Updated: Aug 1, 2020
National Law University, Jodhpur
The Convention on International Civil Aviation, 1944 (“Chicago Convention” or “ICAO”) describes an aircraft accident as an occurrence associated with an aircraft in which one may get fatally injured, or in which an aircraft sustains such damage that affects its strength and performance.
A similar incident took place recently, when a Pakistani airliner crashed into a residential area in Karachi, killing nearly 100 people. Since no evident reason for the plane failure could be established, a thorough investigation based on the standards and practices as under Annex 13 of the Chicago Convention is expected to take place in the coming weeks in order to determine a proximate cause for the incident.
As per ICAO regulations, four states can participate in air crash investigations:
the state where the accident occurred (State of Occurrence);
the state of the airline operator (State of the Operator);
the state where the aircraft is registered (State of Registry); and
the state which manufactured the aircraft (State of Manufacture or Design), but this party comes in only when the state of occurrence is not a contracting party to the Convention.
However, the state of occurrence may also delegate a part or the entire duty of conducting the investigation to another state or a regional accident investigation agency. Since the plane in this incident belonged to Pakistan’s national flag carrier, and also crashed within its own territory, the only other investigating party to this incident would be the manufacturing state – the European Union.
As the investigation shall take place in Pakistan, as a host investigator, it is expected to comply with the EU is conducting a thorough and fair investigation, however, the Convention does permit the host state to deny the interference of any party which it feels may cause hindrance to the process.
Annexe 13 also allows states that have a special interest by virtue of fatalities or deaths of its citizens in the incident to conduct their own investigations, to visit the site, access all the relevant facts and receive a copy of the final report. However, all such factors rest on the discretion of the state of occurrence.
However, in cases of domestic flights, such absolute investigative power to the state of occurrence equips it with an unreasonable authority to conceal the matter without exposing the culpability for the accident. This may be practised by governments in cases where the operator in question is the national flag carrier in order to preserve the nation’s repute. Even though Annex 13 of the Convention affirms that the sole objective of the investigation is to prevent future accidents, and not to affix legal liability, governments may not always want to disclose inefficiency on part of their state-run airlines and may choose to misstate certain facts and reduce transparency. Since the Standard and Recommended Practices (SARP) of the ICAO are of a recommendatory nature only, parties to the Chicago Convention have no real/substantive obligation to follow them and may conduct the investigation as per their own will. The world has to believe whatsoever the state of occurrence shall deem suitable in its final report.
Followed by the heightened tensions between Iran and the United States from the Persian Gulf Crisis, the US launched a missile strike, killing the Iranian General Qasem Soleimani. Just five days after the incident, a Ukrainian airliner travelling with 176 people on board crashed into Iranian soil. It was later found that the aircraft had been shot down by the Islamic Guard Corps, killing all the 176 people on board. However, critics alleged this action on behalf of Iran as a retaliatory measure against Soleimani’s killing. Initially, the Iranian aviation authorities denied the possibility of a missile strike and instead blamed the air crash on technical negligence on behalf of the airliner and the aircraft manufacturer. It was only after the Iranian government succumbed to global pressure that it submitted a fresh report, admitting its guilt.
Such misrepresentations on behalf of national governments are fairly common in cases of air crash investigations and presently there is no way to tackle them. As of now, the Chicago Convention allows the States of Occurrence, where the incident occurred, to conduct the investigation as per their will, thus, allowing them to extrapolate facts as per the government’s convenience.
Further, the lack of a global investigatory authority is also a reason for opacity in such investigations. Since the ICAO does not appoint its own officials for studying such matters, the investigation is majorly conducted by the state of occurrence, leaving a room for manipulation of facts by the government. On the other hand, organisations like the World Health Organisation provide far more reliable reports since it acts as a global regulator in matters of public health, it has the authority to conduct suo motu inspections wherever the need comes up.
However, considering the high number of passengers who entrust airliners with their lives every time they fly, it is important to ensure their safety and security while they are aboard. A way that this can be ensured is that the scope for errors or state subjective analysis in matters of air crash investigation should be minimised by prescribing that no government should be allowed to prioritise its reputation over the lives of thousands of passengers who use civil aviation as a mode of transport. Such arbitrary powers to conduct investigations as per their will can also be hazardous for the industry as even one omission in the final report can have its own consequences, and risk the lives of those who entrust the aircraft with their lives. There is an urgent requirement of amending the 13th Annex of the Chicago Convention to make provisions for a designated body composed of specialists reigning from all over the world with expertise in aviation and forensic sciences, functioning solely to investigate air crash incidents, both thoroughly and fairly, in order to preserve the interests of the global community.
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