| by Dr. Ruwantissa Abeyratne
( May 20, 2013, Montreal, Sri Lanka Guardian) It was both heartening and encouraging to read a recent news item that Sri Lanka was taking measures to sign agreements with neighbouring countries pertaining to search of aircraft and rescue of persons involved in an aircraft accident.
After the events of 11 September 2001, it is only natural to assume that there is continued awareness of the possibility of aircraft being used as weapons of destruction. From a social and political perspective, the world has to prepare for eventualities leading up to search and rescue of aircraft (SAR) that may need to be located without loss of time and the passengers and crew rescued. There are already two international treaties on the subject, although one - the Brussels Convention of 1938, has unfortunately not been ratified by the requisite number of States and has therefore not come into effect. The Brussels Convention contemplated only assistance and salvage operations at sea. The other treaty is the Chicago Convention of 1944, which requires member States of the International Civil Aviation Organization (ICAO) to fulfil their obligations according to a provision that requires a State to provide such measures of assistance to aircraft in distress in its territory as it may find practicable, and to permit, subject to control by its own authorities, the owners of aircraft or authorities of the State in which the aircraft is registered to provide such measures of assistance as may be necessitated by the circumstances. Each State, when undertaking search for missing aircraft, is also required to collaborate in coordinated measures which may be recommended from time to time pursuant to the Convention.
An Annex to the Convention further provides for a State to arrange for the establishment and provision of SAR services within their territory on a 24‑hour basis. The State is further requested to delineate the SAR process under the Annex on the basis of regional air navigation agreements and provide such services on a regional basis without overlap. A search and rescue region has been defined as “an area of defined dimensions within which SAR service is provided”. These basic principles have been in place since 1952.
In the case of the Africa-Indian Ocean Region, the ICAO Regional Air Navigation Plan addresses issues of Search and Rescue by pointing to the provisions of the ICAO Search and Rescue Manual, referring in particular to the need for aircraft to carry specified equipment, carry out paper and communications exercises and, more importantly, for the need for States to pool their resources and provide mutual assistance in the case of SAR operations. The Plan calls for precise agreements between States to implement these measures. The ICAO Regional Plan also calls upon States, in order to ensure compatibility between aeronautical and maritime search and rescue regions (SRRs), and aeronautical search and rescue authorities, to maintain close liaison with their maritime counterparts and the International Maritime Organization (IMO).
In 1985, ICAO signed a memorandum of understanding with IMO concerning cooperation in respect of safety of aircraft operations to and from ships and other marine vehicles and of aeronautical and maritime SAR activities. Both ICAO and IMO signed this understanding with a view to ensuring the best possible coordination of activities between the Organizations in matters concerned with the safety of aircraft operations to and from ships and other marine vehicles and with aeronautical and maritime search and rescue operations, agreeing to make arrangements for consultations between the Secretariats of the two Organizations in regard to these matters, with a view to ensuring consistency or compatibility between services and procedures in all cases where joint efforts or close cooperation may be required and in order to avoid any unnecessary duplication of efforts by them.
The dilemma facing many States extending both to airports and airlines, relates to the lack of rapid response, adequate equipment and well‑trained crews, all of which are critical to passenger survival in the event of an aircraft disaster. Although most States are particularly mindful of these compelling needs, they are by no means confined to a particular region. An example of this crisis is the 1980 incident of a Saudi Arabian Airlines L-1011 catching fire shortly after leaving Riyadh Airport. Although the pilot turned back for an emergency landing and made a perfect touchdown, nearly 30 minutes passed before firemen managed to go in, by which time all passengers and crew had perished. This could have been a survivable accident. To the contrary, a hijacking incident involving a Boeing 767 aircraft on the shores of Comoros, in November 1996, when the aircraft crashed due to lack of fuel, showed how spontaneous reaction from even non‑trained professionals at rescue efforts could help. In this instance, the quick response of tourists at the scene ensured that 51 of the 175 passengers on board were saved.
What are the responsibilities of States in SAR? In its Report to the General Assembly in 1949, the International Law Commission recommended a draft provision which prescribed that every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law. This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally - within their territories - and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law. SAR is an excellent example of collaboration of States and the recognition of the sovereignty of States.
Are SAR services provided gratuitously by States? Or do States charge for rescuing those in distress? Under the International Convention on Maritime Search and Rescue, States are obligated to render gratuitous assistance to any person in distress and that there was no attendant cost‑recovery mechanism in SAR in the maritime field. Based on the above deliberations ICAO undertook a study as to the position of States and the implications of amending ICAO policy with regard to recovery of costs for civil aviation related to SAR services presided by other than permanent civil establishments. ICAO has developed guidance on the establishment of organizations at the regional level for SAR activities and has conducted a study on the establishment of regional or sub‑regional SAR mechanisms and how they might be funded as regards civil aviation.
In the aviation perspective, an equitable cost recovery system could proceed from an accounting of total air navigation services costs incurred on behalf of aeronautical users, to an allocation of these costs among categories of users, and finally to the development of a charging or pricing policy system.
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