Can Australia sue Russia and win?

Australia commenced one of the year’s more unusual international law actions this week, initiating (together with the Netherlands) a case against Russia in relation to the shooting down of Malaysian Airlines Flight MH17 in 2014.

MH17 was a passenger flight from Amsterdam to Kuala Lumpur, that was struck by a missile while flying over eastern Ukraine on 17 July 2014. There were no survivors from the 15 crew and 283 passengers. An investigation by the Dutch Safety Board concluded that the plane had been hit by a surface-to-air missile fired from a part of Ukraine controlled by pro-Russian separatists.

It was found that the missile used was provided by a Russian anti-aircraft missile unit, and had been transported to Ukraine on the day of the crash. The launch system was returned to Russia shortly afterwards. Because Russia supplied the missile and its launch system, the governments of Australia and Russia have argued that Russia is accountable for the disaster, in which 193 Dutch citizens and 27 Australians died. Russia has denied responsibility.

What makes the dispute unusual (apart from its tragic facts) is the forum in which it is being pursued. In international law, states are sovereign entities that usually can be held accountable to others for their actions only to the extent that they have agreed to do so by a treaty. Russia tends to avoid treaties that impose liability for its actions; for example, it isn’t a party to the treaty that establishes the International Criminal Court.

But Russia (like Australia and the Netherlands) is a party to the Chicago Convention on International Civil Aviation. This is a treaty that sets out a number of basic principles for the conduct of civil aviation across borders. Most of it deals with logistics, but Article 3(b) states that “every State must refrain from resorting to the use of weapons against civil aircraft in flight”.

A breach of Article 3(b) will be established if the shooting can properly be attributed to Russia. The principles that apply to state responsibility were set out by the International Law Commission in 2001, in a document known as the draft articles on Responsibility of States for Intentionally Wrongful Acts. The draft articles are widely accepted as a statement of customary international law, and they are likely to be employed as a framework for determining the extent of Russia’s involvement in the incident. Under the draft articles, the mere fact that Russia supplied the weapon used in the attack is unlikely to be sufficient to fix the State with responsibility – something more is required.

It’s significant that two of the four individuals who are thought to have been directly responsible for the firing of the missile were, at the time, employed by a Russian military intelligence agency. Article 8 of the draft articles provides that “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” Article 9 provides that “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.” So the question of Russia’s responsibility is likely to resolved by a determination of the extent to which the Russian agents in question were acting on instructions, or under authority, given to them by their government.

If Russia is found liable, then under Article 31 of the draft articles, it would be liable to pay reparations – which, in this case, would involve a payment to the families of the victims of the crash.

But who decides?

That takes us back to the Chicago Convention. Article 50 creates a Council to administer the agreement, and Article 84 gives the Council a dispute resolution function. It states that when there is a disagreement between two or more contracting states relating to the application of the Convention, and it cannot be settled by negotiation, “it shall, on the application of any State concerned in the disagreement, be decided by the Council.” This isn’t a well-known international dispute body; it has been used no more than half a dozen times in the 78 years of the Council’s existence, but there’s no doubt that it has jurisdiction to hear a dispute under Article 3(b).

One reason why the Council is so seldom used as a dispute resolution body is that there’s no clear mechanism for the enforcement of its decisions. Under Article 85, however, a decision of the Council may be appealed to an international arbitration tribunal. And an award rendered by that tribunal would be enforceable internationally under the New York Convention of 1958. This anomaly may have the curious effect that an original decision of the Council may be difficult, if not impossible, to enforce, but an appeal from it could be enforced with relatively little difficulty. If Australia and the Netherlands were to succeed in their case before the Council, they may nonetheless need to appeal against the decision on some basis in order to have it confirmed in arbitration, and so make it an internationally effective decision.

That’s assuming, of course, that payment of reparations really is the endgame. It’s possible that Australia and the Netherlands would be satisfied with having an international body make a determination that the incident was Russia’s responsibility. Which is probably not a role that the Council of the International Civil Aviation Organisation ever imagined it would play.