Sunday, August 14, 2022

Who will police the skies?

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With MH17’s downing over Ukraine, there are calls for ICAO to enlarge its mandate and ensure global air safety.

By Shobha John

Flying seems fraught with danger. This was evident when Malaysian Airlines MH17 was brought down in Ukraine on July 17 by pro-Russian separatist rebels, killing all the 298 passengers on board. With conflicts erupting all over the world, be it in the Middle-east, parts of Africa or Afghanistan, and taking on a global hue—the MH17 crash encompassed victims from 10 countries—the perilous nature of air travel is becoming all too evident. But are air regulations and civil aviation bodies up to the challenge?

Already, there have been calls to incorporate into international law, through appropriate UN frameworks, measures to govern the deployment of anti-aircraft weaponry. Airline and pilot organizations are calling for more guidance on operating safely in conflict zones and asking why the International Civil Aviation Authority (ICAO), UN’s civil aviation body, did not issue a warning about the potential dangers of flying over Ukraine.

The International Federation of Air Line Pilot’s Associations (IFALPA), a global pilots’ association, has advised its members: “If unsure or uncomfortable, pilots should not overfly or operate into potentially hostile areas.” The MH17 crash has highlighted the fragmented nature of global aviation regulations, which are chaotic and indecisive about aviation routes and war zones.

Fangless ICAO?

Some have lambasted Montreal-based ICAO, too. An article, The Dangerous Skies: Aviation Responsibility in times of War in International Policy Digest, said: “ICAO is an organization that does take interest in aviation safety, but it is one without fangs. ICAO tends to come across as a bit rarefied, distant from the actual play of flight travel. Safety advisories do not fall into its remit, the feeling being that such statements should come from another source.”

What led to the furore was an ICAO statement on July 24 that it was not its job to warn nations about the dangers of missiles. Its spokesman Anthony Philbin said it was the responsibility of its sovereign member states to advise other states of potential safety hazards. But in a belated somersault, on July 29, after an “extraordinary meeting” with four international civil aviation organizations, ICAO said it would set up a task force to address “gaps in the system” and said more needed to be done to ensure that all member states provide accurate and timely intelligence when it comes to potential risks to passenger planes in their airspaces.

Mark Martin (1)

“There are 17 ICAO
annexures that deal with airport operations, air
navigation services,
accident investigation,
aviation law-making, etc. Contracting states should release these.”
Mark D Martin, CEO,
Martin Consulting

Capt Shakti Lumba

“ICAO’s role is
misunderstood. If one is to find fault for the
downing of MH17, it is Ukraine, national civil
aviation regulators and individual airlines who should take the blame.”
Captain Shakti Lumba, operations head, Nashwan Aviation Szc

To understand ICAO’s reluctance to even issue warnings, one must understand what its mandate is. It is a UN body with 191 signatory states. Its advisories are based on decisions taken by delegates. Captain Shakti Lumba, the chief of operations of Dubai-based Nashwan Aviation Szc and former vice-president, flight operations, of Indigo Airlines says that ICAO’s statement of not wanting to interfere is in keeping with its obligations.

“ICAO’s role is misunderstood. If one is to find fault for the downing of the Malaysian jet, then it is Ukraine, national civil aviation regulators and individual airlines who should take the blame. Each is responsible for the safety of aircraft operations,” clarifies Lumba.

Role confusion

Just like the UN cannot be a super cop, explains Lumba, the ICAO cannot be a super regulator. Its role is purely recommendatory in nature and acts, at best, as a facilitator, he says. “Each nation is responsible for the airspace over it. Ukraine restricted airspace to 32,000 feet, based on threat perception. If individual nations perceive a greater threat perception, they are to take appropriate action.”

ICAO’s principal function, says Mark D Martin, CEO of Martin Consulting, an aviation consulting firm, is to ensure that the contracting states and airlines comply with its standards and requirements, as defined by its annexures and conventions. “There are 17 ICAO annexures that deal with airport operations, air navigation services, accident investigation, aviation law-making, etc. It is the responsibility of contracting states to release these. ICAO’s core function can be seen in the Global Safety Audit Ratings, which it releases.”

However, pilot associations are saying ICAO should lead from the front and have the tools to do so. “The absence of a clear international coordination to avoid operations above eastern Ukraine has now become tragically obvious. To avoid a repeat, ICAO should be better resourced and enabled to declare airspace unsafe,” says Jim McAuslan, general secretary of the British Airline Pilots’ Association, to Air Traffic Management, a magazine.

What ICAO does is provide a minimum level of protection against human error, says Lumba; individual nations are to provide an additional layer if they so desire.
The most common directives are called “no-fly-zones”. These are released by both the military as well as the air navigation service provider of the contracting state. Legally, it is their sole responsibility to release such a circular, says Martin.

Case of disputed zones

But conflict zones are an altogether different ball game. The area of jurisdiction can sometimes be nebulous.

Disputed territories the world over, stresses Martin, are not formally recognized by ICAO, though it does strive to extend support and compliance. “In the Ukraine case, the disputed territory is controlled by rebels and not formally recognized as a state by the UN, any country or ICAO,” he says.

So it is up to each airline to access where it should fly. But with the reduced clout of pilot associations, the last safeguard has been lost. “For example, the Indian Commercial Pilots’ Association, the union of the erstwhile Indian Airlines, used this criterion in 1992 to stop pilots from flying into J&K when insurgency was at its peak and there was intelligence information that militants had missiles. The chief labor commissioner upheld this decision,” says Lumba.

Even pilots can put their foot down if they feel an area is unsafe. But very few exercise such authority due to management pressures. Though ILO resolutions prohibit placing workmen in areas of danger, most airlines and countries do not follow it, says Lumba.

While the Ukraine scenario was not expected, as the plane was flying over the danger limit at 33,000 feet, sometimes cost considerations can make airlines turn a blind eye to safety. Longer routes mean more fuel and more expenses.

Ukraine, for example, is in the middle of a common direct route between Europe and south-east Asia. Further, countries receive over-flight fees from commercial flights above their territory, often giving safety the go-by. In such cases, domestic aviation authorities should exercise their powers, stress experts. For example, the US Federal Aviation Administration recently issued an order allowing its airlines to fly over Israel.

Caution more than commerce should be the byword in the aviation industry. And if international laws need to be changed, they must be done. It could make the difference between life and death.

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