Presentation about conflict zones in civil aviation (from a regulatory and policy perspective)

1. 1
Conflict zones in civil aviation
ERA Operations Group Meeting
28th April - EASA
Philippe Carous
LLM Air & Space Law (Leiden)

2. 2
.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
Conflict zones in civil aviation

3. 3
PART 1 – ASSESSING THE RISK
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Conflict zones in civil aviation

4. 4
1 – Anti aircraft systems
.Anti aircraft systems pose a risk for international commercial aviation
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
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

5. 5
Conflict zones in civil aviation – ERA Operations Group – 29th April 2015
Sources
- FAA NOTAM
(excl. PK)
- DGAC NOTAM
(excl. MLI, PRK,
Sinai, KEN)
Part 1/4 – Assessing the risk (2/5)
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

6. 6
Conflict zones in civil aviation – ERA Operations Group – 29th April 2015
.80’s
.2000’s
.90’s
Part 1/4 – Assessing the risk (3/4)
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

7. 7
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)
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015

8. 8
PART 2 – EXISTING RULES
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Conflict zones in civil aviation

9. 9
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

10. 10
Part 2/4 – Existing rules (2/3)
2 – Responsibility Vs liability in the event of shootings
Area of responsibility Liability
ANSP
State of conflict
provide SAFE ANS If gross negligence
CAA
State of registry
Safety oversight If gross negligence
Air Carrier transport passenger
Always except damage SOLELY
caused by 3rd party
Pilote in
command
Ultimate responsibility Never
SAM
manufacturer
Must comply with export rules Must be identified
SAM
user
Must comply with th Must be identified
Warsow / Montreal Convention on Air Carrier liability
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015

11. 11
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
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015

12. 12
PART 3 – OBSTACLES & KEY ELEMENTS
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Conflict zones in civil aviation

13. 13
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
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)

14. 14
PART 4 – POTENTIAL SOLUTIONS
Conflict zones in civil aviation
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
ICAO Conflict Zone Task Force: “keep passengers
safe from conflict zone risks wherever they fly and
regardless of their airline of choice”

15. 15
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
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

16. 16
2 – Potential solutions
Legal Institutional Operational Technological
MIL community
Stricter ITAR
IUS BELLUM
ECTL?
NATO?
FUA
SAM tracking
Anti SAM systems
ICAO Stricter CC44 Exchange of info New SARP’s New SARP’s
ANSP / ECTL
Create liability
regime for ANS
Extend ECTL
mission
Cross ANS
Exchange of info
Anti SAM systems
CAA
Clarify responsibility
and liabiliy
Formal cooperation
with MIL agencies
Exchange of info
Fund anti SAM
systems
EASA Amend EASA BR Amend EASA BR
Transfer
information
Support to state
Airlines
Verify contract
insurance
Formal cooperation
mechanism
Centralised
databse
Anti SAM (public
funded)
Passengers
Part 4 /4– Potential solutions (2/4)

17. 17
3 – The ICAO approach
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Part 4/4 – Potential solutions (3/4)
.Task Force on Risks to Civil Aviation arising from Conflict Zones
(TF-RCZ) created a centralized information sharing system

18. 18
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Part 4/4 – Potential solutions (3/4)
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
Operators
International
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

19. 19
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
Conflict zones in civil aviation

20. 20
THANK YOU FOR YOUR ATTENTION
ANY QUESTION?
Conflict zones in civil aviation – ERA Operations Group – 28th April 2015
Conflict zones in civil aviation