Flight MH370: international law and how we use it.

• Author: Monks, Shane

I Introduction

This article arises out of a seminar given to the Queensland chapter of the Australian branch of the International Law Association on 7 August 2014, about the loss of Malaysia Airlines flight MH370. It considers the historical development of the body of international law that underpins international air transport, international law that is relevant to the search for the missing airliner and the investigation of what caused the accident, international law issues applicable if the airliner was harmed deliberately, and the recovery of damages for the losses sustained. It will also suggest some possible future legal developments. The title of this article reflects the fact that the MH370 incident provides a valuable illustration about the complexity and reach of international law, and how it operates as a real and effective legal system that is essential to our everyday lives. (1)

II Background

Malaysia Airlines flight MH370 was a scheduled flight from Kuala Lumpur to Beijing. The aircraft was a Boeing 777-200ER, with Malaysian registration 9M-MRO, carrying a crew of 12 and 227 passengers. The Captain, Zaharie Ahmad Shah, had joined Malaysia Airlines in 1981 and had over 18,000 hours of flying experience. The First Officer, Fariq Abdul Hamad, had joined Malaysia Airlines in 2007 and had some 2,700 flying hours. (2)

The flight departed Kuala Lumpur early in the morning of 8 March 2014 (00:41 local time), and last contact with air traffic control in Kuala Lumpur was at 1:19am. That communication finished with the widely reported handover 'Good Night Malaysian Three Seven Zero', as the aircraft was at that time departing Malaysian controlled airspace and shortly due to enter airspace under air traffic control in Ho Chi Minh City. Two minutes later, travelling at its assigned cruising altitude of 35,000 ft, its radar transponder signal was lost. After that time, there was no successful communication with the aircraft, however ground based radar tracked it changing course to the west, and 6 'handshakes' or pings' were transmitted to an Inmarsat satellite, proving that the aircraft remained flying for several hours after communications had been lost.

Technical analysis of those 'pings', involving mathematical calculations that allowed for the Doppler Effect, established two possible flight paths. One, travelling north west, would have taken the aircraft over land, where it would have been detected by radar. The other option would have taken the aircraft south west, into the southern Indian Ocean. The ongoing search in the Indian Ocean has yet to find any trace of the airliner.

III The Regulation of International Air Transport

A International Law and Sovereignty over Airspace

Before the First World War, there were various theories about the airspace above states, including the airspace above states' territorial waters. These ranged from the view that airspace was entirely 'free' (a view promoted by French jurists), to airspace being state territory up to a certain altitude, with it being 'free' above that, to airspace being state territory subject to a right of innocent passage for foreign civil aircraft, and airspace being entirely territory subject to state sovereignty (a view promoted by British jurists). The only thing that everyone agreed upon (consistently with established principle) was that airspace over the high seas and terrae nullius was free and open to all. (3)

Aviation was of course in its infancy then. The Wright brothers had only made the first powered flight of a fixed wing aircraft on 17 December 1903. Louis Bleriot won a 1,000 [pounds sterling] prize in 1909 for being the first person to fly the English Channel in a heavier-than-air aircraft. Although the first powered flight in an airship had been made in 1852, they were still relatively unsophisticated. World War I changed all of that. Aeroplane technology advanced rapidly due to the desire to deploy aircraft for aerial reconnaissance, bombing and machine-gunning enemy positions, and attacking enemy aircraft. Payloads, speed, range, and technical capacity all increased substantially. The English Channel no longer spared the British public from direct exposure to the consequences of war between European powers, with London being bombed by German 'Zeppelin' airships.

After the First World War there was general international consensus that airspace above states was to be regarded as sovereign territory. The Latin maxim Cujus est solum ejus est usque ad coelum, et ad inferos was to apply, namely that whoever owned the soil owned all the way up to Heaven and down to Hell. (4)

The Paris Peace Conference of 1919, in addition to negotiating the Treaty of Versailles, also created an Aeronautical Commission which drafted the 1919 Paris Convention for the Regulation of Aerial Navigation. It was signed by 27 state parties on 13 October 1919, and was ultimately ratified by 37 states. The 1919 Convention created the International Commission for Air Navigation (ICAN), which operated under the direction of the League of Nations.

Article 1 of the 1919 Convention provided that:

Every Power has complete and exclusive sovereignty over the air space above its territory' and article 2 provided that 'Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States. Unsurprisingly this freedom was not extended to military, customs or police aircraft, which were only permitted to enter foreign airspace with express permission of the overflown state (arts 32 and 33). However article 15 introduced a rider to the freedom of passage granted by article 2 by providing that the establishment of 'international airways' was subject to the consent of the states flown over. The potential commercial interests were already obvious. These basic principles remain the same today.

In Nicaragua v United States, the ICJ reaffirmed that '[t]he principle of respect for territorial sovereignty is also directly infringed by the unauthorised overflight of a state's territory by aircraft belonging to or under the control of the government of another state'. (5)

B The Limit of Airspace

One thing that the 1919 Convention did not do was spell out a height limit for airspace. Although for scientific purposes, the so-called Karman Line (an altitude of 100,000 metres or some 328,000 feet) is often used as the boundary between the Earth's atmosphere and outer space, no legal definition has ever been agreed for the boundary between airspace and space itself. (6) With the Soviet Union's launch of the world's first satellite, Sputnik, on 4 October 1957, satellites and other space vehicles began to traverse state territory in earth orbit. Initially, these were within what is now referred to as 'low earth orbit', namely an altitude of between 160 km and 2,000 km. This is well above the 100 km height of the Karman Line. A geostationary orbit (also referred to as a geosynchronous orbit), which is used for communications and weather satellites that are to remain in the same position visa-vis the ground, is much higher being at an altitude of 35,786 km (or 20,200km for semi-synchronous orbits).

No states protested that traversing satellites were breaching their sovereignty (the authors of Oppenheim point out that such a view would have entailed considerable difficulties for all) and it quickly became an accepted principle of customary international law that sovereignty over airspace did not extend into outer space, which was to be free for the use of all states. (7) There were a number of UN General Assembly resolutions which included statements to this effect, and articles 1 and 2 of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies provide for this.

There is probably little practical need for a legal definition of the boundary between airspace and outer space. Commercial airliners tend to operate up to about 45,000 feet. Military aircraft can go higher, but even purpose built reconnaissance aircraft were limited by the fact that the air in the upper atmosphere becomes too thin to provide sufficient lift for flight, and so only a rocket can go higher. The Lockheed U2 in which Gary Powers was shot down over the USSR in 1960 was limited to around 70,000 feet, and the Lockheed SR-71 Blackbird could approach 90,000 feet, which is about 27.5 km. That is a long way from the 160 km required for a stable low earth orbit. At 130 to 150 km the atmosphere is too dense and puts too much drag on a satellite for orbit to be maintained for more than a few weeks.

C The Chicago Convention and ICAO

The 1919 Convention was not limited to settling issues of sovereignty. It contemplated an ongoing regime for the regulation of all matters relating to international air transport, overseen by ICAN. The 1919 Convention required that--like ships--civilian aircraft were to be registered with one of the contracting states, and would be regarded as possessing the nationality of that state. The state of registration would be responsible for certifying the airworthiness of the aircraft, and for licensing its pilot and crew.

Safety was a key issue. The 1919 Convention required states to provide foreign aircraft with the same assistance for landing, particularly for aircraft in distress, as they would provide to their own aircraft. ICAN was, amongst other things, directed to collect and communicate to contracting states information of any kind concerning international air navigation, wireless telegraphy, meteorology and medical science relevant to air navigation, and to publish maps for air navigation.

Since 1919, the need for broad and deep regulation of international air transport by an international organisation has never been in doubt. Today, international civil aviation is regulated by the Convention on International...