The Malaysia Airlines Tragedy and International Law – Part Two

In this second, and shorter, entry on the Malaysia Airlines Flight 17 (MH17) tragedy and international law I want to focus on a common misconception which I tried to dispel to some news outlets yesterday, namely that the International Civil Aviation Organization (ICAO)—or any other global body—has the authority to shut down a country’s airspace. In a forthcoming post I will look to the complicated matter of assigning civil liability for the downing of MH17.

As I noted in the previous post, Article 9 of the 1944 Chicago Convention—the umbrella legal instrument which covers international aviation and provides the legal framework for ICAO’s mission—vests states with the power to restrict or close their respective airspaces so long as they do so on a nondiscriminatory basis. In other words, the United States cannot close a particular zone of its airspace to, say, Asian air carriers but leave it open for Canadian and Latin American carriers. As such, the right to close any portion of Ukraine’s airspace rested with the government of Ukraine alone.

So what is ICAO’s role in all of this? Well, not much. Apparently tired of being inflated with global regulatory authority over all facets of aviation, an ICAO spokesperson told Reuters earlier today that the agency “does not open or close routes. ICAO do[es] not have an operational role.” Exactly. That is why it is a bit embarrassing when even self-anointed aviation law experts like Robert Clifford, a Chicago attorney noted for collecting high payouts in aviation liability cases, issues a press release with the following:

ICAO and the FAA [Federal Aviation Administration] should issue notices prohibiting non-military flights over all portions of Ukraine and neighboring Russian areas. ICAO and FAA should also consider doing the same for any other international conflict/terrorism areas where SAMs [surface-to-air missiles] and AAMs [air-to-air missiles] are a potential threat in the altitude ranges where commercial flights transit.

Unfortunately that’s exactly what ICAO cannot do and Clifford, along with any other aviation lawyer who is interested in getting the facts straight rather than grandstanding for the media, should be more careful. It is up to national aviation authorities like the FAA to warn, or prohibit, their respective air carriers from flying over Ukraine and other war-torn regions just as it is up to Ukraine to open or close its airspace. If ICAO has any role to play at all, it is to suggest to national authorities which airspaces around the world they ought to avoid and to publicize quickly any concerns it might have going forward. Whether we like it or not, there is no other available schema for managing the sovereign airspace of over 190 countries.