| by Dr. Ruwantissa Abeyratne
( March 9, 2014, Montreal, Sri Lanka Guardian) Many of us woke up on Saturday morning to the disturbing news that a Malaysian Airlines plane, which took off from Kuala Lumpur for Beijing at 12.41 a.m. on Saturday, had lost contact with air traffic control two hours into the flight. The Boeing 777-200 carrying 239 people including 12 crew members carried fourteen nationalities (mostly Chinese but Malaysian, Indonesian and Australians as well) on board. There were also infants and toddlers on board. It was reported that the plane had lost contact with Vietnamese air traffic control in Ho Chi Minh City at 1.21 a.m. At the time of writing - more than 24 hours later - no trace of the aircraft had been found except for a report that two oil slicks had been detected in the South China Sea, which led to no conclusions.
Our first thoughts were with those on board, and our prayers were that they be safe, and that their families be comforted in this difficult time. The world came together - with Malaysia, Vietnam and China providing rescue ships and aircraft, including the United States. The Malaysian authorities were sensitive and caring in their messages to relatives and friends of the passengers. So were the Chinese Foreign Minister who hoped that all passengers were safe, and the Australian Foreign Minister who said that those involved were in the prayers of all Australians.
It can only be presumed that MH 370 plunged into the sea. However, this is only a presumption at this point since no accident had been confirmed at the point of writing. No one ventured to even hazard a conjecture as to what could have happened, except that aviation experts who were interviewed by the media confirmed that both Malaysian Airlines and the B 777 aircraft had splendid safety records. There were two troubling enigmas that surfaced: there were no distress calls at all from the flight deck in an aircraft flying at an altitude of 35,000 feet; and two of the passengers were travelling with stolen passports of Austrian and Italian nationality (both Austria and Italy have reportedly confirmed that none of their nationals were on board).
Both Malaysia and China have ratified the Montreal Convention of 1999 which unifies rules pertaining to international carriage by air. Article 17 of the Montreal Convention imposes liability on the carrier for death or bodily injury caused to passengers if the accident which caused such death or injury took place on board the aircraft or in the course of any of the operations of embarkation or disembarkation. The carrier’s liability is two tiered: the first being absolute liability of a maximum of 100,000 Special Drawing Rights (SDR) for each passenger. This amount, the carrier has to pay whether he is at fault or not. If the carrier can prove that the death or injury caused by the accident was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents or that such damage was solely due to the negligence or other wrongful act or omission of a third party, the carrier can avoid payment of a sum exceeding 100,000 SDRs. In other words, if the plaintiff can prove that death or injury was due to the negligence, wilful misconduct or wrongful act of the carrier or his servants or agents, the 100,000 SDR limit can be exceeded in terms of carrier liability.
Article 28 of the Montreal Convention stipulates that in the case of aircraft accidents resulting in death or injury of passengers, the carrier is bound to, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments do not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
At the 38th Session of the Assembly of the International Civil Aviation Organization (ICAO) held from 18 September to 4 October 2013, the Assembly adopted Resolution A38-1 (Assistance to victims of aviation accidents and their families) which calls on Member States to reaffirm their commitment to support victims of civil aviation accidents and their family members; and urges Member States to establish legislation, regulations and/or policies to support victims of civil aviation accidents and their family members. The Resolution encourageds States that have legislation, regulations and/or policies to support civil aviation accident victims and their families to review these documents, as necessary, in consideration of ICAO Policy. The Assembly also urged the ICAO Council to give further consideration to the development of Standards and Recommended Practices regarding the establishment by States of legislation, regulations and/or policies to support victims of civil aviation accidents and their family members.
There is another multilateral treaty which comes into play if what happened to flight MH 370 is formally declared an accident. The Chicago Convention of 1944 which both Malaysia and China have ratified, in Article 26 states that in the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by ICAO. The State in which the aircraft is registered is given the opportunity to appoint observers to be present at the inquiry and the State holding the inquiry shall communicate the report and findings in the matter to that State.
In the context of territory, there are three States involved: Malaysia; Vietnam; and China. While the Chicago Convention stipulates that the contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory, and that the territory of a State is, for the purposes of the Convention, deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State, the issue of territorial waters of which State (China, Malaysia or Vietnam) would be the applicable criterion for purposes of determining which State would lead the accident investigation in the case of MH 370 comes into play. This would be decided by the delimitation prescribed by the United Nations Convention on the Law of the Sea (UNCLOS) which provides that the sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea is exercised subject to UNCLOS and to other rules of international law. Article 3 of UNCLOS states that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the provisions of UNCLOS.
Article 15 of UNCLOS adds that where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. This provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.
Legal considerations aside, in the case of MH 370 the world has come together to show its unreserved concern for those affected and its wish to come to the aid of those in need. After all this is what aviation is all about, as the Chicago Convention says in its Preamble – that international civil aviation helps preserve friendship and understanding among the people of the world.
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