Malaysia Airlines flight MH17: how much power does ICAO have to punish Russia for downing plane?
- Australia and the Netherlands have dragged Moscow to the International Civil Aviation Organisation over the country’s alleged role in the 2014 crash
- ICAO, responsible for setting aviation standards, can tell Russia that it must return to the stalled talks but it doesn’t frequently settle disputes between nations
Normally, proceedings like this would be brought in domestic courts like the existing prosecution being mounted by the Dutch authorities against the four individuals they believe were responsible for the downing of MH17.
But the ICAO is a body responsible for setting standards for international aviation and doesn’t frequently settle disputes between nations.
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ICAO doesn’t police the skies
The ICAO has been quite successful in its role. There are 192 nations that are contracting members to the Chicago Convention and are obliged to comply with its various standards and recommended practices.
And we have a very harmonised international aviation sector as a result, with requirements for flight crew licensing, aircraft manufacturing and environmental regulations that are all routinely met by the member states.
The ICAO does have provisions for settling disputes between member countries under article 84 of the convention. This is where the Australian and Dutch authorities have brought their action.
Normally, if there’s a dispute brought before the organisation, it’s against a particular airline, not a country itself. So, if an airline has done something wrong, ICAO can impose restrictions on where it can fly. This can’t happen when you bring a case against another nation.
In the 78 years of ICAO’s existence, only five disputes have been brought under this article. It’s not used that often because ICAO can’t really compel states to comply with it. It’s a bit of a toothless tiger when it comes to disputes of this nature.
Russia could also be held accountable under article 3bis of the Chicago Convention, an amendment signed in 1984 after the Soviet military shot down a South Korean airliner the previous year.
This article says member states “must refrain from resorting to the use of weapons against civil aircraft in flight”. A state can initiate proceedings to the ICAO Council, which could then be appealed to the International Court of Justice.
But the council has previously been described as “less as a court of law than as a facilitator for settlement”, limiting itself to technical issues and avoiding political matters. Only one council dispute has ever been referred to the ICJ.
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So what can ICAO do in this case?
Australian attorney general Michaelia Cash said the ICAO is “the sole body that has jurisdiction to deal with this matter.”
ICAO can say to Russia that it must return to the negotiating table, but in terms of being able to enforce it, the most it can do is suspend Russia’s voting rights in the ICAO Council and ICAO Assembly.
And expelling a member from ICAO has never been tested to date.
Other international treaties that could be relevant
The 1971 Convention for the Suppression of Acts Against the Safety of Civilian Aviation (otherwise known as the Montreal Convention) deals with individual acts that endanger the safety of civilian aviation.
This convention imposes an obligation on states to provide for the safety of civilian flights and refrain from using weapons against civilian aircraft. It also has near-universal ratification, including Russia.
Article 14 of the Montreal Convention also allows disagreeing states to refer their dispute to the ICJ when negotiations fail. As Russia withdrew from negotiations with Australia and the Netherlands regarding the liability for the downing of MH17, this is an increasingly possible route.
Is there much hope for the ICAO case?
The current case being brought before the ICAO demonstrates what the Chicago Convention was designed to do and what it wasn’t designed to do.
The fundamental objective is to increase cooperation and standardisation between states with respect to international aviation. We’re talking here about a specific dispute over compensation for an act of aggression – it’s outside the ambit or jurisdiction of what the ICAO was set up to do.
This is probably a last-ditch attempt by Australia and the Netherlands to get an outcome for the victims of the tragic MH17 crash.