As I write, the whereabouts of the missing Boeing 777 operating as Malaysia Air Flight 370 en route from Kuala Lumpur to Beijing remains unknown. The Prime Minister of Malaysia has announced that analysis of satellite data suggests the airplane crashed in the south Indian Ocean but no debris linked to the aircraft has been found.

Almost from the beginning of what became a world drama (and an unimaginable ordeal for the families of passengers and crew), the disappearance of Flight 370 highlighted the problems that can arise when a small country inexperienced in accident investigations tackles the mammoth task of hunting for an airliner missing in a vast expanse of land and ocean–all in the 24/7 glare of nonstop global media attention. While clues were scant, those that did emerge were not pursued promptly in the delay, confusion and misinformation that marked the early days of the investigation.

From the very beginning and continuing for days into the disappearance of Flight 370, Malaysian officials were not forthcoming with information, and what little they did release was frequently contradictory. Precious time was lost early on when officials did not share with investigators (including those from the NTSB) Malaysian military radar data showing the aircraft turning off its route toward Beijing. As a result, multi-national searchers spent days looking for the aircraft in the South China Sea between Malaysia and Vietnam, squandering untold resources and introducing a delay that surely added to the difficulties of locating the aircraft–a delay that could conceivably make it impossible ever to find the aircraft without the expenditure of extraordinary time and resources.

At a minimum, Malaysian officials were required to share all information promptly with U.S. investigators, who under ICAO had the right to all the data as the country of design and manufacture of the missing Boeing 777. In this case the investigation was hampered by the lack of an independent accident investigation board whose sole mission, in accordance with ICAO requirements, is to conduct an investigation to determine the probable cause and contributing factors of what occurred so as to prevent a future accident and to issue safety recommendations. Unfortunately, the Malaysian investigation was headed by the Acting Minister of Transportation, who also happened to be the Minister of Defense. Neither position was likely to bring an independent point of view to the investigation, and combined, of course, the dual position was even less likely to pursue the investigation with the focus required by Malaysia’s obligations to the ICAO treaty.

International Cooperative Effort Needed

Watching the delays in sharing information was frustrating to me as a former NTSB Member. My experience working on several air disasters crossing international borders is that no matter what the political positions of the various countries, when it came to accident investigations the experts worked together as though there were no borders. I can only imagine how frustrating it has been for current NTSB investigators, knowing they were being kept at bay and prevented from really helping despite their expertise and experience. It has been particularly dismaying because the protocols for accident investigations that affect multiple countries are clearly spelled out in Annex 13 of ICAO, the chapter that deals with accident investigations involving member states. There was nothing that I could see that arose during the course of the MH370 investigation that wasn’t spelled out or addressed in Annex 13.

It seems to me that the framers of Annex 13 carefully considered all possible scenarios that could arise when an aircraft crashes or goes missing, and they addressed them to make it clear which country should be in charge of the investigation; which countries are expected to assist in any search; and which countries have rights to participate and receive information. Annex 13 even addresses how to treat a missing aircraft when you don’t know what has happened to it. (The definition of accident covers missing aircraft.) So, the requirements of Annex 13 apply to the missing Malaysia Air flight just as surely as they would if the airplane had crashed and its wreckage had been located.

Usually the state in which a crash happens is the country responsible for the accident investigation, regardless of the nationality of the owner or operator of the aircraft. This is why the NTSB was responsible for investigating the crash of Asiana Airlines Flight 214 at San Francisco International Airport in July last year.

In the case of a missing aircraft, Annex 13 provides that the state where the aircraft is registered is responsible, in this case Malaysia. Annex 13 also provides that the state of the aircraft’s design and the state of the aircraft’s manufacture (in both cases here the U.S.) are entitled to participate in the investigation and to have access to all information as soon as possible.

Annex 13 even considers the possibility that a state might not be able to fulfill its obligations under ICAO or might not want to conduct an accident investigation, for whatever reason. Annex 13 takes care of that situation, too, by specifically allowing a state to delegate responsibility for an accident investigation to another state, by mutual agreement. If any situation cried out for use of that delegation authority, it seems to me it was the disappearance of the Boeing 777 operating as Malaysia Air Flight 370.

Unfortunately, the one factor that ICAO perhaps did not consider in drafting Annex 13 was a nation’s pride in seeking help from other countries. I believe that Malaysia’s reluctance in not immediately asking the U.S. and other countries with more expertise and experience in accident investigations for assistance had as much to do with misplaced pride as with lack of familiarity with such a massive investigation. So, while I see this accident as pointing out the need for ICAO to remind its member countries of their obligations in accident investigation, I also see an opportunity for ICAO to emphasize to smaller nations with less aviation accident expertise that asking for expert help from other countries is not a sign of weakness but a sign of strength.