It is encouraging that Iran has allowed Canada to participate in the accident investigation
by Dr. Ruwantissa Abeyratne
writing from Montreal
The Montreal Convention of 1999 prescribes redress against damage caused by death or bodily injury to air passengers if the accident which caused such damage occurs on board the aircraft or in the process of embarkation or disembarkation. Although it could well be that an action could lie for compensation under the Convention on the shooting down of the Ukraine International Airways Flight 752 by Iran last week, this would be against the carrier who would have to pay and not the State. There is no multilateral treaty against States which destroy aircraft and those on board with the use of weapons. One has to resort to general principles of public international law to address the liability or responsibility of States. This has to be determined under principles of State responsibility.
Libya offered to pay $2.7 billion in compensation to the families of the 270 people killed in the 1988 crash of Pan Am 103, according to government officials and a lawyer representing the families. CNN records: “On December 21, 1988, Pan Am Flight 103 exploded 31,000 feet over Lockerbie, Scotland, 38 minutes after takeoff from London. Two hundred fifty-nine people on board the New York-bound Boeing 747 were killed, along with 11 people on the ground. Afterward, United States and British investigators found fragments of a circuit board and a timer, and ruled that a bomb, not mechanical failure, caused the explosion. Libyans Abdelbeset Ali Mohmed al Megrahi and Al Amin Khalifah Fhimah were tried for the bombing. Al Megrahi was found guilty, while Fhimah was found not guilty”.
In 1989 The United States offered to pay $250,000 per full-time wage-earning victim and $100,000 for each of all the other victims of the destruction by a U.S, warship in 1988 of an Iran Air Airbus. Newsweek recorded that overall the government agreed to pay Iran a $131.8 million settlement—around $216 million in 2020 accounting for inflation—to end a case brought by Tehran in 1989. Of this, $61.8 million was compensation to the families of the Iranian victims. The United States accepted no liability.
Prime Minister of Canada, Justin Trudeau demanded accountability, transparency and justice for the families and the loved ones of the victims of the shooting down on 8 January of the Ukrainian International Airways Boeing 737- 800 aircraft. Several Canadians were on that aircraft. Prime Minister Trudeau said: “Iran must take full responsibility”. It was reported that Iran announced the arrest of several suspects in the destruction of the aircraft.
It is encouraging that Iran has allowed Canada to participate in the accident investigation, which seems to accord with the recommendation made as early as 1949, where, in its Report to the General Assembly, the International Law Commission recommended a draft provision which required that: “Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law”.
The fundamental issue in the context of State responsibility is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent an act of destruction against civil aviation or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a State reprehensibility on the ground that a principal-agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct. The objective responsibility theory seems to suggest that the gravity of responsibility that devolves upon the State imputes strict liability, where irrespective of the fault, the State has to pay compensation to those aggrieved.
In November 2019 The United Nations General Assembly introduced a draft Resolution which decides to include in the provisional agenda of its seventy-seventh session the item entitled “Responsibility of States for internationally wrongful acts” and to further examine, within the framework of a working group of the Sixth Committee and with a view to taking a decision, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action.
This having being said, one cannot overlook the most important factor in this tragic situation- the human element and the plight of the unsuspecting and trusting passenger and the family left behind. The International Civil Aviation Organization has taken proactive steps on State responsibility which are indeed to its credit. A salient feature of these measures is that States are called upon to assist in any accident involving victims of accidents, irrespective of the circumstances which caused such accident. During its 32nd Session of the ICAO Assembly in October 1998, States considered the subject of assistance to aircraft accident victims and their families, acknowledging that the policy of ICAO should be to ensure that the mental, physical and spiritual well-being of victims involved in civil aviation accidents and their families are considered and accommodated by ICAO and its Contracting States. Following discussions, Assembly Resolution A32-7 was adopted, calling on Contracting States to reaffirm their commitment to support civil aviation accident victims and their families and urging them, in cooperation with ICAO and other States, to promptly review, develop and implement regulations and programmes to provide that support. The Council of ICAO was urged to develop material citing the need for the establishment of regulations and programmes by Contracting States and their air operators to support aircraft accident victims and their families.
Accordingly, the Council of ICAO has requested States to reaffirm their commitment to ensure that adequate and sufficient assistance is provided to aircraft accident victims and their families; establish legislation, regulations and/or policies addressing family assistance plans to ensure that family assistance providers have the necessary financial, personnel, and equipment resources, and that systems are available at short notice to provide assistance to aircraft accident victims and their families in a timely manner; ensure that their family assistance plans consider the following factors: recipients of family assistance; types of family assistance to be provided; when family assistance should be provided; family assistance providers; periodic review and exercise of the plan; and enactment of legislation, regulations and/or policies necessary to implement the plan; establish legislation, regulations and/or policies required to implement effective coordination and control of the efforts to provide the required family assistance; require that air operators implement family assistance plans, and ensure that these plans are exercised regularly, supervised and audited as necessary; require that airport operators implement family assistance plans, which can be part of their Airport Emergency Plans, in coordination with air operators, and ensure that these plans are exercised regularly, supervised and audited as necessary; and require air operators to have proper arrangements with airports in which they operate, so as to facilitate the provision of family assistance as required.
The overriding consideration should be prevention rather than reparation after the fact. For this, there are treaty provisions which I have discussed in an earlier article on Ukraine International Airways Flight 752. States have only to give them serious consideration.
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