As the search for the wreckage of Malaysia Airlines MH370 moves into a different phase, a new, delicate issue arises: who will pay?
On Monday, Australia’s Prime Minister Tony Abbott acknowledged that “thus far none of our efforts in the air, on the surface or under sea, have found any wreckage" of Malaysia Airlines flight MH370, which disappeared en route from Kuala Lumpur to Beijing in March.
The new phase will now focus on a much larger area of the ocean floor rather than the surface, and involve commercial contractors utilising additional sonar mapping equipment, with an estimated cost of A$60 million.
The Australian government will seek contributions from other countries to meet that cost.
However, Australian Defence Minister David Johnston has said that, while there are "some issues of costs” associated with the expanded search:
We want to say to our friends in Malaysia and China this is not about cost, we are concerned to be seen to be helping them in a most tragic circumstance.
There is no legal requirement for other countries or companies to contribute towards the cost of the search and rescue effort. It may be, however, if and when the circumstances surrounding the disappearance of MH370 become clearer, states such as Australia look to other states (Malaysia most obviously) or entities (manufacturers, for example) for contributions to the cost of the massive search and rescue effort.
In working out which countries have responsibility for search and rescue with regard to MH370, it is useful to examine a range of international treaties that might determine such responsibility in a similar way to that which determines liability for passenger injury or death on board an international flight.
The Convention on International Civil Aviation 1944 (the Chicago Convention) is one of the world’s most successful treaties. To date it has 191 states signed on, and it sets out principles and arrangements such that international civil aviation can “be developed [and proceed] in a safe and orderly manner”.
Article 25 of Chicago says parties to the treaty must collaborate on “coordinated measures” in the search for missing aircraft, but is silent on the allocation of costs.
What of other potentially relevant treaties? The 1963 Tokyo Convention determines jurisdiction over offences committed on board aircraft while that aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any country.
It also defines the rights and obligations of the aircraft commander with regard to offences and acts committed on board which jeopardise the safety of the aircraft. It also defines the rights and obligations of the authorities of the place where the aircraft lands after such an offence or act has been committed. It is however, of limited use in determining burden sharing in the context of MH370.
The 1970 Hague Convention was the result of concerted action on the part of states to combat an increase in hijacking in the late 1960s. As opposed to the Tokyo Convention, it deals more specifically with the offence of hijacking. The Hague Convention seeks to eliminate, to the extent possible, refuge for hijackers. But again, like the Tokyo Convention, it is of limited use for present purposes.
A 1971 treaty – the Montreal Convention – complements the Tokyo and Hague conventions by covering matters not dealt with in those conventions, such as acts of sabotage and unlawful acts against the safety of civil aviation. It extends the range of offences against the safety of civil aviation to cover acts likely to endanger the safety of an aircraft in service (in addition to in flight).
It does not, however, contemplate how costs are apportioned when it comes to search and rescue efforts.
According to Abbott, Australia “will do everything we humanly can … to solve this mystery”.
And while international agreements are silent regarding either who conducts or bears the cost of international search and rescue in circumstances like those of MH370, state parties will for the moment bear their own costs.