The Malaysia Airlines Tragedy and International Law – Part One

This entry will be a little offbeat from I normally post here. As some of you know, I am a trained lawyer with a background in international aviation law and policy. In fact, I recently co-authored a treatise on the topic for Cambridge University Press. It should probably come as no surprise then that the recent tragedy in eastern Ukraine involving Malaysia Airlines Flight 17 (MH17) has set my mind to pondering some of the international legal issues involved. Unfortunately, when I tried to explain some of those issues to several media outlets yesterday, they weren’t interested. Terrorism, weaponry, and gore were the primary topics of our conversations, and I couldn’t really speak to any of them. Thankfully my appearances on the local NBC affiliate allowed me to discuss briefly some substantive details surrounding the crash, specifically why MH17 opted to fly over a conflict zone and what the commercial fallout might be. For those interested, the following are some of the more compelling legal issues raised by the MH17 tragedy. Very few of them have been reported and some of the reporting has been inaccurate.

I imagine there will be two or three posts coming that will cover these issues. In this one I will focus solely on the commercial airspace issues involved, along with the primary national security interests that may be in play here. I will try to keep this jargon free and nontechnical.

There is no general right to fly across borders under international law, especially when the flights are part of a scheduled commercial service (which MH17 was). Following the 1944 Chicago Convention, which established the International Civil Aviation Organization (ICAO) while addressing an important host of cooperation and coordination issues necessary to ensure safe and reliable international air transport, most countries in the world committed themselves to heavy trade protection in the realm of air services. The rights of international carriers to fly over, to, from, or beyond a foreign country were parceled out bilaterally in treaties known as “air services agreements” (ASA). Today, 70 years after the Chicago Convention, there are thousands of ASAs in effect, though many today exhibit a fairly high degree of liberality with respect to commercial traffic rights. One notable exception to this bilateral model is the multilateral 1944 International Air Services Transit Agreement, referred to by aviation lawyers as the “Two Freedoms Agreement.” The Two Freedoms Agreement provides the airlines of its signatory states the right to operate commercial flights over their respective territories without imposing a tax or duty for the privilege. Both Malaysia and Ukraine are parties to this agreement.

Of course nothing in international law is absolute. The Two Freedoms Agreement, like most other international aviation legal instruments, is subject to the provisions of the aforementioned Chicago Convention. Article 9 of the Convention affords any state party the right to restrict foreign flights over any part of its territory for the purposes of military necessary or public safety so long as this restriction is applied on a nondiscriminatory basis. So, for example, the United States can close off the airspace above the secretive, almost mythical, Area 51, but it cannot do so if the closure only applies to, say, flights originating from Mexico but not flights originating from Canada. In exceptional circumstances, states may even shutdown their entire airspace, as the United States did after 9/11.

For whatever reason, Ukraine never elected to restrict international flying over the conflict zones within its borders. As such, there can be no claim made that MH17 was violating international law by flying over the area of eastern Ukraine where it was shot down. However, even if Ukraine had restricted flights over eastern Ukraine, there are two other problems to consider. First, it appears that pro-Russian separatists, not the official Ukrainian military, was behind the shoot-down. Whether one designates them as terrorists or militias or freedom fighters or whatever, the separatists have no legal right to enforce Ukrainian aviation law and policy. Similarly, the Ukrainian separatists have no right under international law to establish their own prohibited zones. As such, the argument by some pro-separatist online apologists that the militia had “shut down” the airspace is a nonstarter.

Second, a 1984 amendment to the Chicago Convention—Article 3 bis—prohibits the use of force against civilian aircraft. Period. Though not every party to the Chicago Convention has adopted this amendment (the United States, interestingly, has not), Ukraine has. Arguably, then, even if MH17 had wandered into prohibited airspace, the Ukrainian government could not legally shoot it down. Of course, as some realists have pointed out over the years (myself included), when push comes to shove and a state believes a civilian aircraft poses a legitimate threat, the use of military force will eventually come into play. What typically restrains states from getting too “trigger happy” is the political fallout that would likely follow any civilian aircraft shoot-down, especially if the plane is carrying citizens from multiple countries.

Assuming that the MH17 tragedy had nothing to do with the official governments of either Ukraine or Russia, the case will become less about interpreting the Chicago Convention and much more about international criminal law, particularly the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation which, inter alia, makes it an offense to “unlawfully and intentionally . . . destroys an aircraft in service[.]” For now, I will spare you the parsing of the phrase “unlawfully and intentionally” and say that it is very difficult to imagine how a separatist militia engaged in hostilities against a standing government can ever act “lawfully.”

The question which remains on my mind is whether or not those responsible for shooting down MH17 will ever be brought to justice. Assuming they don’t perish in a firefight with the Ukrainian military, many are likely to flee to Russia in order to avoid extradition. Despite its superficially strong language on bringing air criminals to justice, there is no hard obligation in the 1971 Montreal Convention for a state to prosecute or extradite an alleged offender. Russia could harbor all of the separatists involved while remaining within the letter of the law. Sure, Russia sitting on its hands would likely create a diplomatic storm, but that’s a small consequence which Russia, more likely than not, would be fine living with.