It is interesting to examine a serious dichotomy that exists in the disputed region in terms of the most critical component in the equation – air traffic information and which Flight Information Region (FIR) is charged with providing the information.
by Dr. Ruwantissa Abeyratne in Montreal
Those who cannot learn from history are doomed to repeat it ~ George Santayana
The burning international crisis at the present time is the concern of the United States and its NATO allies (Canada and countries of the European Union) over the build-up of Russian troops on the Ukraine border, and the possibility of a Russian invasion of Ukraine which Russia claims it has no intention of embarking upon. At the same time, Russia is increasing its military presence and engaging in military exercises particularly with Belarus – a State which borders Ukraine. There is also a threatening Russian presence in the Black Sea, which has prompted the United States to claim that Russia has amassed the necessary resources for an imminent invasion. On the Russian side is their justification for these provocative measures – that it is apprehensive of the further eastward expansion of NATO which is a threat to Russia’s security.
Diplomacy aside, which all parties recognize as essential under the circumstances, and is taking place both with rigor and vigor, is the compelling need to avoid a repetition at all costs of what happened in 2014 to Malaysian Airlines Flight 17 which was shot down over Eastern Ukraine allegedly by militants supported by Russia.
Malaysian Airlines Flight MH 17, operated by a Boeing 777 -200ER aircraft flying from Amsterdam to Kuala Lumpur on 17 July 2014, and carrying 283 passengers and 15 crew, was shot down by a BUK surface to air missile over Donetsk Oblast in Eastern Ukraine, while at an altitude of 10,000 meters. Two thirds of the passengers on board were of Dutch origin. All those on board perished.
On 9 February 2022 The United States Federal Aviation Administration issued an Information Note saying: “Since late December 2021, tensions between Russia and Ukraine have escalated. Russia’s military deployments and activities in the Russia-Ukraine border region, occupied Crimea, Belarus, and the Black Sea could enable Russia to conduct cross-border military operations with little to no warning. The increased force deployments and heightened rhetoric—along with uncertainty over Russia’s intentions and operational timelines—result in an increasingly unpredictable situation. If cross-border conflict occurs, it may pose a direct or indirect threat to civil aviation”
This was an implicit warning to those engaged in commercial aviation, which brings to bear the question as to who is responsible for aeronautical safety under these circumstances. From a legal perspective, The International Civil Aviation Organization (ICAO) identifies air routes but has no mandate or competence to issue warnings based on political and war situations. This is entirely dependent on the State concerned which has the responsibility to issue what is called a NOTAM (Notice to Airmen) which advises aircraft which airspace to traverse and which not to. If a pilot traverses many airspaces, he/she has to consider all relevant NOTAMs.
The Chicago Convention prescribes in Articles 9 and 12 the principle of the right of States to prescribe for reasons of military exigency or public safety, where aircraft should go and should not, in accordance with requirements set by such States. Article 12 on Rules of the Air provides that where flights over the high seas are concerned the rules prescribed under the Chicago Convention shall prevail. Those rules are contained in Annex 2 to the Convention. In case of war, these provisions could well be obviated by Article 89 which provides that in case of war, the provisions of the Convention must not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle must apply in the case of any contracting State which declares a state of national emergency (which Ukraine has not, so far) and notifies the fact to the Council of ICAO.
Technically, ICAO cannot take on the task of publishing advisories on navigation in airspace. That is not ICAO’s job, which is clearly enshrined in Article 44 of the Chicago Convention. According to this provision, ICAO is only required to develop principles and techniques of air navigation and foster the development of air transport. Advisories are purely matters of State which have sovereignty over the airspace above their territories.
This having been said, and State responsibility having been established by international law, it is interesting to examine a serious dichotomy that exists in the disputed region in terms of the most critical component in the equation – air traffic information and which Flight Information Region (FIR) is charged with providing the information.
After the shooting down of Malaysia Airlines Flight MH 17 over the Donbass region in Eastern Ukraine, The United States has warned that there were two dangers to civil aviation over Ukraine – the first being for operations near the Russia-Ukraine border in the UKDV/Dnipro Flight Information Region (FIR). The United States opined that in the event of hostilities the airspace on both sides could be exposed to potential weapons activity posing a risk to civil aircraft from misidentification or miscalculation.
More importantly, on the preventive side, the secondary risk affected the UKFV/Simferopol FIR. The United States said that “The risk here stems from aircraft potentially receiving confusing and conflicting air traffic control instructions from both Ukrainian and Russian Air Traffic Control (ATC). Russia annexed Crimea in 2014, and installed their own ATC for the region. However, Ukraine is responsible for the provision of ATC in the UKFV/Simferopol FIR, and asks overflights to only speak to Ukrainian ATC”.
On 2 December 2021 The State Aviation Administration of Ukraine issued the following NOTAM: “ The responsibility for provision of ATS over the High Seas within Simferopol’ FIR was delegated to Ukraine by international agreements as approved by ICAO Council Decision of 17 February 1997 № EUR/NAT96/38-ATS. In order to normalize the air traffic flows over the High Seas within Simferopol’ FIR and UTA Dnipro-South / UTA Odesa-South special procedures for gradual availability of ATS airspace for flight planning and operations have been established”.
On the same day, Russia issued its own NOTAM: “ “ All Notam in all series concerning Simferopol FIR, aerodromes and radio navigation aids within territory of republic of Crimea issued by Ukraine are not valid.
The dilemma for pilots which ATC to listen to can be obviated by just avoiding the airspace in question as Canada did by issuing a NOTAM dated 19 January 2022: “Airspace Security Warning Issued by The Department Of Transport. In Response to the volatile security situation in Ukraine. potential risk from heightened military activity and dedicated anti-aviation weaponry In the Crimean Peninsula, and threat posed by miscalculation and miscommunication. air operators and owners of aircraft registered in Canada are advised not to enter The Dnipropetrovsk (Ukdv) and Simferopol (Ukfv) FIRs”.
Risk avoidance has been defined to involve the risk assessment technique that entails eliminating hazards, activities and exposures that place valuable assets at risk. In the case of civil aviation within the context of conflict zones this would mean eliminating hazards by avoiding the airspace over that zone entirely. Unlike risk management, which is calculated to control dangers and risks, risk avoidance totally bypasses a risk. The information to States on threats posed to their civil aviation over conflict zones would therefore have to be disseminated through policy and procedure, training and education and technology implementations.
Therefore firstly, ICAO would have to, with the involvement of industry partners and other relevant players, establish the policy and procedure involved in information sharing. It would also have to consider the best way in which adequate training and knowledge can be passed on.
In this context, it is incontrovertible that the most critical factor in achieving the objective of ensuring “the right information reaches the right people at the right time” would be the political will and commitment of every one of the 193 member States of ICAO. One of the cardinal principles enunciated by the International Committee of the Red Cross (ICRC) is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They should, in all circumstances, be protected and treated humanely without any adverse distinctions. It is obvious that the “protection” referred to must come from the State and no one else.
Dr. Abeyratne is a Senior Associate at Aviation Strategies International and Visiting Professor of Aviation Law and Policy at McGill University. He served at ICAO as Senior Legal Officer and Coordinator of Air transport Programmes prior to his retirement in 2013.