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Flight MH 17 and state responsibility for ensuring safety and security of air transport

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Notes

  1. Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300/9 (9th Edition: 2006).

  2. The adoption of Article 3 bis was a response of the international community to a similar event that had occurred in September 1983 when a Russian SU-15 Interceptor plane shot down a Korean Airlines Boeing 747 aircraft operating flight KE 007 bound from New York City to Seoul via Anchorage. The plane was destroyed over Sakhalin Island while navigating over prohibited Russian airspace. All 269 passengers and crew on board died.

  3. ICAO Assembly Resolution A38-12 Appendix O. See Assembly Resolutions in Force (as per 4 October 2013), Doc 10022.

  4. It must be noted that the air carrier is liable for damage caused as a result of death or injury to passengers if the accident which caused the damage occurred on board or in the process of embarkation or disembarkation. See Convention for the Unification of Certain Rules Relating to Carriage by Air (Montreal Convention of 1999), Article 17. Since Flight MH 17 operated between the Netherlands and Malaysia the application of this Convention would depend on the ratification of the treaty by both parties. The Netherlands ratified the treaty on April 29 2004 and Malaysia ratified it on December 31 2007.

  5. War is a state of armed conflict between different nations or states or different groups within a nation or State. Seehttps://www.google.ca/#q=definition+o+war

  6. Article 89 of the Chicago Convention. Ukraine had not advised the Council of ICAO of it situation.

  7. Article 42 of the ILC Principles of State Responsibility provides that a State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation:

    (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

  8. ICJ Reports, 1986 at pp. 14, 64–5. Also ILR at p. 349.

  9. 82 ILR at 499–551.

  10. Malcolm N. Shaw, International Law (5ed.) Cambridge University Press: 2003 at 696. To support his view, Shaw cites H. Mostler, The International Society as a Legal Community, Dordrecht, 1980 at p. 157 and E Jiminez de Arechaga, International Responsibility, Manual of Public International Law (ed. M. Sorensen), London: 1968 at p. 531, 534.

  11. Article 54 l) of the Chicago Convention stipulates as a mandatory function of the Council the act of adopting, in accordance with Chapter VI of the Convention, international standards and recommended practices (SARPs) and for convenience designate them as Annexes to the Convention. Article 37 of the Convention reflects the areas in which SARPs should be developed and Annexes formed. Article 38 obliges contracting States to notify ICAO of any differences between their own regulations and practices and those established by international standards or procedures. The notification of differences however, does not absolve States from their continuing obligation under Article 37 to collaborate in securing the highest practicable degree of uniformity in international regulations, standards, and procedures.

  12. In October 1945, the Rules of the Air and Air Traffic Control (RAC) Division at its first session made recommendations for Standards, Practices and Procedures for the Rules of the Air. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as Recommendations for Standards, Practices and ProceduresRules of the Air in the first part of Doc 2010, published in February 1946. The RAC Division, at its second session in December 1946–January 1947, reviewed Doc 2010 and proposed Standards and Recommended Practices for the Rules of the Air. These were adopted by the Council as Standards and Recommended Practices relating to Rules of the Air on 15 April 1948, pursuant to Article 37 of the Convention on International Civil Aviation (Chicago, 1944) and designated as Annex 2 to the Convention with the title International Standards and Recommended PracticesRules of the Air. They became effective on 15 September 1948. On 27 November 1951, the Council adopted a complete new text of the Annex, which no longer contained Recommended Practices. The Standards of the amended Annex 2 (Amendment 1) became effective on 1 April 1952 and applicable on 1 September 1952.

  13. Shaw, supra. note 10 at 706.

  14. Neils Van Antwerpen, Cross-border Provision of Air Navigation Services with Specific Reference to Europe, Kluwer Law International: 2007, at p203.

  15. This is a principle applicable both in the United Kingdom and the United States. See Johnson v. State of California, 447 P. 2d. 352 (1968).

  16. In Barrett v. Enfield LBC, [2001] 2. A.C. 550, the claim for breach of statutory duty per se was not pursued before the Court of Appeal or the House of Lords, in the case of a local authority suing for negligence in caring for a child

  17. . In Phelps v. Hillingdon LBC [2001] 2 A.C. 619 at 652, the House of Lords held that duties cast on local authorities in the context of specific education needs were for the benefit of all children in a particular geographic location or area and therefore did not come under an action for breach of statutory duty in the case of a specific person.

  18. H. Street, Governmental Liability, Cambridge University Press: 1953 Chapter 2.

  19. The Federal Tort Claims Act of 1946 waived government immunity for tortuous liability.

  20. The Act provides that the US District Courts shall have exclusive jurisdiction of civil actions or claims against the United States for pecuniary damages, accruing on or after 1 January 1945 for injury or loss of property, or personal injury or death caused by the negligent or wrongful act of the State or its employees if they are acting within the scope of their employment. The United States could also be liable as a private person to a claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 1345 (b).

  21. (1975) CA 6 Tenn, 522 F2d 990.

  22. (1962) 369 U.S. 17, LED 2d 492.

  23. 746 U.S. 15 (1953).

  24. 330 U.S. 61 (1955).

  25. 221 F.2d 62 (D.C. Cir 1985).

  26. Id. 74–75.

  27. Inghamv. Eastern Airlines Inc., 373 F 2d 227 9 2nd Cir (1967).

  28. This reasoning has been questioned in other decisions in the United States. In Stark v. United States F. Supp. (S.D. Cal 1967), the Court found that the air traffic controller had an obligation to determine whether the weather was good enough to allow a flight to go through. The responsibility of the State both at administrative law and public international law in certain circumstances of the provision of air navigation services, does not presuppose that there is no liability of the air traffic controller individually. There have been instances of the air traffic controllers individual liability, in common law jurisdictions (both jointly with the State concerned and severally)for negligence. See Crister S. Dahl, Air Traffic Control in Norway, Unpublished LL.M thesis, McGill: Montreal, at 43.

  29. Miller v. United States, 522 F.2d. 386 (6th Cir. 1975).

  30. C-WP/7781, Study on the Liability of Air Traffic Control Agencies, 1984, at 16.

  31. Id. 15.

  32. Johnson v. United States 187 F Supp. 489 E.D. Mich (1960)

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Correspondence to Ruwantissa Abeyratne.

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Ruwantissa Abeyratne, DCL (McGill), Ph.D (Colombo), LL.M (Monash), LL.B (Colombo), FRAeS. President and CEO, Global Aviation Consultancies Inc. Montreal.

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Abeyratne, R. Flight MH 17 and state responsibility for ensuring safety and security of air transport. J Transp Secur 7, 347–357 (2014). https://doi.org/10.1007/s12198-014-0148-0

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