[Lee Jae-min] The unspeakable tragedy

By Korea Herald
  • Published : Jul 22, 2014 - 20:43
  • Updated : Jul 22, 2014 - 20:43
While the details are still being confirmed, the shooting down of Malaysia Airlines flight MH17 is going to be the deadliest disaster in aviation history. Blame games are going on over the origin of the surface-to-air missile, but the latest evidence strongly suggests that it was a Russian-made missile shot by a separatist group in the eastern part of Ukraine. The commercial jetliner was tragically mistaken for a military target.

The latest tragedy reveals the vulnerability of civilian airliners. With global aviation routes woven into a thick web of connections, commercial jetliners have become easy prey for a reckless attack. It is now being confirmed that these antiaircraft missiles can hit any commercial airliner at a cruising altitude of 9 kilometers. Even scarier is the acknowledgment that some missile launchers out there, lacking proper radar tracking systems, do not even identify friend or foe, civilian or military aircrafts. These revelations frustrate us after all the efforts to tighten security checks at every airport in the world ― the front door is closed but the back door is wide open.

As with any other aviation tragedy of this magnitude, many countries are now involved in the investigation. The latest release from Malaysia Airlines lists 10 different nationalities for 298 passengers and crew members. The 1944 Chicago Convention on International Civil Aviation stipulates that states of occurrence, registry, operator, design and manufacture can all participate in an investigation of this sort. So, we are expecting a lengthy, multinational probe into the disaster in the coming months and perhaps years.

The first statement from the Malaysian government is that the tragedy constitutes a direct violation of international law. Of course, an undeniable legal liability will lie with those who mistook the Kuala Lumpur-bound jetliner for a military transport craft and fired an antiaircraft missile. No question about it. Besides, if the missile had been supplied by another country to the separatists, and the separatists were under the “direction and control” of the supplying country, that other country could also be held liable. The future investigation and fact-finding will determine who is responsible.

Aside from finding out who is responsible for taking down the aircraft, one lingering question is why the Malaysia Airlines flight used the route over the war-torn Ukrainian territory. Malaysia Airlines and the Malaysian government have been stressing that the route was declared safe by the International Civil Aviation Organization, and that there were other airliners using the same route. This is critical because under international aviation law the existence of negligence on the part of the airliner significantly affects the level of compensation for the victims: in the absence of negligence, the compensation is fixed at about $174,000 per person.

If the account of Kuala Lumpur is true, then a sense of anxiety settles in. Battles have been waged in the region for some time now, and the firing of surface-to-air missiles has been reported recently. It is also common knowledge that these weapons can easily reach the altitude of commercial flights. It is a pity then that no action has been taken under these circumstances. National aviation authorities of many countries and the ICAO would have had to issue a warning and designate a no-fly zone. But nobody has connected the dots.

According to the ICAO, global air traffic is projected to double in the next 15 years. With capacity expansion of this level, risk identification and prevention should also move to a new level. Fuel efficiency and cost-cutting are on the priority list of the aviation industry. Passengers are all preoccupied with finding the cheapest tickets available. Perhaps this is not an ideal environment for comprehensive aviation risk assessments to take root. The MH17 tragedy is a wake-up call about the vulnerability of global civil aviation.

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.