| by Ruwantissa Abeyratne

( June 11, 2014, Montreal, Sri Lanka Guardian ) Tony Tyler, Director General & CEO, IATA at the IATA Annual General Meeting, in Doha earlier this month said: " The loss of MH370 points us to an immediate need. A large commercial airliner going missing without a trace for so long is unprecedented in modern aviation. It must not happen again".

File Photo: The Australian Defense Vessel Ocean Shield searches for the flight data recorder and cockpit voice recorder of a Malaysia Airlines jetliner MH370 missing in the Indian Ocean, about 1,000 miles off the coast of Perth, Australia.

Three months have passed since the disappearance of Malaysia Airlines Flight 370. Australian authorities have 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 kilometres 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 MH370. However, the overall search for the debris will not stop and was said to recommence in August. The Australian Government, which lead the search and recovery operations, bore the cost of the search but had sought contributions from other States.

How long would States continue searching for the aircraft? And who decides when to stop the search?

The Chicago Convention of 1944 which contains provisions on air transport and air navigation requires member States of the International Civil Aviation Organization to fulfil their obligations under Article 25 which provides that each ICAO member 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.

States are required to arrange for the establishment and provision of search and rescue (SAR) services within their territories on a 24 hour basis. These States are further requested to delineate the SAR process 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 as “an area of defined dimensions within which SAR service is provided”. Furthermore States are required to coordinate their SAR organizations with those of neighbouring 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 States to bond together in coordinating both their SAR organizations and operations.

A recent ICAO 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 recognizes that 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. Also recommended are boundaries of SAR regions should, insofar as practicable, be coincident with the boundaries of corresponding flight information regions.

In the case of MH 370 it might not be search and rescue anymore but (sadly) search and recovery and since the applicable air navigation plan for the Africa and Indian Ocean region - where the Malaysian aircraft is suspected to have ended its journey - 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, States can come to the ICAO Council, which is obligated by the Chicago Convention to consider "any matter referred to it" by a State/s.

This absolute mystery at this time of sophisticated technology available through the application of satellite tracking cries out the question "why can't we have a system of global tracking of any aircraft wherever they are"? Admittedly, on the face of it this is a simple enough question. However, for there to be global tracking of airborne aircraft (or aircraft under the sea or anywhere in the world for that matter) there would have to be some sort of reporting apparatus installed in an aircraft. Of course, one size might not fit all types of aircraft and such a system might take years to perfect.

Technically, global tracking of aircraft 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.

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. The satellites in the GPS are known to use technology sufficiently accurate to pinpoint positions anywhere in the world around the clock. 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.

Technology apart, which is of course the paramount focus in the introduction of a global tracking of aircraft, one should be mindful of the legal implications that such a system might involve. 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. Furthermore, an ICAO Air Navigation Conference has already recognized that 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. It has also been acknowledged 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 within that framework. Regrettably however, 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.

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 upcoming 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 author served the United Nations in Montreal for 24 years and is currently President/CEO, Global Aviation Consultancies Inc. Montreal, and Senior Associate, Air Law and Policy, Aviation Strategies International, Montreal.



ARCHIVES FROM AUGUST 2007 TO JANUARY 2015