| by Ruwantissa Abeyratne

( August 28, 2014, Montreal, Sri Lanka Guardian) About a week ago, I inquired in this journal as to whether Ukraine should take responsibility for the shooting down, allegedly by separatist rebels in Ukraine, of Malaysian Airlines Flight MH 17. Just a few days ago, the special task force of the International Civil Aviation Organization (ICAO) had its second meeting where, according to an ICAO press release of 26 August on the meeting, it is said that the task force recommended that there be two pilot projects conducted, the first being on how the notice to airmen (NOTAM) now issued by States to operators, could be better used to share information; and the second being on the creation of a new centralized system for prompt sharing of conflict zone information.

These two suggested projects, although at first glance seeming to overlap each other, could bring one to the conclusion that while individual States concerned will still be issuing NOTAMs (albeit in a much more efficient manner, begging the question as to why it was not done in the first place) a new system will monitor developments and "promptly" share conflict zone information as they develop. The latter seems to suggest the creation of a politically savvy air navigation police that will be on its toes all the time, with up to date knowledge of the existence of powerful surface to air navigation missiles in conflict zones. This is seemingly the ideal measure would ultimately serve both as an updating service for NOTAMs as well as a standby "ball by ball commentator” to the hapless pilot in command, if only it could be reality one day.

The question is who provides what information with the responsibility and accountability needed . Take for instance the case of Ukraine. Earlier in the year, ICAO had warned against the dangers of two ATC services in Ukraine providing concurrent services one by the Russian Federation and one by Ukraine. This was a safety issue over which ICAO had jurisdiction, particularly under Article 54 j of the Chicago Convention which prescribes that it a mandatory function of the Council to report to Contracting States any infraction of the Convention.

Either Ukraine could have delegated its responsibilities to the Russian Federation or taken sole responsibility. Assembly Resolution A 38-12 (adopted at the 38th Session of the ICAO Assembly in September/October 2013) provides that the limits of ATC airspaces, whether over States’ territories or over the high seas, shall be established on the basis of technical and operational considerations with the aim of ensuring safety and optimizing efficiency and economy for both providers and users of the services; and that established ATC airspaces should not be segmented for reasons other than technical, operational, safety and efficiency considerations. The Resolution also goes on to say that if any ATC airspaces need to extend over the territories of two or more States, or parts thereof, agreement thereon should be negotiated between the States concerned, taking into account the need for cost-effective introduction and operation of CNS/ATM systems, and more efficient airspace management, in particular, in the upper airspace. The providing State in implementing air traffic services within airspace over the territory of the delegating State is required 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.

Finally, Resolution A38-12 provides that any ICAO member State which delegates to another State the responsibility for providing air traffic services within airspace over its territory does so without derogation of its sovereignty.

With these clear lines of responsibility, one issue that is brought to bear is the danger of the air traffic controller being directly responsible for negligence in misdirecting an aircraft despite directions given by a NOTAM and a centralized agency. The 2004 Überlingen (Lake Constance) mid air collision, although not directly similar in circumstances, has some relevance to Flight MH 17 on the subject of the provision of air traffic information services. The incident brings to bear the compelling relevance of trans-border provision of air traffic services and its possible effect on safety, with particular focus on accountability and responsibility. The Überlingen mid-air collision occurred at 21:35 on 1 July 2002 between Bashkirian Airines Flight 2937 operated by a Tupolev TU-154 passenger aircraft carrying 60 passengers – mostly children – and 9 crew and Flight 611 operated by DHL with a Boeing 757-23 APF cargo aircraft manned by two pilots, over the towns of Überlingen and Owingen in southern Germany. All 71 people on board the two aircraft were killed.

Although the two ill-fated aircraft were over German territory, air traffic services were provided by a Swiss based air navigation services provider - Skyguide - in accordance with a bilateral agreement between Germany and Switzerland. The sole air traffic controller, whilst monitoring the two aircraft, was also directing the approach of an Airbus coming into a German airport.

Bashkirian Airlines brought a claim against the Federal Republic of Germany, requesting indemnity of the airline for damage to the aircraft and full indemnity against third party claims. The German District Court of Konstanz to which the case was remanded, determined that as the accident had occurred in German airspace, it was appropriate that the case should be heard by a German Court and that German law should apply. Secondly, the court came to the conclusion that although the air navigation services were provided by a Swiss based company, according to German law, responsibility for the provision of air traffic services over German territory exclusively devolved upon the Federal Republic of Germany.

The above discussion surfaces two fundamental and critical needs in the provision of air navigation services. The first is that there should be total transparency on the part of States and clarity of information as to who provides air navigation services in the airspace over its territory. The second is that there should be an entity which should receive this information on an updated basis and be vigilant of any situation that would obfuscate clarity of this information. This by no means suggests that ICAO should take on the responsibility of tracking flights globally, or issuing warnings about the danger to aircraft based on political and conflict situations in a country. The latter is purely the responsibility of the States concerned.

In the 1986 Nicaragua case, the International Court of Justice opined that, if the order for the Contra guerrillas to conduct themselves in the manner in which they did could be attributable or even imputable to the United States (which financed and equipped the Contras), it would have to be proved that the US had effective control of the Contras' military or paramilitary operations. General or overall control would not have been sufficient to find the US accountable or responsible.

Does this mean that the State has to have effective control of the air traffic controllers in its territory for there to be State responsibility or are an autonomous privatized air navigation services system liable for its negligence excluding the State? One view offered by Neils Antwerrpen, an authority on the subject is that " the contracting States to the Chicago Convention undertake to provide air navigation services in their territory in accordance with the Standards and Recommended Practices established from time to time pursuant to the Chicago Convention. This provision encompasses an operational aspect, the provision of air navigation services, and a regulatory oversight and auditing aspect as the service provision should take place in accordance with the Standards and Recommended Practices established pursuant to the Convention. In the event the air navigation services are provided by civil servants of the state any omission...will be attributable to the State. However, in the event the air navigation services are provided by a corporatized or private entity, there need not be any attributability. After all, the State has met its obligation to provide air navigation services".

The author of this comment goes on to say that it is only if the State failed in its oversight and regulatory function that the State could be held liable for an act or omission of a privatized or corporatized air navigation services provider. This raises an interesting question. If the Chicago Convention merely obligates a State to provide air navigation information services, does this mean that the State could wash its hands off the quality of services provided by a privatized or corporatized entry, alleging that an act or omission of the service provider was a result of the use of discretion by the service provider for which the State was not responsible. On the other hand, does the Convention embody an intrinsically linked duty on the part of the State to provide safe and secure information to aircraft no matter who provided the services?

Perhaps this is an issue on which a legal opinion should be sought by ICAO.

The author is a former Senior Legal Officer at the International Civil Aviation Organization where he worked for 23 years.