The investigation into what happened to Malaysia Airlines Flight MH17 and the location of the black box recorder comes down to a series of complex treaties and international law.
Calls are being made by a number of countries – including Australia – for an international investigation of the crash of Malaysia Airlines MH17 with 298 people on board, including at least 28 Australians. But it should not be overlooked that there is already an international legal regime in place that mandates an investigation.
The obligation under the Convention on International Civil Aviation (the “Chicago Convention”) is for the Ukraine to conduct the air crash investigation in to the downed Boeing 777-200.
Article 26 of the Chicago Convention vests the Ukraine with the responsibility to conduct such an investigation in providing that:
[…] the state in which the accident occurs will institute an inquiry into the circumstances of the accident.
Who gets the black box?
Here the event appears to have occurred in sovereign Ukrainian air space and the debris is littered within its territorial borders.
If the Russians do have the black box and refuse to hand it over they would be in breach of their treaty obligations and there would no doubt be an international outcry. But whoever has the black box, it needs to go to the Ukrainians first for analysis as part of any investigation.
Malaysia also has a right to be a party to the investigations as the flag state of the aircraft. Article 26 of the Chicago Convention also provides that:
[the] State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry.
In conducting its investigation the Ukraine may call upon other States to assist and it is likely in these circumstances that a number of other States including, possibly, the Netherlands, Australia and other European States may provide support and assistance in the conduct of the investigation.
MH17 different to MH370
There is a difference between the situation involving the loss of Malaysia Airlines MH370 in international airspace over international waters and the situation with MH17.
With MH370 – another Boeing 777-200 – because of where it is believed the plane went down, the state vested with the right to investigate is Malaysia as the State of registry of the aircraft under Annex 13, Chapter 5, 5.2 of the Chicago Convention.
The latest tragic event raises a number of complex legal issues including the position of relatives of the deceased passengers – including at least 28 Australians – under the Montreal Convention of 1999 and the relevance of Convention for the Suppression of Unlawful acts Against the Safety of Civil Aviation (Montreal, 1971).
The latter’s Article 1 creates an offence for individuals who engage in such acts that unlawfully and intentional destroys an aircraft in service.
There is also the potential issue of liability at State level for State-sponsored insurgency if sufficient evidence is uncovered along those lines.
It’s happened before
There are two prior incidents that are loosely analogous to the situation of MH17.
The first was the downing of Korean Airlines Flight KAL007 by a Russian military jet in the Sea of Japan. This led to amendment of the Chicago Convention through the insertion of an Article 3 bis which prohibits the use of force against civilian aircraft.
Arguably the closest analogy though is the incident involving the misidentification of and shooting down of Iran Air flight 655 by the USS Vincennes with the loss of 290 lives during the Iran/Iraq war.
The dispute associated with this event was heading for the International Court of Justice before it was withdrawn with the agreement of both parties.
The Reagan administration subsequently made ex gratia payments of US$300,000 per head to the families of the deceased passengers without ever accepting legal liability for the incident.
Perhaps, if sufficient evidence points in Russia’s direction, it might save face with the international community if it contemplates the making of such payments.
It is perhaps too early in proceedings to contemplate this course of action as we need the investigation to proceed.