(Please note, this matter is not currently being litigated in Australia)On 21 July 2014 the Flight Safety Foundation made a request to the International Civil Aviation Organisation (ICAO) calling for a high level meeting to review the systems in place to warn airlines of hostile airspace, and to take action in response to the shooting down of Malaysia Airlines flight MH17.
The President and CEO of the Foundation said:
Where known threats to civil aviation exist, States should assess and widely publish this information, or close the airspace. If States cannot discharge their responsibilities to manage their airspace safely, ICAO should play a leading role to alerting or prohibiting airlines from flying through known, hostile airspace.While the comments are understandable in the wake of such a terrible criminal act against civil aviation, they arguably oversimplify certain aspects of the application of public international air law and the operational context against which airlines operate. In reality each ICAO State would need to give away a little of its independence to ICAO for this system to work.
The alternative may well be for airline operators to simply act in a more risk averse manner than they have been in relation to flight over dangerous airspace.
Who has the power to control or close airspace?In an article the author has published on the subject of sovereign airspace “closure” to commercial airline traffic in the context of volcanic ash, it was observed that the decision to close sovereign airspace is a matter for the State, not ICAO. 
Why is this the case?
The first tenet of public international air law, in Article 1 of the International Convention on Civil Aviation (Chicago Convention) is a codification of the same principle in international law in relation to territory: “… every State has complete and exclusive sovereignty over the airspace above its territory”. “Territory” is defined in Article 2 of the Chicago Convention as “the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State”.
If States have the exclusive power to control their airspace it would follow that they would have a responsibility to publish information on known threats to civil aviation and indeed close that airspace. That right is preserved in Article 9 of the Chicago Convention which sets out the situations in which a State may:
…for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory: Art 9(a).It is a requirement under the same paragraph that:
Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization.
How is such information published? The European approach to warningsAs part of the territorial dispute in the region of the shooting down of MH17, both Ukraine and the Russian Federation attempted to control the airspace of Eastern Ukraine since late March 2014. See our article here for further information. The control was purportedly exerted through the use of NOTAMs (notices to airmen – operational communications which tell airspace users such as airlines that conditions or controls in the airspace are changed either temporarily or on a more permanent basis).
While it is not known whether Ukraine itself, or Russia, actually closed off particular regions of its airspace for military necessity or public safety, it is known that the supra-national organisation responsible for air navigation safety (the European Aviation Safety Agency, EASA) had identified the risks of the competing neighbouring States trying to control the same areas of airspace, and informed the aviation community internationally by its own “Safety Information Bulletins” (SIB, no 2014-10, 3 April 2014) that such a risk existed.
The SIB (which has now been updated on 18 July 2014 by SIB 2014-21 after the MH17 incident) seeks to draw attention to the serious risks in the airspace and while it cannot close airspace (due to the importance of sovereignty in the rules mentioned above, does close certain route segments controlled by Eurocontrol). Eurocontrol is the air navigation service provider for much of Europe.
Thus, EASA and Eurocontrol, through SIB 2014-21 “strongly recommend” airspace users to avoid the Simferopol flight information region (FIR) in Eastern Ukraine and circumnavigate prohibited routes in the Dnepropetrovsk FIR.
The US approach to warningsThe American approach to warnings is blunter and while, for the reasons mentioned above, the US is unable to “close airspace” in Ukraine, it uses the sovereignty it has over its own air operators and licence holders to accomplish much the same result.
Whereas the EASA SIB is informational and not mandatory on any particular entity, the US Federal Aviation Administration (FAA) NOTAM 4/2182 is mandatory. It prohibits any US operator from performing any flight operations in either the Simferopol or Dnepropetrovsk FIRs. The FAA NOTAM will next be re-evaluated on 31 October 2014.
Importantly, for the purpose of connecting current events with the law, the FAA has not “closed airspace” such that no one from any country must avoid the airspace over Eastern Ukraine. It does not have that power so, for example, Australian airlines could still fly over the country. This is as much a consequence of the operation of the Chicago Convention as it is of the concept of “safety risk management” which airlines employ to determine, in the absence of their own national air safety regulator’s advice or rules, whether any particular flight operation is “safe” to perform.
What has Australia done to safeguard our airlines and operators?The Civil Aviation Safety Authority in Australia has gone down a similar path. It has advised Australian air operators to consider both the EASA and FAA advisories and prohibitions in the context of making operational decisions to fly in that airspace. It also notes that, at the present time, no Australian airline flies over Eastern Ukraine, so the advisory itself is of little import.
Can ICAO take over control of hostile airspace warnings?The short answer is yes, if the governments of those nations which make up ICAO agree. The reality is that this is quite unlikely.
As discussed above, sovereignty underpins airspace control decisions. ICAO is charged with the “rules of the air” and thereby in effect “controls” airspace or rather facilitates regional agreements for regional control of certain airspace – that airspace which is subject to no sovereign control - the high seas. The rule about this is contained in Article 12 of the Chicago Convention.
However, to get disparate nations to in effect give up a level of their territorial rights to an independent entity would be extremely difficult. When the Chicago Conference met to create the Convention, supra national control of airlines was mooted but in the end national controls of airspace with a fair helping of bilateralism in terms of air traffic rights was settled on as the method of uniting post war civil aviation.
While the aviation world is typically reactive to incidents such as these, the past occurrences of aircraft being shot down (including those which were shot down by members of the UN Security Council, in error) have not triggered ICAO to do anything but reaffirm the international law in relation to the prohibition on attacking civilian aircraft (see Article 3bis to the Chicago Convention).
What could other dangers in the air teach us about airspace control and safety?While the world is uniformly and rightly aggrieved by the MH17 tragedy our sad prediction is that ICAO nations will not be so aggrieved that they (nor their airlines) would approve ICAO controlling any element of airspace access over combat zones, and thereby, affecting air traffic management for commercial airlines. Such control is specifically devolved to individual States respectively and a change would require a major amendment to the Chicago Convention.
A similar situation arose when the airline industry spoke out on the arbitrariness of airspace closures brought about by volcanic ash in the aftermath of the eruption of Eyjafjallajokull in 2010. Airlines demanded that they, rather than air traffic controllers and States should have the final say on where they flew when clouds of volcanic ash which had the capacity to bring airliners down, entered the atmosphere. Their demands were largely based on economic considerations (ie, they alone should be able to dictate the routes they fly for economic fuel efficiency).
There is little to indicate that the airline industry, on whom ICAO control of airspace over warzones would affect directly, would support such a move. Their argument would likely be that airlines are best placed to make the risk assessment of the routes they fly, just as that argument was raised in the end in the context of volcanic ash. Four years after Eyjafjallajokull erupted airlines enjoy the risk management responsibility for determining if and when they will fly in, around, or even near volcanic ash. Their risk assessments are subject to oversight by the regulators of the country of each airline, but those regulators do not “approve” or “reject” such risk assessments - airlines have the final say.
This style of safety oversight may well prove to be a useful model for ICAO to consider when it does turn its attention to how and when airlines should be guided on flight around or through hostile zones.
Footnotes:  Wheeler, Joseph, “ICAO guidance on volcanic ash: from risk aversion to risk management”, Annals of Air and Space Law, McGill University, (2011) Vol XXXVI, pp 219-250.
Written by Shine Lawyers. Last modified: July 24, 2014.