After the TransAsia Airways crash on Wednesday last week, Aviation Safety Council (ASC) Executive Director Thomas Wang (王興中) said that, according to the Convention on International Civil Aviation, the nations of the passengers that died in the crash have the right to take part in the investigation. Cabinet spokesperson Sun Lih-chyun (孫立群) also said in an interview that since this is international practice, the Mainland Affairs Council would be asked to pay extra attention to the sovereignty issue.
However, after checking, the regulation referenced to by Wang is nowhere to be found in the convention.
The crash took place in the territory of the Republic of China (ROC). According to the convention, international practice and the first paragraph of Article 6 of the Aviation Occurrence Investigation Act (飛航事故調查法), the ROC is responsible for the investigation. Paragraph 2 of the same article stipulates: “Any aviation occurrence of an aircraft of other nationality arises in the territory of the ROC, the Aviation Safety Council, by considering the facilitation, practicability and necessity, may delegate the conducting of the investigation to the occurrence investigation organization by mutual consent.”
Since the nationality of the aircraft in question is the ROC, the ROC has no obligation to invite the People’s Republic of China (PRC) to take part in the investigation. The only mention is in Article 10 of the same act, which stipulates: “The Aviation Safety Council may immediately forward an additional notification to the aviation occurrence investigation authority of the state whose nationals have sustained death thereby.”
Since the cause of this particular accident might only involve mechanical failure or human error, there is no reason for the PRC’s aviation authority to request permission to participate in the investigation. Taiwan has no legal obligation to invite the PRC’s aviation authority to take part in the investigation.
Article 20 also stipulates: “The Aviation Safety Council Investigation Task Force may inquire the intention of the investigation authorities of the State of Registry, the State of the Operator, the State of Design and Manufacture, and the States whose nationals having sustained death to participate in the investigation. The Aviation Safety Council may, upon receipt of the representatives’ commitment on confidentiality and compliance with the IIC’s [Investigator-in-Charge] command, permit the representatives to participate in part of the investigation as directed by the IIC.”
This means the council has the exclusive right to conduct the investigation. Only when the council judges it necessary does it invite other nations to take part in an investigation.
In this accident, more than 20 Chinese passengers died. Taiwanese should express their sympathy for the victims and support the government’s effort to fully investigate the cause of the crash. However, Wang and Sun’s statements are questionable in that, first, they lack legal basis and, second, they invited China to take part in the investigation and assert that China has the right to participate in the investigation.
Since China never has recognized the ROC government, it is doubtful that the Chinese aviation authorities will respect the exclusive jurisdiction of the ASC over the investigation, or the results.
The council should take full responsibility for investigating the cause of the accident as fast as it can and supervise flight safety in a strict manner.
Yao Meng-chang is an assistant professor in Fu Jen Catholic University’s Department of Postgraduate Legal Studies.
Translated by Ethan Zhan
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