Applicant 2012 - air law moot

8/12/2019 Applicant 2012 - air law moot

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TABLE OF CONTENTS

List of Abbreviations .............................................................................................................. iii

List of sources ....................................................................................................................... iv

A International Conventions .............................................................................................. iv

B Judicial Decisions .......................................................................................................... iv

1 International Court of Justice ..................................................................................... iv

(a) Judgments and advisory opinions ......................................................................... iv

(b) Written proceedings ............................................................................................... v

2 Permanent Court of International Justice .................................................................... v

3 International arbitrations ............................................................................................. v

4 Decisions of the International Centre for Settlement of Investment Disputes .............. v

C Documents of international organizations ...................................................................... vi

1 International Civil Aviation Organization ..................................................................... vi

2 General Assembly of the United Nations ................................................................... vi

3 International Law Commission ................................................................................... vi

D Articles and Books ........................................................................................................ vi

1 Articles ....................................................................................................................... vi

2 Books ....................................................................................................................... vii

E Other Sources .............................................................................................................. vii

Statement of relevant facts .................................................................................................. viii

A Introduction ................................................................................................................. viii

B Background facts ........................................................................................................ viii

1 Block of airspace ..................................................................................................... viii

2 Mayur Airways ......................................................................................................... viii

3 MorianCargo Airlines ............................................................................................... viii

C Details of the events preceding the mid-air collision ...................................................... ix

1 MinarControl .............................................................................................................. ix

2 Mayur Airways aircraft ............................................................................................... ix

3 MorianCargo Airlines aircraft....................................................................................... x

D Consequences of the mid-air collision ............................................................................ x

1 Mayur Airways and MorianCargo Airlines aircraft ........................................................ x


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2 Damages on the ground .............................................................................................. x

Issues .................................................................................................................................... xi

Summary of arguments ........................................................................................................ xii

Jurisdiction of the Court ....................................................................................................... xiv Argument ............................................................................................................................... 1

A Bulbuldesh has committed an internationally wrongful act .............................................. 1

1 The conduct of MinarControl is attributable to Bulbuldesh ......................................... 1

(a) Bulbuldesh is responsible for the conduct of persons or entities exercisingelements of governmental authority ........................................................................... 2

(b) MinarControl is empowered to provide ATS .......................................................... 5

2 Bulbuldesh has breached international obligations .................................................... 7 (a) Preliminary considerations in respect to the legal status of the Annexes to theChicago Convention................................................................................................... 7

(b) MinarControl has breached the obligation to maintain adequate separationbetween aircraft under its control and to prevent collisions ........................................ 8

(c) Bulbuldesh has breached the obligation to provide ATS in accordance withinternational standards pursuant to Article 28 of the Chicago Convention .................. 9

(d) Bulbuldesh has breached the obligation to take all reasonable measure to preventdamages to the State of Mayur .................................................................................10

B Bulbuldesh must make full reparation for the injury caused by its internationallywrongful conduct ..............................................................................................................12

1 Preliminary considerations on the application of Article 84 of the Chicago Convention.....................................................................................................................................12

2 Mayur has locus standi .............................................................................................13

(a) Direct injury to the interests of the State of Mayur ................................................13

(b) The Government of Mayur can bring claims on behalf of its nationals .................14

3 Bulbuldesh is under an obligation to make reparations .............................................17

(a) Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft .........19

(b) Bulbuldesh shall indemnify and hold harmless Mayur Airways ............................20

(c) Bulbuldesh shall compensate Mayur for any damages, expenditure, costs andinjury already incurred and/or incurred in the future as a result of the accident .........23

Submissions .........................................................................................................................25


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LIST OF ABBREVIATIONS

ACAS Airborne collision avoidance system

ATC Air traffic control ATS Air traffic services

FL Flight level

ICAO International Civil Aviation Organization

ICAO Doc International Civil Aviation Organization documents

ICJ International Court of Justice

ICJ Rep Reports of the International Court of Justice

ICSID International Centre for Settlement of Investment Disputes

ILC International Law Commission

PCIJ Permanent Court of International Justice

PCIJ Rep Reports of the Permanent Court of International Justice

RA Resolution advisory

Rep Intl Arbitral Awards Reports of international arbitral awards

SARPs Standards and recommended practices

SDR Special drawing rights

STCA Short-term conflict alert

TA Traffic announcement

UN United Nations

UN Doc United Nations documents

UNTS United Nations Treaty Series


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LIST OF SOURCES

A INTERNATIONAL CONVENTIONS

Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295.

Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface(adopted 7 October 1952, entered into force 4 February 1958) 310 UNTS 181.

Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27January 1980) 1155 UNTS 331.

Agreement concerning Air Services (United Kingdom and United States) (adopted 23 July1977, entered into force 23 July 1977) 1079 UNTS 21.

Air Transport Agreement between the Government of New Zealand and the Government of

the United States (adopted 18 June 1997, entered into force 18 June 1997) 2049 UNTS379.Convention for the Unification of Certain Rules for International Carriage by Air (adopted 28

May 1999 entered into force 4 November 2003) 2242 UNTS 309.

B J UDICIAL DECISIONS

1 International Court of Justice

(a) Judgments and advisory opinions

The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4.The Corfu Channel Case (United Kingdom v Albania) (Judgment of December 15 th, 1949 )

[1949] ICJ Rep 244.Interhandel Case (Switzerland v United States of America) (Preliminary Objections) [1959]

ICJ Rep 6.Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment,

Second Phase) [1970] ICJ Rep 3.Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1979] ICJ Rep 7.

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua vUnited States of America) (Jurisdiction of the Court and Admissibility of the Application) [1984] ICJ Rep 392.

Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v.United States of America) (Merits) [1986] ICJ Rep 14.

Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJRep 15.

Gabkovo -Nagymaros Project Case (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7.

Case concerning the Land and Maritime Boundary between Cameroon and Nigeria(Cameroon v Nigeria) (Preliminary Objections) [1998] ICJ Rep 275, 307.


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Difference Relating to Immunity from Legal Process of a Special Rapporteur of theCommission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62.

LaGrand Case (Germany v United States of America) (Judgment) [2001] ICJ Rep 466.

(b) Written proceedings

Aerial Incident of 3 July 1988 (Iran v United States of America) (Memorial of Iran) 1 ICJPleadings 11.

Case concerning the Aerial Incident of July 27 1955 (Israel v Bulgaria) ICJ Pleadings 372.

2 Permanent Court of International Justice

Mavrommatis Palestine Concession Case (Greece v Britain) PCIJ Rep Series A No 02.

Case Concerning the Factory at Chorzw (Germany v Poland) (Claim for Indemnity) PCIJRep Series A No 09.Case Concerning the Factory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series A

No 17.

3 International Arbitrations

The Montijo Case (Colombia v USA) (1875) 2 Moore International Arbitration 1421. Affaire des navires Cape Horn Pigeon, James Hamilton Lewis, C. H. White et Kate and

Anna (United States of America v Russia) (1902) 9 Rep Intl Arbitral Awards 55. Opinion in the Lusitania Case (United States of America v Germany) (1923) 7 Rep Intl Arbitral Awards 32.

Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom) (1925) 2 RepIntl Arbitral Awards 615.

D Earnshaw and others (Great Britain v United States) (1925) 4 Rep Intl Arbitral Awards160.

Home insurance company (United States of America) v. United Mexican States (1926) 4Rep Intl Arbitral Awards 48.

Island of Palmas Case (Netherlands v United States of America) (1928) 2 Rep Intl Arbitral Awards 829.

Trail Smelter case (United States of America v Canada) (1938) 3 Rep Intl Arbitral Awards1911.

Trail Smelter case (United States of America v Canada) (1941) 3 Rep Intl Arbitral Awards1938.

Saphire International Petroleums Ltd v National Iranian Oil Company (1963) 35 ILR 136. Arbitration Concerning Heathrow Airport User Charges (United States v United Kingdom)

(1992, revised 1993), 24 Rep Intl Arbitral Awards 1.

4 Decisions of the International Centre for Settlement of Investment Disputes

Emilio Agustn Maffezini v Spain (Award) ICSID Case No ARB/97/7 (2000).


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CMS Gas Transmission Company v Argentine Republic (Award) ICSID Case No ARB/01/8(2005).

ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (Award) ICSID Case No. ARB/03/16 (2006).

C DOCUMENTS OF INTERNATIONAL ORGANIZATIONS

1 International Civil Aviation Organization

ICAO Annex 11 Air Traffic Services ICAO Doc AN 11. ICAO ICAOs Policies on Charges for Airports and Air Navigation Services ICAO Doc

9082.

ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902.

2 General Assembly of the United Nations

General Assembly Report of the International Law Commission on the work of its fifty -fourth session (2002) Topical summary of the discussion held in the Sixth Committee ofthe General Assembly during its fifty-seventh session, prepared by the Secretariat UNDoc A/CN.4/529.

3 International Law Commission

International Law Commission Yearbook of the International Law Commission, 1971, vol.II, Part One UN Doc A/CN.4/SER.A/1971/Add.1.

International Law Commission Yearbook of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10.

International Law Commission Yearbook of the International Law Commission, 2006, vol.II, Part Two UN Doc A/61/10.

D ARTICLES AND BOOKS

1 Articles

E Jimnez de Archaga General Course in Public International Law (1978) 159 Recueildes Cours de lAcadmie de Droit international de la Haye 3.

T Meron The incident of the rule of exhaustion of local remedies (1959) 35 British YearBook of International Law 83.

F Schubert The Corporatization of Air Traffic Control: Drifting Between Private and PublicLaw (1997) XXII-II Annals of Air and Space Law 223.

F Schubert The Liability of Air Navigation Services in the Single European Sky (2 003)XXVIII Annals of Air and Space Law 57.


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2 Books

CF Amerasinghe Local Remedies in International Law (Cambridge University PressCambridge 2004)

HC Black and BA Garner Blacks Law Dictionary (West Group 2004).B Cheng General Principles of Law Applied by International Courts and Tribunals (Stevens

& Sons Ltd London 1953). C Eagleton The Responsibility of States in International Law (New York University Press

New York 1928.X Hanqin Transboundary Damage in International Law (Cambridge University Press

Cambridge 2003)Nguyen QD, P Daillier and A Pellet Droit international public (Librairie Gnrale de Droit et

de Jurisprudence 2002).MN Shaw International Law (Cambridge University Press 2008).

L Weber International Civil Aviation Organization, An Introduction (Kluwer Law International2007).MM WhitemanDamages in International Law, vol. 1 (Government Printing Office 1937),

682.

E OTHER S OURCES

German Federal Bureau of Aircraft Accident Investigation Investigation Report of the Accident near berlingen on 1 July 2002 (AX 00-1-1-2/02, May 2004).


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S TATEMENT OF RELEVANT FACTS

A INTRODUCTION

The present dispute arises from a mid-air collision (hereafter referred to as the mid-air

collision) between a Mayur Airways civil aircraft and a MorianCargo Airlines civil aircraft

which occurred within a block of airspace above the territory of the State of Bulbuldesh

(hereafter referred to as the block of airspace) on 17 October 2007.

B B ACKGROUND FACTS

1 Block of airspace

The block of airspace is adjacent to the national airspace of the State of Minar. In 1962, the

State of Bulbuldesh and the State of Minar agreed that air traffic services would be provided

within the block of airspace exclusively by MinarControl. Since then this block of airspace

was consistently controlled by MinarControl. The written agreement was signed but not duly

ratified by the Parliaments of the two States. It includes a clause according to which the Stateof Minar is liable for damages caused by its negligence or of its agents or other persons

acting on its behalf.

MinarControl is a privatized company established, organized and regulated under the laws

of Minar.

2 Mayur Airways

Mayur Airways is a commercial airline established and regulated under the laws of the

State of Mayur. It is substantially owned and effectively controlled by the State of Mayur. The

aircraft involved in the collision was registered in Mayur.

3 MorianCargo Airlines

MorianCargo Airlines is a commercial airline established and regulated under the laws ofthe State of Moria. The aircraft involved in the collision was registered in Moria.


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C DETAILS OF THE EVENTS PRECEDING THE MID -AIR COLLISION

The following events occurred on 17 October 2007 prior to the mid-air collision:

1 MinarControl

From 11:13:00, as a consequence of technical works at MinarControl, the visual short-term

conflict alert systems were not available. The controllers were not properly informed of the

situation by the management of MinarControl.

From 11:30:11, the Mayur Airways aircraft and the MorianCargo Airlines aircraft were under

the control of the duty controller.

At 11:34:49, the duty controller instructed the Mayur Airways aircraft to descend

immediately to flight level (FL) 350.

At 11:34:58, an acoustic short-term conflict alert was issued. The controller failed to notice

this warning.

At 11:35:01, the duty controller reiterated the instruction given to the Mayur Airways aircraftto descend immediately to FL350.

At 11:35:17 the controller failed to notice the descend maneuver of MorianCargo.

At 11:35:29, contact was lost with both aircraft.

The investigation indentified that 1) the controllers had not been properly informed of the

situation of the technical works that were taking place on that day; 2) that only one controllerwas on duty in the control room at the time of the collision, where it ought to have been two

controllers and two assistants. This was known and tolerated by the management of

MinarControl.

2 Mayur Airways aircraft

At 11:30:11 reported in to MinarControl its present FL360.


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At 11:34:42, a traffic announcement (TA) was issued by the airborne collision avoidance

system (ACAS).

At 11:34:49, the flight crew initiated to descend to FL350.

At 11:34:56, a resolution advisory (RA) to climb was issued by the ACAS.

At 11:35:01, the flight crew was contacted by MinarControl. The flight crew confirmed its

descent.

At 11:35:24, a second RA instructing to increase climb was issued by the ACAS.

At 11:35:29, the aircraft collided.

3 MorianCargo Airlines aircraft

At 11:34:42, a traffic announcement (TA) was issued by the airborne collision avoidance

system (ACAS).

At 11:34:56, a resolution advisory (RA) to descend was issued by the ACAS. The flight

crew did not immediately respond to the RA.

At 11:35:17, the flight crew responded to the RA and initiated its descent.

At 11:35:29, the aircraft collided.

D CONSEQUENCES OF THE MID -AIR COLLISION

1 Mayur Airways and MorianCargo Airlines aircraft

Both aircraft were completely destroyed and all 50 passengers and 9 crew members were

killed instantly.

2 Damages on the ground

The mid-air collision caused harm and damage to private persons and property on the

surface in the territory of Bulbuldesh and Minar.


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ISSUES

The State of Mayur will argue the following contentions:

Issue 1: Is the State of Bulbuldesh responsible for all damage caused by the mid-air

collision?

Issue 2: Must the State of Bulbuldesh compensate the State of Mayur for the value of the

destroyed aircraft?

Issue 3: Must Bulbuldesh indemnify and hold harmless Mayur Airways in respect of all

claims made by third parties and by the legal successors of the deceased passengers and

crew aboard?

Issue 4: Must Bulbuldesh compensate Mayur for any damage, expenditure, costs or injury

already incurred and /or incurred in the future as a result of the accident?


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S UMMARY OF ARGUMENTS

The Government of Mayur shall demonstrate that the State of Bulbuldesh is responsible for

all damage caused by the mid-air collision in the block of airspace. To that end, it willdemonstrate that MinarControls conducts a re attributable to the State of Bulbuldesh, since

MinarControl is exercising an element of Bulbuldeshs governmental authority by providing

air traffic services in the block of airspace. The provision of air traffic services is intrinsically

tied to sovereignty over national airspace and is a public service of sovereign nature.

Furthermore, MinarControl is empowered by Bulbuldesh to exercise air traffic control in its

airspace on the basis of the acquiescence of the delegation of this service to MinarControl

and the reliance on MinarControl to fulfill its governmental duty.

The Government of Mayur will further address that the State of Bulbuldesh has breached

international law. Firstly, MinarControl failed to comply with the standards and recommended

practices laid down in Annex 11 to the Chicago Convention; and did not maintain adequate

separation between the aircraft and failed to prevent the mid-air collision. Secondly, the State

of Bulbuldesh violated Article 28 of the Chicago Convention and Annex 11 by failing to

ensure an adequate level of safety within its national airspace. Thirdly, Bulbuldesh breached

its obligation by not taking any reasonable measures to prevent damages to Mayur by

tolerating the unlawful practices of MinarControl.

In the second pa rt of the arguments, the Government of Mayur will establish its locus

standi. It will, firstly, demonstrate that it suffered direct injury as a consequence of the mid-aircollision, considering the subject of the dispute and the nature of the claim. Secondly, Mayur

has the right to exercise diplomatic protection on behalf of its nationals, as it will establish

that in the absence of a voluntary link, its nationals are not obliged to exhaust local remedies.

The Government of Mayur will further contend that as a legal consequence of the

internationally wrongful conduct of the State of Bulbuldesh, the latter has to make full

reparation in an appropriate form in order to wipe out all consequences. Therefore, the State

of Bulbuldesh is under the obligation to compensate Mayur for the value of the destroyed


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aircraft. The destruction of the aircraft was a normal and foreseeable result of the

internationally wrongful conduct of the State of Bulbuldesh.

In addition, the Government shall contend that the State of Bulbuldesh must indemnify and

hold harmless Mayur Airways in respect to all present and future claims made by third parties

in connection with the accident. To this effect, it shall demonstrate that the internationally

wrongful conducts of the State of Bulbuldesh are the proximate cause of these claims.

Concerning this matter, the Government of Mayur will consider whether third parties in

connection with the accident and the crew members can claim on the basis of national law?

Legal successors of the deceased passengers have a cause of action based on Article 17 ofthe 1999 Convention for the Unification of Certain Rules for International Carriage by Air. In

this respect, the Government of Mayur will demonstrate that not only actual claims but also

any future claim are recoverable from the State of Bulbuldesh.

Finally, the Government of Mayur will establish that the State of Bulbuldesh is under the

obligation to compensate Mayur for any present and future damage, expenditure, costs and

injury as they are foreseeable consequences of the mid-air collision.


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J URISDICTION OF THE COURT

In accordance with Article 36 (2) of the Statute of the International Court of Justice, States

parties to the Statute may at any time declare that they recognize as compulsory ipso factoand without special agreement the jurisdiction of the Court. In the present dispute, both

the State of Mayur and the State of Bulbuldesh are parties to the Statute of the International

Court of Justice and have made declarations expressing their consent to the compulsory

jurisdiction of the Court.

The State of Mayur, therefore, submits the present dispute to the Court on the basis of

Article 36 (2) of the Statute of the International Court of Justice.


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ARGUMENT

A BULBULDESH HAS COMMITTED AN INTERNATIONALLY WRONGFUL ACT

It is a well established principle of public international law that [e]very internationally

wrongful act of a State entails the international responsibility of that State. 1 An internationally

wrongful act of a State is defined as a conduct consisting in an act or omission attributable to

the State under international law, and breaching an international obligation of the State. 2

Two elements are therefore required to constitute an international wrongful act: a conduct

attributable to a State, and the breach of an international obligation. Before discussing theinternational obligations breached by the State of Bulbuldesh, a preliminary concern is to

identify the entities whose conduct can be attributed to the State of Bulbuldesh.

1 The conduct of MinarControl is attributable to Bulbuldesh

In the view of the Government of Mayur, the State of Bulbuldesh is responsible for the

conduct of its organs and of MinarControl.

According to the International Court of Justice (ICJ), it is a well-established rule of

international law [that] the conduct of any organ of a State must be regarded as an act of that

State.3 The ICJ confirmed the customary nature of this rule. 4 According to the International

Law Commission (ILC), [a]n organ includes an y person or entity which has that status in

accordance with the internal law of the State 5, whatever its function, position, or character as

an organ of the central government or of a territorial unit of the State. 6 Accordingly, the State

1 International Law Commission Yearbook of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10, 32.2 Ibid 34.3 Difference Relating to Immunity from Legal Process of a Special Rapporteur of theCommission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 87.4 Ibid.5 International Law Commission Yearbook of the International Law Commission, 20 01, vol.II, Part Two UN Doc A/56/10, 40. 6 Ibid.


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of Bulbuldesh is responsible under international law for the conducts of its organs, provided

they are in breach with its international obligations.

(a) Bulbuldesh is responsible for the conduct of persons or entities exercising elements of

governmental authority

It is undisputed that States are responsible for the conduct of their organs. However, their

responsibility is not limited to the conduct of entities which are formally qualified as organs by

internal law.

There are many instances in which international jurisdictions have attributed the conduct of

a private person or group of persons to a State. In the Case concerning Military and

Paramilitary Activities in and against Nicaragua , the ICJ affirmed that in some circumstances,

the links between a State and a group of persons may be such that they can be equated to

an organ of that State even if they are not qualified as organs by internal law. 7 In the Case

concerning United States Diplomatic and Consular Staff in Tehran , the ICJ also stated that

the conduct of private persons could be considered directly imputable to a State if it is

established that they acted on behalf of the State. 8

Accordingly, while the status of a person may help determine whether a conduct can be

attributed to a State, the public character of the function exercised by the private person must

also be taken into consideration. For example in the Zafiro Case ,9 the arbitral tribunal

attributed the conduct of the crew of a merchant ship to the United States. The tribunal

considered the nature of service and purpose for which the ship was employed as

7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 62.8 Case concerning United States Diplomatic and Consular Staff in Tehran (United States of

America v Iran) (Judgment) [1979] ICJ Rep 7, 30.9 D Earnshaw and others (Great Britain v United States) (1925) 4 Rep Intl Arbitral Awards160.


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determining. 10 This principle was confirmed by Special Rapporteur Ago in the context of the

ILCs work on State responsibility:11

[T]he State is often considered responsible [at the internal level] for the acts of

private natural or legal persons commissioned to provide a particular public

service, or of individuals or groups carrying out any kind of mission for the State

.... The underlying principle in international law requires that the criterion

should be the public character of the function or mission in the performance of

which the act or omission contrary to international law was committed .12

The International Centre for Settlement of Investment Disputes (ICSID) also applied thisprinciple in the Emilio Agustn Maffezini v Spain Case. 13 In its award, the ICSID was asked to

determine whether the acts and omissions of SODIGA, a private corporation, were

attributable to Spain. According to the ICSID, the elements that must be taken into account to

assess whether a conduct of a private entity can be attributed to a State are the structure of

the entity, the control of the entity by the State, and its objectives and functions. 14 The ICSID,

therefore, analyzed the various acts and omissions which gave rise to the dispute in order to

determine if they were to be regarded as functions essentially governmental in nature or

essentially commercial in character. According to the ICSID, t his distinction is the dividing

line between those acts or omissions that can be attributed to [a State] and those that

cannot .15

In the present dispute, it is therefore necessary to examine whether the services provided

by MinarControl are governmental or commercial in character. It is a firmly established and

10 Ibid 163.11 International Law Commission Yearbook of the International Law Commission, 1 971, vol.II, Part One UN Doc A/CN.4/SER.A/1971/Add.1.12 Ibid 264.13 Emilio Agustn Maffezini v Spain (Award) ICSID Case No ARB/97/7 (2000).14 Ibid [57].15 Ibid.


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longstanding [tenet] of customary international law16 that every State has complete and

exclusive sovereignty over its national airspace. 17 The sovereignty of a State over its territory

is exclusive as it entails the right to exercise therein, to the exclusion of any other State , the

functions of a State. 18 It is complete in that it covers all aspects of governmental authority. 19

The provision of air traffic services (ATS) is one of a States exclusive competences . A

State is exclusively competent to monitor its airspace, control and limit access to it and adopt

regulations which apply to aircraft flying through it.20 In order to monitor their airspace and

ensure compliance with the applicable rules, States rely on their ATS provider. The tasks of

air traffic controllers can therefore be assimilated to police functions.21 Moreover, the air

traffic controllers main responsibility is to avoid collisions22 and thereby ensure public

safety23, another attribute of governmental authority. Thus, the provision of ATS is

intrinsically tied to sovereignty over the national airspace and must be considered as a public

service of sovereign nature. 24 This conclusion is supported by Article 28 of the Convention on

International Civil Aviation (Chicago Convention) which enjoins States to provide air

navigation services in their national airspace.

16 Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v.United States of America) (Merits) [1986] ICJ Rep 14, 111.17 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4

April 1947) 15 UNTS 295, arts 1 and 2.18 Island of Palmas Case (Netherlands v United States of America) (1928) 2 Rep Intl Arbitral

Awards 829, 838.19 Nguyen QD, P Daillier and A Pellet Droit international public (Librairie Gnrale de Droit etde Jurisprudence 2002) 474f.20 See Chicago Convention, arts 11 and 13.21 F Schubert The Liability of Air Navigation Services in the Single European Sky (2003)XXVIII Annals of Air and Space Law 57, 61.22 Annex 11 to the Chicago Convention, Chapter I.23

F Schubert The Liability of Air Navigation Services in the Single European Sky (2003)XXVIII Annals of Air and Space Law 57, 61.24 Ibid.


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The governmental nature of ATS is also supported by its non-commercial character. 25 For

instance, it is widely accepted that ATS providers may only impose charges towards

defraying the costs of providing faci lities and services for civil aviation.26 The Council of the

International Civil Aviation Organization (ICAO) notes that the revenues produced by air

navigation services may only exceed all costs and provide for a reasonable return on assets

if the revenues in excess are dedicated to contributing towards necessary capital

improvements. 27 This principle is reiterated in numerous air services agreements between

States. 28

It must, therefore, be concluded that when MinarControl was providing ATS to the aircraft of

Mayur Airways, it was exercising an element of Bulbuldeshs governmental authority.

(b) MinarControl is empowered to provide ATS

The principle that the conduct of a private entity which exercises elements of governmental

authority is attributable to a State was codified by the ILC in Article 5 of its Draft articles on

Responsibility of States for Internationally Wrongful Acts (Draft articles on State

responsibility):29

[T]he conduct of a person or entity which is not an organ of the State [] but

which is empowered by the law of that State to exercise elements of the

25 F Schubert The Corporatization of Air Traffic Control: Drifting Between Private and PublicLaw (1997) XXII-II Annals of Air and Space Law 223, 234.26 ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902,Resolution A35-15 Appendix F.27 ICAO ICAOs Policies on Charges for Airports and Air Navigation Services ICAO Doc9082, [44].28 See Air Transport Agreement between the Government of New Zealand and theGovernment of the United States (adopted 18 June 1997, entered into force 18 June 1997)2049 UNTS 379, art. 10; see also, Agreement concerning Air Services (United Kingdom andUnited States) (adopted 23 July 1977, entered into force 23 July 1977) 1079 UNTS 21, art

10.29 International Law Commission Yearbo ok of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10, 31


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governmental authority shall be considered an act of the State under international

law.30

According to the ILCs codification of the principle, it is clear that the exercise of an element

of governmental authority by a private entity is not sufficient to attribute a conduct to a State;

the private entity must also be empowered by the law of the delegating State.

In respect to the present dispute, the delegation of ATS within the block of airspace to

MinarControl was agreed upon by the State of Bulbuldesh and the State of Minar in 1962.

Both Parties concluded a written agreement codifying the delegation of ATS and setting

different organizational aspects of the delegation, but the agreement was not duly ratifiedand never came into force. 31 Nevertheless, in the view of the Government of the State of

Mayur, the absence of a written agreement in force does not entail that MinarControl was not

empowered by the State of Bulbuldesh to provide ATS within the block of airspace.

As we are aware of, MinarControl has been the exclusive provider of ATS within the block

of airspace since 1962. The acquiescence by both States of that practice testifies that they

both considered MinarControl rightly empowered in spite of the absence of any written

agreement. This conclusion is further supported by the fact that the State of Bulbuldesh

relied on MinarControl to fulfill one of its governmental duty and that the service provided by

MinarControl was by definition non-lucrative. Moreover, the possibility to delegate ATS to

another State or autonomous entity provided for in Annex 11 to the Chicago Convention

(Annex 11) does not require any particular form. 32

In conclusion, the Government of Mayur submits that MinarControl is empowered by the

law of the State of Bulbuldesh to exercise an element of its governmental authority and that

its conduct can therefore be attributed to the State of Bulbuldesh.

30 Ibid 42.31 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27January 1980) 1155 UNTS 331, art 14.32 [B]y mutual agreement, a State may delegate to another State the responsibility forestablishing and providing air traffic services. ICAO Annex 11 Air Traffic Services ICAODoc AN 11, Standard 2.1.1.


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2 Bulbuldesh has breached international obligations

The Government of Mayur will establish that the State of Bulbuldesh breaches international

obligations.

(a) Preliminary considerations in respect to the legal status of the Annexes to the Chicago

Convention

By ratifying the Chicago Convention, States party to the Chicago Convention 33 commit

themselves to undertake [t]o collaborate in securing the highest practicable degree of

uniformity in regulations, standards, procedures, and organization in relation to aircraft,

personnel, airways and auxiliary services in all matters in which such uniformity will facilitate

and improve air navigation. 34 To this end, States gave ICAO the mandate to adopt and

amend International Standards and Recommended Practices (SARPs) and procedures. 35

According to ICAOs General Assembly, international standards are specifications, the

uniform application of which is recognized as necessary for the safety or regularity of

international air navigation; recommended practices are specifications, the uniform

application of which is recognized as desirable in the interests of safety, regularity or

efficiency of international air navigation 36. According to Article 38 of the Chicago

Convention, States must notify any differences between their national regulations or

practices and the international standards adopted by ICAO. 37 Even though the notification of

differences between national regulations and recommended practices is not obligatory,

States are urged to notify such differences.38

33 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295.34 Chicago Convention, art 37.35 Ibid, arts 37 and 54 l).36 ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902,Resolution A36-13, Appendix A.37

Chicago Convention, art 38.38 ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902,Resolution A36-13, Appendix D. Annex 15, Standard 4.1.2. c).


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In light of the foregoing considerations, in the absence of a notification of differences, a

State can be held to be implementing ICAOsSARPs and procedures.

(b) MinarControl has breached the obligation to maintain adequate separation between

aircraft under its control and to prevent collisions

According to Article 28 of the Chicago Convention, [e]ach contracting State undertakes, so

far as it may find practicable, to [p]rovide, in its territory radio services and other air

navigation facilities to facilitate international air navigation, in accordance with the standards

and practices recommended or established pursuant to this Convention. Article 28 of

the Chicago Convention, therefore, requires the provision of ATS to be made in accordancewith SARPS, in particular Annex 11 which contains standards pertaining to the establishment

and provision of ATS.

According to Standard 2.2, the objectives of ATS are the prevention of collisions between

aircraft and the provision of advice and information useful for the safe and efficient conduct of

flights. To this end and pursuant to Standard 3.3.1, ATS providers shall issue clearances and

information for the purpose of preventing collision between aircraft under its control.

Standard 3.3.2 adds that the information on aircraft movements shall be so displayed as to

permit ready analysis in order to maintain an efficient flow of air traffic with adequate

separation between aircraft. Furthermore, according to Standard 3.3.4, adequate separation

shall be obtained by vertical separation, horizontal separation, or a combination of both.

Furthermore, according to Standard 3.7.3.1.2, the controller shall listen to the read-back of

ATS instructions, notably level instructions, by flight crews to ascertain that the instruction

has been correctly acknowledged by the flight crew and shall take immediate action to

correct any discrepancies revealed by the read-back.

It is clear from the facts, and in particular from the occurrence of the mid-air collision, that

MinarControl failed to ensure adequate separation between both aircraft. At 11:30:11, the

crew of the Mayur Airways aircraft reported to MinarControl at FL360, whereas a fewseconds earlier, at 11:29:50, MorianCargo Airlines was cleared to FL360. At 11:30:11, the


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controller was aware that both aircraft were flying at the same altitude and, therefore, should

have ensured adequate vertical or horizontal separation. However , the controllers first

instruction to ensure adequate separation was given only 40 seconds before the collision. 39

The Government of Mayur, therefore, submits that MinarControl breached Standards 2.2,

3.3.1 and 3.3.4 of Annex 11 by not maintaining adequate separation and failing to prevent

the collision between both aircraft. Moreover, by failing to ascertain that the instruction given

at 11:34:49 to the Mayur Airways aircraft was correctly acknowledged by the flight crew,

MinarControl breached Standard 3.7.3.1.2.

(c) Bulbuldesh has breached the obligation to provide ATS in accordance with internationalstandards pursuant to Article 28 of the Chicago Convention

In accordance with Article 28 of the Chicago Convention, States also have the obligation to

ensure that the ATS providers are compliant with the Chicago Convention and its Annexes.

Among these rules, Standard 2.26.1 of Annex 11 provides that States shall implement

systematic and appropriate ATS safety management programmes to ensure that safety is

maintained in the provision of ATS within airspaces and at aerodromes. The ATS safety

management programme shall provide for continuous monitoring and regular assessmen t of

the safety level achieved and ensure that remedial action necessary to maintain an

acceptable level of safety is implemented. 40

The obligation under Standard 2.26.1 is twofold: firstly, States must monitor the safety level

achieved by the ATS providers within their jurisdiction and; secondly, States must take all

remedial action necessary to correct any identified flaw in the safety level of ATS provision in

their airspace.

In the present dispute, the investigators found that the technical work was planned and that

MinarControl knew in advance that the visual STCAs would not be available from 11:13:00

39

At 11:30:11, the horizontal separation between both aircraft was at the maximum of 80seconds (i.e.11 nautical miles, assuming they were flying at an average speed of 500 knots).40 Annex 11, Standard 2.26.4


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on the day of the mid-air collision. Consequently, the management not only failed to

adequately brief the controllers but also to provide for adequate strategic planning.

Furthermore, it has been established by the investigation that the management of

MinarControl knew and tolerated internal arrangements between controllers which

excessively increased the workload of the controller on duty. This policy was likely to cause

hazardous situations by increasing procedural errors, an inadequate distribution of attention

and the omission of important instructions such as the ones designed to ensure separation

between conflicting traffic.41 It also reduces the concentration of the controller on duty by

limiting the possibility to take required breaks. 42 These findings clearly demonstrate that an

adequate level of safety was not ensured.

In the light of Standard 2.26.1 of Annex 11, it implies, on the one hand, that if the authorities

of Bulbuldesh were aware of the safety shortcomings at MinarControl, they failed to

implement the remedial action necessary to maintain an acceptable level of safety. On the

other hand, if they were unaware of such substantial shortcomings, it implies that they failed

to implement a systematic and appropriate ATS safety management programmes.

The Government of Mayur, therefore, submits that the Government of Bulbuldesh, by failing

to ensure that an adequate level of safety is achieved within its national airspace by

MinarControl, violated Article 28 of the Chicago Convention and Standards 2.26.1 and 2.26.4

of Annex 11.

(d) Bulbuldesh has breached the obligation to take all reasonable measure to prevent

damages to the State of Mayur

It is well established principle of international law that even when a conduct cannot be

attributed to the State where the conduct occurred, that State may be responsible for its

41

German Federal Bureau of Aircraft Accident Investigation Investigation Report of the Accident near berlingen on 1 July 2002 (AX 00 -1-1-2/02, May 2004), 75.42 Ibid.


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failure to take all reasonable measures to avoid injury to another States property, r ights or

nationals. 43

One landmark consecration of this principle is found in the Trail Smelter Arbitration. 44 In its

1941 awards, the Tribunal stated that, under the principles of international law, no State

has the right to use or permit the use of its territory in such a manner as to cause injury in

or to the territory of another or the properties or persons therein. 45 The obligation of a

State not to allow knowingly its territory to be used for acts contrary to the rights of other

States was also affirmed by the ICJ in the Corfu Channel Case notably. 46 Naturally, it cannot

be expected from a State that it prevents all conduct likely to cause damages to aliens; it is

nevertheless generally accepted that a Government in its sovereign capacity [owes] the duty

to protect the persons and property within its jurisdiction by such means as [are] reasonably

necessary to accomplish that end. 47

In conclusion, it is undisputable that a State must ensure that activities within its jurisdiction

do not cause damages to the interests of other States. In particular, when a State has

knowledge of a conduct which may result in the death of foreign nationals or damages to the

property of another State, it must take all reasonable measures to stop the wrongful conduct

or notify the danger.

In the present dispute, the investigation has not shed any light on the knowledge of the

authorities of Bulbuldesh of the safety and management shortcomings at MinarControl.

However, we submit that it is sufficient if such knowledge is inferred from the circumstances.

In the Corfu Channel Case , the ICJ stated:

43 Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom) (1925) 2 RepIntl Arbitral Awards 615, 642.44 Trail Smelter case (United States of America v Canada) (1938 and 1941) 3 Rep Intl Arbitral

Awards 1911.45 Trail Smelter case (United States of America v Canada) (1941) 3 Rep Intl Arbitral Awards1938, 1965.46

The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22.47 Home insurance company (USA) v. United Mexican States (1926) 4 Rep Intl Arbitral

Awards 48, 52.


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[T]he fact of this exclusive territorial control exercised by a State within its

frontiers has a bearing upon the methods of proof available to establish the

knowledge of that State as to such events. By reason of this exclusive control,

the other State, the victim of a breach of international law, is often unable to

furnish direct proof of facts giving rise to responsibility. Such a State should be

allowed a more liberal recourse to inferences of fact and circumstantial evidence.

This indirect evidence is admitted in all systems of law, and its use is recognized

by international decisions. 48

Considering that the State of Bulbuldesh is party to the Chicago Convention and has not

filed any difference with the Annexes to the Chicago Convention, it can be assumed that the

authorities of Bulbuldesh have implemented an ATS safety management programme. If

implemented properly and according to international standards, the authorities of Bulbuldesh

could not ignore the safety shortcomings at MinarControl. Accordingly, the Government of

Bulbuldesh had the obligation to take all measures that could reasonably be expected to

remedy the situation and prevent the loss of lives and damages likely to result from a mid-air

collision.

In the view of the Government of Mayur, the State of Bulbuldesh must be held responsible

for the violation of its commitments under international law by its authorities and

MinarControl.

B BULBULDESH MUST MAKE FULL REPARATION FOR THE INJURY CAUSED BY ITS

INTERNATIONALLY WRONGFUL CONDUCT

1 Preliminary considerations on the application of Article 84 of the Chicago

Convention

According to Article 84 of the Chicago Convention on International Civil Aviation (Chicago

Convention), [i]f any disagreement between two or more contracting States relating to the

48The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 18.


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interpretation or application of the [Chicago Convention] and its Annexes cannot be settled

by negotiation, it shall, on the application of any State concerned in the disagreement, be

decided by the Council [of the International Civi l Aviation Organization (ICAO)]. Article 84

further provides that the disagreement may be referred to the ICJ on appeal. 49

In the view of the Government of Mayur, Article 84 of the Chicago Convention does not

affect the admissibility of the present claims . Firstly, the competence of ICAOs Council

cannot be considered as exclusive since it is subject to the application of any State

concerned in the disagreement , and thus leaves the competence of ICAOs Council to the

discretion of the States parties to the dispute. In the present case, neither State has

approached ICAOs Council to render a decision. Furthermore, prior to proceeding to give a

judicial judgment, the Council must try to have the dispute settled through negotiations or

conciliation.50 It is only after this stage that the procedure in front of ICAO may be considered

as judicial, since this stage has not been reached in respect to the present dispute, any

proceedings that may have been engaged must be considered as negotiating processes and

thus cannot constitute preconditions to the seizure of the Court. 51

Article 84 of the Chicago Convention, therefore, does not imply that the claims should have

been first referred to ICAOs Council.

2 Mayur has l o c u s s t a n d i

The State of Mayur has locus standi in the present dispute. Its interests are directly injured

and it has the right to exercise diplomatic protection.

(a) Direct injury to the interests of the State of Mayur

49 Article 84 refers to the Permanent Court of International Justice, but see Article 37 of theStatute of the ICJ.50 L Weber International Civil Aviation Organization, An Introduction (Kluwer LawInternational 2007), 41.51 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua vUnited States of America) (Jurisdiction of the Court and Admissibility of the Application)[1984] ICJ Rep 392, 440; Case concerning the Land and Maritime Boundary betweenCameroon and Nigeria (Cameroon v Nigeria) (Preliminary Objections) [1998] ICJ Rep 275,307.


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The existence of a direct injury to the interest of a States depends on two main factors,

namely, the subject of the dispute and the nature of the claim; on the latter point it is

essential to determine the real interest of the claimant State. 52

Firstly, the State of Mayur has standing in the present dispute on the ground that its

interests were directly injured. As regards the subject of the dispute, direct injury is

established since the wrongful act of the State of Bulbuldesh has caused the destruction of

property owned by the State of Mayur. 53 As Mayur Airways is substantially owned and

effectively controlled by the State of Mayur, the destruction of the aircraft is a direct injury to

its interests. Moreover, by violating the Chicago Convention and Annex 11, the State of

Bulbuldesh has directly infringed the rights of Mayur. 54 It must, therefore, be concluded that

the State of Mayur has sustained direct injury and has standing.

(b) The Government of Mayur can bring claims on behalf of its nationals

The State of Mayur is also entitled to exercise diplomatic protection on behalf of its

nationals. Diplomatic protection, which has been confirmed as customary law in different

cases of the ICJ, 55 is a discretionary right of a State and includes, inter alia, the right to

initiate judicial proceedings on behalf of its nationals before the ICJ. The basic principle of

diplomatic protection was elaborated in the Mavrommatis Palestine Concession Case :56

By taking up the case of one of its subjects and by resorting to diplomatic action

or international judicial proceedings on his behalf, a state is in reality asserting its

52 T Meron The incident of the rule of exhaustion of local remedies (1959) 35 British YearBook of International Law 83, 85.53 PC Jessup A modern law of nations (Macmillan 1948), 120.54 CF Amerasinghe Local Remedies in International Law (Cambridge University PressCambridge 2004), 129. In the Heathrow Arbitration, the Tribunal has notably affirmed that therights and remedies under a international agreement are those of the Contracting States andonly they [can] enforce them. Arbitration Concerning Heathrow Airport User Charges (UnitedStates v United Kingdom) (1992, revised 1993), 24 Rep Intl Arbitral Awards 1, 53.55

LaGrand Case (Germany v United States of America) (Jurisdiction) [2001] ICJ Rep 466,483.56 Mavrommatis Palestine Concession Case (Greece v Britain) PCIJ Rep Series A No 02, 12.


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own rights, its rights to ensure, in the person of its subjects, respect for the rules

of international law.

Accordingly, the damage suffered by Mayur Airways must be considered as an injury to the

State of Mayur.

Customary international law recognises the existence of certain requirements that must be

met before a State can validly espouse its national's interest. The two main requirements are

the nationality of the injured party and the exhaustion of local remedies. 57

The State of Mayur has the right to exercise diplomatic protection in respect of the injured

nationals, both natural and legal persons including corporations. 58 In the Barcelona Traction

Case , the ICJ stated that i nternational law attributes the right of diplomatic protection of a

corporate entity to the State under the laws of which it is incorporated and in whose territory

it has its registered office .59 Furthermore, the ICJ pointed out that there should be a

permanent and close connection between the State exercising diplomatic protection and the

corporation.60 Mayur Airways is not only established and regulated under the laws of the

State of Mayur, but is also substantially owned and effectively controlled by the State of

Mayur. A permanent and close connection is, therefore, present and no doubt is left as to

whether Mayur can exercise diplomatic protection on behalf of Mayur Airways.

However, as will be demonstrated by the following considerations, the exhaustion of local

remedies is not required in cases where no relevant connection between the injured

individual and the defendant State exists. Examples of such relevant connection are avoluntary physical presence, residence, ownership of property or a contractual relationship

57 Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJRep 15, 46; Interhandel Case (Switzerland v United States of America) (PreliminaryObjections) [1959] ICJ Rep 6, 27.58 International Law Commission Yearbook of the International Law Commission, 2006, vol.II, Part Two UN Doc A/61/10. 59

Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment,Second Phase) [1970] ICJ Rep 3, 42.60 Ibid.


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with the respondent State. 61 First and foremost, the nature of diplomatic protection and the

local remedies rule has undergone major changes in recent times. The early history of

diplomatic protection is characterized by situations in which foreign nationals who reside and

carry on a business in a foreign State were injured by the conduct of that State. In such

situations, it could be expected from the injured individuals that they exhaust local remedies

in line with the philosophy that the national going abroad should normally be obliged to

accept the local law as he finds it, including the means afforded for the redress. 62 However,

nowadays, the probability that a private person is injured by a conduct which occurs in

another State, or by a foreign national or State with no real connection with the territory

where the injured person is located, is significantly higher. For instance, the shooting down of

an aircraft that accidentally entered into the airspace of a foreign State as illustrated by the

aerial incident in which Bulgaria shot down an El Al flight. In such cases, the fact that the

injured individual has no voluntary connection with the respondent State and thus no

territorial connection justifies the well-settled exception to the exhaustion of local remedies. 63

It is only when the alien has voluntarily established such a connection that local remedies

must be exhausted. This rule is notably affirmed by Article 15 (c) of the ILC Draft articles on

Diplomatic Protection, according to which local remedies do not need to be exhausted when

the relevant connection between the injured person and the allegedly responsible State is

absent. 64

Moreover, the general principle of law ex injuria jus non oritur further justifies the exception

of the exhaustion of local remedies. It would not be appropriate if a State which interferedillegally with an alien, who did not except for that interference have any connection with

61 T Meron The incident of the rule of exhaustion of local remedies (1959) 35 British YearBook of International Law 83, 94.62 C Eagleton The Responsibility of States in International Law (New York University PressNew York 1928), 96.63 Case concerning the Aerial Incident of July 27 1955 (Israel v Bulgaria) ICJ Pleadings 372,

531 f.64 International Law Commission Yearbook of the International Law Commission, 2006, vol.II, Part Two UN Doc A/61/10, 67 f.


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it, should be allowed to derive any advantage from its illegal acts. 65 More specifically, it

would be unreasonable, impractical and unfair to impose on the successors of a deceased

alien the requirement that legal remedies should be exhausted, when the alien died in a mid-

air collision over a foreign State. 66

Because no voluntary connection exists between Mayur Airways and the State of

Bulbuldesh, Mayur Airways cannot be required to exhaust local remedies. Therefore, the

State of Mayur can exercise diplomatic protection in respect to Mayur Airways and claim

compensation for the damage caused by Bulbuldesh.

3 Bulbuldesh is under an obligation to make reparations

The State of Mayur demonstrated that the State of Bulbuldesh violated its obligations,

firstly, to maintain adequate separation and to prevent the collision between both aircrafts,

secondly, to provide ATS in accordance with SARPs and, thirdly, to take all reasonable

measure to prevent damages to the State of Mayur. As International law recognizes that a

breach of an engagement involves an obligation to make reparations in an appropriate

form,67 the State of Bulbuldesh should indemnify for the damage caused by the mid-air

collision.

The customary character of this principle was notably affirmed by the ICSID in the ADC

Affiliate Limited and ADC & ADMC Management Limited v. Hungary case .68 The PCIJ also

endorsed the principle in its judgment in the Case Concerning the Factory at Chorzw 69:

65 E Jimnez de Archaga General Course in Public International Law (1978) 159 Recueildes Cours de lAcadmie de Droit international de la Haye 3, 296.66 General Assembly Report of the Interna tional Law Commission on the work of its fifty-fourth session (2002) Topical summary of the discussion held in the Sixth Committee of theGeneral Assembly during its fifty-seventh session, prepared by the Secretariat UN Doc

A/CN.4/529.67 Gabkovo -Nagymaros Project Case (Hungary v Slovakia) (Jurisdiction) [1997] ICJ Rep 7,80.68 ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (Award) ICSID Case No. ARB/03/16 (2006), [494-495].69 Case Concerning the Factory at Chorzw (Germany v Poland) (Claim for Indemnity) PCIJRep Series A No 09.


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[I]t is a principle of international law that the breach of an engagement involves

an obligation to make reparation in an adequate form. Reparation therefore is an

indispensable complement of a failure to apply a convention and there is no

necessity for this to be stated in the convention itself. 70

The reparations must, as far as possible, wipe out all the consequences of the illegal act

and reestablish the situation which would, in all probability, have existed if that act had not

been committed .71

In the present circumstances, the State of Bulbuldesh committed an internationally wrongful

act which caused significant damage to Mayur Airways. Thus, the State of Bulbuldesh mustpay damages to wipe out the consequences of the breach and put Mayur Airways in the

same position as it would have been if the breach had not occurred. Reparation may take the

form of restitution and satisfaction. However, such form of reparation is inadequate when

property was destroyed or naturally when lives were lost. 72 Hence, reparation must take the

form of monetary compensation as it is the only possible reparation.

Nevertheless, to give rise to an obligation of compensation, a causal link is required

between the wrongful conduct and the damage. 73 In order to establish the causal link

between the act or omission and the damage, the loss must be a normal and foreseeable

result of the act. 74 If a loss is a normal consequence of an act, it is attributable to an act as a

proximate cause. 75 To determine what can be considered as normal and foreseeable, the

belief of a reasonable person is the decisive factor.

70 Ibid 21.71 Case Concerning the Factory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series ANo 17, 47.72 International Law Commission Yearbook of the International Law Commis sion, 2001, vol.II, Part Two UN Doc A/56/10, 96. 73 X Hanqin Transboundary Damage in International Law (Cambridge University PressCambridge 2003), 89.74

B Cheng General Principles of Law Applied by International Courts and Tribunals (Stevens& Sons Ltd London 1953), 246.75 Ibid.


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As will be demonstrated by the Government of Mayur, a causal link is established in each of

the following claims. The Government of Mayur requests the State of Bulbuldesh:

- to compensate Mayur for the value of the destroyed aircraft;

- to indemnify and hold harmless Mayur Airways; and

- to compensate Mayur for any damage, expenditure, costs or injury already incurred or

incurred in the future.

(a) Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft

The ICJ noted in the Gab kovo-Nagymaros Project Case that it is a well-established rule

of international law that an injured state is entitled to obtain compensation from the statewhich has committed an internationally wrongful act for the damage caused by it. 76 This rule

is supported by Article 36 of ILC Draft articles on State responsibility, according to which the

responsible State is under an obligation to pay compensation for the damage caused by its

internationally wrongful conducts.

In the present dispute, the destroyed aircraft of Mayur Airways was a normal and

foreseeable result of the wrongful conducts attributable to the State of Bulbuldesh.

Additionally, it could have been foreseen that the incriminated conducts, notably those of

MinarControl, were likely to lead to a mid-air collision. Consequently, in order to put the State

of Mayur in the same position as it would have been if the aircraft had not been destroyed,

the State of Bulbuldesh must compensate for the loss of the aircraft.

The same principle was upheld in the Corfu Channel Case77

where the Court orderedcompensation for the destruction of the destroyer Samurez . Compensation is usually

assessed on the basis of the fair market value of the property loss. 78 The value is to be

76 Gabkovo -Nagymaros Project Case (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7,80.77 The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4.78 MN Shaw International Law (Cambridge University Press 2008), 805.


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determined at the time of the indemnification. 79 In the Corfu Channel Case , the Court found

that the true measure of compensation was the replacement cost of the [destroyed object]

at the time of its loss. 80 Consequently, the Government of Mayur submits that since all the

requirements for the compensation are met, Bulbuldesh must compensate Mayur for the

value of the destroyed aircraft suffered by the mid-air collision, namely US Dollar 40 million.

(b) Bulbuldesh shall indemnify and hold harmless Mayur Airways

The State of Bulbuldesh has to indemnify and hold harmless Mayur Airways regarding all

claims made by third parties in connection with the accident, including claims by

MorianCargo Airlines and the legal successors of the deceased passengers and crew abroadboth aircraft.

The damages owed to Mayur Airways may include, inter alia, the reimbursement of any

reasonable compensation which it has or will have to pay to second and third parties injured

in the mid-air collision.81 Indemnity is by definition a right which generally obligates the

indemnifier to reimburse the indemnified for a loss suffered because of a third partys or

ones own act or default. 82 In contrast, to hold harmless means to absolve another party from

any responsibility for damage or other liability arising from a claim of indemnification.83

Mayur Airways can be held liable by third parties in connection with the accident, including

but not limited to claims by MorianCargo Airlines. Even though the Convention on Damage

Caused by Foreign Aircraft to Third Parties on the Surface (1952 Rome Convention) 84 does

not apply in the present dispute as only the State of Mayur is a party to this Convention and

79 Case Concerning the Factory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series ANo 17, 47.80 The Corfu Channel Case (United Kingdom v Albania) (Judgment of December 15 th 1949) [1949] ICJ Rep 244, 249.81 Ibid 181.82 HC Black and BA Garner Blac ks Law Dictionary (West Group 2004), 783 f.83

Ibid 749.84 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface(adopted 7 October 1952, entered into force 4 February 1958) 310 UNTS 181.


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not Bulbuldesh, in which territory the accident occurred, 85 Mayur Airways can be sued on the

basis of national law of the State of Bulbuldesh.

In addition, Mayur Airways can be subject to claims made by the legal successors of the

deceased passengers based on Article 17 of the Convention for the Unification of Certain

Rules for International Carriage by Air (1999 Montreal Convention) 86, and to which the State

of Mayur is a Party. Since the Mayur Airways aircraft was en route to Mynia, also a State

Party, the place of departure and the place of destination are within the territories of two

State Parties, which implies that there was an international carriage of persons performed by

aircraft.87 Hence, the 1999 Montreal Convention is applicable.

Pursuant to Article 17 of the 1999 Montreal Convention, Mayur Airways is liable for damage

sustained in case of the death of a passenger due to the fact that the accident, here the mid-

air collision, which caused the death, took place on board the aircraft. In cases of death, an

action for damages lies in accordance with the terms of this Convention against those legally

representing the victim s estate. 88 Thus, the legal successors of the deceased passengers

are entitled to claim compensation. In the present dispute, the carrier is strictly liable for

damages not exceeding 100 000 SDR. 89 Above 100 000 SDR Mayur Airways is liable unless

it can prove that such damage was not the result of its negligence or wrongful act (nor of its

servants or agents) or that such damage was solely due to the negligence or other wrongful

act of a third party. 90 Consequently, for damages up to 100 000 SDR, a strict liability regime

rules the relationship between Mayur Airways and its passengers. Additionally, the possibility

for Mayur Airways to exonerate itself for damages over 100 000 SDR is merely theoretical.

Thus, it is expected that the liability of Mayur Airways will be considered as unlimited by

85 Ibid arts 1 and 23.86 Convention for the Unification of Certain Rules for International Carriage by Air (adopted28 May 1999 entered into force 4 November 2003) 2242 UNTS 309.87 Ibid art 1.88 Ibid art 32.89 Ibid art 21 para 1.90 Ibid art 21 para 2 b.


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Courts applying the 1999 Montreal Convention. Regarding the flight crew of both aircraft,

Mayur Airways can be held liable under national law.

In accordance with the Lusitania Case ,91 the legal successors of the deceased passengers

and crew members can claim:

1. Compensation for the death of passengers and crew members, including but not

limited to compensation for all loses of contributions, personal services, care, education

and supervision by the deceased person. 92

2. Compensation for mental suffering or shock caused by the violent separation of

family ties.93

The loss sustained by the claimant is calculated by the amount of these estimates reduced

to its present cash value. 94

As the wrongful conducts of the State of Bulbuldesh and the third party damage claims are

linked by a clear, unbroken connection, and as these damages are a normal and foreseeable

consequence of the wrongful conducts, they are recoverable.

The indemnity due consists of all losses already occurred and all losses which may be

considered as a normal consequence of the act causing the damage. 95 Moreover, it is not

required that the damage has already taken place for compensation to be recoverable. 96

Hence, Bulbuldesh must compensate both actual apparent damage and any damage in the

future as a result of the accident. Mayur Airways should, therefore, be indemnified and held

91 Opinion in the Lusitania Case (United States of America v Germany) (1923) 7 Rep Intl Arbitral Awards 32, 32.92 Aerial Incident of 3 July 1988 (Iran v United States of America) (Memorial of Iran) 1 ICJPleadings 11, 291.93 MM WhitemanDamages in International Law, vol. 1 (Government Printing Office 1937),682.94 Ibid.95 B Cheng General Principles of Law Applied by International Courts and Tribunals (Stevens

& Sons Ltd London 1953), 244.96 E Jimnez de Archaga General Course in Public International Law (1978) 159 Recueildes Cours de lAcadmie de Droit international de la Haye 3, 285-287.


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harmless by Bulbuldesh in respect to all present and future claims made by third parties and

legal successors of the deceased passengers and crew members.

(c) Bulbuldesh shall compensate Mayur for any damages, expenditure, costs and injury

already incurred and/or incurred in the future as a result of the accident

The State of Bulbuldesh has to compensate the State of Mayur for any present and future

damage, expenditure, costs or injury incurred as a result of the accident. More precisely, the

State of Mayur should, inter alia, be compensated for the loss of six experienced crew

members and for the losses caused by the disruption to Mayur Airw ays services. 97 That such

consequential damages must be awarded was confirmed by the ICJ in the Case concerning

military and paramilitary activities in and against Nicaragua 98:

Nicaraguas claim is justified not only as to the physical damage to its vessel s,

but also the consequential damage to its trade and commercial . 99

Additionally, the loss of profits must be compensated for has been confirmed by

international tribunals; such compensation was notably awarded in the Cape Horn Pigeon

Case 100 and the Saphire International Petroleums Ltd. V. National Iranian Oil Company

Case 101. In the CMS Gas Transmission Company v. Argentina Case , the ICSID also stated

that financially assessable damage [includes] loss of profits insofar as it is established. 102 In

particular, the temporary loss of use and enjoyment of the destroyed aircraft as an income-

producing asset has to be awarded, as recognized in arbitrations such as the Montijo Case,

97 Aerial Incident of 3 July 1988 (Iran v United States of America) (Memorial of Iran) 1 ICJPleadings 11, 291.98 Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v.United States of America) (Merits) [1986] ICJ Rep 14.99 Ibid 139.100 Affaire des navires Cape Horn Pigeon, James Hamilton Lewis, C. H. White et Kate and

Anna (United States of America v Russia) (1902) 9 Rep Intl Arbitral Awards 55, 63. 101 Saphire International Petroleums Ltd v National Iranian Oil Company (Award of 15 March

1963) 35 ILR 136, 187 and 189.102CMS Gas Transmission Company v Argentine Republic (Award) ICSID Case No ARB/01/8(2005), [401].


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where a sum of money per day for loss of use of an American vessel seized in Panama was

awarded. 103

Furthermore, all other expenditures and costs consequential to the destruction must be

compensated, including but not limited to:

- all expenses and costs which have been incurred by the claimant government in

connection to the dispute settlem ent, including legal costs and lawyers fees; 104

- all expenses and costs of pensions and other made to the successor of the deceased

persons by the State of Mayur. 105

103 The Montijo Case (Colombia v USA) (1875) 2 Moore International Arbitration 1421, 1437.104 MM WhitemanDamages in International Law, vol. 1 (Government Printing Office 1937),

791.105 The Corfu Channel Case (United Kingdom v Albania) (Judgment of December 15 th 1949)[1949]: ICJ Rep 244, 249 .


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S UBMISSIONS

May it please the Court, for the foregoing reasons, the State of Mayur, Applicant,

respectfully requests this Court to adjudge and declare that:

- Bulbuldesh is responsible for all damage caused by the mid-air collision in the airspace of

the State of Bulbuldesh;

- Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft, namely USD

40 million;

- Bulbuldesh shall indemnify and hold harmless Mayur Airways in respect of all claims

made by third parties in connection with the accident, including claims by MorianCargo

Airlines; the legal successors of the deceased passengers and crew aboard both aircraft,

including present and future claims;

- Bulbuldesh shall compensate Mayur for any damages, expenditure, costs (including legal

costs and lawyers fees) or injury already incurred and/or incurred in the future as a result o f

the accident.

The Honourable Court is further requested to declare such guidelines as it deems fit and

essential in the present case.

Applicant 2012 - air law moot

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