David Pusztai is a PhD candidate in international law at Gonville and Caius College, University of Cambridge.
The families of the German victims of the tragic MH 17 incident have reportedly decided to claim compensation from Ukraine. Although the details and the legal foundations of the claim have not been disclosed, what we know is that Professor Elmar Giemulla, representing the claimants, intends to bring this case before the European Court of Human Rights [ECtHR]. According to Professor Giemulla, “[e]ach state is responsible for the security of its air space […] If it is not able to [protect its air space] temporarily, it must close its air space. As that did not happen, Ukraine is liable for the damage.”
At the present stage many specific details are unclear, such as the admissibility of the claim or its articulation in the language of human rights law instead of international air law. There is, however, one apparently clear choice of legal strategy based on Professor Giemulla’s announcement: the identification of the internationally wrongful act in question, namely, Ukraine’s omission to close its airspace and to permit continued traffic.
Ukraine was indeed required to “take all practicable measures” to prevent offenses against the safety of international aviation under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 10). Given its sovereignty over its airspace, the customary duty to take reasonable steps to protect aliens within its territory required the same from Ukraine, just as its human rights obligations did under the European Convention of Human Rights. In Ilaşcu v. Moldova and Russiathe ECtHR held that the State’s positive obligations do not cease to exist when de facto it is not able to control a part of its territory. Ukraine, to use the Court’s language, “must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention”, even within the territory controlled by separatists (see para. 333 of Ilaşcu).
The legal basis of MH 17’s presence in Ukraine’s airspace was Article 1 of the 1944 International Air Services Transit Agreement, conferring the right on foreign aircraft engaged in scheduled international air services to fly across its territory (both Ukraine and Malaysia are parties to the Agreement). Closing the airspace would have been one of the “legal means” available for Ukraine under the same Article, given that the exercise of this privilege (the “first freedom of the air”) is subject to the specific approval of Ukrainian authorities in “areas of active hostilities”according to the same Article 1. Further, Article 9 of the 1944 Chicago Convention on International Civil Aviation provides that States may, “for reasons of military necessity or public safety”, restrict or prohibit foreign aircraft from using certain parts of their airspace. One important constraint is that such restriction “shall be of a reasonable extent and location so as not to interfere unnecessarily with air navigation.” In fact, Ukraine exercised this right before the MH 17 tragedy and closed its airspace up to flight level 320 (32 000 ft); MH 17 was flying at flight level 330.
The question whether Ukraine’s failure to completely close its airspace before the incident is in itself a breach of international law (may it be international air law, international human rights law or law of the treatment of aliens) is an intriguing one, yet the present post focuses on a second possible hurdle for this claim: the issue of causation (for more on air law aspects, see Professor Abeyratne’s article here) . Article 31 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA] provides that the obligation to provide reparation is conditional upon a causal nexus between the internationally wrongful act and the damage. Did Ukraine’s decision to leave open its airspace above flight level 320 in the Dnipropetrovsk Flight Information Region cause the downing of MH 17? It is certainly true that if Ukraine had not let MH 17 enter the aforementioned FIR, the tragedy would not have happened, so that a “but-for” or sine qua non test is fulfilled. It goes without saying, however, that the same applies to the decision of Malaysia Airlines to keep flying in the region or to the ongoing hostilities as such, not to mention the particular attack against the plane. What makes Ukraine’s omission the legally relevant cause here?
Responsibility for occasioning harm by omissions is not a novel problem in international law. Corfu Channelis the textbook example. The omission of Albania to warn two UK vessels about a minefield in Albanian territorial waters triggered her responsibility and impliedlywas held to have caused the damages suffered by the vessels. In holding so, it was crucial for the ICJ that, first, the territorial State must have had specific knowledge of the particular source of danger, the minefield threatening the safety of navigation and, second, that source of danger was the actual one that eventually materialized (pp. 22-23 of Corfu Channel). More recently, Bosnia Genocide confirmed not only that a causal nexus between the breach of a preventive obligation and the harm has to be established, but also that it is a very difficult exercise in practice (see paras. 430 and 462 and for a criticism of the Court’s approach to causation see A. Gattini, ‘Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment’ (2007) 18 European Journal of International Law 695, at 707-712. The question in Bosnia Genocide was slightly different: the threshold issue of “but-for” causality was not established, while in Corfu Channel and in the case of MH 17 this does not appear to be an issue).
The ECtHR follows a similar approach. Kiliç v. Turkeyis an example, confirming that the Court’s test to determine the extent of the State’s liability for its failure to comply with an obligation of prevention is whether the State had or should have had specific knowledge of the particular source of threat (a real and immediate risk) eventually causing the damage (such as an “identified or identifiable individual”, see at para. 63). As Judge Conforti noted, the Court applies a “foreseeability” test to assess the causal connection between the breach of the preventive obligation and the damages (see further B. Conforti, ‘Exploring the Strasbourg Case-law: Reflections on State Responsibility for the Breach of Positive Obligations’, in M. Fitzmaurice and D. Sarooshi (eds.), Issues of State Responsibility before International Judicial Institutions (2004, Hart Publishing), 129).
And here lies the first problem with MH 17: how could the Court determine whether a State had or should have had specific knowledge of a particular source of threat unlessit has a clear picture of the actual threat itself? Very little is known about the details of the incident. A preliminary report prepared by the Dutch Safety Board could not establish the origin of the attack, it merely confirmed that the plane disintegrated in the air, following a large number of impacts of high-energy objects from outside (p. 30). It is perfectly possible that by the time the case concludes there will be more information available. However, if this claim is an attempt to establish liability without the need to clarify the precise circumstances of the incident and possibly the identity of the actual perpetrators, such an attempt would and should be futile.
The mere facts that Ukraine was aware of certain risks in its airspace (demonstrated by its decision to partially close its airspace), that it nonetheless decided to keep its airspace partially open and that an incident happened in its airspace are insufficient facts to invoke Ukraine’s responsibility. In addition, the factual details of the actual incident have to be clarified and it has to be demonstrated that Ukraine was or should been aware of the real and immediate risk of such an incident. It could be then a matter of appreciation to determine exactly what specific details Ukraine should have foreseen.
The second problem is what we could call an issue of contribution to the injury, to use the language of Article 39 of ARSIWA. The region was widely known to be an area of hostilities, and the international aviation community recognized this well before the accident. Several airlines suspended their operation over this FIR before MH 17 was destroyed. In addition, the Ukrainian State Air Traffic Services Enterprise, providing air traffic services in the region, noted as early as April that there were safety risks in the Dnipropetrovks FIR due to the situation in Crimea. The Federal Aviation Administration of the US warned US carriers similarly in April that they should exercise “extreme caution” in the Dnipropetrovks FIR. It is simply implausible to say that Malaysia Airlines was not aware of flying into a zone of hostilities. If Ukraine’s conduct is characterized negligent, it is difficult to see how Malaysia Airlines’ conduct would be much different (unless there is evidence that some specific piece of information was available to Ukraine which could not and should not have been available to Malaysia Airlines). Still, Öneryildiz v. Turkeysuggests that the ECtHR requires the State to be “smarter” than the claimant. If the State tolerates negligent or even unlawful entrance to and stay in a dangerous area, the Court is reluctant to accept the defense of contributory negligence (see paras. 103-106).
In any event, in this case it is not Malaysia Airlines but the relatives of the passengers who are putting forward a claim for compensation. Thus, the negligence of Malaysia Airlines is not even really contributory within the meaning of Article 39 of ARSIWA from the perspective of the claimants. It would be rather a concurrent cause. This raises the question how to deal with the responsibility of Ukraine for letting MH 17 fly over the dangerous zone and the concurrent cause of the negligent route planning by Malaysia Airlines. Malaysia Airlines’ liability for such negligence rests on the 1999 Montreal Convention for the Unification of Certain Rues for International Carriage by Air (Article 21, for a concise discussion see here).
The ARSIWA commentary to Article 31 relies again on Corfu Channel to support the claim that there is no reduction of State liability in cases of concurrent causation. The contribution of a third private party is irrelevant for the purposes of reparation, unless specific elements of the injury are severable (see also J. Crawford, State Responsibility: The General Part (2013, CUP), 495-498). There might be an alternative reading of Corfu Channel. In Corfu Channel, Albania’s internationally wrongful conduct was subsequent in time to the actual minelaying and it might have broken the causal nexus as a superseding or intervening cause between the minelaying and the explosions. In contrast, the Malaysia Airlines aircraft flew into the dangerous zone following and not preceding Ukraine’s decision not to close its airspace.
It remains to be seen how the European Court of Human Rights approaches the multiplicity of legal issues surrounding the MH 17 incident. However, any expectation of a simpler solution to the question of liability from the Strasbourg route than from a thorough international investigation will probably be disappointed.