The Shared Search for Missing Flight MH370

 Posted by: Irving Emma

With Malaysia Airlines Flight MH370 being officially declared lost at sea, and as the international search efforts hone in on the location of the aircraft, it is time to asses not only what this teaches us about aviation safety, but also the consequences of shared responsibility for international search and rescue operations.

Malaysia Airlines Flight MH370 went missing on the 8th March, losing communication around an hour after taking off from Kuala Lumpur on route to Beijing. The fact that the airplane was missing for a number of hours, and that its communication devices were mostly switched off, meant that from the outset it was unclear where it might have come down, if indeed it had come down at all. The initial suggestions were that the plane was off the coast of Vietnam, or further out in the China Sea. This was followed by information that it had made a sharp turn towards the Straight of Malacca, and thereafter might have followed either a broad northern or southern corridor. 

On the surface, the international search effort appeared to be a good example of different countries and agencies working together. The Malaysian authorities are purportedly coordinating the search effort, which involves a number of countries as well as agencies such as the FBI and Interpol. However, dig a little deeper and the cracks begin to emerge. Not only was the search effort hampered by persisting regional tensions and mistrust, which left some countries, China in particular, reluctant to share information, but the legal framework is ill-adapted to the shared responsibility context.

The duty to render assistance to persons in distress at sea is well established, both under customary law and under treaty law (Article 98 UNCLOS is one example). There are too, provisions on coordination between States in search and rescue operations. The International Convention for the Safety of Life at Sea 1974 (SOLAS Convention)[1] provides that governments must coordinate search and rescue services in their areas of responsibility, as well as in its own territorial sea.[2] The Convention demarcates which State has responsibility over which areas of water, including areas of the high seas. Similarly, the International Convention on Maritime Search and Rescue 1979 (SAR Convention) also links coordination responsibility with territory. These provisions therefore, are designed for situations where it is clear in which State’s area of responsibility the vessel or aircraft came down. Contrastingly, where an accident occurs in international waters, the International Civil Aviation Organisation (ICAO), which is part of the UN, has indicated that the State of the airline takes the lead. Both approaches however, still require knowledge of where the plane crashed, as it is this that determines the State with primary responsibility for coordinating the search. What this means for instances of shared responsibility, as with flight MH370, is that the legal framework for search and rescue can delay and hamper efforts by failing to identify a clear leader.

This need to link the crash site to a particular territorial area has also delayed efforts in setting up a formal investigation into the crash under the ICAO framework. The lack of formal powers for Malaysia under this framework means that it has no exclusive control over information, and no ability to centralise evidence from different sources, such as satellite images and eyewitness accounts. Rather, it must rely on the goodwill of other States involved, which has led to delays in the conveyance of information.

There has been then, a lack of a central point where all involved parties could come together and pool the information gathered by each. In the first stages of the search, it took a number of days for China to release satellite images of what they believed to be the plane. While these images turned out to not be related to the search, one might wonder whether a freer exchange of information might have reduced the time it took for the current state of affairs to be arrived at.

All the above being said, credit must be given where credit is due. Despite the massive search area, as well as the sheer number of entities involved, the search has been relatively well coordinated, and delays in finding the wreckage are now mainly due to poor weather. However, a clearer legal framework for situations involving multiple States, and for when the whereabouts of the plane is unclear, would surely contribute to more effective search and rescue operations.

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[1] This is the treaty to which all relevant States are parties.

[2] SOLAS, Chapter V, Regulation 7.

Search and Rescue Operations at Sea: Who is in Charge? Who is Responsible?

 Posted by: Trevisanut Seline

Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris

On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011 (for comments, see here and here). After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. During the 16 days route, survivors told that they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help (see Resolution 1872 of the Parliamentary Assembly of the Council of Europe). The priest alerted the Italian Maritime Regional Coordination Centre, which located the migrants’ vessel and sent out many calls to the ships in the area. Pursuant to survivors’ testimonies, on about the tenth day of their voyage, when half of the passengers were dead, a large aircraft carrier or helicopter-carrying vessel (probably involved in the NATO’s Operation Unified Protector, which was on going at that time off the Libyan shores) sailed near to the boat, close enough for the survivors to see the sailors on board looking at them with binoculars and taking photos. But no one rescued them.

Flag states and coastal states have a duty to render assistance to persons found at sea in the danger of being lost and people in distress (Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS)). This core obligation under both treaty law (see also the 1974 Convention on the Safety of Life at Sea (SOLAS Convention), the 1979 Search and Rescue Convention (SAR Convention) and the 1989 International Convention on Salvage) and customary law applies in any maritime zone and in relation to any activity there performed. While implementing this duty states can either perform directly the search and rescue (SAR) operations, namely through their own SAR services, or ask a vessel, which is located in the proximity of the endangered persons, be it any merchant ship or the state vessel of another country, to perform the rescue operation.

The texts here mentioned expressly refers to states, flag or coastal. Practice however offers more and more examples of police activities performed under the command of an international organization or a supranational body. A question then rises:

• who are the bearers of the obligation? Namely, are those ‘entities’ (such as NATO) bound by the duty to render assistance?

The answer could be affirmative only if we consider that the duty to render assistance under customary international law has a wider scope of application ratione personae, if compared with the same obligation under treaty law. The practice however does not allow yet such a conclusion.

Another question raised by recent practice concerns the recipient of the obligation:

• Is the duty to render assistance a purely inter-state obligation or does it entail a right to be rescued for people in distress at sea?

The law of the sea allocates obligations and rights in different maritime zones among states. However, the multiplication of activities at sea and the increased human presence lead to the question of the protection of the human element, in particular of the application of human rights at sea. Many scholars have already discussed the application of the relevant human rights treaties at sea, pointing out that the law of the sea, specifically UNCLOS, pursues some community interests, among which the protection of human rights (see a.o. here). Some authors have stressed the complementarity of these two fields of international law (see here). The duty to render assistance can then be considered as the corollary obligation of the right to life when applied at sea and, consequently, a right to be rescued for the people in distress at sea can be deduced from the application of human rights instruments at sea.

Pursuant to the case law of the European Court of Human Rights (ECtHR), when the SAR operation consists in taking on board of the rescuing vessel the persons in distress, the latters fall within the jurisdiction of the flag state and the European Convention on Human Rights applies (Hirsi case). This is perfectly in line UNCLOS Article 92, which affirms the exclusive jurisdiction of the flag state on its own vessels on the high seas. The determination of the exercise of jurisdiction might however result more difficult when the rescued persons are not taken on board of the rescuing unit, or when the SAR services are not performed.

In the ECtHR Xhavara case, which did not concern a SAR operation, the ECtHR recognized the exercise of jurisdiction by Italian authorities on two grounds: the activities were performed on the basis of a bilateral agreement; and the fact that there was a collision between the Italian navy vessel and the migrants’ boat. Applying this reasoning by analogy, when the SAR operation is performed on the basis of an international agreement and there is contact between the rescuing unit and the vessel in distress, the ECHR applies.

The non-performance of SAR services is a trickier instance. The main question to be answered here is whether human rights instruments do apply in cases of SAR non-performance, i.e. whether the non-rescued persons do fall within the jurisdiction of any state while they are in distress at sea. It can be argued that the distress call creates a ‘relation’ between the state, which receives it, and the persons who send it. The life of the persons in distress depends on the behaviour of the recipient state. The argument could go further and support the existence of an exclusive long distance de facto control that the state, which received the call, exercises on the lives of those people. Their lives are submitted to the discretion of that state, in the case mentioned above the lives of the migrants depended on the Italian authorities and there capacity to activate SAR services.

This de facto control becomes also de jure when the distress situation is located within the SAR zone of the recipient state, which has an obligation to ‘promote the establishment, operation and maintenance of an adequate and effective search and rescue service’ (UNCLOS Article 98(2), emphasis added). There is then an assumption of authority (ECtHR Al-Skeini and others case) the coastal state exercises in its SAR zone. The coastal state is then bound by an obligation of due diligence. The loss of lives or the risk of losses in its SAR zone may entail a violation of the right to life of the concerned persons, of their ‘right to survival’, and a violation of its obligations under law of the sea instruments.

Search and Rescue Operations at Sea: Who is in Charge? Who is Responsible? – Commentary

 Posted by: Stephens Tim

Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris

Seline Trevisanut provides a very helpful analysis of some of the significant gaps in the system (if we can call it that) of responsibility in international law for the welfare of those who find themselves in distress at sea. Regrettably, there has been an increase in tragic maritime incidents involving asylum seekers in recent years, not only in the Mediterranean, but also in other oceans seas including the Indian Ocean where several vessels carrying asylum seekers attempting to reach Australia have foundered, and there has been significant loss of life. The death toll from the 20 vessels that have sunk en route to Australia since 2009 now stands at nearly 900. There is an urgent need to clarify the international legal duties upon states to ensure that such tragedies are avoided, and that when sinkings do occur that search and rescue authorities respond promptly and effectively.

As Seline explains, there remains uncertainty, in some situations, as to the chain of responsibility for safeguarding the right to life that persons in distress enjoy. From a human rights perspective, that right can only be enforceable if the relevant individuals are within the jurisdiction of a state, but the jurisdictional status may be uncertain, depending upon where the maritime emergency occurs. Seline makes a compelling argument for treating persons within a Search and Rescue Region (SRR) as within the jurisdiction of the relevant SAR state for the purposes of international human rights law. However, that is often not the end of the enquiry; as not all states are able to discharge their SAR obligations to the same level of diligence, and may not have a system of human rights accountability so that victims and their families can pursue redress.

To illustrate this point by reference to the Australian situation, many asylum seeker vessels become distressed within the Indonesian SRR, and under the SAR Convention it remains Indonesia’s primary responsibility to render assistance. However the situation is somewhat unique in that most of the vessels are usually detected by Australian authorities which then pass the information on to their Indonesian counterparts, who they know have highly constrained capacity to mount a response far from shore, particularly in challenging sea conditions. What this indicates, is that there is a need to clarify (and possibly extend) the search and rescue obligations of parties to the SAR Convention to address such situations where there is a significant mismatch between states in their SAR capacities. Those in peril at sea should not be allowed to be in a ‘legal limbo’, falling between the cracks in the law.