respondent 2012 - air law moot

8/12/2019 Respondent 2012 - air law moot

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INTERNATIONALAIR LAW MOOT COURT COMPETITION 2010

STRANGERS AND DANGERS IN THEAIR

MAYUR V.BULBULDESH

MEMORIAL SUBMITTED ON BEHALF OF THE STATE OF BULBULDESH

TEAM NUMBER 3RESPONDENT


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TABLE OF CONTENTS

List of Abbreviations ................................................................................................................ ivList of Sources..........................................................................................................................v

A. International Conventions.................................................................................................vB. Judicial Decisions.............................................................................................................v

1. International Court of Justice ........................................................................................ v2. Permanent Court of International Justice......................................................................v3. International arbitrations............................................................................................... vi4. Decisions of the International Centre for Settlement of Investment Disputes.............. vi5. National Decisions (United States of America) ............................................................ vi

C. Documents of international organizations ....................................................................... vi1. International Civil Aviation Organization ...................................................................... vi

(a) Standards and recommended practices ................................................................. vi(b) Procedures for air navigation services................................................................... vii(c) Other documents.................................................................................................... vii

2. International Court of Justice ...................................................................................... vii3. International Law Commission.................................................................................... vii4. United Nations Security Council.................................................................................. vii

D. Articles and Books ......................................................................................................... vii1. Articles ........................................................................................................................ vii2. Books ..........................................................................................................................viii

E. Other Sources ................................................................................................................viiiStatement of relevant facts...................................................................................................... ix

A. Introduction...................................................................................................................... ixB. Background facts............................................................................................................. ix

1. Block of airspace.......................................................................................................... ix2. Mayur Airways.............................................................................................................. ix3. MorianCargo Airlines.................................................................................................... ix


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C. Details of the events preceding the mid-air collision........................................................x 1. MinarControl..................................................................................................................x2. Mayur Airways aircraft...................................................................................................x3. MorianCargo Airlines aircraft........................................................................................ xi

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

1. Mayur Airways and MorianCargo Airlines aircraft ........................................................ xi2. Damages on the ground............................................................................................... xi

a. In the territory of Bulbuldesh..................................................................................... xib. In the territory of Minar ............................................................................................. xi

Issues..................................................................................................................................... xiiSummary of Arguments..........................................................................................................xiiiJurisdiction of the Court......................................................................................................... xivArgument..................................................................................................................................1

A. The State of Bulbuldesh has not violated any rules of international law .......................... 11. The authorities of Bulbuldesh have not breached any international obligations ...........1

(a) The obligations of the State of Bulbuldesh...............................................................1(i) The obligation to prevent injuries to the interests of other States..........................1(ii) Article 28 of the Convention on International Civil Aviation ..................................3

(b) Application to the facts.............................................................................................42. The conduct of MinarControl is not attributable to the State of Bulbuldesh ..................4

(a) The conduct of an entity exercising an element of governmental authority .............5(b) Article 28 of the Chicago Convention as lex specialis..............................................8

B. The claims made by the State of Mayur are contrary to international law........................91. Local remedies have not been exhausted in respect to claims on behalf of MayurAirways............................................................................................................................10 2. Purely hypothetical or speculative claims must be dismissed.....................................123. The State of Mayur cannot claim compensation for its own legal costs......................134. The ICJ must dismiss the claims made by Mayur as being contrary to international law........................................................................................................................................13


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C. The State of Bulbuldesh is under no obligation to pay compensation to Mayur in relationto the claims arising from the mid-air collision....................................................................14

1. Necessity of a causal link between the alleged internationally wrongful act and thedamage ...........................................................................................................................142. The causal link between the alleged wrongful conduct of Bulbuldesh and the damagesarising out of the mid-air collision is too tenuous to give rise to an obligation to paycompensation..................................................................................................................15

(a) Rules that should have guided the decisions of the controller and the flight crews.....................................................................................................................................15

(i) Rules that should have guided the decisions of MinarControl.............................15(ii) Rules that should have guided the decisions of the flight crews.........................15

(b) The decisions and omissions of the flight crews of Mayur Airways andMorianCargo are the causes of the collision ...............................................................17

(i) Assessment of the conduct of the Mayur Airways aircraft ...................................17(ii) Assessment of the conduct of the MorianCargo aircraft .....................................18(iii) Assessment of the conduct of MinarControl ......................................................18(iv) Assessment of the conduct of the authorities of Bulbuldesh .............................18

3. Conclusion .................................................................................................................. 19D. The State of Mayur must compensate for the damages in Bulbuldesh..........................19

1. Competence of the State of Bulbuldesh to claim damages in relation to the footballstadium and private property on its territory....................................................................19

(a) Permissibility of counter-claims..............................................................................19(b) The right of the State of Bulbuldesh to exercise diplomatic protection ..................20

2. Internationally wrongful acts of the State of Mayur .....................................................21(a) Inapplicability of the 1952 Rome Convention on damage caused by foreign aircraftto third parties on the surface......................................................................................21(b) Internationally wrongful act ....................................................................................22

(i) Applicable law......................................................................................................22(ii) Application to the facts........................................................................................23

(c) Claims for indemnities submitted by the State of Bulbuldesh ................................24Submissions...........................................................................................................................25


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LIST OFABBREVIATIONS

ACAS Airborne collision avoidance system

ATC Air traffic control

ATM Air traffic management

ATS Air traffic services

FL Flight level

Fpm Feet per minute

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

Nm Nautical miles

OPS Operations

PANS Procedures for air navigation services

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 4April 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.

Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24October 1945) S Rosenne Documents on the International Court of Justice (Nijhoff 1991)59.

Treaty on Principles Governing the Activities of States in the Exploration and Use of OuterSpace, including the Moon and Other Celestial Bodies (adopted 27 January 1967, enteredinto force 10 October 1967) 610 UNTS 205.

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

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts (adopted 8 June 1977, entered intoforce 7 December 1978) 1125 UNTS 3.

B.JUDICIAL DECISIONS

1. International Court o f Just ice

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

Colombian-Peruvian Asylum Case (Columbia v Peru) (Judgment)[1950] ICJ Rep 266.

Interhandel Case (Switzerland v United States of America) (Preliminary Objections)[1959]ICJ Rep 6.

North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands)(Judgment)[1969] ICJ Rep 3.

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

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

Application of the Convention on the Prevention and punishment of the crime of genocide(Bosnia and Herzegovina v Serbia and Montenegro) (Counter-claims, Order of 17December 1997)[1997] ICJ Rep 243.

2. Permanent Court of International Justice

Case of the S.S. Wimbledon (Great Britain, France and Japan v Poland)PCIJ Rep SeriesA No 01.

The Mavrommatis Palestine Concessions (Greece v Great Britain)PCIJ Rep Series A No02.


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

The Case of the S.S. Lotus (France v Turkey)PCIJ Rep Series A No 10.

Case Concerning the Factory at Chorzw (Germany v Poland) (Merits)PCIJ Rep Series ANo 17.

3. International Arbitrations

Administrative Decision No II (United States and Germany Mixed Claims Commission)(1923) 7 Rep Intl Arbitral Awards 23.

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

H G Venable (United States of America) v United Mexican States(1927) 4 Rep Intl ArbitralAwards 219.

Charles S Stephens and Bowman Stephens (United States of America v United MexicanStates(1927) 4 Rep Intl Arbitral Awards 265.

Responsabilit de lAllemagne raison des dommages causs dans les coloniesportugaises du sud de lAfrique(1928) 2 Rep Intl Arbitral Awards 1011.

Claim of Finnish shipowners against Great Britain in respect of the use of certain Finnishvessels during the war (Finland v Great Britain)(1934) 3 Rep Intl Arbitral Awards 1479.

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

The Ambatielos Claim (Greece v United Kingdom)(1956) 12 Rep Intl Arbitral Awards 83.

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

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

Noble Ventures Inc v Romania (Award)ICSID Case No ARB/01/11 (2005).

Pan American Energy LLC and BP Argentina Exploration Company v Argentine Republic(Decision on Preliminary Objections)ICSID Case No ARB/03/13 (2006).

5. National Decisions (United States of America)

Kirkham v Socit Air France429 F.3d 288.United States v Varig Airlines467 US 797.

C.DOCUMENTS OF INTERNATIONAL ORGANIZATIONS

1. International Civil Aviation Organization

(a) Standards and recommended practices

ICAO Annex 1 Personnel Licensing ICAO Doc AN 1.


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ICAO Annex 11 Air Traffic Services ICAO Doc AN 11.

ICAO Annex 15 Aeronautical Information Services ICAO Doc AN 15.

(b) Procedures for air navigation services

ICAO ATM Air Traffic ManagementICAO Doc4444.

ICAO OPS Aircraft Operations ICAO Doc 8168.

(c) Other documents

ICAO Airborne Collision Avoidance System (ACAS) Manual ICAO Doc 9863.

ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902,Resolution A36-13.

ICAO Directives to Divisional-type Air Navigation Meetings and Rules of Procedure for theirConduct ICAO Doc 8143.

2. International Court o f Just ice

Rules of the International Court of Justice (14 April 1978) S Rosenne Documents on theInternational Court of Justice (Nijhoff 1991) 205.

3. International Law Commission

International Law Commission Yearbook of the International Law Commission, 1991, vol.II, Part Two UN Doc A/46/10.



4. United Nations Security Council

United Nations Compensation Commission Report and Recommendations Made by thePanel of Commissioners Concerning the First Installment of F4 Claims (22 June 2001)S/AC.26/2001/16.

D.ARTICLES AND BOOKS

1. Articles

R Abeyratne Revenue and investment management of privatized airports and air

navigation services a regulatory perspective (2001) 7 Journal of Air TransportManagement 217.


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L Condorelli Limputation ltat dun fait internationalement illicite: solutions classiques etnouvelles tendances (1984) 189-IV Recueil des Cours de lAcadmie de DroitInternational de la Haye 13.

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

A Majumdar, Commercializing and restructuring air traffic control: A review of theexperience and issues involved (1995) 2 Journal of Air Transport management 111.

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 (2003)XXVIII Annals of Air and Space Law 57.

2. Books

A W Bradley and J Bell Governmental Liability: A Preliminary Assessment in J Bell and A

W Bradley (eds) Governmental Liability: A Comparative Study(United Kingdom NationalCommittee of Comparative Law 1991) 1.

I Brownlie Principles of Public International Law(Oxford University Press 2008).

T Buergenthal Law-Making in the International Civil Aviation Organization (SyracuseUniversity Press 1969).

S. Rosenne Procedure in the International Court: a commentary on the 1978 Rules of theInternational Court of Justice(Nijhoff 1983).

L Weber International Civil Aviation Organization, An Introduction (Kluwer Law International2007).

E.OTHER SOURCES

Honeywell Collision Avoidance System Users Manual(2000).


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STATEMENT OF RELEVANT FACTS

A.INTRODUCTION

The present dispute arises from a mid-air collision (the mid-air collision) between a Mayur

Airways civil aircraft and a MorianCargo Airlines civil aircraft. The collision occurred on 17

October 2007 within a block of airspace above the territory of the State of Bulbuldesh

(hereafter referred to as the block of airspace).

B.BACKGROUND 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.

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

of Minar.

2. Mayur Ai rways

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 of

the 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. MinarContro l

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 FL350 so as to ensure vertical separation between both aircraft.

At 11:34:58, an acoustic short-term conflict alert was issued.

At 11:35:01, the duty controller reiterated the instruction given to the Mayur Airways aircraft

to descend immediately to FL350.

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

2. Mayur Airways aircraft

At 11:34:42, a traffic announcement was issued by the airborne collision avoidance system.

At 11:34:49, the flight crew was instructed to descend to FL350. The instruction was

followed but not confirmed to MinarControl.

At 11:34:56, an RA to climb was issued by the airborne collision avoidance system. The

flight crew did not respond to the resolution advisory and continued its manoeuvre in the

opposite sense of the resolution advisory.

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

its descent but did not notify the conflicting resolution advisory.

At 11:35:24, a second resolution advisory to increase climb was issued by the airborne

collision avoidance system.

At 11:35:29, the aircraft collided.


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3. MorianCargo Airlines aircraft

At 11:34:42, a traffic announcement was issued by the airborne collision avoidance system.

At 11:34:56, a resolution advisory to descend was issued by the airborne collision

avoidance system. The flight crew did not immediately respond to the resolution advisory.

At 11:35:17, the flight crew responded to the resolution advisory 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 passengers and crew members were killed

instantly.

2. Damages on the ground

a. In the territory of Bulbuldesh

Citizens of Bulbuldesh were severely wounded or killed by the debris of the aircraft.

Significant damage was caused to property, including to residential buildings and to a football

stadium.

Intensive emergency response measures were taken, including the provision of first aid and

shelters.

b. In the territory of Minar

Citizens of Minar were severely wounded by the debris of the aircraft, and significant

damage to property was caused.


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SUMMARY OFARGUMENTS

The Government of Bulbuldesh shall demonstrate that its authorities have not violated any

rule of international law and show that all reasonable measures expected to ensure the

safety of aircraft flying through its airspace were taken. In addition, the Government of

Bulbuldesh, will show it has complied with Article 28 of the Chicago Convention and Annex

11 to the Chicago Convention, through inter aliathe implementation of an air traffic services

safety management programme. Furthermore, the Government of Bulbuldesh will establish

that it bears no international responsibility for the conduct of MinarControl, since the services

provided to the Mayur Airways aircraft were not governmental in nature and since

MinarControl is not empowered by the law of Bulbuldesh.

In the second part of the arguments, the Government of Bulbuldesh will show that the

claims made by Mayur must be dismissed by the Court. The grounds which are advanced by

the Government of Bulbuldesh are that certain claims are speculative and hypothetical,

claims for legal costs are contrary to Article 64 of the Statute of the International Court of

Justice, and that local remedies were not exhausted in respect to claims made on behalf of

Mayur Airways.

In the third part of the arguments, the Government of Bulbuldesh will show that the causal

link between the allegedly wrongful conduct and the damages is too tenuous and distant to

give rise to compensation. It will demonstrate that the primary cause of the mid-air collision is

the conduct of the Mayur Airways flight crew.

In the last part of the arguments, the Government of Bulbuldesh will show that the State of

Mayur breached its commitments under Articles 12 and 32 (a) of the Chicago Convention

and Annex 1; and must compensate for the damages sustained as a consequence of these

breaches.


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JURISDICTION OF THE COURT

The competence of the Court in respect to the present dispute is based on Article 36 (2) of

the Statute of the International Court of Justice, since both States have expressed their

acceptance to the compulsory jurisdiction of the Court.

While both States had the possibility to appear before the Council of the International Civil

Aviation Organization in accordance with Article 84 of the Convention on International Civil

Aviation, none submitted an application. In the view of the Government of Bulbuldesh, the

International Court of Justice is the most appropriate forum to settle the dispute considering

that it is not limited to disagreements relating to the interpretation or application of the

Chicago Convention but extends to questions of public international law that require the

expertise of the International Court of Justice.

Since it believes that the judicial and peaceful settlement of the dispute will allow preserving

its friendly relations with the Government of Mayur, the Government of Bulbuldesh has

decided not to raise any preliminary objections. It nevertheless reserves the right to advance

legal arguments that could have precluded the competence of the Court.


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ARGUMENT

A.THE STATE OF BULBULDESH HAS NOT VIOLATED ANY RULES OF INTERNATIONAL LAW

According to a customary rule of international law, an internationally wrongful act consists in

an act or omission which can be attributed to the State under international law and which

constitutes a breach of an international obligation of the State.1As will be demonstrated, no

international obligation has been breached by the authorities of Bulbuldesh. Moreover, it will

be determined that the conduct of MinarControl is not attributable to the State of Bulbuldesh

and therefore does not constitute an internationally wrongful act.

1. The authorit ies of Bulbuldesh have not breached any international obligations

(a) The obligations of the State of Bulbuldesh

(i) The obligation to prevent injuries to the interests of other States

Under public international law, a State may be responsible for the failure of its organs to

prevent injuries to the rights of other States. In the British Claims in the Spanish Zone of

Morocco arbitration2, the arbitrator considered that if a State is not responsible for a conduct

in itself, it could nevertheless be responsible for what the authorities did or failed to do to

avoid the consequences of the conduct.3However, according to the arbitrator, the vigilance

that must be exercised by a State4does not go beyond what can reasonably be expected

given the actual situation.5 The arbitrator notably contends that a State shall not be held

responsible if it was not in a position to prevent the injury and concludes that a State is only

1International Law Commission Yearbook of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10, 34.2Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom)(1925) 2 RepIntl Arbitral Awards 615.3Ibid 642.4Ibid.5Ibid 644.


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obliged to exercise the degree of surveillance that corresponds to the means that are at its

disposal.6

This principle was also affirmed by the International Court of Justice (ICJ) in the Corfu

Channel Case. The dispute arose from the damages that were caused to British warships by

mines laid in Albanias territorial waters. Albania could not be held responsible for the mine-

laying as the authors were unknown. Nevertheless, the ICJ held that the Albanian authorities

had an obligation to warn the approaching British warships of the imminent danger posed by

the minefield in Albanian territorial waters.7Of course, such an obligation could only have

existed if the authorities were aware of the danger. In its decision, the ICJ considered that it

cannot be concluded from the mere fact of the control exercised by a State over its territory

that State necessarily knew, or ought to have known, of any unlawful act perpetrated

therein8, and that [t]his fact, by itself and apart from other circumstances, neither involves

prima facie responsibility nor shifts the burden of proof.9The ICJ considered that it had to

examine whether it had been established that Albania had knowledge of mine-laying in its

territorial waters and that while the proof could be drawn from inferences of fact, they could

leave no room for reasonable doubt.10

In the view of Government of Bulbuldesh, the ICJs reasoning in the Corfu Channel Case

must be applied to the present dispute. Even if MinarControls practices and conduct prior to

the mid-air collision had been contrary to international law, the mere fact that the damages

and the conduct took place within the jurisdiction of the State of Bulbuldesh does not in itself

give rise to its international responsibility. The State of Bulbuldesh could only be held

responsible if it had been aware of the unlawful conduct at MinarControl alleged to have led

or contributed to the mid-air collision.

6Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom) (1925) 2 RepIntl Arbitral Awards 615, 644.7The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22.8Ibid 18.

9Ibid.10Ibid.


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(ii) Article 28 of the Convention on International Civil Aviation

According to Article 28 of the Convention on International Civil Aviation (Chicago

Convention)11, [e]ach contracting State undertakes, so far as it may find practicable, to

[p]rovide, in its territory radio services, meteorological services and other air navigation

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

practices recommended or established from time to time, pursuant to this Convention. The

Chicago Convention, therefore, leaves the decision to provide air traffic services (ATS) and

the details of their establishment to the discretion of the territorial States.12Notably, while

ATS are often entrusted to a governmental agency, a State may also delegate their provision

to another State or a privatized entity.13

Pursuant to Article 28, the territorial State must ensure that ATS are provided in accordance

with the Chicago Convention and international standards and recommended practices

(SARPs), i.e. the Annexes to the Chicago Convention and in particular Annex 11 to the

Chicago Convention (Annex 11)14. Accordingly, States must supervise the provision of ATS

in their airspace and will be responsible if they fail to monitor and ensure compliance with

SARPs. In this regard, the most important standards are found in Section 2.26 of Annex 11.

Standard 2.26.1 requires States to implement systematic and appropriate ATS safety

management programmes to ensure that safety is maintained in the provision of ATS within

airspaces and at aerodromes.15The ATS safety management programme shall provide for

continuous monitoring and regular assessment of the safety level achieved and ensure that

remedial action necessary to maintain an acceptable level of safety is implemented.16

11Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4April 1947) 15 UNTS 295.12F Schubert The Liability of Air Navigation Services in the Single European Sky (2003)XXVIII Annals of Air and Space Law 57, 62.13Annex 11, Standards 2.1.1 and 2.1.3; F Schubert The Liability of Air Navigation Servicesin the Single European Sky (2003) XXVIII Annals of Air and Space Law 57, 62.14ICAO Annex 11 Air Traffic Services ICAO Doc AN 11.15Ibid, Standard 2.26.1.16Ibid, Standard 2.26.4.


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(b) Application to the facts

In view of the foregoing considerations, it is undisputed that the authorities of Bulbuldesh

have an obligation to ensure that the provision of ATS within the block of airspace complies

with international law and SARPs. If the authorities of Bulbuldesh had discovered any

shortcoming in safety or any risk for civil aviation, they would have had the obligation to take

all necessary remedial measures and prevent any damage to other States.

The Government of Bulbuldesh being well aware of its obligations under Article 28 and

Annex 11 has implemented an ATS safety management programme and monitored

MinarControls provision of ATS. The authorities of Bulbuldesh have notably ensured that

MinarControl was adequately equipped and that its practices met the requirements laid down

in SARPs. Unfortunately, the arrangements that have put increased work load on the duty

controller were unknown from the authorities of Bulbuldesh. As the investigators determined,

these arrangements were informal internal arrangements that were contrary to the official

practices submitted for approval to the authorities of Bulbuldesh. In addition, the quality of

the briefing given to the controllers with regard to the technical works which were taking

place during the events is undoubtedly beyond the supervision that can be reasonably

expected from the authorities of Bulbuldesh.

The Government of Bulbuldesh, therefore, submits that it took all reasonable measures that

could be expected given the circumstances to ensure the safety of the aircraft using its

airspace; and that it adequately implemented Article 28 of the Chicago Convention and

Annex 11.

2. The conduct of MinarControl is not attributable to the State of Bulbuldesh

In their inquiry, the inspectors have identified several shortcomings at MinarControl that are

alleged to have contributed to the mid-air collision. However, even if MinarControls conduct

violated international law, it is not attributable to the State of Bulbuldesh and therefore does

not constitute an internationally wrongful act giving rise to the international responsibility.


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For a State to be responsible under international law, the act or omission which has

breached international law must be attributable to that State. The general rule in this respect

is that only the conduct of a States organ is attributable to a State. However, international

law admits that in certain cases the conduct of a private person or group of persons must be

regarded as a conduct of the State. Most notably, international courts have admitted that the

conduct of a private entity can be attributed to a State when it exercises an element of

governmental authority.17

(a) The conduct of an entity exercising an element of governmental authority

In the Emilio Agustn Maffezini v Spain18, the International Centre for Settlement of

Investment Disputes (ICSID) held that a State could be responsible for the conduct of a

private corporation established to pursue public policies.19 The ICSID, however, clearly

stated that a State would only be responsible for a conduct occurring within the exercise of

functions essentially governmental in nature20. This principle was notably codified by the

International Law Commission (ILC) in Article 5 of its Draft articles on Responsibility of States

for Internationally Wrongful Acts (Draft articles on State responsibility):21

The 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 governmental

authority shall be considered an act of the State under international law, provided

the person or entity is acting in that capacity in the particular instance.22

17 See Charles S Stephens and Bowman Stephens (United States of America v UnitedMexican States (1927) 4 Rep Intl Arbitral Awards 265, 267; Noble Ventures Inc v Romania(Award)ICSID Case No ARB/01/11 (2005), [70].18Emilio Agustn Maffezini v Spain (Award)ICSID Case No ARB/97/7 (2000).19Ibid [57].20Ibid.21International Law Commission Yearbook of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10, 31.22Ibid 42.


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case of MinarControl. Indeed, the 1962 agreement providing that MinarControl would be the

exclusive ATS provider in the block of airspace was never ratified and therefore never

entered into force. As the ICJ stated in the North Sea Continental Shelf Cases:

[i]n principle, when a number of States have drawn up a convention

specifically providing for a particular method by which the intention to become

bound by the rgime of the convention is to be manifested namely by the

carrying out of certain prescribed formalities , it is not lightly to be presumed

that a State which has not carried out these formalities, though at all times fully

able and entitled to do so, has nevertheless somehow become bound in another

way.29

Notably, it cannot be contended that the delegation of the provision of ATS has acquired

the status of customary international law. As affirmed by the Permanent Court of

International Justice in the Case of the S.S. Lotus, it is only possible to speak of an

international custom when the practice of States is based on their being conscious of having

a duty to act or abstain.30The existence of a continuous practice is, therefore, not sufficient

for a rule to become customary; a second element, the opinio juris sive necessatis, is

required. To cite one example, in the Columbian-Peruvian asylum case, the ICJ refused to

recognize the customary character of a rule relating to asylum on the ground that it was not

shown that the alleged rule was invoked or that it was exercised by the States as

a right appertaining to them and respected by the territorial States as a duty incumbent on

them and not merely for reasons of political expediency.31

In the view of the Government of Bulbuldesh, the decision of both States to delegate the

provision of ATS within the block of airspace to MinarControl and the continuous practice

which followed were motivated by mere practical reasons and were certainly not considered

29 North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands)(Judgment)[1969] ICJ Rep 3, 26.30The Case of the S.S. Lotus (France v Turkey) PCIJ Rep Series A No 10, 28.31 Colombian-Peruvian Asylum Case (Columbia v Peru) (Judgment) [1950] ICJ Rep 266,277.


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as binding legal obligations for any of the two States involved. The existence of a custom

can, therefore, not be reasonably asserted.

In conclusion, considering that MinarControl did not provide a service essentially

governmental in nature, and considering that MinarControl was not empowered by the laws

of Bulbuldesh, the conduct of MinarControl is not attributable to the State of Bulbuldesh.

(b) Article 28 of the Chicago Convention as lex specialis

It has been argued that Article 28 of the Chicago Convention must be interpreted as a lex

specialis automatically attributing the conduct of an ATS provider to the territorial State.32For

instance, Abeyratne contends that Article 28 of the Chicago Convention imposes legal

responsibility upon the State to be accountable under public international law for any liability

incurred as a result of the provision of services and infrastructure under Article 28. 33

Abeyratne supports his conclusion by arguing that the legal principles that are incorporated

in Treaties become customary international law by virtue of Article 38 of the 1969 Vienna

Convention on the Law of Treaties34 and that Article 28 of the Chicago Convention,

therefore, becomes a principle of customary international law, or jus cogens.

35 He adds,

[o]bligations arising from jus cogens are considered applicable erga omnes which would

mean that States owe a duty of care to the world at large in the provision of such technology.36However, and aside from the confusion between customary law and jus cogensand the

inaccuracies on the formation of customary law it contains, such reasoning contradicts the

essence of the notion of jus cogens. A rule of jus cogens is, according to Article 53 of the

Vienna Convention on the Law of Treaties37, a rule accepted and recognized by the

32 R Abeyratne Revenue and investment management of privatized airports and airnavigation services a regulatory perspective, (2001) 7 Journal of Air TransportManagement 217, 225.33Ibid.34Ibid.35Ibid.36

Ibid.37Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27January 1980) 1155 UNTS 331.


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international community of States as a whole as a norm from which no derogation is

permitted, and derogations to Article 28 are clearly permitted by Article 89 of the Chicago

Convention.

The allegation that Article 28 is a sufficient basis to attribute all conducts of ATS providers

to the territorial State is also contradicted by the wording of Article 28 of the Chicago

Convention and the discretion it leaves to States. Indeed, the practice of States shows that

such exceptional regimes are expressed in an unambiguous manner in international

agreements. One example is found in the Treaty on Principles Governing the Activities of

States in the Exploration and Use of Outer Space, including the Moon and Other Celestial

Bodies38. Its Article VI provides that States Parties to the Treaty shall bear international

responsibility for national activities in outer space ..., whether such activities are carried on by

governmental agencies or by non-governmental entities. Considering the differences

between the wordings of both provisions, it cannot be presumed that Article 28 of the

Chicago Convention so significantly extends the responsibility of the territorial State.

B.THE CLAIMS MADE BY THE STATE OF MAYUR ARE CONTRARY TO INTERNATIONAL LAW

In the view of the Government of Bulbuldesh, the claims made by the State of Mayur are

contrary to international law. Firstly, local remedies have not been exhausted in respect to

claims made on behalf of Mayur Airways. Secondly, some of Mayurs claims are hypothetical

and unquantifiable. Thirdly, the Government of Mayur cannot claim compensation for its own

legal costs and lawyers fees.

38Treaty on Principles Governing the Activities of States in the Exploration and Use of OuterSpace, including the Moon and Other Celestial Bodies (adopted 27 January 1967, enteredinto force 10 October 1967) 610 UNTS 205. Another example of a regime which extends theresponsibility of States is found in international humanitarian law; see Protocol Additional tothe Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims ofInternational Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978)

1125 UNTS 3, art 91; L Condorelli Limputation ltat dun fait internationalement illicite:solutions classiques et nouvelles tendances (1984) 189-IV Recueil des Cours de lAcadmiede Droit International de la Haye 13.


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1. Local remedies have not been exhausted in respect to claims on behalf of Mayur

Ai rways

The rule that all available and effective local remedies must be exhausted by the injured

alien before diplomatic and judicial protection may be exercised on its behalf is a well-

established rule of customary international law39. In the Elettronica Sicula S.p.A. (ELSI)

Case40, the ICJ stated the rule in the following terms:

for an international claim to be admissible, it is sufficient if the essence of the

claim has been brought before the competent tribunals and pursued as far as

permitted by local law and procedures, and without success.41

Compliance with this rule is of the utmost importance since it ensures that the State where

the violation occurred [has] an opportunity to redress it by its own means, within the

framework of its own domestic legal system.42 A State has the right to demand that full

advantage has been taken of all remedies before the dispute is taken to the international

level by the State whose nationals have been injured.43

The main rationale for the obligation of prior exhaustion of local remedies is State

sovereignty and each States competence to deal with claims through its judicial authorities:

this respect for the sovereignty of States is brought about by giving priority to the jurisdiction

of the local courts of the State in cases of foreigners. 44 If the alien had the possibility to

elude local remedies, it would give him a privileged position compared to the nationals of the

39Interhandel Case (Switzerland v United States of America) (Preliminary Objections) [1959]ICJ Rep 6, 27. See also, International Law Commission Yearbook of the International LawCommission, 2001, vol. II, Part Two UN Doc A/56/10, 120.40Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJRep 15.41Ibid 46.42Interhandel Case (Switzerland v United States of America) (Preliminary Objections) [1959]ICJ Rep 6, 27.43The Ambatielos Claim (Greece v United Kingdom) (1956) 12 Rep Intl Arbitral Awards 83,119.44 Interhandel Case (Switzerland v United States of America) (Separate Opinion of JudgeCrdova) [1959] ICJ Rep 6, 45.


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respondent country by allowing him to ignore local laws and benefit from the political

influence of its State.45Such premature diplomatic intervention infringes the sovereignty of

the State concerned and its right to exercise judicial power over the persons falling within its

jurisdiction.46

Even if Article 15 (c) of the ILCs Draft Articles on Diplomatic Protection indicates that local

remedies do not need to be exhausted when the relevant connection between the injured

person and the allegedly responsible State is absent, this exception to the local remedies

rule is not generally admitted by neither judicial authority nor State practice.47 On the

contrary, tribunals have upheld the applicability of the local remedies rule even in the

absence of a voluntary link between the injured alien and the respondent State.48

Since the requirement that local remedies must be exhausted only applies in respect to the

exercise of diplomatic protection and not to direct injuries to a State, 49and considering that

Mayur Airways is substantially owned and effectively controlled by the State of Mayur, it may

be contended that the damages sustained by Mayur Airways are direct injuries. However, in

the view of the Government of Bulbuldesh this conclusion must be refuted. Firstly, it is widely

accepted that a State shall be treated as a private entity with regard to its commercial

activities and such acts are not protected by sovereign immunity nor subject to the

jurisdiction of other States.50 Concluding that the local remedies rule does not apply to a

State-owned commercial company would, therefore, be in contradiction with this rule of

international law. Secondly, according to the ICJ, an act infringing only the companys

45E Jimnez de Archaga General Course in Public International Law (1978) 159 Recueildes Cours de lAcadmie de Droit international de la Haye 3, 292.46Ibid.47International Law Commission Yearbook of the International Law Commission, 2006, vol.II, Part Two UN Doc A/61/10, 81.48Claim of Finnish shipowners against Great Britain in respect of the use of certain Finnishvessels during the war (Finland v Great Britain) (1934) 3 Rep Intl Arbitral Awards 1479,1504; The Ambatielos Claim (Greece v United Kingdom) (1956) 12 Rep Intl Arbitral Awards83, 99.49I Brownlie Principles of Public International Law(Oxford University Press 2008), 496 f.50See Kirkham v Socit Air France 429 F.3d 288, 293; and, International Law CommissionYearbook of the International Law Commission, 1991, vol. II, Part Two UN Doc A/46/10, 44.


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3. The State of Mayur cannot claim compensation for its own legal costs

In the view of the Government of Bulbuldesh, the State of Mayur is not entitled to claim

compensation for its own legal costs.56According to Article 64 of the Statute of the ICJ57and

Article 97 of the Rules of the ICJ58, each State is to bear its own costs unless the Court

decides otherwise. However, such a decision will only be taken in cases where the

proceedings are conducted in an abusive manner and, in particular, when vexatious or

delaying tactics are employed.59 In the present dispute, there is no justification for an

exception to Article 64 of the Statute of the ICJ. Accordingly, the Government of Mayurs

claim that Bulbuldesh must compensate for its legal costs and lawyers fees is contrary to

international law, and in particular Article 64 of the Statute of the ICJ.

4. The ICJ must dismiss the claims made by Mayur as being contrary to international

law

In the view of the Government of Bulbuldesh, the ICJ must dismiss the claims made on

behalf of Mayur Airways as Mayur Airways has not exhausted local remedies. Moreover

claims for uncertain and hypothetical damages must also be dismissed, along with claims for

its own legal costs.

56Case of the S.S. Wimbledon (Great Britain, France and Japan v Poland) PCIJ Rep SeriesA No 01, 33.57Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24October 1945) S Rosenne Documents on the International Court of Justice(Nijhoff 1991) 59.58Rules of the International Court of Justice (14 April 1978) S Rosenne Documents on theInternational Court of Justice(Nijhoff 1991) 205.59S. Rosenne Procedure in the International Court: a commentary on the 1978 Rules of theInternational Court of Justice(Nijhoff 1983), 200.


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C.THE STATE OF BULBULDESH IS UNDER NO OBLIGATION TO PAY COMPENSATION TO

MAYUR IN RELATION TO THE CLAIMS ARISING FROM THE MID-AIR COLLISION

1. Necessity of a causal link between the alleged internationally wrongful act and the

damage

The obligation to make reparation for damages caused by any internationally wrongful act is

undisputed and has been asserted by the Permanent Court of International Justice in the

Chorzw Factory Case.60

However, to give rise to compensation, a causal link is required between the conduct and

the damage.61 International decisions are uniform in this respect and courts have notably

refused to award compensation for damage which is not connected or which only has a

tenuous link to the wrongful act62, for damage which is too indirect and remote 63, or

indemnities for injuries which were caused by other proximate causes. 64 It is notably

accepted that damages which are only linked to the initial act by an unforeseeable set of

circumstances and which could only occur because of causes foreign to the author of the

initial act must be excluded.65

60Case Concerning the Factory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series ANo 17, 47.61Administrative Decision No II (United States and Germany Mixed Claims Commission)(1923) 7 Rep Intl Arbitral Awards 23, 30. See also,International Law Commission Yearbookof the International Law Commission, 2001, vol. II, Part Two UN Doc A/56/10, 91.62Case of the S.S. Wimbledon (Great Britain, France and Japan v Poland)PCIJ Rep SeriesA No 01, 32; United Nations Compensation Commission Report and RecommendationsMade by the Panel of Commissioners Concerning the First Installment of F4 Claims (22June 2001) S/AC.26/2001/16, 13 f.63Trail Smelter case (United States of America v Canada) (1938) 3 Rep Intl Arbitral Awards1911, 1931.64 Responsabilit de lAllemagne raison des dommages causs dans les coloniesportugaises du sud de lAfrique (1928) 2 Rep Intl Arbitral Awards 1011, 1031.65Ibid.


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2. The causal link between the alleged wrongful conduct of Bulbuldesh and the

damages arising out of the mid-air coll ision is too tenuous to give rise to an obligation

to pay compensation

An analysis of the facts demonstrates that the causal link between the conducts attributable

to the State of Bulbuldesh and the mid-air collision is too tenuous to give rise to an obligation

to compensate for the damages arising from the mid-air collision.

(a) Rules that should have guided the decisions of the controller and the flight crews

Before analyzing the facts, it is important to recall the main rules that should have been

complied with by the flight crews of both aircraft and by the controller on duty at

MinarControl.

(i) Rules that should have guided the decisions of MinarControl

The main rules governing air traffic control services are found in Annex 11 and in the

International Civil Aviation Organizations (ICAO) Procedures for Air Navigation Services for

Air Traffic Management (PANS-ATM).66 According to Standard 3.3.1 of Annex 11, the air

traffic controller must issue clearances and information for the purpose of preventing collision

between aircraft under its control. Such separation must be obtained by vertical separation,

horizontal separation, or a combination of both.67 The separation minima that must be

maintained, and the methods that should be used to that end, are described in Chapter 5 of

PANS-ATM.

(ii) Rules that should have guided the decisions of the flight crews

The conduct that must be adopted by flight crews in response to the airborne collision

avoidance system (ACAS) announcements and resolutions is detailed in several documents

adopted by ICAO. The most important rules in that respect are found in the Procedures for

66ICAO ATM Air Traffic ManagementICAO Doc4444.67Annex 11, Standard 3.3.4.


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Air Navigation Services on Aircraft Operations (PANS-OPS).68Chapter 3 of Part III, Section

3, describes the conduct a pilot must adopt in response to ACAS traffic advisories (TA) and

resolution advisories (RA):

b) on receipt of a TA pilots shall use all available information to prepare for

appropriate action if an RA occurs; and

c) in the event of an RA, pilots shall:

1) respond immediately by following the RA as indicated, unless doing so

would jeopardize the safety of the aeroplane;

2) follow the RA even if there is a conflict between the RA and an air traffic

control (ATC) instruction to manoeuvre;

3) not manoeuvre in the opposite sense to an RA;

4) as soon as possible, as permitted by flight crew workload, notify the

appropriate ATC unit of any RA, which requires a deviation from the current

ATC instruction or clearance.

These rules are confirmed in ACAS manuals, which also add that the pilot flying the aircraft

is expect to initiate the appropriate RA manoeuvre within 5 seconds of when the RA is first

displayed.69

68ICAO OPS Aircraft Operations ICAO Doc 8168. Procedures for air navigation servicesdo not have the same legal status as compared to international standards. Their importanceshould however not be underestimated, mainly since the main reason why they are notadopted as SARPS being that they are too detailed (ICAO Directives to Divisional-type Air

Navigation Meetings and Rules of Procedure for their Conduct ICAO Doc 8143, Part II, Rule3.1). Moreover, they have been gradually assimilated to SARPS to the extent that theAssembly lumps these regulatory materials together in setting guidelines for their formulationand implementation. (T Buergenthal Law-Making in the International Civil AviationOrganization (Syracuse University Press 1969), 117; see also L Weber International CivilAviation Organization, An Introduction (Kluwer Law International 2007), 67). Accordingly,their implementation is considered as very desirable (PANS-OPS, xvii) and recommendedby ICAOs Assembly (ICAO Assembly Resolutions in Force (as of 28 September 2007)ICAO Doc 9902, Resolution A36-13, Appendix D), and differences between nationalregulations and practices and PANS are to be published in national Aeronautical InformationPublications (ICAO Annex 15 Aeronautical Information Services ICAO Doc AN 15,standard 4.1.2).69 ICAO Airborne Collision Avoidance System (ACAS) Manual ICAO Doc 9863, 124 f;Honeywell Collision Avoidance System Users Manual (2000), 12.


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(b) The decisions and omissions of the flight crews of Mayur Airways and MorianCargo are

the causes of the collision

(i) Assessment of the conduct of the Mayur Airways aircraft

The decisions of the Mayur Airways aircraft must be assessed in the light of the rules

described above.

At 11:34:42, the Mayur Airways flight crew was alerted by a TA and should have prepared

for appropriate action.

At 11:34:49, the Mayur Airways flight crew was instructed to descend to flight level (FL) 350

by MinarControl; instruction which was followed, though not confirmed to MinarControl.

At 11:34:56, the Mayur Airways flight crew received an RA instruction to climb. It should

have complied with the RA instruction within 5 seconds (i.e. initiate the climb by 11:35:01)

and notified MinarControl as soon as possible. Instead, the Mayur Airways aircraft

disregarded the PANS-OPS and ACAS manuals and continued its descent.

Had the Mayur Airways reacted properly in response to the RA instruction, both aircraft

would have been sufficiently vertically separated at the location where their horizontal flight

paths converged. More precisely, if the flight crew had followed the RA and initiated a climb

within 5 seconds (28 seconds before the collision) and at a vertical speed of 1500 fpm 70, the

Mayur Airways aircraft could have been more than 700 ft above its actual altitude at the time

of the collision, which would have avoided the accident.

In the light of these considerations, the Government of Bulbuldesh considers that the

decision of the Mayur Airways aircraft to disregard the RA instruction is the primary cause of

the accident.

70

The vertical speed of 1500 fpm must be obtained according to ACAS manuals (AirborneCollision Avoidance System (ACAS) Manual ICAO Doc 9863, 119; Honeywell CollisionAvoidance System Users Manual (2000), 16, 21, 25, 31, 64).


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(ii) Assessment of the conduct of the MorianCargo aircraft

The MorianCargo Airlines aircraft also failed to follow the PANS-OPS and ACAS manuals.

It initiated its manoeuvre at 11:35:17, i.e. 19 seconds after the RA, and not within 5 seconds

as required by ACAS manuals. At a vertical speed of 1500 fpm, this 14 second delay could

have placed the aircraft approximately 350 feet below its actual altitude at the time when the

horizontal flight paths of both aircraft crossed.

(iii) Assessment of the conduct of MinarControl

As described above, the controller at MinarControl was responsible to ensure adequate

separation between aircraft under his control. The controller gave his first instruction to that

end at 11:34:49, i.e. 40 seconds before the horizontal flight paths of both aircraft crossed.

While the Government of Bulbuldesh does not contest that the instruction should have been

given in a timelier manner, it contests that the controllers instruction caused the collision. Not

only did he give his instruction prior to any RA, the failure of both flight crews to notify the

RAs did not put him in a position to react accordingly and have any influence on the

occurrence of the collision. Furthermore, the Government of Bulbuldesh has already

established that if the flight crew of at least one aircraft had responded adequately to the

RAs, the collision would have been avoided.

The Government of Bulbuldesh, therefore, submits that the collision is only linked to the

instructions of the MinarControl controller by an unforeseeable set of circumstances, i.e. the

failure of both flight crews to adequately respond to the RAs.

(iv) Assessment of the conduct of the authorities of Bulbuldesh

It is clear from the above conclusions that the link between an alleged failure of the

authorities of Bulbuldesh to adequately supervise MinarControl and the collision is so indirect

and remote that it would not be reasonable to hold the authorities of Bulbuldesh responsible

for the damages arising out the collision.


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3. Conclusion

In the view of the Government of Bulbuldesh, the facts show that if both aircraft conformed

to the procedures in force, the collision would not have occurred. In addition, while the

reduction of the vertical separation was not a foreseeable consequence of the controllers

instructions, flight crews are warned by their manuals and other relevant documents that a

manoeuvre in the opposite sense of an RA increases the risk of mid-air collision. To cite one

example, ICAOs ACAS manual states that [w]hen one aircraft manoeuvres opposite the

vertical direction indicated by ACAS and the other aircraft manoeuvres as indicated by

ACAS, a collision may occur.71

The Government of Bulbuldesh, therefore, submits that it is under no obligation to pay

compensation to Mayur in relation to the claims arising out of the mid-air collision since the

damages are not a proximate consequence of any conduct attributable to the State of

Bulbuldesh.

D.THE STATE OF MAYUR MUST COMPENSATE FOR THE DAMAGES IN BULBULDESH

1. Competence of the State of Bulbuldesh to c laim damages in relation to the football

stadium and private property on its territory

(a) Permissibility of counter-claims

According to Article 80 of the Rules of the ICJ, the State of Bulbuldesh may submit a

counter-claim, provided it comes within the jurisdiction of the Court and is directly connected

with the subject-matter of the claim of the other Party. The Government of Bulbuldesh

considers that both conditions are satisfied, and that its claim rests on facts which form part

of the same factual nexus than the claims brought by the Government of Mayur.72

71 ICAO Airborne Collision Avoidance System (ACAS) Manual ICAO Doc 9863, 125; seealso, Honeywell Collision Avoidance System Users Manual (2000), 8: Since maneuvers arecoordinated, the crew should never maneuver in the opposite direction of the advisory.

72Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v Serbia and Montenegro) (Counter-claims, Order of 17 December1997) [1997] ICJ Rep 243, 258.


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(b) The right of the State of Bulbuldesh to exercise diplomatic protection

The right of a State to invoke the responsibility of another State for an injury caused by an

internationally wrongful act to itself or to one of its nationals is universally recognized.73

A States claim may be inadmissible if the claim is one to which the rule of exhaustion of

local remedies applies and any available and effective local remedy has not been

exhausted.74 However, as will be demonstrated, the requirement that local remedies are

exhausted does not apply in the present case since effective remedies are not available to

the victims in Bulbuldesh.75

As will be submitted, the following claims are based on the failure of the State of Mayur to

ensure that the flight crew of the Mayur Airways aircraft complied with the qualifications

required by Annex 1 to the Chicago Convention (Annex 1)76 and breach of its obligations

under Article 12 of the Chicago Convention; therefore, these claims must be brought directly

against the Government of Mayur. Whether proceedings are initiated by nationals of

Bulbuldesh against the Government of Mayur in the courts of Mayur or in the courts of

Bulbuldesh, such claims are highly unlikely to be successful. Firstly, if the claims are brought

before the courts of Bulbuldesh, the Government of Mayur will be immune from jurisdiction.77

If it is accepted that foreign State immunity may be waived in proceedings which relate to

compensation for personal injuries and damage to property, such waiver is only applicable to

circumstances where the author of the act or omission was present in the territory where the

73International Law Commission Yearbook of the International Law Commission, 2001, vol.

II, Part Two UN Doc A/56/10, 117; International Law Commission Yearbook of theInternational Law Commission, 2006, vol. II, Part Two UN Doc A/61/10, 24. See also, TheMavrommatis Palestine Concessions (Greece v Great Britain) PCIJ Rep Series A No 02, 12.74International Law Commission Yearbook of the International Law Commission, 2001, vol.II, Part Two UN Doc A/56/10, 120; International Law Commission Yearbook of theInternational Law Commission, 2006, vol. II, Part Two UN Doc A/61/10, 70.75I Brownlie Principles of Public International Law(Oxford University Press 2008), 495.76ICAO Annex 1 Personnel Licensing ICAO Doc AN 1.77The immunity of States from being sued in foreign courts firmly rests on two principles: parin parem non habet jurisdictionem, according to which legal persons of equal standing

cannot have their disputes settled in the courts of one of them, and non-intervention in theinternal affairs of other States (I Brownlie Principles of Public International Law (OxfordUniversity Press 2008), 325).


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damage occurred at the time of the act or omission78. Secondly, if the claims are brought

before the courts of Mayur, the authorities of Mayur will also benefit from immunity from

jurisdiction;79 if most States waive their immunity before their own courts, this waiver does

not apply to conducts which involve an element of discretionary power such as the adoption

of licensing procedures or requirements.80

It is, therefore, highly unlikely that the claim of a citizen of Bulbuldesh against the State of

Mayur will be successful before a Court in either State. Hence, in the view of the Government

of Bulbuldesh, the rule that local remedies must be exhausted is not applicable to the present

claims.

2. Internationally wrongful acts of the State of Mayur

(a) Inapplicability of the 1952 Rome Convention on damage caused by foreign aircraft to third

parties on the surface

Currently, the only international agreement applying to compensation for damages caused

by foreign aircraft to third parties on the surface is the 1952 Rome Convention on damage

caused by foreign aircraft to third parties on the surface (1952 Rome Convention). 81For the

1952 Rome Convention to apply, the damages must be a direct consequence of an incident

involving an aircraft in flight;82in addition, the aircraft must be registered in a State party and

the damage must occur on the territory of another State party.83

78International Law Commission Yearbook of the International Law Commission, 1991, vol.II, Part Two UN Doc A/46/10, 44.79See A W Bradley and J Bell Governmental Liability: A Preliminary Assessment in J Belland A W Bradley (eds) Governmental Liability: A Comparative Study (United KingdomNational Committee of Comparative Law 1991) 1, 8 f.80For instance, in the United States, the civil aviation authorities are immune from jurisdictionfor decisions pertaining to the extent of the supervision of compliance with safety standards(United States v Varig Airlines467 US 797, 818 f).81 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.

821952 Rome Convention, art 1.1.83Ibid, art 23.1.


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services practices and procedures.87The importance of proper licensing of flight crews must

be emphasized as parties to the Chicago Convention have accepted to recognize the

certificates of competency and licenses issued or rendered valid by the Contracting State in

which an aircraft is registered.88

(ii) Application to the facts

As the official investigation report reveals and as was determined above, the flight crew of

the Mayur Airways aircraft created a risk of collision by ignoring the applicable practices and

procedures. The flight crews decisions leading to the mid-air collision clearly indicate that the

pilot had not received adequate training and did not satisfy with requirements that States

must examine prior to issuing a license. In the view of the Government of Bulbuldesh, this is

clear evidence that the pilot did not have a level of knowledge appropriate to the privileges

granted to the holder of an airline transport pilot license.89

The Government of Bulbuldesh, therefore, submits that the Government of Mayur breached

Articles 12 and 32 (a) of the Chicago Convention and Standard 2.6.1.2.1 of Annex 1 to the

Chicago Convention by failing to ensure that the flight crew received adequate training and

had appropriate qualifications.

87Annex 1, Standard 2.6.1.2.1. See also ICAOs ACAS manual that provides [f]light crewsmust be tested to ensure they are wholly familiar with ACAS procedures, capabilities, andlimitations and are able to respond correctly to ACAS indications (ICAO Airborne CollisionAvoidance System (ACAS) ManualICAO Doc 9863, 123).

88Chicago Convention, art 33.89Annex 1, Standard 2.6.1.2.1.


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(c) Claims for indemnities submitted by the State of Bulbuldesh

It is undisputed that the breach of an international obligation involves a duty to make

reparation for the damages sustained90 and that the reparation must 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.91

The Government of Bulbuldesh, therefore, submits the following claims:

1. Compensation for the death of citizens of Bulbuldesh, including but not limited to

compensation for all losses of contributions and personal services, and for mental suffering.

2. Compensation for costs and losses of revenue as a consequence of the injury of citizens

of Bulbuldesh, including but not limited to the costs of medical treatments, and for loss of

income.

3. Compensation for the loss of property to the citizens of Bulbuldesh, including but not

limited to compensation for all costs incurred for the reconstruction and repairs of homes,

buildings and private property.

4. Compensation for the loss to the top-league national football teams of experienced and

trained players.

5. Compensation for the destruction of the football stadium, including the cost of

reconstruction and the loss of revenue caused by the necessary closure of the facility.

6. Compensation for the expenses and costs of the State of Bulbuldesh, including but notlimited to search and rescue and emergency operations, the provision of temporary housing,

and the cost of pensions and other grants made to victims or their dependants.

90Case Concerning theFactory at Chorzw (Germany v Poland) (Claim for Indemnity) PCIJRep Series A No 09, 21.91Case Concerning theFactory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series ANo 17, 47.


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SUBMISSIONS

May it please the Court, for the foregoing reasons, on behalf of the State of Bulbuldesh,

Respondent, respectfully requests this Court to adjudge and declare that:

- the State of Bulbuldesh has not violated its obligations under general international law and

under the Chicago Convention and its Annexes;

- the claims made by Mayur must be dismissed as they are contrary to international law;

- a sufficient causal link between any conduct attribute to the State of Bulbuldesh cannot be

determined to hold Bulbuldesh responsible for the damages arising out of the mid-air

collision;

- the State of Mayur has breached its obligations under the Chicago Convention and Annex

1 to the Chicago Convention, and that the State of Mayur must compensate for the damages

that were caused by these breaches.

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

essential in the present case.