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MH17 and German theory to sue Ukraine

(Please note, this matter is not currently being litigated in Australia)

Suggestions have been made by various legal representatives that legal action planned by a German academic could pose significant risks to the compensation awarded to Australians who lost family members in the MH17 disaster.

German Professor Elmar Giemulla announced plans in September to file an action for compensation against Ukraine on behalf of all 298 MH17 passengers. Suggestions have been made that this action, which as yet has not been pursued, could restrict options for Australian families who wish to pursue damages against other defendants, alleged to be responsible for the downing of flight MH17.

We are certain that families have no reason to be alarmed by such suggestions and that Giemulla’s plans will not impact upon the compensation that MH17 families could be awarded.

Professor Giemulla’s theory is to sue Ukraine for failure to close what it knew or should have known would be dangerous airspace.

We have examined this theory and believe it is unsupported by international air law.

Giemulla’s theory is flawed for two reasons:

1. Under International Law, the Ukrainian Government did not have a legal responsibility to close airspace that it believed was dangerous.

Ukraine, like all countries who have ratified the International Convention on Civil Aviation (also known as the “Chicago Convention of 1944”), have a discretion to either prohibit access to, or restrict temporarily access to, or define “danger” areas in their sovereign airspace (see Article 9 of the Convention).

Ukraine exercised that discretion to temporarily restrict its airspace.  One element of the discretion is that such prohibited areas should be defined in such a way so as to “not interfere unnecessarily with air navigation”.  In short that means “do the minimum reasonably necessary to assure safety” – not close all airspace.

2. Giemulla’s theory also presupposes that the Ukrainian Government will accede to international pressure to publicly admit partial or full liability for the shooting down of the aircraft merely because this happened in its airspace.

That’s extremely unlikely to happen purely for political reasons, let alone sound in law.  Aircraft transiting foreign airspace are subject to sovereign control of the nation’s beneath them under side agreements which were agreed at the time of the Chicago Convention of 1944, but they are also subject to their own safety risk assessments and other supra-national/regional guidance and advice (e.g. from Eurocontrol and FAA advisories).  It is a weak argument to blame Ukraine when so many others are aware of and daily make such decisions as “where” to fly and “which route” they will take to do it.

In our view, the closest legal precedent to the MH17 case was the bombing of Pan Am flight 103 (the Lockerbie bombing).  In that case, which had a large number of US passengers killed, US lawyers pushed lawmakers to declare Libya a state sponsor of terrorism so families of victims could sue the Libyan Government in US courts.  Such a declaration was needed to bypass a legislated immunity for foreign sovereigns in US courts.  That resulted in large settlements for families some 15 years after the plane was bombed.

However, unlike that case, MH17 involves no US passengers and no connection to US law or courts.  Thus, it is futile to consider that a similar approach would work.

Certainly the shooting down of the aircraft was a breach of international law.  Article 3bis of the Chicago Convention of 1944 codifies the prevailing customary international law which prohibits countries from attacking civilian airliners.  That rule was clearly breached.  The resolution of such a claim for breach of that law would need to be pursued by one country against another country using the available international aviation legal mechanisms available. These are, arbitration or adjudication by the ICAO Council, and if that fails, a case in the International Court of Justice (ICJ).

The result would be an order for reparations. In this case, this would be equal to the moral and legal compensation each family should be entitled to for the loss of their loved ones. Such an amount would be higher than the amount available from Malaysia Airlines under the more restrictive Montreal Convention.

It would be open for one country, for example Australia, which blames another country for the shooting down to make a claim for the adjudication of the ICAO Council or the ICJ, but it would require significant successful diplomacy to bring the “defendant” country to court as there is nothing in law which would compel them to come to court nor force them to pay out on any eventual court judgment.  International law is all about agreeing to be held responsible by an international adjudicator/arbitrator or court.  Quite simply, that must be achieved by means independent of the law so that international law can work (e.g. diplomatic efforts).

In the case of MH17, Shine Lawyers has partnered with Dutch and Swedish lawyers expert in aviation law to bring the interests of aggrieved families to the fore.  Rather than dealing with the minutiae of international law which we say should be the role of governments, we think a simpler solution exists.

Shine Lawyers propose to lobby for the creation of an international victims compensation fund which is sponsored by the governments of those countries who lost nationals in MH17.  We would suggest that the kinds of efforts needed for governments to recoup the money they should, in theory, be able to recoup from the government of those ultimately responsible for shooting the aircraft down, is the responsibility of those governments if they truly believe their citizens’ lives are worth it.

Why should victims’ families wait two decades for adequate compensation from the true entities and individuals at fault?  We think they should not have to wait.



Written by Shine Lawyers. Last modified: October 28, 2014.

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