conflict zones - era operations group 28.04.2015

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Conflict zones in civil aviation

ERA Operations Group Meeting

28th April - EASA

Philippe Carous

LLM Air & Space Law (Leiden)

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.1. Assessing the risk

» Anti aircraft systems

» Conflict zones in April 2015

» Past airlines shoot-downs

» Main observations

Plan

.3. Obstacles & key elements

» Obstacles and key elements when

dealing with conflict zones

.4. Potential solutions

» Preliminary questions

» Potential solutions

» The ICAO approach

» The FAA approach

Conflict zones in civil aviation – ERA Operations Group – 28th April 2015

.2. Existing rules

» Regulations applicable to conflict zones

» Liability Vs responsibility

» Main observations


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PART 1 – ASSESSING THE RISK



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1 – Anti aircraft systems

. Anti aircraft systems pose a risk for international commercial aviation


Part 1/4 – Assessing the risk (1/5)

. Air Surface Missiles (ASM) Vs Air Air Missiles (AAM)

» Man portable air defence systems

(MANPADS)

» Medium / long range

surface to air missiles

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Sources

- FAA NOTAM

(excl. PK)

- DGAC NOTAM

(excl. MLI, PRK,

Sinai, KEN)


2 – Conflict zones in April 2015

Types of risk: RPG - C2 deficiencies – MANPADS – Barkhane OPEX -

Missiles tests – Mombassa precedent – security operations – Insurgents

attacks – competing armed groups – regional conflict – “civil” warfare – US

drone strikes – Islamic state – weapons proliferation

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. 80’s

. 2000’s

. 90’s


3 – Civilian Airlines shoot downs in the past

.1983: Korean Airline (KAL 007) shoot down by USSR (AAM).1988: Iran Air Flight 655 shoot down by USS Vincennes .1993: Russian airline shoot down by Abkhazian separatists (MANPADS).2001: Siberian airline (FL 1812) shoot down during Ukrainian MIL exercise

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Part 1/4– Assessing the risk (4/4)

4 – Main observations

.Difficulties to assess the risk on the ground (mostly classified information) .Deliberate destruction by authorized MIL personnel (illegal KAL-007).Non deliberate destruction by authorized MIL personnel (human factor)

lack of supervision in chain of command (MH-17)

wrong target identification (A 300 Vs F-14).Increased level of risk due to

increased number of SAM manufacturers / users (non state groups)

increased technology (MANPADS with guidance capacities)

political instability - collapsed states (e.g. LYBIA)

ineffective MANPADS stockpile management (e.g. former USSR)


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PART 2 – EXISTING RULES



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1 – Regulations applicable to conflict zones

Part 2/4– Existing rules (1/3)

General rules Aviation related rules

International

level

+ Charter of the United Nations

+ Wassenaar Arrangement

+ Chicago Convention of 1944

+ Warsow / Montreal Convention

+ Rome Convention

+ Tokyo Convention

Regional

level

+ NATO convention

+ Arms export contriol rules

+ EUROCONTROL convention

+ Safety regulations (EASA)

National

level

+ criminal law

+ administrative law

+ civil law (indemnification)

+ Aviation implementing rules

+ Insurance contracts

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Part 2/4 – Existing rules (2/3)

2 – Responsibility Vs liability in the event of shootings

Area of responsibility Liability

ANSP

State of conflictprovide SAFE ANS If gross negligence

CAA

State of registrySafety oversight If gross negligence

Air Carrier transport passengerAlways except damage SOLELY

caused by 3rd party

Pilote in

commandUltimate responsibility Never

SAM

manufacturerMust comply with export rules Must be identified

SAM

userMust comply with th Must be identified

Warsow / Montreal Convention on Air Carrier liability


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Part 2/4 – Existing rules (3/3)

3 – Main observations

.Arms Export Control Rules not legally binding (soft law).No specific rules dealing with conflict zones

No obligation to establish prohibited zone’s in the event of conflict

Obligation to provide safe ANS “so far as it may find practicable”

No systematic exchange of information about the level of danger .Level of threat is assessed at national level by the security community.Internal civil aviation community rather focuses on safety than security

(EASA, EUROCONTROL).Unclear who bears the final responsibility to establish no-fly zone

(State of Registry / local ANSP ) .It is clear that liability is channelled towards air carriers


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PART 3 – OBSTACLES & KEY ELEMENTS



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Obstacles and key elements when dealing with conflict zones

.Aviation or security community? (EU Black list).Multiple actors involved (overlapping of responsibilities).Potential conflict of interests (economic / political).Potential solutions need flexibility to rapidly adapt to new threats.Acceptable Vs non-acceptable level of threat (what criteria's?).The value of ground information (HUMINT collection)

Accurate / reliable / non contradictory

Aviation community needs guidelines to assess the risk

Business intelligence?

Are States willing to share national security information?

Part 3/4– Obstacles & key elements (1/1)

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PART 4 – POTENTIAL SOLUTIONS



ICAO Conflict Zone Task Force: “keep passengers

safe from conflict zone risks wherever they fly and

regardless of their airline of choice”

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Part 4/4 – Potential solutions (1/4)

1 – Preliminary questions

.What need to be done

Improve or reform the system

Supranational or harmonized state level

at public or private / corporate level

.Where should the final responsibility lay

State / international organisation

Airspace users

ANSP

What

does the

civil

society

want?

.MILITARY community level of involvement

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2 – Potential solutions

Legal Institutional Operational Technological

MIL communityStricter ITAR

IUS BELLUM

ECTL?

NATO?FUA

SAM tracking

Anti SAM systems

ICAO Stricter CC44 Exchange of info New SARP’s New SARP’s

ANSP / ECTLCreate liability

regime for ANS

Extend ECTL

mission

Cross ANS

Exchange of infoAnti SAM systems

CAAClarify responsibility

and liabiliy

Formal cooperation

with MIL agenciesExchange of info

Fund anti SAM

systems

EASA Amend EASA BR Amend EASA BRTransfer

informationSupport to state

AirlinesVerify contract

insurance

Formal cooperation

mechanism

Centralised

databse

Anti SAM (public

funded)

Passengers

Part 4 /4– Potential solutions (2/4)

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3 – The ICAO approach



.Task Force on Risks to Civil Aviation arising from Conflict Zones

(TF-RCZ) created a centralized information sharing system

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Intelligence

Community

Ministry of

Transportation

Other Governement

Agencies

Working Level

Crisis-Response Group

-Legal

-Security / Emergency OP

- Air Traffic / ANSP

- Airports

- Regulations

- Certifications

- Flight Standardisation

- Policy / international

- Other lines of business

OperatorsInternational

organizations

coordination

Senior Level

Crisis-Response Group

-Legal

-Security / Emergency OP

- Air Traffic / ANSP

- Airports

- Regulations

- Certifications

- Flight Standardisation

- Policy / international

- Other lines of business

CAA DG

Recommandations

Provides direction

Agreement action

Implements agreed actions

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Conclusion

.States can no longer hide behind airlines need for a reform (SARP’s).MIL community involvement is key slower process (ECSP).The value of national security information .Multi layered approach (all levels, MIL/CIV, soft / hard, public / private) .FAA approach (state of registry).ICAO approach illustrates the limits of multilateralism.From an airline perspective: let’s be pragmatic

Monitor FAA / DGAC website

Exchange of information among Airlines Associations

If doubt, check with your State of Registry / insurer


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THANK YOU FOR YOUR ATTENTION

ANY QUESTION?

