Ambit of the Chicago Convention, Montreal Convention, and General Principles of International Law - Coursework Example

International Air Law. (Author’s name) (Institutional Affiliation) Abstract. The questions fall within the ambit of the Chicago Convention, the Montreal Convention and general principles of International law. Introduction. The first part looks at the legal implications of downing a civilian aircraft whereas the second part looks into the concept of negligence when a passenger gets injured while on an international flight. International Air Law. Part 1: Advice to the government. The convention on international civil aviation that was signed in Chicago on 7th December 1944 hereinafter the Chicago Convention provides in Article 1 that, every contracting state to the convention has complete and exclusive sovereignty over the airspace that is above its very own territory. The international court has stressed that the principle of respect for territorial sovereignty is directly infringed by the unauthorized over-flight of a country’s territory by aircraft belonging to, or under the control of the government of another country. This was emphasized in the International Court of Justice case of Nicaragua v USA, ICJ Reports, 1986 (Shaw, 1998). It can be recalled that, on September 1, 1983, some fighter jets belonging to the Soviet Union shot down a Korean Airline flight 007 that was operating a Boeing 742-200 aircraft which was en route from New York to Seoul in South Korea. This incident caused the death of all the 269 passengers and crew who were on board. The global reaction following this incident was swift as, it was against the Soviet Union. The Soviet Union reacted by claiming that the plane was on a spy mission and did not accept any liability to the families of the victims. The United Nations Security Council convened a special meeting whereby they took into consideration a draft resolution that included statements that the use of armed force against international civil aviation is not compatible with the norms that govern international behavior. The Soviet Union used their veto power to veto the resolution (Foont, 2007). The following year still reacting to the incident, the Assembly of International Civil Aviation Organization hereinafter ICAO adopted the Chicago Convention Article 3. The Article provides that, the contracting countries recognize that all states must desist from resorting to the use of weapons against a civil aircraft that is in flight. The article goes on to state that in the case of inception, the lives of passengers on board an aircraft and wellbeing and safety of the aircraft must not be put to danger. This provision however, is not to be construed as adjusting in any way the obligations and the rights of states as laid down in the United Nations Charter. The general world-wide trend is the opposition in the use of armed force against civilian aircraft. The acceptable criterion that has been considered as the most appropriate is as follows: A country whose airspace has been infringed upon or violated has directed the aircraft that is offending to make a landing using a generally recognized signal like the one highlighted in the manual that concerns interception of a civil aircraft. The aircraft that is offending has continued to be in violation of the airspace of the offended country, has not taken any action to land or halt the offense and, there lacks an apparent reason for the failure to comply for instance a problem in communication or even a mechanical problem. Thirdly the country that has been offended has reasonably perceived a threat from the offending airplane which is more than a mere speculation, such as communication or information that the airplane is possibly engaged in perfidy or a terrorist act. Also, the aircraft is heads to an area that is populated or a target that is vulnerable. Fourthly, in the event that the country that is offended fires or shots an aircraft in compliance with the third criterion and the civilians on board are either harmed or killed, the country that has been offended should make due ex gratia payments in a bid to compensate the families or victims, except in the event that investigations reveal that the airplane was engaged in a terrorist act or perfidy (Foont, 2007). In the case at hand, flight MHIII, a Boeing 777 that was flown by Malaysian Airlines was hijacked. The aircraft had 276 passengers and crew. The hijackers radioed Singapore authorities to inform the Chinese government that they intended to carry out their threats. The Chinese government advised the Malaysian authorities that they had received threats from a group and that they believed the hijackers might be intending to attack the Pudong Tower. The Chinese warned that if the aircraft approached within a 50 Kilometer exclusion zone of Shanghai, it would have no option but to shoot it down before it caused massive destruction in the city. The Chinese and Malaysian authorities tried to get in touch with the aircraft but to no avail. In accordance with Annex 2 of the Chicago Convention, when the airplane was about 100 Kilometers from Shanghai, Chinese fighter jets intercepted the civilian aircraft. All measures under the Annex were exhausted but, the aircraft did not change course. When the civilian aircraft flew within the 50 Kilometer exclusion zone warning shots were fired but, the plane maintained its course. When it was at 35 Kilometers, the Chinese authorities fired at it and, all on board died. The Chinese authorities clearly followed the criteria and similarly exhausted the options in Annex 3 of the Chicago Convention. The choice to shoot down the aircraft was in reasonable proportion to the danger to the territory of the country that would have arisen from the intrusion. The draft resolution drafted to be presented to the Security Council will not see the light of the day because the Chinese actions were justified in the surrounding circumstances. The final words to the proposed draft resolution ‘...in any circumstances’ might not be realistic owning to the increase in terrorist activities. Rules of international law should not be so rigid such that they allow the perpetration of terrorist activities. Following the tragic event on September 11, 2001, some authors have asked whether the civilian aircrafts should have been shot down to prevent the catastrophe. Terrorists’ activities should be discouraged at all costs (Boczek, 2005). An ideal draft resolution to be adopted concerning the incident that took place would be as follows; The Security Council: ....urges China to exercise humanitarian spirit to pay and compensate the families of the sufferers and victims on board the flight MHIII Boeing 777 upon full, unbiased investigations that the aircraft was involved in perfidy of a terrorist activity. Under the United Nations Charter, the right of self defense by use of weapons like that adopted by China can be invoked in instances of intrusion by a foreign civilian aircraft that is clearly involved in an act of terrorism or aggression (Boczek, 2005). Part 2: Advice to Mrs. Smith. The concept of negligence. In a bid to recover injuries in a personal injury suit, Mrs. Smith has to prove before a court of law that her injuries were caused by the defendant in the suit, in this case by Qantas and Singapore Airlines. The fact that Mrs. Smith wishes to seek for compensation falls under a civil lawsuit under the law on torts. Mrs. Smith has the burden of demonstrating on a balance or scale of probabilities using a preponderance of the evidence. In such a case, she has to show that the two Airlines owed her a duty of care, a duty which they breached and as a result, Mrs. Smith suffered injuries because reasonable care was not taken into account (Diederiks-Verschoor, 2006). Among the significant parts of a personal injury suit is establishing the party that is liable from whom compensation can be demanded. Thus, in portraying how either through intent or negligence, the Airlines in question resulted in the undue injury suffered by Mrs. Smith it is paramount to establish the key elements. The first step involves establishing a party that is liable who had the duty to prevent the injury caused from happening. The concept of duty of care is a legal one whereby certain parties are responsible and, they ought to keep other parties from undue harm. A case of negligence on its own does not validate and justify a tort claim, however, when it results to injury and damages a claim arises. Another link that ought to be established is showing that the breach of duty of care has resulted to injury in question. Determining the liability. When seeking to establish and determine liability against an airline for injury caused, a court of law considers several factors such as, whether Qantas and Singapore Airlines acted reasonably in consideration to the circumstances of the incident or whether the incident that occurred could have been evaded with reasonable evaluation or measures. The court will also take into consideration whether the injuries sustained by Mrs. Smith were caused by the failure of the Airlines to exercise care reasonably and lastly whether damages that Mrs. Smith suffered (Diederiks-Verschoor, 2006). The departure from London was delayed for some three hours due to congestion that was caused by snow at Heathrow Airport. The plane eventually departed for Singapore, but it did not make up any of the lost time. The delay caused some sort of ripple effect because she and other transit passengers missed the connecting flight to their destinations. The delay at Heathrow Airport was due to snow congestion. Unfavorable weather conditions are beyond the control of an airline and thus inevitable. Qantas Airline should demonstrate that it was not possible to predict through weather forecasting that there would be heavy snow on that particular day and thus were not able to inform the passengers of the likely delay. Article 17 of the Montreal Convention hereinafter the MC, provides that the carrier shall be liable for damages that will be sustained in the case of death of injury to the body of a passenger on the condition that the accident that caused the injury or death occurred while on board the aircraft or during any of the processes of either embarking, boarding or disembarking (Shaw, 1998). This article calls for the party that is alleging, to show that injury to the body was caused either on board the airliner or while either embarking or disembarking. In this case Mrs. Smith has to show that in the process of embarking on the connecting flight, she strained her back muscle because of the luggage as well as the four hundred meter walk she partook to the transfer desk. She had to carry her hand luggage as she could not find a trolley. Article 19 of the MC provides that the airline carrier shall be liable for damages caused or occasioned by delay during the carriage of passengers, luggage or even cargo. The carrier nonetheless is not liable for damage that is caused by delay if it can demonstrate that it as well as its servants and or agents undertook all necessary measures that could reasonably be required to evade the damage or even that it was not possible for it or them to take such assessments or measures (Shaw, 1998). The question from the foregoing is whether Qantas undertook all the necessary measures that could reasonably be required to evade the damage or that it was impossible for them to take the necessary measures. The snow congestion that caused the delay was probably beyond the control of the Qantas Airline however, it was reasonably foreseeable that a delay in flight from London will cause the transit passengers miss their connecting flights. Qantas Airline could have made arrangements for a temporary transfer desk for its transit passengers so as to spare them the tiring four hundred meters walk to the transfer desk in Terminal 1 at Changi Airport. Any passenger who is travelling on an international flight is under the protection of the Montreal Convention or the Warsaw convention. The conventions are international treaties that ensure airlines are liable for injury sustained to a passenger because of an accident. For the purposes of the convention, an accident is defined as an unexpected or an unusual event which is external or peripheral to a passenger (Kean, 1982). The Montreal Convention in certain instances makes an airline to be liable for injuries that have been sustained while a passenger is on board an aircraft because of an accident. An accident includes an experience with unexpected and severe turbulence. A passenger is not expected to establish that the airline was responsible for the accident, rather show that injuries were sustained. The convention similarly entitles passengers to be compensated for emotional distress that they have suffered. This is possible only if such passengers have suffered some sort of physical injury that resulted to the emotional distress (Schaffer, Agusti, and Earle, 2008). Certain courts have ruled that airlines are liable to compensated for accidents on an international flight but, the liability may be reduced if the passenger contributed to some extent to the injury (Kean, 1982). For example if the passenger were not wearing her safety belt then she could have contributed to her injuries. In this particular case, the seat belt sign was off when Mrs. Smith got up to go use the restroom so, she did not contribute to her injury by not taking precaution. It is upon Singapore Airline to demonstrate that the turbulence was so unexpected and, they did everything they possibly could to avoid encountering it. As Mrs. Smith was walking, the aircraft hit severe and unexpected turbulence that caused her to break her arm in the incident. Since Mrs. Smith was an international traveler, the MC applies. When the treaty applies, she only needs to prove that her injuries were the result of the incident and not that the airline was negligent. From the foregoing, Mrs. Smith is entitled to compensation for injuries sustained as she is protected by the Montreal Convention. Among the principles that the Air Law Committee of the ILA has suggested is that, compensation for personal injuries shall be based on the principles of absolute, secured and unlimited liability.1 Conclusion. The downing of the civilian aircraft by the Chinese authorities was a tough call as they had exercised all the available options under the Annex to the Chicago Convention. The decision to fire down the airplane was because of the threats of hijackers who were targeting a populated area. The rules on international law impose some sort of strict liability on airlines when passengers sustain personal injuries while on board an international flight. Mrs. Smith is entitled to reimbursement and compensation for the injuries suffered. References. Boczek, B.A. (2005). International Law: A Dictionary. Maryland: Scarecrow press. Diederiks-Verschoor, I.H.P. (2006). An Introduction to Air Law. (8th Ed.). Netherlands: Kluwer Law International Foont, B.E. (2007). Shooting down Civilian Aircraft: Is there an International Law? Journal of Air Law and Commerce, 72(4), 696-724. Kean, A. (1982). Essays in Air Law. Netherlands: BRILL. Schaffer, R., Agusti, F., and Earle, B. (2008). International Business Law and its Environment. Mason, OH: Cengage Learning. Shaw, M.N. (1998). International Law. (4th Ed.). Cambridge: Cambridge University Press. Read More