFSO, or request assistance from a passenger, and therefore the provisions of Option 2 gave more legal certainty because the measures against offences and acts of unlawful interference on board aircraft could be fully addressed by the aircraft commander.

Argentina observed that at least 40 Member States of ICAO have IFSOs on board their civilian aircraft and that Option 1 posed the danger of the aircraft commander and the IFSO taking divergent decisions. Furthermore, Argentina rejected Option 1 on the ground that the authority of the aircraft commander is final and should not be shared with anyone else, as this could lead to a reduction of the commander’s authority, as well as to conflicts and uncertainty, which might have an adverse impact on safety. It was Argentina's view that the aircraft commander has more knowledge about the general situation regarding the safety of the aircraft and that the aircraft commander has certain powers and responsibilities, including responsibilities as regards safety delegated by the operator, who is ultimately responsible for the safety of the aircraft, while the in-flight security officer usually has other responsibilities delegated by another entity (in general, the State) and is not directly responsible for the safety of the flight.

Whatever Option the various delegations at the Conference might favour, the answer might lie in a compromise between Options 1 and Option 2, which could provide that, while the aircraft commander has overall control over both the flight and the safety of the persons and property on board, there should be a clear understanding between the commander and the IFSO as to which circumstances would give the IFSO the discretion to act without having to seek the agreement of the commander at all times. Also, the commander should be able to direct the IFSO if deemed necessary. There should also be clear guidelines on the various functions of the three types of crew in the aircraft: the flight crew; the cabin crew; and the IFSOs.

If there was an IFSO on Flight MH 370, there would have been another person to suspect. On the other hand he/she may have rescued the aircraft and its passengers, or at least sent a message back to ground. It is a tough call, and every which way the poor passenger is the loser.

The author is an aviation consultant who has worked in aviation law and management for over 30 years. He is currently President/CEO of Global Aviation Consultancies Inc., and Senior Associate, Air Law and Policy at Aviation Strategies International. For 23 years he was Senior Air Transport Officer and Senior Legal Officer at the International Civil Aviation Organization. He has published 26 books and over 400 leading journal articles on aerospace law and economics.