Governing the skies after MH370

“How much longer will the search for MH370 continue”, is the question on the one-year anniversary of its disappearance. While the search for MH370 has proven elusive in uncovering the actual, aircraft, however, the search effort has its own interesting things to tell us about world politics.

Shortly after the disappearance, Jessica Trisko Darden wrote a good column for the MonkeyCage blog focusing on the political rivalries complicating the search effort, especially among disputants in the South China Sea, US involvement, and domestic political consequences, especially for China. By contrast, a writer for The Diplomat was more sanguine on cooperation amid regional tensions (“a reminder of military cooperation”). China’s own evolving positioning is fascinating, and the geopolitical issues are still there (“Keeping the search alive in some form is necessary to restore Malaysia’s international reputation and help satisfy China, which had the largest number of victims on Flight 370”, according to an unnamed Malaysia official recently quoted in the Wall Street Journal). In this post, however, I want to take a look at the broader changes wrought by MH370 to the international governance of civil aviation, and the light they shine on processes of international cooperation and regime construction.

Let me begin with a clichéd academic point about the anarchical condition of world politics – in this case, applied to the skies. Recent kerfuffles about drones flitting about the Eiffel Tower or landing on the White House lawn are perhaps the small-scale version of the political problem of how aerospace is governed. Throw transboundary movements into the mix – as aircraft are wont to do – and you have a situation where the quality of cooperation is pretty central to the sheer possibility of international aviation, if planes are to avoid mid-air collisions, have common safety procedures, be subject to taxes, and so on.

Two aspects of the MH370 response are interesting in how they illustrate the character and processes of international cooperation: the tracking of aircraft in real-time, and the conduct of the search-and-rescue/recovery operation. While the specific subject matter is perhaps unfamiliar to most (including myself), much of the mechanics of how this happens will be familiar to anyone interested in international politics: how regulations are made, responsibilities distributed, costs borne, non-state actors included, and so on. At the heart of it is an international organisation that normally flies under the radar – the International Civil Aviation Organisation (ICAO) – but which has a far from dominant institutional presence in aerospace governance and is perhaps typical of the tensions between international regulatory governance and national authorities.

Real-time tracking
In an age when every new bit of technology seems to have a cloud-connected GPS feature, part of the astonishment and anger on MH370 has been the leap of imagination required to realise that a 777 isn’t being tracked all the time and could simply vanish at the point at which it transitions from one country’s air traffic controllers to another.  Kishore Mahbubani charges the ‘great powers’ with deliberately keeping ICAO weak in this regard, preventing international organisations from gaining access to the “real-time technology and global talent to monitor every flying object in the sky”.

In the year since MH370, the creeping response has been a new regulatory standard being advanced through ICAO, subject to final approval at the ICAO assembly in November, for airlines to track their planes every 15 minutes (instead of 30-40 minutes) by the end of 2016. Note, airlines, and not air traffic controllers or ICAO. Secondly, the proposal envisions that every 19-seat+ aircraft constructed after 2020 will have to “automatically transmit its location every minute if the plane deviated from its route, made an unusual move such as a sudden drop or climb in elevation or if a fire was detected. Pilots could not disable the system.”

The AP reporting on this really is very good, in teasing out the balance familiar to regulators everywhere between safety, and the financial costs of safety. The cost of “streaming live data on a plane’s performance, which is similar to what’s in the flight data recorders recovered after a crash, could cost $7 to $13 a minute depending on the amount of data sent.” The delay in implementation until 2020 is a reflection of airlines balking at the costs of immediate implementation and to allow for technological improvements to bring that cost down over the next few years.

So the 15-minute standard is the intermediate response. This is a measure that doesn’t seem to require new technology, but will require new processes for airlines to establish, for which 18 months and ongoing testing is apparently required – and the entrepreneurs in these trials are the nations at the heart of the search for MH370, seeking to provide a demonstration effect. But comment in the AP report, even on this limited measure, is again a reminder of the trade-off between compliance and flexibility.

“If you’re too aggressive and stringent in setting up a requirement, countries will just elect not to participate,” said John Hansman, an aeronautics professor at Massachusetts Institute of Technology”.

Sound familiar to other international regimes?

What will also sound familiar to other regimes will be the elongated process in which such regulatory standards have evolved. Following a meeting on global flight tracking held in May 2014, two processes were initiated: an ‘ad hoc working group’ (AHWG) to develop a new ‘concept of operations’ (CONOPS) on flight tracking (objectives, roles and responsibilities) as part of a future framework called a ‘Global Aeronautical Distress and Safety System’ (GADSS); and secondly, the airline industry body IATA initiated its own ‘Aircraft Tracking Task Force’ (ATTF) to explore and assess technological options for flight tracking implementation. Both of these were considered at a ‘high-level safety’ conference last month to provide recommendations for the ICAO assembly in November. Amidst the acronym soup and the proliferation of institutional processes, the relevant observation may be to highlight how the governance of real-time tracking is as much a matter of the governance of private actors – airlines, and their industry body IATA, who have their commercial interests – as it is about governments agreeing on common regulations and standards applicable to the skies.

Responsibilities for searching for MH370
The more directly intergovernmental aspect of the MH370 response has been in the conduct of the search operation over the last year. Here, an international treaty – the 1944 Chicago Convention on International Civil Aviation – is the touchstone on how state responsibilities for search and rescue are generally apportioned.

Some of these designations are reflected in the more formal announcements over the past year – handing over authority to Australia for search operations in the Indian Ocean on 17 March 2014, but having to identify Australia as an ‘Accredited Representative’ to the Malaysian-led accident investigation team on 26 March 2014, to the declaration of the incident as an ‘accident’ in January of this year.

But two things stand out to me. The first is an Australian submission made to the same ICAO safety conference mentioned above, on a gap that has arisen in the designations and responsibilities set out in the Chicago Convention’s separate annexes on search and rescue (Annex 12), and accident investigation (Annex 13). In short, who should have responsibility for a search for recovery and investigation purposes, not rescue?

ICAO guidance identifies different entities as being responsible for search and rescue (the regional rescue coordination centre for a given search and rescue zone), and accident investigation (the accident investigation authority). The Australian submission goes on to detail: ” the aircraft was believed to have gone missing in Australia’s search and rescue zone but Malaysia had responsibility for the accident investigation under Annex 13″, and while this uncertainty was addressed by Malaysia delegating search functions to Australia, “It would further assist if an international Standard or Recommended Practice designated an appropriate State authority/or authorities for continuing the search.”

The WSJ report on this portrays this as Australia seeking to reduce its financial burden resulting from conducting the search operation. Although this isn’t immediately apparent to my non-expert reading of the Australian submission, which simply notes the gap as one for ICAO to review and clarify, the US$70m burden that Australia has borne in the search for MH370 does seem to have (unsurprisingly) lead to greater caution towards the responsibilities set out in international law for aircraft searches.

So for Australia, whose search and rescue zone covers 11% of the world’s surface, the search for MH370 has triggered a new attentiveness to its legal responsibilities. And at the same time, an attentiveness to the practical capabilities of search and rescue are also evident, with a new effort being launched to to improve search-and-rescue capabilities among three Indian Ocean neighbours – the Maldives, Mauritius and Sri Lanka. At a recent Indian Ocean Rim Association meeting, additionally, a new MoU on search-and-rescue coordination was initiated (by Australia) among some other Indian Ocean neighbours to rebalance the reliance on Australia’s capabilities.

The second interesting aspect of the search operation is China’s role. A handful of ministerial-level ‘Tripartite Meetings’ between Australia, Malaysia and China in 2014 (with another one scheduled for April 2015) appear to provide informal political overview of search operations. These stand somewhat outside the formal process, however, as it doesn’t seem that the ICAO Annexes give any special responsibility or role to countries whose citizens are involved in an accident. Instead, these responsibilities are divided these up between countries of the aircraft operator, registry, manufacture, design and occurence (where the accident happened). The tripartite meeting is at least a politically necessary recognition of the special interest that China has in the investigation, with the majority of passengers on MH370 being Chinese citizens.

At the same time, the WSJ report notes that China has not contributed financially to search costs – nor should it, at least under the current ICAO provisions: “”Zha Daojiong, a professor at Peking University, said he doubts Beijing would put up any money, in part because it would set a precedent that nations with victims from another country’s airline have to pay to find them”. Amid the legal responsibilities, there is also a burden-sharing question to be resolved politically.

The Western half of Australia's search and rescue zone (from ICAO maps)

The Western half of Australia’s search and rescue zone (from ICAO maps)


MH370, of course, was followed later in the year by the shooting down of MH17 over Ukraine. While that may be a subject for a different post, aviation over conflict zones was also another challenge addressed at the ICAO safety conference in February (Ebola was a third topic on ’emerging safety issues’).  The issues for MH17 are different – about how risk assessments are made – but also similar – where does authority (for such assessments, and their bindingness) lie?  Some comment after MH17 suggested the need for ICAO itself to issue advisories about particular routes and take on an expanded role. But the clash between supranational authority in ICAO, and national regulatory and air traffic management authorities remains and overshadows any future international action.


On one bit of travel last autumn, the new sight of the Zagros mountain range in western Iran confronted me. My flight was skirting just east of the Iraq-Iran border to avoid overflying Iraq and Syria, on a more circuitous (and expensive) route than it has previously taken earlier in the year. At least some change was already underway.

Looking east while over the Iran-Iraq border. View from 40,000 feet.

Looking east while over the Iran-Iraq border. View from 40,000 feet.

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One thought on “Governing the skies after MH370

  1. Carolyn Koh says:

    Super piece. Good info. Thanks for sharng your Musings.

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