Applicant 2012 - Air Law Moot

INTERNATIONAL AIR LAW MOOT COURT COMPETITION 2010
STRANGERS AND DANGERS IN THE AIR

MAYUR V. BULBULDESH

MEMORIAL SUBMITTED ON BEHALF OF THE STATE OF MAYUR

TEAM NUMBER 3 APPLICANT

- i -
TABLE OF CONTENTS
List of Abbreviations .............................................................................................................. iii
List of sources ....................................................................................................................... iv
A International Conventions .............................................................................................. iv
B Judicial Decisions .......................................................................................................... iv
1 International Court of Justice ..................................................................................... iv
(a) Judgments and advisory opinions ......................................................................... iv
(b) Written proceedings ............................................................................................... v
2 Permanent Court of International Justice .................................................................... v
3 International arbitrations ............................................................................................. v
4 Decisions of the International Centre for Settlement of Investment Disputes .............. v
C Documents of international organizations ...................................................................... vi
1 International Civil Aviation Organization ..................................................................... vi
2 General Assembly of the United Nations ................................................................... vi
3 International Law Commission ................................................................................... vi
D Articles and Books ........................................................................................................ vi
1 Articles ....................................................................................................................... vi
2 Books ....................................................................................................................... vii
E Other Sources .............................................................................................................. vii
Statement of relevant facts .................................................................................................. viii
A Introduction ................................................................................................................. viii
B Background facts ........................................................................................................ viii
1 Block of airspace ..................................................................................................... viii
2 Mayur Airways ......................................................................................................... viii
3 MorianCargo Airlines ............................................................................................... viii
C Details of the events preceding the mid-air collision ...................................................... ix
1 MinarControl .............................................................................................................. ix
2 Mayur Airways aircraft ............................................................................................... ix
3 MorianCargo Airlines aircraft....................................................................................... x
D Consequences of the mid-air collision ............................................................................ x
1 Mayur Airways and MorianCargo Airlines aircraft ........................................................ x
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2 Damages on the ground .............................................................................................. x
Issues .................................................................................................................................... xi
Summary of arguments ........................................................................................................ xii
Jurisdiction of the Court ....................................................................................................... xiv
Argument ............................................................................................................................... 1
A Bulbuldesh has committed an internationally wrongful act .............................................. 1
1 The conduct of MinarControl is attributable to Bulbuldesh ......................................... 1
(a) Bulbuldesh is responsible for the conduct of persons or entities exercising
elements of governmental authority ........................................................................... 2
(b) MinarControl is empowered to provide ATS .......................................................... 5
2 Bulbuldesh has breached international obligations .................................................... 7
(a) Preliminary considerations in respect to the legal status of the Annexes to the
Chicago Convention................................................................................................... 7
(b) MinarControl has breached the obligation to maintain adequate separation
between aircraft under its control and to prevent collisions ........................................ 8
(c) Bulbuldesh has breached the obligation to provide ATS in accordance with
international standards pursuant to Article 28 of the Chicago Convention .................. 9
(d) Bulbuldesh has breached the obligation to take all reasonable measure to prevent
damages to the State of Mayur .................................................................................10
B Bulbuldesh must make full reparation for the injury caused by its internationally
wrongful conduct ..............................................................................................................12
1 Preliminary considerations on the application of Article 84 of the Chicago Convention
.....................................................................................................................................12
2 Mayur has locus standi .............................................................................................13
(a) Direct injury to the interests of the State of Mayur ................................................13
(b) The Government of Mayur can bring claims on behalf of its nationals .................14
3 Bulbuldesh is under an obligation to make reparations .............................................17
(a) Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft .........19
(b) Bulbuldesh shall indemnify and hold harmless Mayur Airways ............................20
(c) Bulbuldesh shall compensate Mayur for any damages, expenditure, costs and
injury already incurred and/or incurred in the future as a result of the accident .........23
Submissions .........................................................................................................................25
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LIST OF ABBREVIATIONS
ACAS Airborne collision avoidance system
ATC Air traffic control
ATS Air traffic services
FL Flight level
ICAO International Civil Aviation Organization
ICAO Doc International Civil Aviation Organization documents
ICJ International Court of Justice
ICJ Rep Reports of the International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
ILC International Law Commission
PCIJ Permanent Court of International Justice
PCIJ Rep Reports of the Permanent Court of International Justice
RA Resolution advisory
Rep Intl Arbitral Awards Reports of international arbitral awards
SARPs Standards and recommended practices
SDR Special drawing rights
STCA Short-term conflict alert
TA Traffic announcement
UN United Nations
UN Doc United Nations documents
UNTS United Nations Treaty Series
- iv -
LIST OF SOURCES
A INTERNATIONAL CONVENTIONS
Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4
April 1947) 15 UNTS 295.
Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface
(adopted 7 October 1952, entered into force 4 February 1958) 310 UNTS 181.
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331.
Agreement concerning Air Services (United Kingdom and United States) (adopted 23 July
1977, entered into force 23 July 1977) 1079 UNTS 21.
Air Transport Agreement between the Government of New Zealand and the Government of
the United States (adopted 18 June 1997, entered into force 18 June 1997) 2049 UNTS
379.
Convention for the Unification of Certain Rules for International Carriage by Air (adopted 28
May 1999 entered into force 4 November 2003) 2242 UNTS 309.

B JUDICIAL DECISIONS
1 International Court of Justice
(a) Judgments and advisory opinions
The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4.
The Corfu Channel Case (United Kingdom v Albania) (Judgment of December 15
th
, 1949)
[1949] ICJ Rep 244.
Interhandel Case (Switzerland v United States of America) (Preliminary Objections) [1959]
ICJ Rep 6.
Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment,
Second Phase) [1970] ICJ Rep 3.
Case concerning United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Judgment) [1979] ICJ Rep 7.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Jurisdiction of the Court and Admissibility of the Application)
[1984] ICJ Rep 392.
Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v.
United States of America) (Merits) [1986] ICJ Rep 14.
Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ
Rep 15.
Gabkovo-Nagymaros Project Case (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7.
Case concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria) (Preliminary Objections) [1998] ICJ Rep 275, 307.
- v -
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62.
LaGrand Case (Germany v United States of America) (Judgment) [2001] ICJ Rep 466.

(b) Written proceedings
Aerial Incident of 3 July 1988 (Iran v United States of America) (Memorial of Iran) 1 ICJ
Pleadings 11.
Case concerning the Aerial Incident of July 27 1955 (Israel v Bulgaria) ICJ Pleadings 372.

2 Permanent Court of International Justice
Mavrommatis Palestine Concession Case (Greece v Britain) PCIJ Rep Series A No 02.
Case Concerning the Factory at Chorzw (Germany v Poland) (Claim for Indemnity) PCIJ
Rep Series A No 09.
Case Concerning the Factory at Chorzw (Germany v Poland) (Merits) PCIJ Rep Series A
No 17.

3 International Arbitrations
The Montijo Case (Colombia v USA) (1875) 2 Moore International Arbitration 1421.
Affaire des navires Cape Horn Pigeon, James Hamilton Lewis, C. H. White et Kate and
Anna (United States of America v Russia) (1902) 9 Rep Intl Arbitral Awards 55.
Opinion in the Lusitania Case (United States of America v Germany) (1923) 7 Rep Intl
Arbitral Awards 32.
Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom) (1925) 2 Rep
Intl Arbitral Awards 615.
D Earnshaw and others (Great Britain v United States) (1925) 4 Rep Intl Arbitral Awards
160.
Home insurance company (United States of America) v. United Mexican States (1926) 4
Rep Intl Arbitral Awards 48.
Island of Palmas Case (Netherlands v United States of America) (1928) 2 Rep Intl Arbitral
Awards 829.
Trail Smelter case (United States of America v Canada) (1938) 3 Rep Intl Arbitral Awards
1911.
1938.
Saphire International Petroleums Ltd v National Iranian Oil Company (1963) 35 ILR 136.
Arbitration Concerning Heathrow Airport User Charges (United States v United Kingdom)
(1992, revised 1993), 24 Rep Intl Arbitral Awards 1.

4 Decisions of the International Centre for Settlement of Investment Disputes
Emilio Agustn Maffezini v Spain (Award) ICSID Case No ARB/97/7 (2000).
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CMS Gas Transmission Company v Argentine Republic (Award) ICSID Case No ARB/01/8
(2005).
ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary
(Award) ICSID Case No. ARB/03/16 (2006).

C DOCUMENTS OF INTERNATIONAL ORGANIZATIONS
1 International Civil Aviation Organization
ICAO Annex 11 Air Traffic Services ICAO Doc AN 11.
ICAO ICAOs Policies on Charges for Airports and Air Navigation Services ICAO Doc
9082.
ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902.

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

3 International Law Commission
International Law Commission Yearbook of the International Law Commission, 1971, vol.
II, Part One UN Doc A/CN.4/SER.A/1971/Add.1.
II, Part Two UN Doc A/56/10.

D ARTICLES AND BOOKS
1 Articles
E Jimnez de Archaga General Course in Public International Law (1978) 159 Recueil
des Cours de lAcadmie de Droit international de la Haye 3.
T Meron The incident of the rule of exhaustion of local remedies (1959) 35 British Year
Book of International Law 83.
F Schubert The Corporatization of Air Traffic Control: Drifting Between Private and Public
Law (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.

- vii -
2 Books
CF Amerasinghe Local Remedies in International Law (Cambridge University Press
Cambridge 2004)
HC Black and BA Garner Blacks Law Dictionary (West Group 2004).
B Cheng General Principles of Law Applied by International Courts and Tribunals (Stevens
& Sons Ltd London 1953).
C Eagleton The Responsibility of States in International Law (New York University Press
New York 1928.
X Hanqin Transboundary Damage in International Law (Cambridge University Press
Cambridge 2003)
Nguyen QD, P Daillier and A Pellet Droit international public (Librairie Gnrale de Droit et
de Jurisprudence 2002).
MN Shaw International Law (Cambridge University Press 2008).
L Weber International Civil Aviation Organization, An Introduction (Kluwer Law International
2007).
MM Whiteman Damages in International Law, vol. 1 (Government Printing Office 1937),
682.

E OTHER SOURCES
German Federal Bureau of Aircraft Accident Investigation Investigation Report of the
Accident near berlingen on 1 July 2002 (AX 00-1-1-2/02, May 2004).
- viii -
STATEMENT OF RELEVANT FACTS
A INTRODUCTION
The present dispute arises from a mid-air collision (hereafter referred to as the mid-air
collision) between a Mayur Airways civil aircraft and a MorianCargo Airlines civil aircraft
which occurred within a block of airspace above the territory of the State of Bulbuldesh
(hereafter referred to as the block of airspace) on 17 October 2007.
B 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. Since then this block of airspace
was consistently controlled by MinarControl. The written agreement was signed but not duly
ratified by the Parliaments of the two States. It includes a clause according to which the State
of Minar is liable for damages caused by its negligence or of its agents or other persons
acting on its behalf.
MinarControl is a privatized company established, organized and regulated under the laws
of Minar.
2 Mayur Airways
Mayur Airways is a commercial airline established and regulated under the laws of the
State of Mayur. It is substantially owned and effectively controlled by the State of Mayur. The
aircraft involved in the collision was registered in Mayur.
3 MorianCargo Airlines
MorianCargo Airlines is a commercial airline established and regulated under the laws 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 MinarControl
From 11:13:00, as a consequence of technical works at MinarControl, the visual short-term
conflict alert systems were not available. The controllers were not properly informed of the
situation by the management of MinarControl.
From 11:30:11, the Mayur Airways aircraft and the MorianCargo Airlines aircraft were under
the control of the duty controller.
At 11:34:49, the duty controller instructed the Mayur Airways aircraft to descend
immediately to flight level (FL) 350.
At 11:34:58, an acoustic short-term conflict alert was issued. The controller failed to notice
this warning.
At 11:35:01, the duty controller reiterated the instruction given to the Mayur Airways aircraft
to descend immediately to FL350.
At 11:35:17 the controller failed to notice the descend maneuver of MorianCargo.
At 11:35:29, contact was lost with both aircraft.
The investigation indentified that 1) the controllers had not been properly informed of the
situation of the technical works that were taking place on that day; 2) that only one controller
was on duty in the control room at the time of the collision, where it ought to have been two
controllers and two assistants. This was known and tolerated by the management of
MinarControl.
2 Mayur Airways aircraft
At 11:30:11 reported in to MinarControl its present FL360.
- x -
At 11:34:42, a traffic announcement (TA) was issued by the airborne collision avoidance
system (ACAS).
At 11:34:49, the flight crew initiated to descend to FL350.
At 11:34:56, a resolution advisory (RA) to climb was issued by the ACAS.
At 11:35:01, the flight crew was contacted by MinarControl. The flight crew confirmed its
descent.
At 11:35:24, a second RA instructing to increase climb was issued by the ACAS.
At 11:35:29, the aircraft collided.
3 MorianCargo Airlines aircraft
At 11:34:42, a traffic announcement (TA) was issued by the airborne collision avoidance
system (ACAS).
At 11:34:56, a resolution advisory (RA) to descend was issued by the ACAS. The flight
crew did not immediately respond to the RA.
At 11:35:17, the flight crew responded to the RA and initiated its descent.
At 11:35:29, the aircraft collided.
D CONSEQUENCES OF THE MID-AIR COLLISION
1 Mayur Airways and MorianCargo Airlines aircraft
Both aircraft were completely destroyed and all 50 passengers and 9 crew members were
killed instantly.
2 Damages on the ground
The mid-air collision caused harm and damage to private persons and property on the
surface in the territory of Bulbuldesh and Minar.
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ISSUES
The State of Mayur will argue the following contentions:
Issue 1: Is the State of Bulbuldesh responsible for all damage caused by the mid-air
collision?
Issue 2: Must the State of Bulbuldesh compensate the State of Mayur for the value of the
destroyed aircraft?
Issue 3: Must Bulbuldesh indemnify and hold harmless Mayur Airways in respect of all
claims made by third parties and by the legal successors of the deceased passengers and
crew aboard?
Issue 4: Must Bulbuldesh compensate Mayur for any damage, expenditure, costs or injury
already incurred and /or incurred in the future as a result of the accident?
- xii -
SUMMARY OF ARGUMENTS
The Government of Mayur shall demonstrate that the State of Bulbuldesh is responsible for
all damage caused by the mid-air collision in the block of airspace. To that end, it will
demonstrate that MinarControls conducts are attributable to the State of Bulbuldesh, since
MinarControl is exercising an element of Bulbuldeshs governmental authority by providing
air traffic services in the block of airspace. The provision of air traffic services is intrinsically
tied to sovereignty over national airspace and is a public service of sovereign nature.
Furthermore, MinarControl is empowered by Bulbuldesh to exercise air traffic control in its
airspace on the basis of the acquiescence of the delegation of this service to MinarControl
and the reliance on MinarControl to fulfill its governmental duty.
The Government of Mayur will further address that the State of Bulbuldesh has breached
international law. Firstly, MinarControl failed to comply with the standards and recommended
practices laid down in Annex 11 to the Chicago Convention; and did not maintain adequate
separation between the aircraft and failed to prevent the mid-air collision. Secondly, the State
of Bulbuldesh violated Article 28 of the Chicago Convention and Annex 11 by failing to
ensure an adequate level of safety within its national airspace. Thirdly, Bulbuldesh breached
its obligation by not taking any reasonable measures to prevent damages to Mayur by
tolerating the unlawful practices of MinarControl.
In the second part of the arguments, the Government of Mayur will establish its locus
standi. It will, firstly, demonstrate that it suffered direct injury as a consequence of the mid-air
collision, considering the subject of the dispute and the nature of the claim. Secondly, Mayur
has the right to exercise diplomatic protection on behalf of its nationals, as it will establish
that in the absence of a voluntary link, its nationals are not obliged to exhaust local remedies.
The Government of Mayur will further contend that as a legal consequence of the
internationally wrongful conduct of the State of Bulbuldesh, the latter has to make full
reparation in an appropriate form in order to wipe out all consequences. Therefore, the State
of Bulbuldesh is under the obligation to compensate Mayur for the value of the destroyed
- xiii -
aircraft. The destruction of the aircraft was a normal and foreseeable result of the
internationally wrongful conduct of the State of Bulbuldesh.
In addition, the Government shall contend that the State of Bulbuldesh must indemnify and
hold harmless Mayur Airways in respect to all present and future claims made by third parties
in connection with the accident. To this effect, it shall demonstrate that the internationally
wrongful conducts of the State of Bulbuldesh are the proximate cause of these claims.
Concerning this matter, the Government of Mayur will consider whether third parties in
connection with the accident and the crew members can claim on the basis of national law?
Legal successors of the deceased passengers have a cause of action based on Article 17 of
the 1999 Convention for the Unification of Certain Rules for International Carriage by Air. In
this respect, the Government of Mayur will demonstrate that not only actual claims but also
any future claim are recoverable from the State of Bulbuldesh.
Finally, the Government of Mayur will establish that the State of Bulbuldesh is under the
obligation to compensate Mayur for any present and future damage, expenditure, costs and
injury as they are foreseeable consequences of the mid-air collision.
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JURISDICTION OF THE COURT
In accordance with Article 36 (2) of the Statute of the International Court of Justice, States
parties to the Statute may at any time declare that they recognize as compulsory ipso facto
and without special agreement the jurisdiction of the Court. In the present dispute, both
the State of Mayur and the State of Bulbuldesh are parties to the Statute of the International
Court of Justice and have made declarations expressing their consent to the compulsory
jurisdiction of the Court.
The State of Mayur, therefore, submits the present dispute to the Court on the basis of
Article 36 (2) of the Statute of the International Court of Justice.
- 1 -
ARGUMENT
A BULBULDESH HAS COMMITTED AN INTERNATIONALLY WRONGFUL ACT
It is a well established principle of public international law that [e]very internationally
wrongful act of a State entails the international responsibility of that State.
1
An internationally
wrongful act of a State is defined as a conduct consisting in an act or omission attributable to
the State under international law, and breaching an international obligation of the State.
2

Two elements are therefore required to constitute an international wrongful act: a conduct
attributable to a State, and the breach of an international obligation. Before discussing the
international obligations breached by the State of Bulbuldesh, a preliminary concern is to
identify the entities whose conduct can be attributed to the State of Bulbuldesh.
1 The conduct of MinarControl is attributable to Bulbuldesh
In the view of the Government of Mayur, the State of Bulbuldesh is responsible for the
conduct of its organs and of MinarControl.
According to the International Court of Justice (ICJ), it is a well-established rule of
international law [that] the conduct of any organ of a State must be regarded as an act of that
State.
3
The ICJ confirmed the customary nature of this rule.
4
According to the International
Law Commission (ILC), [a]n organ includes any person or entity which has that status in
accordance with the internal law of the State
5
, whatever its function, position, or character as
an organ of the central government or of a territorial unit of the State.
6
Accordingly, the State

1
II, Part Two UN Doc A/56/10, 32.
2
Ibid 34.
3
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 87.
4
Ibid.
5
6
Ibid.
- 2 -
of Bulbuldesh is responsible under international law for the conducts of its organs, provided
they are in breach with its international obligations.
(a) Bulbuldesh is responsible for the conduct of persons or entities exercising elements of
governmental authority
It is undisputed that States are responsible for the conduct of their organs. However, their
responsibility is not limited to the conduct of entities which are formally qualified as organs by
internal law.
There are many instances in which international jurisdictions have attributed the conduct of
a private person or group of persons to a State. In the Case concerning Military and
Paramilitary Activities in and against Nicaragua, the ICJ affirmed that in some circumstances,
the links between a State and a group of persons may be such that they can be equated to
an organ of that State even if they are not qualified as organs by internal law.
7
In the Case
concerning United States Diplomatic and Consular Staff in Tehran, the ICJ also stated that
the conduct of private persons could be considered directly imputable to a State if it is
established that they acted on behalf of the State.
8

Accordingly, while the status of a person may help determine whether a conduct can be
attributed to a State, the public character of the function exercised by the private person must
also be taken into consideration. For example in the Zafiro Case,
9
the arbitral tribunal
attributed the conduct of the crew of a merchant ship to the United States. The tribunal
considered the nature of service and purpose for which the ship was employed as

7
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Rep 14, 62.
8
Case concerning United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Judgment) [1979] ICJ Rep 7, 30.
9
D Earnshaw and others (Great Britain v United States) (1925) 4 Rep Intl Arbitral Awards
160.
- 3 -
determining.
10
This principle was confirmed by Special Rapporteur Ago in the context of the
ILCs work on State responsibility:
11

[T]he State is often considered responsible [at the internal level] for the acts of
private natural or legal persons commissioned to provide a particular public
service, or of individuals or groups carrying out any kind of mission for the State
.... The underlying principle in international law requires that the criterion
should be the public character of the function or mission in the performance of
which the act or omission contrary to international law was committed.
12

The International Centre for Settlement of Investment Disputes (ICSID) also applied this
principle in the Emilio Agustn Maffezini v Spain Case.
13
In its award, the ICSID was asked to
determine whether the acts and omissions of SODIGA, a private corporation, were
attributable to Spain. According to the ICSID, the elements that must be taken into account to
assess whether a conduct of a private entity can be attributed to a State are the structure of
the entity, the control of the entity by the State, and its objectives and functions.
14
The ICSID,
therefore, analyzed the various acts and omissions which gave rise to the dispute in order to
determine if they were to be regarded as functions essentially governmental in nature or
essentially commercial in character. According to the ICSID, this distinction is the dividing
line between those acts or omissions that can be attributed to [a State] and those that
cannot.
15

In the present dispute, it is therefore necessary to examine whether the services provided
by MinarControl are governmental or commercial in character. It is a firmly established and

10
Ibid 163.
11
II, Part One UN Doc A/CN.4/SER.A/1971/Add.1.
12
Ibid 264.
13
Emilio Agustn Maffezini v Spain (Award) ICSID Case No ARB/97/7 (2000).
14
Ibid [57].
15
Ibid.
- 4 -
longstanding [tenet] of customary international law
16
that every State has complete and
exclusive sovereignty over its national airspace.
17
The sovereignty of a State over its territory
is exclusive as it entails the right to exercise therein, to the exclusion of any other State, the
functions of a State.
18
It is complete in that it covers all aspects of governmental authority.
19

The provision of air traffic services (ATS) is one of a States exclusive competences. A
State is exclusively competent to monitor its airspace, control and limit access to it and adopt
regulations which apply to aircraft flying through it.
20
In order to monitor their airspace and
ensure compliance with the applicable rules, States rely on their ATS provider. The tasks of
air traffic controllers can therefore be assimilated to police functions.
21
Moreover, the air
traffic controllers main responsibility is to avoid collisions
22
and thereby ensure public
safety
23
, another attribute of governmental authority. Thus, the provision of ATS is
intrinsically tied to sovereignty over the national airspace and must be considered as a public
service of sovereign nature.
24
This conclusion is supported by Article 28 of the Convention on
International Civil Aviation (Chicago Convention) which enjoins States to provide air
navigation services in their national airspace.

16
United States of America) (Merits) [1986] ICJ Rep 14, 111.
17
April 1947) 15 UNTS 295, arts 1 and 2.
18
Island of Palmas Case (Netherlands v United States of America) (1928) 2 Rep Intl Arbitral
Awards 829, 838.
19
Nguyen QD, P Daillier and A Pellet Droit international public (Librairie Gnrale de Droit et
de Jurisprudence 2002) 474f.
20
See Chicago Convention, arts 11 and 13.
21
XXVIII Annals of Air and Space Law 57, 61.
22
Annex 11 to the Chicago Convention, Chapter I.
23
XXVIII Annals of Air and Space Law 57, 61.
24
Ibid.
- 5 -
The governmental nature of ATS is also supported by its non-commercial character.
25
For
instance, it is widely accepted that ATS providers may only impose charges towards
defraying the costs of providing facilities and services for civil aviation.
26
The Council of the
International Civil Aviation Organization (ICAO) notes that the revenues produced by air
navigation services may only exceed all costs and provide for a reasonable return on assets
if the revenues in excess are dedicated to contributing towards necessary capital
improvements.
27
This principle is reiterated in numerous air services agreements between
States.
28

It must, therefore, be concluded that when MinarControl was providing ATS to the aircraft of
Mayur Airways, it was exercising an element of Bulbuldeshs governmental authority.
(b) MinarControl is empowered to provide ATS
The principle that the conduct of a private entity which exercises elements of governmental
authority is attributable to a State was codified by the ILC in Article 5 of its Draft articles on
Responsibility of States for Internationally Wrongful Acts (Draft articles on State
responsibility):
29

[T]he conduct of a person or entity which is not an organ of the State [] but
which is empowered by the law of that State to exercise elements of the

25
F Schubert The Corporatization of Air Traffic Control: Drifting Between Private and Public
Law (1997) XXII-II Annals of Air and Space Law 223, 234.
26
ICAO Assembly Resolutions in Force (as of 28 September 2007) ICAO Doc 9902,
Resolution A35-15 Appendix F.
27
ICAO ICAOs Policies on Charges for Airports and Air Navigation Services ICAO Doc
9082, [44].
28
See Air Transport Agreement between the Government of New Zealand and the
Government of the United States (adopted 18 June 1997, entered into force 18 June 1997)
2049 UNTS 379, art. 10; see also, Agreement concerning Air Services (United Kingdom and
United States) (adopted 23 July 1977, entered into force 23 July 1977) 1079 UNTS 21, art
10.
29
II, Part Two UN Doc A/56/10, 31
- 6 -
governmental authority shall be considered an act of the State under international
law.
30

According to the ILCs codification of the principle, it is clear that the exercise of an element
of governmental authority by a private entity is not sufficient to attribute a conduct to a State;
the private entity must also be empowered by the law of the delegating State.
In respect to the present dispute, the delegation of ATS within the block of airspace to
MinarControl was agreed upon by the State of Bulbuldesh and the State of Minar in 1962.
Both Parties concluded a written agreement codifying the delegation of ATS and setting
different organizational aspects of the delegation, but the agreement was not duly ratified
and never came into force.
31
Nevertheless, in the view of the Government of the State of
Mayur, the absence of a written agreement in force does not entail that MinarControl was not
empowered by the State of Bulbuldesh to provide ATS within the block of airspace.
As we are aware of, MinarControl has been the exclusive provider of ATS within the block
of airspace since 1962. The acquiescence by both States of that practice testifies that they
both considered MinarControl rightly empowered in spite of the absence of any written
agreement. This conclusion is further supported by the fact that the State of Bulbuldesh
relied on MinarControl to fulfill one of its governmental duty and that the service provided by
MinarControl was by definition non-lucrative. Moreover, the possibility to delegate ATS to
another State or autonomous entity provided for in Annex 11 to the Chicago Convention
(Annex 11) does not require any particular form.
32

In conclusion, the Government of Mayur submits that MinarControl is empowered by the
law of the State of Bulbuldesh to exercise an element of its governmental authority and that
its conduct can therefore be attributed to the State of Bulbuldesh.

30
Ibid 42.
31
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331, art 14.
32
[B]y mutual agreement, a State may delegate to another State the responsibility for
establishing and providing air traffic services. ICAO Annex 11 Air Traffic Services ICAO
Doc AN 11, Standard 2.1.1.
- 7 -
2 Bulbuldesh has breached international obligations
The Government of Mayur will establish that the State of Bulbuldesh breaches international
obligations.
(a) Preliminary considerations in respect to the legal status of the Annexes to the Chicago
Convention
By ratifying the Chicago Convention, States party to the Chicago Convention
33
commit
themselves to undertake [t]o collaborate in securing the highest practicable degree of
uniformity in regulations, standards, procedures, and organization in relation to aircraft,
personnel, airways and auxiliary services in all matters in which such uniformity will facilitate
and improve air navigation.
34
To this end, States gave ICAO the mandate to adopt and
amend International Standards and Recommended Practices (SARPs) and procedures.
35

According to ICAOs General Assembly, international standards are specifications, the
uniform application of which is recognized as necessary for the safety or regularity of
international air navigation; recommended practices are specifications, the uniform
application of which is recognized as desirable in the interests of safety, regularity or
efficiency of international air navigation
36
. According to Article 38 of the Chicago
Convention, States must notify any differences between their national regulations or
practices and the international standards adopted by ICAO.
37
Even though the notification of
differences between national regulations and recommended practices is not obligatory,
States are urged to notify such differences.
38

33
April 1947) 15 UNTS 295.
34
Chicago Convention, art 37.
35
Ibid, arts 37 and 54 l).
36
Resolution A36-13, Appendix A.
37
Chicago Convention, art 38.
38
Resolution A36-13, Appendix D. Annex 15, Standard 4.1.2. c).
- 8 -
In light of the foregoing considerations, in the absence of a notification of differences, a
State can be held to be implementing ICAOs SARPs and procedures.
(b) MinarControl has breached the obligation to maintain adequate separation between
aircraft under its control and to prevent collisions
According to Article 28 of the Chicago Convention, [e]ach contracting State undertakes, so
far as it may find practicable, to [p]rovide, in its territory radio services and other air
navigation facilities to facilitate international air navigation, in accordance with the standards
and practices recommended or established pursuant to this Convention. Article 28 of
the Chicago Convention, therefore, requires the provision of ATS to be made in accordance
with SARPS, in particular Annex 11 which contains standards pertaining to the establishment
and provision of ATS.
According to Standard 2.2, the objectives of ATS are the prevention of collisions between
aircraft and the provision of advice and information useful for the safe and efficient conduct of
flights. To this end and pursuant to Standard 3.3.1, ATS providers shall issue clearances and
information for the purpose of preventing collision between aircraft under its control.
Standard 3.3.2 adds that the information on aircraft movements shall be so displayed as to
permit ready analysis in order to maintain an efficient flow of air traffic with adequate
separation between aircraft. Furthermore, according to Standard 3.3.4, adequate separation
shall be obtained by vertical separation, horizontal separation, or a combination of both.
Furthermore, according to Standard 3.7.3.1.2, the controller shall listen to the read-back of
ATS instructions, notably level instructions, by flight crews to ascertain that the instruction
has been correctly acknowledged by the flight crew and shall take immediate action to
correct any discrepancies revealed by the read-back.
It is clear from the facts, and in particular from the occurrence of the mid-air collision, that
MinarControl failed to ensure adequate separation between both aircraft. At 11:30:11, the
crew of the Mayur Airways aircraft reported to MinarControl at FL360, whereas a few
seconds earlier, at 11:29:50, MorianCargo Airlines was cleared to FL360. At 11:30:11, the
- 9 -
controller was aware that both aircraft were flying at the same altitude and, therefore, should
have ensured adequate vertical or horizontal separation. However, the controllers first
instruction to ensure adequate separation was given only 40 seconds before the collision.
39

The Government of Mayur, therefore, submits that MinarControl breached Standards 2.2,
3.3.1 and 3.3.4 of Annex 11 by not maintaining adequate separation and failing to prevent
the collision between both aircraft. Moreover, by failing to ascertain that the instruction given
at 11:34:49 to the Mayur Airways aircraft was correctly acknowledged by the flight crew,
MinarControl breached Standard 3.7.3.1.2.
(c) Bulbuldesh has breached the obligation to provide ATS in accordance with international
standards pursuant to Article 28 of the Chicago Convention
In accordance with Article 28 of the Chicago Convention, States also have the obligation to
ensure that the ATS providers are compliant with the Chicago Convention and its Annexes.
Among these rules, Standard 2.26.1 of Annex 11 provides that States shall implement
systematic and appropriate ATS safety management programmes to ensure that safety is
maintained in the provision of ATS within airspaces and at aerodromes. The ATS safety
management programme shall provide for continuous monitoring and regular assessment of
the safety level achieved and ensure that remedial action necessary to maintain an
acceptable level of safety is implemented.
40

The obligation under Standard 2.26.1 is twofold: firstly, States must monitor the safety level
achieved by the ATS providers within their jurisdiction and; secondly, States must take all
remedial action necessary to correct any identified flaw in the safety level of ATS provision in
their airspace.
In the present dispute, the investigators found that the technical work was planned and that
MinarControl knew in advance that the visual STCAs would not be available from 11:13:00

39
At 11:30:11, the horizontal separation between both aircraft was at the maximum of 80
seconds (i.e.11 nautical miles, assuming they were flying at an average speed of 500 knots).
40
Annex 11, Standard 2.26.4
- 10 -
on the day of the mid-air collision. Consequently, the management not only failed to
adequately brief the controllers but also to provide for adequate strategic planning.
Furthermore, it has been established by the investigation that the management of
MinarControl knew and tolerated internal arrangements between controllers which
excessively increased the workload of the controller on duty. This policy was likely to cause
hazardous situations by increasing procedural errors, an inadequate distribution of attention
and the omission of important instructions such as the ones designed to ensure separation
between conflicting traffic.
41
It also reduces the concentration of the controller on duty by
limiting the possibility to take required breaks.
42
These findings clearly demonstrate that an
adequate level of safety was not ensured.
In the light of Standard 2.26.1 of Annex 11, it implies, on the one hand, that if the authorities
of Bulbuldesh were aware of the safety shortcomings at MinarControl, they failed to
implement the remedial action necessary to maintain an acceptable level of safety. On the
other hand, if they were unaware of such substantial shortcomings, it implies that they failed
to implement a systematic and appropriate ATS safety management programmes.
The Government of Mayur, therefore, submits that the Government of Bulbuldesh, by failing
to ensure that an adequate level of safety is achieved within its national airspace by
MinarControl, violated Article 28 of the Chicago Convention and Standards 2.26.1 and 2.26.4
of Annex 11.
(d) Bulbuldesh has breached the obligation to take all reasonable measure to prevent
damages to the State of Mayur
It is well established principle of international law that even when a conduct cannot be
attributed to the State where the conduct occurred, that State may be responsible for its

41
German Federal Bureau of Aircraft Accident Investigation Investigation Report of the
Accident near berlingen on 1 July 2002 (AX 00-1-1-2/02, May 2004), 75.
42
Ibid.
- 11 -
failure to take all reasonable measures to avoid injury to another States property, rights or
nationals.
43

One landmark consecration of this principle is found in the Trail Smelter Arbitration.
44
In its
1941 awards, the Tribunal stated that, under the principles of international law, no State
has the right to use or permit the use of its territory in such a manner as to cause injury in
or to the territory of another or the properties or persons therein.
45
The obligation of a
State not to allow knowingly its territory to be used for acts contrary to the rights of other
States was also affirmed by the ICJ in the Corfu Channel Case notably.
46
Naturally, it cannot
be expected from a State that it prevents all conduct likely to cause damages to aliens; it is
nevertheless generally accepted that a Government in its sovereign capacity [owes] the duty
to protect the persons and property within its jurisdiction by such means as [are] reasonably
necessary to accomplish that end.
47

In conclusion, it is undisputable that a State must ensure that activities within its jurisdiction
do not cause damages to the interests of other States. In particular, when a State has
knowledge of a conduct which may result in the death of foreign nationals or damages to the
property of another State, it must take all reasonable measures to stop the wrongful conduct
or notify the danger.
In the present dispute, the investigation has not shed any light on the knowledge of the
authorities of Bulbuldesh of the safety and management shortcomings at MinarControl.
However, we submit that it is sufficient if such knowledge is inferred from the circumstances.
In the Corfu Channel Case, the ICJ stated:

43
Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom) (1925) 2 Rep
Intl Arbitral Awards 615, 642.
44
Trail Smelter case (United States of America v Canada) (1938 and 1941) 3 Rep Intl Arbitral
Awards 1911.
45
1938, 1965.
46
The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22.
47
Home insurance company (USA) v. United Mexican States (1926) 4 Rep Intl Arbitral
Awards 48, 52.
- 12 -
[T]he fact of this exclusive territorial control exercised by a State within its
frontiers has a bearing upon the methods of proof available to establish the
knowledge of that State as to such events. By reason of this exclusive control,
the other State, the victim of a breach of international law, is often unable to
furnish direct proof of facts giving rise to responsibility. Such a State should be
allowed a more liberal recourse to inferences of fact and circumstantial evidence.
This indirect evidence is admitted in all systems of law, and its use is recognized
by international decisions.
48

Considering that the State of Bulbuldesh is party to the Chicago Convention and has not
filed any difference with the Annexes to the Chicago Convention, it can be assumed that the
authorities of Bulbuldesh have implemented an ATS safety management programme. If
implemented properly and according to international standards, the authorities of Bulbuldesh
could not ignore the safety shortcomings at MinarControl. Accordingly, the Government of
Bulbuldesh had the obligation to take all measures that could reasonably be expected to
remedy the situation and prevent the loss of lives and damages likely to result from a mid-air
collision.
In the view of the Government of Mayur, the State of Bulbuldesh must be held responsible
for the violation of its commitments under international law by its authorities and
MinarControl.
B BULBULDESH MUST MAKE FULL REPARATION FOR THE INJURY CAUSED BY ITS
INTERNATIONALLY WRONGFUL CONDUCT
1 Preliminary considerations on the application of Article 84 of the Chicago
Convention
According to Article 84 of the Chicago Convention on International Civil Aviation (Chicago
Convention), [i]f any disagreement between two or more contracting States relating to the

48
The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 18.
- 13 -
interpretation or application of the [Chicago Convention] and its Annexes cannot be settled
by negotiation, it shall, on the application of any State concerned in the disagreement, be
decided by the Council [of the International Civil Aviation Organization (ICAO)]. Article 84
further provides that the disagreement may be referred to the ICJ on appeal.
49

In the view of the Government of Mayur, Article 84 of the Chicago Convention does not
affect the admissibility of the present claims. Firstly, the competence of ICAOs Council
cannot be considered as exclusive since it is subject to the application of any State
concerned in the disagreement, and thus leaves the competence of ICAOs Council to the
discretion of the States parties to the dispute. In the present case, neither State has
approached ICAOs Council to render a decision. Furthermore, prior to proceeding to give a
judicial judgment, the Council must try to have the dispute settled through negotiations or
conciliation.
50
It is only after this stage that the procedure in front of ICAO may be considered
as judicial, since this stage has not been reached in respect to the present dispute, any
proceedings that may have been engaged must be considered as negotiating processes and
thus cannot constitute preconditions to the seizure of the Court.
51

Article 84 of the Chicago Convention, therefore, does not imply that the claims should have
been first referred to ICAOs Council.
2 Mayur has locus standi
The State of Mayur has locus standi in the present dispute. Its interests are directly injured
and it has the right to exercise diplomatic protection.
(a) Direct injury to the interests of the State of Mayur

49
Article 84 refers to the Permanent Court of International Justice, but see Article 37 of the
Statute of the ICJ.
50
L Weber International Civil Aviation Organization, An Introduction (Kluwer Law
International 2007), 41.
51
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Jurisdiction of the Court and Admissibility of the Application)
[1984] ICJ Rep 392, 440; Case concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary Objections) [1998] ICJ Rep 275,
307.
- 14 -
The existence of a direct injury to the interest of a States depends on two main factors,
namely, the subject of the dispute and the nature of the claim; on the latter point it is
essential to determine the real interest of the claimant State.
52

Firstly, the State of Mayur has standing in the present dispute on the ground that its
interests were directly injured. As regards the subject of the dispute, direct injury is
established since the wrongful act of the State of Bulbuldesh has caused the destruction of
property owned by the State of Mayur.
53
As Mayur Airways is substantially owned and
effectively controlled by the State of Mayur, the destruction of the aircraft is a direct injury to
its interests. Moreover, by violating the Chicago Convention and Annex 11, the State of
Bulbuldesh has directly infringed the rights of Mayur.
54
It must, therefore, be concluded that
the State of Mayur has sustained direct injury and has standing.
(b) The Government of Mayur can bring claims on behalf of its nationals
The State of Mayur is also entitled to exercise diplomatic protection on behalf of its
nationals. Diplomatic protection, which has been confirmed as customary law in different
cases of the ICJ,
55
is a discretionary right of a State and includes, inter alia, the right to
initiate judicial proceedings on behalf of its nationals before the ICJ. The basic principle of
diplomatic protection was elaborated in the Mavrommatis Palestine Concession Case:
56

By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a state is in reality asserting its

52
Book of International Law 83, 85.
53
PC Jessup A modern law of nations (Macmillan 1948), 120.
54
CF Amerasinghe Local Remedies in International Law (Cambridge University Press
Cambridge 2004), 129. In the Heathrow Arbitration, the Tribunal has notably affirmed that the
rights and remedies under a international agreement are those of the Contracting States and
only they [can] enforce them. Arbitration Concerning Heathrow Airport User Charges (United
States v United Kingdom) (1992, revised 1993), 24 Rep Intl Arbitral Awards 1, 53.
55
LaGrand Case (Germany v United States of America) (Jurisdiction) [2001] ICJ Rep 466,
483.
56
Mavrommatis Palestine Concession Case (Greece v Britain) PCIJ Rep Series A No 02, 12.
- 15 -
own rights, its rights to ensure, in the person of its subjects, respect for the rules
of international law.
Accordingly, the damage suffered by Mayur Airways must be considered as an injury to the
State of Mayur.
Customary international law recognises the existence of certain requirements that must be
met before a State can validly espouse its national's interest. The two main requirements are
the nationality of the injured party and the exhaustion of local remedies.
57

The State of Mayur has the right to exercise diplomatic protection in respect of the injured
nationals, both natural and legal persons including corporations.
58
In the Barcelona Traction
Case, the ICJ stated that international law attributes the right of diplomatic protection of a
corporate entity to the State under the laws of which it is incorporated and in whose territory
it has its registered office.
59
Furthermore, the ICJ pointed out that there should be a
permanent and close connection between the State exercising diplomatic protection and the
corporation.
60
Mayur Airways is not only established and regulated under the laws of the
State of Mayur, but is also substantially owned and effectively controlled by the State of
Mayur. A permanent and close connection is, therefore, present and no doubt is left as to
whether Mayur can exercise diplomatic protection on behalf of Mayur Airways.
However, as will be demonstrated by the following considerations, the exhaustion of local
remedies is not required in cases where no relevant connection between the injured
individual and the defendant State exists. Examples of such relevant connection are a
voluntary physical presence, residence, ownership of property or a contractual relationship

57
Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ
Rep 15, 46; Interhandel Case (Switzerland v United States of America) (Preliminary
Objections) [1959] ICJ Rep 6, 27.
58
59
Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment,
Second Phase) [1970] ICJ Rep 3, 42.
60
Ibid.
- 16 -
with the respondent State.
61
First and foremost, the nature of diplomatic protection and the
local remedies rule has undergone major changes in recent times. The early history of
diplomatic protection is characterized by situations in which foreign nationals who reside and
carry on a business in a foreign State were injured by the conduct of that State. In such
situations, it could be expected from the injured individuals that they exhaust local remedies
in line with the philosophy that the national going abroad should normally be obliged to
accept the local law as he finds it, including the means afforded for the redress.
62
However,
nowadays, the probability that a private person is injured by a conduct which occurs in
another State, or by a foreign national or State with no real connection with the territory
where the injured person is located, is significantly higher. For instance, the shooting down of
an aircraft that accidentally entered into the airspace of a foreign State as illustrated by the
aerial incident in which Bulgaria shot down an El Al flight. In such cases, the fact that the
injured individual has no voluntary connection with the respondent State and thus no
territorial connection justifies the well-settled exception to the exhaustion of local remedies.
63

It is only when the alien has voluntarily established such a connection that local remedies
must be exhausted. This rule is notably affirmed by Article 15 (c) of the ILC Draft articles on
Diplomatic Protection, according to which local remedies do not need to be exhausted when
the relevant connection between the injured person and the allegedly responsible State is
absent.
64

Moreover, the general principle of law ex injuria jus non oritur further justifies the exception
of the exhaustion of local remedies. It would not be appropriate if a State which interfered
illegally with an alien, who did not except for that interference have any connection with

61
Book of International Law 83, 94.
62
C Eagleton The Responsibility of States in International Law (New York University Press
New York 1928), 96.
63
Case concerning the Aerial Incident of July 27 1955 (Israel v Bulgaria) ICJ Pleadings 372,
531 f.
64
II, Part Two UN Doc A/61/10, 67 f.
- 17 -
it, should be allowed to derive any advantage from its illegal acts.
65
More specifically, it
would be unreasonable, impractical and unfair to impose on the successors of a deceased
alien the requirement that legal remedies should be exhausted, when the alien died in a mid-
air collision over a foreign State.
66

Because no voluntary connection exists between Mayur Airways and the State of
Bulbuldesh, Mayur Airways cannot be required to exhaust local remedies. Therefore, the
State of Mayur can exercise diplomatic protection in respect to Mayur Airways and claim
compensation for the damage caused by Bulbuldesh.
3 Bulbuldesh is under an obligation to make reparations
The State of Mayur demonstrated that the State of Bulbuldesh violated its obligations,
firstly, to maintain adequate separation and to prevent the collision between both aircrafts,
secondly, to provide ATS in accordance with SARPs and, thirdly, to take all reasonable
measure to prevent damages to the State of Mayur. As International law recognizes that a
breach of an engagement involves an obligation to make reparations in an appropriate
form,
67
the State of Bulbuldesh should indemnify for the damage caused by the mid-air
collision.
The customary character of this principle was notably affirmed by the ICSID in the ADC
Affiliate Limited and ADC & ADMC Management Limited v. Hungary case.
68
The PCIJ also
endorsed the principle in its judgment in the Case Concerning the Factory at Chorzw
69
:

65
des Cours de lAcadmie de Droit international de la Haye 3, 296.
66
General Assembly Report of the International Law Commission on the work of its fifty-
fourth session (2002) Topical summary of the discussion held in the Sixth Committee of the
General Assembly during its fifty-seventh session, prepared by the Secretariat UN Doc
A/CN.4/529.
67
Gabkovo-Nagymaros Project Case (Hungary v Slovakia) (Jurisdiction) [1997] ICJ Rep 7,
80.
68
ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary
(Award) ICSID Case No. ARB/03/16 (2006), [494-495].
69
Case Concerning the Factory at Chorzw (Germany v Poland) (Claim for Indemnity) PCIJ
Rep Series A No 09.
- 18 -
[I]t is a principle of international law that the breach of an engagement involves
an obligation to make reparation in an adequate form. Reparation therefore is an
indispensable complement of a failure to apply a convention and there is no
necessity for this to be stated in the convention itself.
70

The reparations must, as far as possible, wipe out all the consequences of the illegal act
and reestablish the situation which would, in all probability, have existed if that act had not
been committed.
71

In the present circumstances, the State of Bulbuldesh committed an internationally wrongful
act which caused significant damage to Mayur Airways. Thus, the State of Bulbuldesh must
pay damages to wipe out the consequences of the breach and put Mayur Airways in the
same position as it would have been if the breach had not occurred. Reparation may take the
form of restitution and satisfaction. However, such form of reparation is inadequate when
property was destroyed or naturally when lives were lost.
72
Hence, reparation must take the
form of monetary compensation as it is the only possible reparation.
Nevertheless, to give rise to an obligation of compensation, a causal link is required
between the wrongful conduct and the damage.
73
In order to establish the causal link
between the act or omission and the damage, the loss must be a normal and foreseeable
result of the act.
74
If a loss is a normal consequence of an act, it is attributable to an act as a
proximate cause.
75
To determine what can be considered as normal and foreseeable, the
belief of a reasonable person is the decisive factor.

70
Ibid 21.
71
No 17, 47.
72
73
X Hanqin Transboundary Damage in International Law (Cambridge University Press
Cambridge 2003), 89.
74
& Sons Ltd London 1953), 246.
75
Ibid.
- 19 -
As will be demonstrated by the Government of Mayur, a causal link is established in each of
the following claims. The Government of Mayur requests the State of Bulbuldesh:
- to compensate Mayur for the value of the destroyed aircraft;
- to indemnify and hold harmless Mayur Airways; and
- to compensate Mayur for any damage, expenditure, costs or injury already incurred or
incurred in the future.
(a) Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft
The ICJ noted in the Gabkovo-Nagymaros Project Case that it is a well-established rule
of international law that an injured state is entitled to obtain compensation from the state
which has committed an internationally wrongful act for the damage caused by it.
76
This rule
is supported by Article 36 of ILC Draft articles on State responsibility, according to which the
responsible State is under an obligation to pay compensation for the damage caused by its
internationally wrongful conducts.
In the present dispute, the destroyed aircraft of Mayur Airways was a normal and
foreseeable result of the wrongful conducts attributable to the State of Bulbuldesh.
Additionally, it could have been foreseen that the incriminated conducts, notably those of
MinarControl, were likely to lead to a mid-air collision. Consequently, in order to put the State
of Mayur in the same position as it would have been if the aircraft had not been destroyed,
the State of Bulbuldesh must compensate for the loss of the aircraft.
The same principle was upheld in the Corfu Channel Case
77
where the Court ordered
compensation for the destruction of the destroyer Samurez. Compensation is usually
assessed on the basis of the fair market value of the property loss.
78
The value is to be

76
Gabkovo-Nagymaros Project Case (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7,
80.
77
The Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4.
78
MN Shaw International Law (Cambridge University Press 2008), 805.
- 20 -
determined at the time of the indemnification.
79
In the Corfu Channel Case, the Court found
that the true measure of compensation was the replacement cost of the [destroyed object]
at the time of its loss.
80
Consequently, the Government of Mayur submits that since all the
requirements for the compensation are met, Bulbuldesh must compensate Mayur for the
value of the destroyed aircraft suffered by the mid-air collision, namely US Dollar 40 million.
(b) Bulbuldesh shall indemnify and hold harmless Mayur Airways
The State of Bulbuldesh has to indemnify and hold harmless Mayur Airways regarding all
claims made by third parties in connection with the accident, including claims by
MorianCargo Airlines and the legal successors of the deceased passengers and crew abroad
both aircraft.
The damages owed to Mayur Airways may include, inter alia, the reimbursement of any
reasonable compensation which it has or will have to pay to second and third parties injured
in the mid-air collision.
81
Indemnity is by definition a right which generally obligates the
indemnifier to reimburse the indemnified for a loss suffered because of a third partys or
ones own act or default.
82
In contrast, to hold harmless means to absolve another party from
any responsibility for damage or other liability arising from a claim of indemnification.
83

Mayur Airways can be held liable by third parties in connection with the accident, including
but not limited to claims by MorianCargo Airlines. Even though the Convention on Damage
Caused by Foreign Aircraft to Third Parties on the Surface (1952 Rome Convention)
84
does
not apply in the present dispute as only the State of Mayur is a party to this Convention and

79
No 17, 47.
80
th
1949)
[1949] ICJ Rep 244, 249.
81
Ibid 181.
82
HC Black and BA Garner Blacks Law Dictionary (West Group 2004), 783 f.
83
Ibid 749.
84
Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface
(adopted 7 October 1952, entered into force 4 February 1958) 310 UNTS 181.
- 21 -
not Bulbuldesh, in which territory the accident occurred,
85
Mayur Airways can be sued on the
basis of national law of the State of Bulbuldesh.
In addition, Mayur Airways can be subject to claims made by the legal successors of the
deceased passengers based on Article 17 of the Convention for the Unification of Certain
Rules for International Carriage by Air (1999 Montreal Convention)
86
, and to which the State
of Mayur is a Party. Since the Mayur Airways aircraft was en route to Mynia, also a State
Party, the place of departure and the place of destination are within the territories of two
State Parties, which implies that there was an international carriage of persons performed by
aircraft.
87
Hence, the 1999 Montreal Convention is applicable.
Pursuant to Article 17 of the 1999 Montreal Convention, Mayur Airways is liable for damage
sustained in case of the death of a passenger due to the fact that the accident, here the mid-
air collision, which caused the death, took place on board the aircraft. In cases of death, an
action for damages lies in accordance with the terms of this Convention against those legally
representing the victims estate.
88
Thus, the legal successors of the deceased passengers
are entitled to claim compensation. In the present dispute, the carrier is strictly liable for
damages not exceeding 100 000 SDR.
89
Above 100 000 SDR Mayur Airways is liable unless
it can prove that such damage was not the result of its negligence or wrongful act (nor of its
servants or agents) or that such damage was solely due to the negligence or other wrongful
act of a third party.
90
Consequently, for damages up to 100 000 SDR, a strict liability regime
rules the relationship between Mayur Airways and its passengers. Additionally, the possibility
for Mayur Airways to exonerate itself for damages over 100 000 SDR is merely theoretical.
Thus, it is expected that the liability of Mayur Airways will be considered as unlimited by

85
Ibid arts 1 and 23.
86
Convention for the Unification of Certain Rules for International Carriage by Air (adopted
28 May 1999 entered into force 4 November 2003) 2242 UNTS 309.
87
Ibid art 1.
88
Ibid art 32.
89
Ibid art 21 para 1.
90
Ibid art 21 para 2 b.
- 22 -
Courts applying the 1999 Montreal Convention. Regarding the flight crew of both aircraft,
Mayur Airways can be held liable under national law.
In accordance with the Lusitania Case,
91
the legal successors of the deceased passengers
and crew members can claim:
1. Compensation for the death of passengers and crew members, including but not
limited to compensation for all loses of contributions, personal services, care, education
and supervision by the deceased person.
92

2. Compensation for mental suffering or shock caused by the violent separation of
family ties.
93

The loss sustained by the claimant is calculated by the amount of these estimates reduced
to its present cash value.
94

As the wrongful conducts of the State of Bulbuldesh and the third party damage claims are
linked by a clear, unbroken connection, and as these damages are a normal and foreseeable
consequence of the wrongful conducts, they are recoverable.
The indemnity due consists of all losses already occurred and all losses which may be
considered as a normal consequence of the act causing the damage.
95
Moreover, it is not
required that the damage has already taken place for compensation to be recoverable.
96

Hence, Bulbuldesh must compensate both actual apparent damage and any damage in the
future as a result of the accident. Mayur Airways should, therefore, be indemnified and held

91
Opinion in the Lusitania Case (United States of America v Germany) (1923) 7 Rep Intl
Arbitral Awards 32, 32.
92
Pleadings 11, 291.
93
682.
94
Ibid.
95
& Sons Ltd London 1953), 244.
96
des Cours de lAcadmie de Droit international de la Haye 3, 285-287.
- 23 -
harmless by Bulbuldesh in respect to all present and future claims made by third parties and
legal successors of the deceased passengers and crew members.
(c) Bulbuldesh shall compensate Mayur for any damages, expenditure, costs and injury
already incurred and/or incurred in the future as a result of the accident
The State of Bulbuldesh has to compensate the State of Mayur for any present and future
damage, expenditure, costs or injury incurred as a result of the accident. More precisely, the
State of Mayur should, inter alia, be compensated for the loss of six experienced crew
members and for the losses caused by the disruption to Mayur Airways services.
97
That such
consequential damages must be awarded was confirmed by the ICJ in the Case concerning
military and paramilitary activities in and against Nicaragua
98
:
Nicaraguas claim is justified not only as to the physical damage to its vessels,
but also the consequential damage to its trade and commercial.
99

Additionally, the loss of profits must be compensated for has been confirmed by
international tribunals; such compensation was notably awarded in the Cape Horn Pigeon
Case
100
and the Saphire International Petroleums Ltd. V. National Iranian Oil Company
Case
101
. In the CMS Gas Transmission Company v. Argentina Case, the ICSID also stated
that financially assessable damage [includes] loss of profits insofar as it is established.
102
In
particular, the temporary loss of use and enjoyment of the destroyed aircraft as an income-
producing asset has to be awarded, as recognized in arbitrations such as the Montijo Case,

97
Pleadings 11, 291.
98
United States of America) (Merits) [1986] ICJ Rep 14.
99
Ibid 139.
100
Affaire des navires Cape Horn Pigeon, James Hamilton Lewis, C. H. White et Kate and
Anna (United States of America v Russia) (1902) 9 Rep Intl Arbitral Awards 55, 63.
101
Saphire International Petroleums Ltd v National Iranian Oil Company (Award of 15 March
1963) 35 ILR 136, 187 and 189.
102
CMS Gas Transmission Company v Argentine Republic (Award) ICSID Case No ARB/01/8
(2005), [401].
- 24 -
where a sum of money per day for loss of use of an American vessel seized in Panama was
awarded.
103

Furthermore, all other expenditures and costs consequential to the destruction must be
compensated, including but not limited to:
- all expenses and costs which have been incurred by the claimant government in
connection to the dispute settlement, including legal costs and lawyers fees;
104

- all expenses and costs of pensions and other made to the successor of the deceased
persons by the State of Mayur.
105

103
The Montijo Case (Colombia v USA) (1875) 2 Moore International Arbitration 1421, 1437.
104
791.
105
th
1949)
[1949]: ICJ Rep 244, 249.
- 25 -
SUBMISSIONS
May it please the Court, for the foregoing reasons, the State of Mayur, Applicant,
respectfully requests this Court to adjudge and declare that:
- Bulbuldesh is responsible for all damage caused by the mid-air collision in the airspace of
the State of Bulbuldesh;
- Bulbuldesh shall compensate Mayur for the value of the destroyed aircraft, namely USD
40 million;
- Bulbuldesh shall indemnify and hold harmless Mayur Airways in respect of all claims
made by third parties in connection with the accident, including claims by MorianCargo
Airlines; the legal successors of the deceased passengers and crew aboard both aircraft,
including present and future claims;
- Bulbuldesh shall compensate Mayur for any damages, expenditure, costs (including legal
costs and lawyers fees) or injury already incurred and/or incurred in the future as a result of
the accident.
The Honourable Court is further requested to declare such guidelines as it deems fit and
essential in the present case.

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