TELDERS INTERNATIONAL MOOT COURT COMPETITION 2008

APPLICATION ON BEHALF OF

ICARA

(Applicant)

IN

THE AERIAL ACCIDENT CASE

(Icara versus Mercuria)

Registration Number 14A

 i

(a) Table of Contents

(a) Table of Contents...........................................................................................................i

(b) List of Abbreviation.....................................................................................................iii

(c) List of Sources..............................................................................................................vi

(d) Statement of Relevant Facts...................................................................................xviii

(e) Issues.........................................................................................................................xxiii

(f) Summary of Arguments..........................................................................................xxvi

(g) Jurisdiction of the International Court of Justice...............................................xxxi

(h) Argument

I. Mercuria is Responsible for All Damage Caused by the Mid-Air Collision

in its Airspace......................................................................................................1

1.1. Internationally Wrongful Act..................................................................1

1.2. Acts and Omissions of PatriControl.......................................................1

1.3. Mercuria Has Not Shown Due Diligence over the Acts of

PatriControl......................................................................................................4

The Agreement between Mercuria and Patriarcha Is Not in Fore.......8

1.4.1. Ratification........................................................................................8

1.4.2. The Bilateral Agreement Is Not Opposable to Icara...................10

1.4.3. Registration under the U.N. Charter............................................10

1.4.4. Registration with ICAO..................................................................11

1.4.5. Mercuria Has Violated its International Obligations for

Registration and May Not Invoke the Bilateral Agreement before This

Court..........................................................................................................11
 ii

1.5. There Is no Local Custom with Respect to This Block of Airspace....11

1.6. Acquiescence.............................................................................................13

1.7. The Territorial Doctrine..........................................................................16

1.8. The Omissions of the PatriControl Personnel.......................................17

II. Mercurias Liability to Icara for the Value of the Destroyed Aircraft.........20

III. Mercuria Indemnifies and Holds Harmless Icarex Airlines..........................20

3.1. The Concept of Damage..........................................................................20

3.2. Indemnify and Hold harmless.................................................................21

3.3. Jurisdiction of the Court.........................................................................22

3.4. Res Judicata..............................................................................................22

IV. Mercuria Compensates Icara for any Damage, Expenditure, Costs or Injury

Suffered from the Accident...............................................................................23

4.1. Mercuria Compensates Icara for Loss of Profits Incurred as a Result

of the Destruction of the Icarex Airlines Aircraft........................................23

4.2. Mercuria Compensates Icara for any Expenditure or Costs Resulting

from the Mid-Air Collision.............................................................................24

(i) Submissions..................................................................................................................25
 iii

(b) List of Abbreviations

Adv. Op. Advisory Opinion

ANS Air Navigation System

ASA Air Service Agreement

ATC Air Traffic Control

ATC/ATM Air Traffic Control and Management Systems

ATM Air Traffic Management

ATM/ATC Air Traffic Management and Control Systems

AJ Intl American Journal of International Law

ANSP Air Navigation Service Provider

Art. Article

A/RES Resolution of the United Nations General Assembly

Cf. Confer

Co. Company

CNS/ATM Communications, Navigation, Surveillance/Air Traffic

Management

Diss. Op. Dissenting Opinion

Doc. Document

et al. et alii, et aliae

et seq./et seqq. et sequens/ et sequens, et sequentia

ESARR Eurocontrol Safety Regulatory Requirement

e.g. exempli gratia

FIR Flight Information Region

ft feet

FL Flight Level
 iv

GA Res. General Assembly Resolution

hrs hours

Ibid Ibidem

IASTA International Air Services Transit Agreement of 1944

ICAO International Civil Aviation Organization

ICJ International Court of Justice

ILC International Law Commission

ILR International Law Reports (continuation of the Annual

Digest)

IT-LOS International Tribunal for the Law of the Sea

Ltd Limited

No. Number

NM Nautical Mile(s)

NSA National Supervisory Authority

p./ pp. page/ pages

para. paragraph

PCIJ Permanent Court of International Justice

RVSM Reduced Vertical Separation Minima

RES Resolution

St Saint

STCA Short-Term Conflict Announcement

SSG-CNS Secretariat Study Group- Communications, Navigation,

Surveillance

U.K. United Kingdom

U.N. United Nations

 v

U.N.R.I.A.A. United Nations Reports on International Arbitral

Awards

U.S. United States

v. versus

VCLT Vienna Convention on the Law of Treaties

Vol. Volume
 vi

(b) List of Sources

1. Treaties

Annex 10 to the Chicago Convention

(Hereinafter cited as: ICAO Annex 10)

Annex 11 to the Chicago Convention

(Hereinafter cited as: ICAO Annex 11)

Annex 13 to the Chicago Convention

(Hereinafter cited as: ICAO Annex 13)

Chicago Convention on International Civil Aviation, of 1944

(Hereinafter cited as: Chicago Convention)

International Air Services Transit Agreement, of 1944

(Hereinafter cited as: IASTA)

Montreal Convention for the Unification of Certain Rules for International Carriage by
Air, of 1999
(Hereinafter cited as: Montreal Convention)

Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,
of 1952
(Hereinafter cited as: Rome Convention)

Vienna Convention on the Law of Treaties, of 1969

(Hereinafter cited as: VCLT)

2. Eurocontrol Documents

Eurocontrol Safety Regulatory Requirement 1

(Hereinafter cited as: ESARR 1)

Eurocontrol Safety Regulatory Requirement 2

(Hereinafter cited as: ESARR 2)

Eurocontrol Safety Regulatory Requirement 3

(Hereinafter cited as: ESARR 3)

Eurocontrol Safety Regulatory Requirement 4

(Hereinafter cited as: ESARR 4)
 vii

3. ICAO Documents

Doc. 9806
Title, Human Factors Guidelines for Safety Audits Manual
(Hereinafter cited as: ICAO Doc. 9086)

ICAO Report of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems.
1st Meeting, Montreal 7-8 April 1999; SSG-CNS/1-Report (9 April 1999)
(Hereinafter cited as: ICAO Report)

4. General Assembly Resolutions

A/RES/56/83 Responsibility of States for Internationally wrongful acts

of 28 January 2001, 56th Session
(Hereinafter cited as: GA Res. 56/83)

5. Jurisprudence

5.1 International Court of Justice

Corfu Channel Case

(U.K. v. Albania), Merits
ICJ Reports 1949, available at: http://www.icj-
cij.org/docket/index.php?p1=3&code=cc&case=1&k=cd
(Hereinafter cited as: Corfu Channel Case/1949)

Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion
ICJ Reports 1949, p. 174
(Hereinafter cited as Reparations for Injuries Adv. Op.)

Asylum Case
(Colombia v. Peru), Merits
ICJ Reports 1950, available: http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&code=cpr&case=13&k=1d
(Hereinafter cited as: Asylum Case)

Case concerning Rights of Nationals of the United States of America in Morocco

(France v. U.S.), Merits
ICJ Reports 1952, p. 176
(Hereinafter cited as: U.S. Nationals in Morocco Case)

Minquiers and Ecrehos Case

(France v. U.K.), Merits
ICJ Reports 1953, available at: http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&code=fuk&case=17&k=19
(Hereinafter cited as: Minquiers and Ecrehos Case)
 viii

Right of Passage over Indian Territory Case

(Portugal v. India), Merits
ICJ Reports 1960, available at: http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&code=poi&case=32&k=ce
(Hereinafter cited as: Right of Passage Case)

North Sea Continental Shelf Cases

(Germany v. Denmark; Germany v. Netherlands), Merits
ICJ Reports 1969, p. 3
(Hereinafter cited as: North Sea Continental Shelf Case)

Case concerning the United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Merits
ICJ Reports 1980, p. 3
(Hereinafter cited as: Tehran Hostage Case)

Delimitation of the Maritime Boundary in the Gulf of Maine Area Case

(Canada v. U.S.), Merits
ICJ Reports 1984, available at: http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&code=cigm&case=67&k=6f
(Hereinafter cited as: Gulf of Maine Case)

Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. U.S.) Merits
ICJ Reports 1986, p. 14
(Hereinafter cited as: Nicaragua Case/1986)

Case Concerning the Gabcikovo-Nagymaros Project

(Hungary v. Slovakia), Merits
ICJ Reports 1997, p. 7
(Hereinafter cited as: Gabcikovo-Nagymaros Project Case)

Difference relating to Immunity from Legal Process of a Special Rapporteur of the

Commission on Human Rights, Advisory Opinion
29 April 1999, ICJ Reports 1999, available at: http://www.icj-
cij.org/docket/files/100/7619.pdf
(Hereinafter cited as: Immunity from Legal Process Case)

5.2 Permanent Court of International Justice

Lotus Case
(French Republic v. Turkish Republic), Merits
PCIJ Series A, No. 10 (1927), p. 4
(Hereinafter cited as: Lotus Case)

Case concerning the Factory at Chorzow

(Germany v. Poland), Merits
PCIJ Series A, No. 17 (1928), available at:
http://www.worldcourts.com/pcij/eng/decisions/1928.09.13_chorzow1/
(Hereinafter cited as Chorzow Factory Case)
 ix

Phosphates in Morocco
(Italy v. France), Preliminary Objections
PCIJ Series A/B No. 74 (1938), p. 9
(Hereinafter cited as: Phosphates in Morocco Case)

Societe Commerciale de Belgique Case

(Belgium v. Greece)
PCIJ, Ser. A/B., No. 78 (1939), available at:
http://www.worldcourts.com/pcij/eng/decisions/1939.06.15_societe_commerciale/
(Hereinafter cited as: Societe Commerciale de Belgique Case)

5.3 Other International Courts

Eliza Ann Case

Book Reviews Case (1813) 1 Dods.
(Hereinafter cited as: Eliza Ann Case)

Yuille, Shortrigde and Co. Case

(U.K. v. Portugal)
Lapradelle and Politis, Recueil des Arbitrages Internationaux, Vol. 2 (1861), p. 109
(Hereinafter cited as: Yuille, Shortrigde and Co. Case)

Delagoa Bay Railway Case

(U.K. v. U.S.)
2 Moore International Arbitrations (1900), p. 327
(Hereinafter cited as: Delagoa Bay Railway Case)

The Spyros Antippa Case

Greco-German Mixed Arbitral Tribunal
7 T.A.M. (1926), p. 23
(Hereinafter cited as: The Spyros Case)

Title to Islands in Passamaquoddy Bay Case

(U.K. v. U.S.)
Moore, International Adjudications (Modern Series), Vol. 6 (1814), p. 95
(Hereinafter cited as: Title to Islands in Passamaquoddy Bay Case)

The Montijo Case

(Colombia v. USA)
International Arbitration, Vol. 2 (1875), p. 1437
(Hereinafter cited as: Montijo Case)

Cape Horn Pigeon Case

(U.S. v. Russia)
U.N.R.I.A.A. Vol. 9 (1902), p. 51
(Hereinafter cited as: Cape Horn Pigeon Case)
 x

Alaskan Boundary Dispute

(U.K. v. U.S.)
Proceedings of the Alaskan Boundary Tribunal, Vol. 7 (1903), p. 531
(Hereinafter cited as: Alaskan Boundary Case)

Di Caro Case
Italian-Venezuelan Commission
U.N.R.I.A.A. Vol. 10 (1903), p. 597
(Hereinafter cited as: Di Caro Case)

Heirs of Jean Maninat Case

French-Venezuelan Commission
U.N.R.I.A.A. Vol. 10 (1905), p. 55
(Hereinafter cited as: Heirs of Jean Maninat Case)

Gage Case
American-Venezuelan Commission
U.N.R.I.A.A. Vol. 9 (1905), p. 226
(Hereinafter cited as: Gage Case)

Grisbadarna Arbitration
(Norway v. Sweden)
4 AJ Intl Law (1910), p. 226
(Hereinafter cited as: Grisbadarna Case)

Costa Rica-Nicaragua Boundary Arbitration

(Costa Rica v. Nicaragua)
11 AJ Intl Law (1917), p. 181
(Hereinafter cited as: Costa Rica-Nicaragua Case)

Norwegian Claims Case

(U.S. v. Norway)
H.C.R., Vol. 2 (1922), available at: http://www.pca-
cpa.org/upload/files/Norwegian%20Shipowners%20award%20only.pdf
(Hereinafter cited as: Norwegian Claims Case)

Lusitania Cases
(U.S. v. Germany)
U.N.R.I.A.A. Vol. 7 (1923), p. 32
(Hereinafter cited as: Lusitania Cases)

Life Insurance Claims

U.S-Germany Mixed Claims Commission
U.N.R.I.A.A., Vol. 7 (1924) p. 91
(Hereinafter cited as: Life Insurance Claims Case)

Spanish Zones of Morocco Claims

(Great Britain v. Spain)
U.N.R.I.A.A., Vol. 2 (1925), p. 615
(Hereinafter cited as: Spanish Zones of Morocco Claims Case)
 xi

Angola Case
Portugo-German Arbitral Tribunal
U.N.R.I.A.A., Vol. 2 (1928), p. 1011
(Hereinafter cited as: Angola Case)

The Island of Palmas (or Miangas) Case

(Netherlands v. U.S), 4 April 1928
U.N.R.I.A.A., Vol. 2 (1924), p. 91
(Hereinafter cited as: Palmas Case)

Dixon Car Wheel Company Case

(United States v. Mexico)
U.N.R.I.A.A., Vol. 4 (1931), p. 669
(Hereinafter cited as: Dixon Car Wheel Case)

International Fisheries Company Case

Mexican-US General Claims Commission
U.N.R.I.A.A., Vol. 4 (1931), p. 691
(Hereinafter cited as: International Fisheries Company Case)

The Chevreau Case

(France v. U.K.)
27 AJ Intl Law (1931), p. 153
(Hereinafter cited as: Chevreau Case)

Case of the pensions of officials of the Saar Territory

(Germany v. Governing Commission of the Saar Territory)
U.N.R.I.A.A., Vol. 3 (1934), p. 1653
(Hereinafter cited as: Pensions of officials of the Saar Territory Case

Ambatielos Arbitration
(Greece v. U.K.), Merits
ICJ Reports 1957, p. 149
(Hereinafter cited as: Ambatielos Case)

Iranian Oil Company Case

Iran-U.S. Claims Tribunal
85 AJ Intl Law (1989), p. 184
(Hereinafter cited as: Iranian Oil Company Case)

Rainbow Warrior Case

France-New Zealand Arbitration Tribunal
U.N.R.I.A.A., Vol. 20 (1990), p. 217
(Hereinafter cited as: Rainbow Warrior Case)

M/V Saiga No.2 Case

(Saint Vincent and the Grenadines v. Guinea), Admissibility, Merits
IT-LOS, 120 ILR (1999), p. 143
(Hereinafter cited as: M/V Saiga Case)
 xii

5.4 Municipal Courts

The Elida Case

Imperial Supreme Prize Court in Berlin
American Journal of International Law, Vol. 10, No. 4 (1916) p. 916
(Hereinafter cited as: Elida Case)

6. Books

Black, Henry Campbell Blacks Law Dictionary

6th edition St. Paul: West Publishing Co., 1990
(Hereinafter cited as: Blacks Law Dictionary)

Brownlie, Ian Principles of Public International Law

6th edition, Oxford: Oxford University Press, 2003
(Hereinafter cited as: Brownlie)

Brownlie, Ian System of the Law of Nations: State Responsibility

Oxford, Clarendon Press, 1983
(Hereinafter cited as: Brownlie State Responsibility)

Cassese, Antonio International Law

2nd edition Oxford/New York et al., 2005
Oxford University Press
(Hereinafter cited as: Cassese)

Cheng, Bing General Principles of Law Applied by International

Courts and Tribunals
London: Stevens & Son Ltd, 1953
(Hereinafter cited as: Cheng)

Crawford, James The International Law Commissions Articles on State

Responsibility: Introduction, Text and Commentaries
Cambridge: Cambridge University Press, 2002
(Hereinafter cited as: Crawford)

Danilenko Gennadii Law-Making in the International Community

Mikhailovich Dordrecht/Boston: M. Nijhoff, 1993
(Hereinafter cited as: Danilenko)

Degan, Vladimir Sources of International Law

The Hague; Boston: M. Nijhoff, 1997
(Hereinafter cited as: Degan)

Evans, Malcom D. International Law

1st edition Oxford: Oxford University Press, 2003
(Hereinafter cited as: Evans)
 xiii

Fauchille, Paul Traite de Droit International Public

8th edition Paris, 1921-1926
(Hereinafter cited as: Fauchille)

Fitzmaurice, Sir Gerald The Law and Procedure of the International Court of
Justice
Cambridge: Grotius Publications, 1986
(Hereinafter cited as: Fitzmaurice)

Fleming, John The law of Torts

3rd edition, Sydney: The law Book Company Ltd, 1965
(Hereinafter cited as: Fleming)

Harris, David J. Cases and Materials on International Law

6th edition London, Sweet & Maxwell 2004
(Hereinafter cited as: Harris)

Hanqin, Xue Transboundary Damage in International Law

Cambridge/New York, Cambridge University Press,
2003
(Hereinafter cited as: Hanqin)

Honor, A.M. Torts: Causation and Remoteness of Damage

International Encyclopedia of Comparative Law, Vol.
XI, Chapter 7, Tubingen: Mohr, 1971
(Hereinafter cited as: Honore)

Higgins, Rosalyn Problems and Process: International Law and how We

Use It
Oxford, Clarendon Press/New York, Oxford University
Press, 1994
(Hereinafter cited as: Higgins)

Jennings, Sir Roberts/ Oppenheims International Law, Vol. I Peace

Watts, Sir Arthur 9th edition London, Longmann, 1992
(Hereinafter cited as: Jennings/Watts)

Klabbers, Jan The Concept of Treaty in International Law

The Hague; Boston: Kluwer Law International, 1996
(Hereinafter cited as: Klabbers)

Lauterpacht, Hersch (ed.) Oppenheims International Law: a Treatise

8th edition London, Longmann, 1955
(Hereinafter cited as: Lauterpacht)

Lowe, Vaughan/ Fifty Years of the International Court of Justice: Essays

Fitzmaurice, Malgosia in Honour of Sir Robert Jennings
Cambridge: Cambridge University Press, 1996
 xiv

Malanczuk, Peter/ Akehurst's Modern Introduction to International Law

Akehurst, Michael Barton 7th Rev. edition, London: Routledge, 1977
(Hereinafter cited as: Malanczuk)

McNair, Lord Arnold The Law of Treaties

Duncan Oxford: Clarendon Press, 1986
(Hereinafter cited as: McNair)

OConnell, D.P. International Law

2nd London: Stevens, 1970
(Hereinafter cited as: OConnell)

Perels, F. Manuel de Droit Maritime International

Transl. Arendt, Paris, 1884
(Hereinafter cited as: Perels)

Ross, Alf A Textbook of International Law: General Part

London; New York; Toronto: Longmans, Green and
Co., 1947
(Hereinafter cited as: Ross)

Roukounas, Emmanuel International Law ( )

: . . , 1982
(Hereinafter cited as: Roukounas)

Schwarzenberger G. International Law

3rd edition, London: Stevens, 1967-1986
(Hereinafter cited as: Schwarzenberger)

Shaw, Malcom N. International Law

4th edition, Cambridge University Press, 1997
(Hereinafter cited as: Shaw 4th)

Shaw, Malcolm N. International Law

5th edition, Cambridge, Oxford University Press, 2003
(Hereinafter cited as: Shaw)

Shelton, D Remedies in International Human Rights Law

1st edition, Oxford: Oxford University Press, 1999
(Hereinafter cited as: Shelton)

Simma, Bruno/ The Charter of the United Nations: a Commentary

Mosler, Hermann 2nd edition Oxford; New York: Oxford University
Press, 2002
(Hereinafter as: Simma/Mosler)

Sorensen, Max Manual of Public International Law

New York: St. Martins Press, 1968
(Hereinafter cited as: Sorensen)
 xv

Villinger Mark Eugen Customary International Law and Treaties : a Manual on

the Theory and Practice of the Interrelation of Sources
2nd edition The Hague/Boston: Kluwer Law
International, 1997
(Hereinafter cited as: Villiger)

7. Articles

Blix, Hans The Requirement of Ratification

British Yearbook of International Law, Vol. 30
(1953), p. 352
(Hereinafter cited as: Blix)

Briggs, Herbert W. The Colombian-Peruvian Asylum Case and Proof of

Customary International Law
in: American Journal of International Law, Vol. 45
(1951), p. 728
(Hereinafter cited as: Briggs)

Chan, Phil C.W. Acquiescence/Estoppel in International Boundaries:

Temple of Preah Vihear Revisited
Chinese Journal of International Law, Vol. 3
(2004), p. 421
(Hereinafter cited as: Chan)

Cohen-Jonathan, Gerard La Coutume Locale

in: Annuaire Francais de Droit International Vol. 7
(1961), p. 119
(Hereinafter cited as: Cohen-Jonathan)

D Amato, Anthony The Concept of Special Custom in International Law

in: American Journal of International Law, Vol. 63,
No. 2 (1969), p. 211
(Hereinafter cited as: D Amato)

Fitzmaurice, Sir Gerald The Law and Procedure of the International Court of
Justice, 1951-54: General Principles and Sources of Law
in: 30 British Yearbook of of International Law 1
(1953), p. 1
(Hereinafter cited as: Fitzmaurice/1953)

Francioni, Francesco La Consuetudine Locale del Diritto Internazionale

in: Rivista di Diritto Internazionale Vol. 54 (1971)
p. 396
(Hereinafter cited as: Francioni)
 xvi

Guggenheim, Paul Lokales Gewohnheitsrecht

in: sterreichische Zeitschrift fr ffentliches Recht
und Vlkerrecht, Vol 11 (1961), p. 321
(Hereinafter cited as: Guggenheim)

Johnson, D.H.N. Acquisitive Prescription in International Law

in: British Yearbook of International Law, Vol. 27
(1950), p. 332
(Hereinafter cited as: Johnson)

Kaikobad, Kaiyan Homi Some Observations on the Doctrine of Continuity and

Finality of Boundaries
in: British Yearbook of International Law, Vol. 53
(1982), p. 119
(Hereinafter cited as: Kaikobad)

MacGibbon, I.C. The Scope of Acquiescence in International Law

in: British Yearbook of International Law, Vol. 31
(1954), p. 143
(Hereinafter cited as: MacGibbon)

MacKenzie, N. A. M Canadian Practice in International Law during 1969

as Reflected Mainly in Public Correspondence and
Statements of the Department of External Affairs
in: Canadian Yearbook of International Law, Vol. 8
(1970), p. 337
(Hereinafter cited as: MacKenzie)

Schubert, Francis The Liability of Air Navigation Services in the Single

European sky
Annals of Air and Space Law, Vol. 28 (2003), p. 57
(Hereinafter cited as: Schubert)

Whiteman, M.M. Federal Removal (U.S.) Chapter XVI: Extradition:

Other Procedures for Return of Fugitives
in: Digest of International Law, Vol. 8 (1967), p.738
(Hereinafter cited as: Whiteman)

8. Miscellaneous

Airport Technology Air Traffic Management and Control Systems (ATM /

ATC)
http://www.airport-technology.com/contractors/traffic/
(site last visited 20 January 2008)
(Hereinafter cited as: Airport Technology Glossary)
 xvii

Eurocontrol Navigation Domain RVSM Implemented in the northern part of the Algiers
Flight Information Region (FIR)
http://www.ecacnav.com/RVSM
(site last visited: 20 January 2008)
(Hereinafter cited as: Eurocontrol Navigation Domain
RVSM)

US Department of State Fourteen points speech (1918), Woodrow Wilson

http://usinfo.state.gov/usa/infousa/facts/democrac/51.ht
m
(site last visited: 20 January 2008)
(Hereinafter cited as: Fourteen Points Speech)
 xviii

(d) Statement of relevant facts

Icarex Airlines is an airline established and regulated by the laws of the State of

Icara. Icara substantially owns and effectively controls Icarex Airlines whose aircraft are

registered in the national registry of the country. Additionally, its aircraft and flight

operations meet internationally recognised safety standards as well as the former being

registered in the national registry of Icara.

Icara has designated Icarex Airlines under bilateral air services agreements (ASA)

to operate international services by air to third states. Several States have such an ASA

with Icara such as Montania with whom has been agreed to operate scheduled and non-

scheduled air transport services between the capitals of the two countries.

CargoGalax Airways is an airline established and regulated under the laws of the

State of Galaxy. It is also substantially owned and effectively controlled by nationals of

Galaxy and its aircraft have been registered in the national registry of the country.

Finally, its aircraft and flight operations meet internationally recognised safety standards.

CargoGalax Airways is a company which performs transportation of Cargo by air.

Under the light of an ASA between Galaxy and the State of Limonia, CargoGalax

Airways has been designated to operate international air services between the capitals of

the two countries.

Icarex Airlines and CargoGalax Airways in order to operate their air transport

services fly over Mercurias national sovereign airspace. Mercuria has granted both

airlines the right to fly across its airspace.

 xix

PatriControl is a privatised air navigation services provider of Patriarcha, a

neighbouring to Mercuria State. It is established and regulated under the laws of

Patriarcha, which is also a neighbouring to Mercuria State. PatriControl has been

designated to provide air traffic control services in the sovereign airspace of Patriarcha.

Continuously since 1952 PatriControl has been providing ATC services for a

specific block of airspace falling under Mercurias sovereign airspace. These services

have been agreed upon between Mercuria and Patriarcha through an agreement they

concluded the same year.

Whereas the practice of this agreement concerning delegation of air traffic

services has been established for more than four decades, as it was signed and submitted

to the Parliaments of the two States for ratification, neither Government has yet ratified it

nor registered it with the ICAO.

Article 5 of this Agreement provides that: Patriarcha is liable for damages

caused by its negligence, or that of its agents or any other person acting on its behalf, in

relation to the provision of air traffic services falling under the agreement. Article 30 of

the same agreement requires its ratification for its entry into force.

PatriControl as well as Mercurias own air navigation service provider are

operating both under international safety rules established by ICAO as well as the rules

and procedures regarding the Delegation of Air Traffic Services and ESARRs as drawn

by Eurocontrol and implemented in the national legislation of Mercuria and Patriarcha.

On December 23 2006 a mid-air collision occurred within the block or airspace of

Mercuria controlled by PatriControl between aircraft operated by Icarex Airlines and

 xx

CargoGalax Airways respectively while performing their designated air transport services

to Montania and Limonia.

Aboard the Icarex Airlines aircraft were 50 passengers and 6 crew members, and

above the CargoGalax Airways aircraft 3 crew members. There were no survivors of the

accident. The wreckage of the aircraft fell over both Mercuria and Patriarcha.

Unfortunately, pieces of the aircraft seriously damaged a football stadium on the

Mercurian ground, killed and severely wounded football players and public attending a

top-league football match, as well as causing damage and injury to private property and

persons on the surface of both countries.

After the accident, an official investigation was conducted by Mercuria to reveal

the facts and causes of the accident with the following findings, all times being local:

a) The crew of the Icarex Airlines flight reported in to PatriControl while

flying at an altitude of 36,000 feet at 11:30:11. CargoGalax Airways had been cleared by

PatriControl to climb the same altitude at 11:29:50. The two aircraft were therefore

approaching each other.

b) At 11:34:42 a traffic announcement (TA) was made in both aircraft

simultaneously by their on-board airborne collision avoidance system (TCAS) containing

the words "traffic traffic". TCAS works independently of any ground based system or

ATC unit.

c) At 11:34:49 the on duty PatriControl controller instructed the Icarex aircraft to

descend immediately to 35,000 feet, pointing out conflicting traffic. The Icarex crew

initiated a descent, but without confirming it to the controller.

 xxi

d) At 11:34:56 the TCAS of both aircraft simultaneously generated a resolution

advisory (RA) to their crew for the Icarex aircraft to climb, and for the CargoGalax

aircraft to descend.

e) At 11:34:58 the acoustic short-term conflict alert (STCA) in the PatriControl

tower, warning of aircraft closing on one another, sounded at the PatriControl's controller

workstation. However, this alarm was not noticed by the controller.

f) At 11:35:01, the PatriControl controller again instructed the Icarex aircraft to

descend immediately to 35,000 feet. The crew immediately confirmed this instruction.

g) The controller failed to notice, however, that at 11:35:17 the CargoGalax

aircraft started to descend as well. As TCAS is not linked to the ground, the controller

was unaware that a TCAS-RA had instructed the crew of the CargoGalax aircraft to

descend.

h) At 11:35:24 the TCAS-RA was activated in the Icarex aircraft instructing the

crew to increase climb, increase climb. Five seconds later the two aircraft collided.

14. The investigators also came across with the following findings at PatriControl:

a) Due to technical works at PatriControl, visual STCAs, which appear on a

controllers monitor 120 seconds before the horizontal impeding closing of two aircraft to

less than 12km, were not available on the day of the accident from 11:13:00. The

supervisor had given a short briefing to the controllers about the situation but they had

not been properly informed about its aspects as the briefing was inadequate.
 xxii

b) According to internal arrangements between controllers, known to the

management of the company, only one controller was working in the control room at the

time of the accident, instead of the normal stuffing of the room. Therefore, the duty

controller had to man two workstations also different in their configuration, switching

between them from time to time.

On April 12 2007 Icara instituted proceedings against Mercuria before the ICJ and

Mercuria did not raise any Preliminary Objections to the application. Icara, Mercuria,

Patriarcha, Montania and Limonia are all members of the ICAO and have not made any

reservations regarding the standards established by the Chicago Convention and its

Annexes. Moreover, they are parties to the VCLT, IASTA, and the Montreal Convention.

Icara and Mercuria are both Eurocontrol contracting State. Finally, Icara is also party to

the Rome Convention.

 xxiii

(e) Issues

I. Mercuria is responsible for all damage caused by the mid-air collision in its

airspace on 23 December 2006

a) Is ANS considered to be a public service of sovereign nature?

b) Does the delegation of ANS to a third party, even to a private company, in

anyway affect the status of the activity?

c) Are the acts and omissions of PatriControl attributable to Mercuria

according to Art. 5 of the ILC Articles?

d) Did Mercuria show due diligence to prevent the accident?

e) Is Mercuria, according to Art. 1 of the ILC Articles, responsible for the

mid-air collision that occurred in its airspace on 23 of December 2006?

f) Is ratification an essential element in order for a treaty to be entered into

force?

g) What can be drawn out of the refusal of the Parliaments of the two

governments (Mercurias and Patriarchas) to ratify the agreement which

the two States concluded in 1952?

h) Is the bilateral agreement between Mercuria and Patriarcha opposable to

Icara?

i) Is there a sanction for treaties not registered with the U.N. according to

Art. 102 of the U.N. Charter?

j) Is registration with the ICAO Council according to Arts 81, 83 of the

Chicago Convention, essential?

k) May Mercuria invoke the bilateral agreement before the ICJ?

 xxiv

l) Does local custom exist?

m) When does absence of protest result to acquiescence?

n) According to the territorial doctrine, which State retains primary liability

and why?

o) Were the acts and omissions of PatriControl the sole and immediate cause

of the aerial accident?

II. Mercuria compensates Icara for the value of the destroyed aircraft

a) Do the acts and omissions of PatriControl constitute a wrongful act

according to Arts. 1, 2 of the ILC Articles?

b) Is there a causal link between the acts and omissions of PatriControl and

the damage occurred?

c) Does Mercuria have an obligation to make full reparation according to

Arts. 31, 34 of the ILC Articles for the destroyed aircraft?

III. Mercuria indemnifies and hold harmless Icarex Airlines

a) What is the criterion of damages for an accident?

b) What do damages include?

c) What is the definition of indemnity?

d) What is the definition of hold harmless?

e) May the ICJ decide upon the indemnification and holding harmless of

Icarex Airlines?

f) Will the decision of the ICJ in the matter of indemnification and holding

harmless impose a res judicata?

 xxv

IV. Mercuria compensates Icara for any damage or injury already incurred and/or

incurred in the future as a result of the accident

a) What is defined as lost of profits?

b) May lost profits be included in damages?

c) What do expenditures include?

d) What do costs include?

e) Is Mercuria responsible to make full reparation for any damage or injury

caused by the mid-air collision?

 xxvi

(f) Summary of Arguments

1. ANS is considered to be a public function of sovereign nature since its personnel

is authorised to monitor the national airspace, to detect illicit intrusions into that

airspace or violations of applicable rules and to report such violations to the

competent authorities, including the national air force.

2. The delegation of ANS to a third party, even to a private company, does not in

any way affect the status of the activity.

3. According to Art. 28 of the Chicago Convention, states undertake the

responsibility to promote the implementation of ANS facilities in their airspace,

and to determine the ways through which this will be achieved.

4. According to Art. 28 of the Chicago Convention, when the function of ANS is

entrusted to an autonomous entity, each state remains ultimately responsible for

the ANS facilities and services in place over its territory.

5. Mercuria is, according to Art. 5 of the ILC Articles, responsible for the acts of

PatriControl as it is exercising governmental sovereign activities in its airspace.

Moreover, PatriControl at the time of the accident was performing its ATC

services under that capacity.

 xxvii

6. The management of PatriControl did not act in conformity with the Eurocontrol

ESARRs which provide for minimum safety requirements.

7. Due to the non-conformity of PatriControl with the ESARRs, the minimum

contribution of the ATC to the accident of 23 December 2006 was not ensured.

8. The NSA of Mercuria was unaware of the situation in PatriControl, namely the

fact that only one controller was on post, manning two workstations, although it

was obliged to conduct a surveillance and remedy the situation accordingly.

9. A causal link between the omissions of PatriControl and the occurrence of the

accident of 23rd of December 2006 is established.

10. Mercuria should not have been ignorant of the facts revealed latter by the

investigation, and especially of the practice followed by the controllers.

11. Mercuria has not shown the necessary care and diligence to prevent the accident;

moreover, through its knowledge of the facts, it entails full responsibility for the

aerial accident and all damages caused by it.

12. The long refusal of the Parliaments of both Mercuria and Patriarcha to ratify the

Agreement of 1952, indicates their will not to be bound by all or some of the

provisions stated in it.

 xxviii

13. Acquiescence should not to be considered.

14. The Agreement for the delegation of ATS conducted between Mercuria and

Patriarcha is not in force due to lack of ratification and none of its provisions may

be invoked in support of any claim.

15. The bilateral Agreement between Mercuria and Patriarcha is not opposable to

Icara as it constitutes a res inter alios acta and may not create obligation for Icara

without its expressed consent.

16. Mercuria has failed to register with the ICAO Council and the U.N. the bilateral

agreement for the delegation of ATS concluded with Patriarcha, breaching its

international obligations set out by Art. 83 of the Chicago Convention and Art.

102 (1) of the U.N. Charter.

17. Mercuria may not invoke this Agreement before this Court as it falls within the

scope of the sanction provided in Art. 102 (2) of the U.N. Charter.

18. There has been no emergence of local custom as far as the control of the block of

airspace is concerned and in the case that is found that such local custom does

indeed exist, it does not include the transferring of liability from Mercuria to

Patriarcha, and it is not opposable to third parties, such as Icara.

 xxix

19. Icara had no possible way of knowing any specific delegation of rights and duties

between Mercuria and Patriarcha and in cases which involve a loss of a right,

express consent is required.

20. According to the territorial doctrine of liability, Mercuria is liable for all damage

occurred in its territory from the accident in question.

21. The acts and omissions of the PatriControls staff were the sole and immediate

cause of the aerial accident.

22. According to Arts. 1 and 2 of the ILC Articles, Mercuria is responsible for the

aerial accident and consequently according to Art. 31 of the ILC Articles,

Mercuria, is under an obligation to compensate Icara for the injury caused

(destroyed aircraft) by the internationally wrongful act of PatriControl attributed

to it.

23. Mercuria should indemnify and hold harmless Icarex Airlines for any claims

arising from third parties in relation to the accident, and/or the legal successors of

the deceased passengers and crew aboard the aircraft, including present and future

claims.
 xxx

24. The ICJ has Jurisdiction to decide upon the indemnifification and holding

harmless of Icarex Airlines according to Art. 36 of its Statue.

25. In the event that this Court finds Mercuria fully responsible of the aerial accident,

the decision of the Court constitutes res judicata

26. Icara could by no means be required to satisfy any claims in relation to the aerial

accident because such claims would be contrary to the original judgement and

thus contrary to the principle of res judicata.

27. Mercuria is responsible to pay compensation to Icara for all damage, expenditure,

costs or injury it was faced with as a consequence of the aerial accident. Seeing as

the responsibility for the accident lies on the part of Mercuria, it is a matter of

equity for Mercuria to compensate Icara for all the above.

28. Mercuria shall compensate Icara not only for the value of the destroyed aircraft

but also for the loss of profits Icarex Airlines suffered as a consequence of the

aerial accident.

29. Mercuria shall compensate Icara for any such expenditure or costs incurred and/o

incurred in the future as a result of the aerial accident.

 xxxi

(g) Jurisdiction of the Court

Icara and Mercuria are both parties to the Statute of the International Court of Justice and

have accepted the compulsory jurisdiction of the Court under Article 36(2) of the ICJ

Statute. The jurisdiction of the Court is not disputed by either party.

 1

(h) Argument

1. Mercuria is Responsible for All Damage Caused by the Mid-Air Collision in Its

Airspace.

It is submitted that Mercuria is responsible for all damage caused by the mid-air

collision in its airspace on 23 December 2006. According to the principle of international

law codified in Art. 1 of the ILC Articles, every internationally wrongful act of a State

entails its responsibility.1

1.1. Internationally Wrongful Act

An internationally wrongful act involves, under Art. 2 of the ILC Articles,2 an act

or omission attributable to a State under international law which constitutes a breach of

an international obligation The Articles of the ILC provide, through their codification of

custom and in some parts development of the law on State responsibility, an authoritative

source for guidance,3 referred to by the ICJ and other international tribunals.4

1.2. Acts and Omissions of PatriControl

The acts and omissions of PatriControl are attributable to Mercuria according to

customary international law, as codified in Art. 5 of the ILC Articles. Accordingly, the

conduct of a person or entity which is not an organ of the State, shall be considered an act

of that State under international law, provided that it is empowered by the law of that

1
Phospates in Morocco Case, p. 28; Gabcikovo-Nagymaros Project Case, p. 38 ;
Nicaragua Case, pp. 142, 149; Reparations for Injuries Adv. Op., p. 184.
2
Phosphates in Morocco Case, p. 28; Tehran Hostage Case, p. 29; Nicaragua Case, pp.
117-118; Dixon Car Wheel Case, p. 678; Gabcikovo-Nagymaros Case, p. 54.
3
Cf. Higgins, p. 146; Harris, p. 504; GA Res. 56/83 para. 3.
4
Gabcikovo-Nagymaros Case pp. 38-41; Rainbow Warrior Case pp. 270-271; Immunity
from Legal Process Case, p. 87; M/V Saiga Case, p. 1323.
 2

State to exercise elements of governmental authority, and it is acting in that capacity at

the particular instance in question.

ANS, which is included in ATC/ATM systems,5 is generally considered a public

service of sovereign nature. Its sovereign dimension derives from a qualification given to

that activity under domestic legislation. First, ANS services are by definition provided for

reasons of public safety, with the purpose of ensuring the safety of both passengers and

public on the ground. However, the core sovereign aspect of ANS is deduced from the

activities of ANSPs. ANSPs, which are the organisations responsible for the separation of

aircraft both on the ground and in flight in a designated block of airspace on behalf of a

state, are often asked to support police and national defence activities. This conclusion

can be drawn by the fact that they are authorized to monitor the national airspace, to

detect illicit intrusions into that airspace or violations of applicable rules and to report

such violations to the competent authorities, including the national air force; ANS thus

qualifies as police functions.6

The delegation of ANS to a third party, even to a private company, does not in

any way affect the status of the activity. The sovereign nature of ANS is not related to the

identity of the provider, but to the legal status of the activity itself.7 In other words, the

parent State is the one empowering autonomous providers to perform a sovereign task

within the limits of their sovereign airspace.

5
Airport Technology Glossary.
6
Schubert, p. 61.
7
Ibid.
 3

Under Art. 28 of the Chicago Convention, states undertake the responsibility to

promote the implementation of ANS facilities in their airspace, and to determine the ways

through which this will be achieved.8 This, in practice, may be accomplished, inter alia,

through designating an independent body to undertake the task of performing ANS on its

behalf.9 However, it is accepted that, by virtue of Art. 28 of the Chicago Convention,

even when that responsibility is entrusted to an autonomous entity, each State remains

ultimately responsible for the ANS services in its territory.10

In the present case, PatriControl, a privatised ANSP, has been exclusively

carrying out ATC services in the block of Mercurias airspace in question. Moreover, it

operates under the provisions of ICAO and the rules drawn by Eurocontrol as

implemented in the national legislation of Mercuria and Patriarcha. Patricontrol, despite

its privatised status, is exercising activities of a sovereign nature as those have been

delegated to it by Mercuria. Furthermore, there is no inference that PatriControl was not

acting within the authority delegated to it by Mercuria

It is therefore submitted that Mercuria is, under Art. 5 of the ILC Articles,

responsible for the acts of PatriControl, as it is exercising governmental sovereign

activities in its airspace, and it was at the time of the occurrence of the accident acting

within its ATC services capacities.

8
Annex 11 Chicago Convention, para 2.1.3.
9
Ibid.
10
ICAO Report, para. 3.8.1.
 4

1.3. Mercuria Has Not Shown Due Diligence over the Acts of PatriControl

Airspace superjacent to land, territory, and territorial sea is an integral part of

State territory falling under the exclusive jurisdiction of the subjacent state,11 which has

complete and exclusive sovereignty over it.12 In the Corfu Channel Case, the ICJ held, in

effect, that a State cannot be held responsible for all acts occurring in its territory, merely

because of their occurrence there.13 However, territorial sovereignty involves the

exclusive right to display the activities of the State and such a right has as corollary the

duty of the State to protect, within its territory, the rights of other States, in particular

their right to integrity and inviolability.14 Hence the assertion of exclusive jurisdiction

over their territory involves an obligation of states to display due care and diligence to

protect the safety of legitimate foreign interests.15

However, since it is not practically possible for a State to control the acts of every

individual within its jurisdiction, it is accepted that it bears the duty to exercise due

diligence to prevent such injuries in the first instance,16 and to detect and punish its

offenders in the case that such acts have taken place.17 If nonetheless, it has failed to

11
Nicaragua Case, pp. 14, 128; Brownlie, p. 115; Sorensen, p. 343; Cassese, p. 94;
Evans, p. 336; O Connell, p. 519; Shaw, p. 464; Schwarzenberger, p. 226; Malanczuk, p.
198
12
Chicago Convention Art. 1.
13
Corfu Channel Case/1949, p. 18.
14
Palmas Case, p. 93.
15
Fitzmaurice, p. 13.
16
Higgins, pp. 155-156; Brownlie, p. 161.
17
Whiteman, p. 738; MacKenzie, p. 357.
 5

exercise that duty, a state can be held responsible and liable to pay damages.18 Each of

these omissions involves a states responsibility in international law just like the

commission of the act itself.19 Finally, the knowledge of the authorities, or in

circumstances where such knowledge must be presumed to have existed for acts injurious

to the rights of another State occurring in its territory, give rise to its responsibility.20

According to Eurocontrol, to which both Icara and Mercuria are contracting

parties, the increasing complexity of the ATM system requires a systematic and

structured approach to risk assessment and mitigation, including hazard identification, as

well as the use of protective and monitoring techniques to assist in this process.21 An

ATM service provider shall therefore ensure that hazard identification as well as risk

assessment and mitigation are systematically conducted for any changes to those parts of

the ATM system within his managerial control, in a manner, which addresses the three

ATM elements (human, procedures, and equipment).22 Primary responsibility for the

safety of an ATM service rests with the service provider. Within the overall management

of the service, the service provider shall ensure that all safety issues have been handled.23

18
Jennings/Watts, p. 549.
19
Corfu Channel Case, p. 52.
20
Corfu Channel Case, p. 23.
21
ESARR 4, para 2.1.
22
ESARR 4, para. 5.1. (c).
23
ESARR 3 para. 2.
 6

Moreover, an ATM service provider shall ensure that safety in ATM shall be afforded the

highest priority over commercial, operational, environmental or social pressure.24

The principal safety objective is to minimize the ATM contribution to the risk of

an aircraft accident as far as it is reasonably possible.25 Each State shall ensure that a

formal means of safety occurrence reporting an assessment is implemented for all ATM-

related occurrences that pose an actual or potential threat to flight safety, or can

compromise the provision of safe ATM services.26 Moreover, each State shall ensure that

an investigation by a team of experts of any occurrence endangering the flight safety or

the ability to provide ATM services takes place immediately and any remedial action

necessary is taken.27 States shall ensure that NSAs specifically exercise safety oversight

as part of the supervision of regulatory requirements applicable to the provision of ATM

services to general air traffic.28 NSAs shall establish a process, which shall base the

verification of compliance on the use of safety regulatory audits conducted so as to

provide NSAs with evidence of compliance with applicable safety regulatory

requirements and related arrangements, by evaluating the need for improvement or

corrective action.29 The NSAs audits shall be used in order to determine the conformity

24
ESARR 3, para 5.1.3.
25
ESARR 3, para 5.1.4.
26
ESARR 2, para. 5.1.1.
27
ESARR 2, para 5.1.5.
28
ESARR 1, para. 3.1.
29
ESARR 1, para 5.2. (d), 6.2. (a).
 7

of established arrangements against required arrangements.30 NSAs shall finally issue

safety directives when an unsafe condition has been determined to exist in a system.31

In the present case it is established, by means of the investigation of the causes of

the accident, that by reasons of technical work, visual STCAs were not available on the

day of the accident from 11:13:00. However, the controllers were not adequately

informed through the general briefing of the supervisor. Additionally, according to

internal arrangements agreed between controllers, which were known to and tolerated by

the management of PatriControl, only one controller was actually on post at the time of

the accident instead of the usual two controllers and two assistants.

It is therefore submitted that the management of PatriControl did not act in

conformity with regulatory requirements, as it did not ensure the minimum contribution

of the ATC to the accident. Not only were the visual STCAs down due to technical

reasons but the briefing informing the controllers of such a situation was inadequate. The

management of the company falls under the direct authority of the NSA, which Mercuria,

as a contracting party to the Eurocontrol, is expected to have established, and should have

provided the ATC services with alternatives to visual STCAs in order to prevent non-

compliance to the ESARRs before it would actually take place. Furthermore, the conduct

of the one controller working, manning two workstations also different in their

configuration, known to and tolerated by the management, should have been discovered

through the annual audits the NSA is obliged to conduct and remedied accordingly. A

30
ESARR 1 para. 6.2. (e) i.
31
ESARR para. 10.1.
 8

causal link between those omissions and the occurrence of the accident can also be

established.

Consequently, Mercuria has not shown the due diligence which was necessary in

this case by reason of the severity of the situation and in accordance to its contractual

obligations. Moreover, Mercuria could not have been ignorant of the facts revealed later

by the investigation, and especially of the practice followed by the controllers. Therefore

it is submitted that Mercuria has not shown the necessary care and diligence to prevent

the accident, and a fortiori, through its inferred knowledge of the facts, entails full

responsibility for the aerial accident and all damages caused thereof.

1.4. The Agreement between Mercuria and Patriarcha Is Not in Force.

It is submitted that the agreement of delegation of air traffic services conducted

between Mercuria and Patriarcha is not in force due to lack of ratification.

1.4.1. Ratification

The element of consent is necessary for the establishment of an agreement

binding inter partes.32 Ratification is the positive expression of consent of a State to be

internationally bound.33 It is therefore the final confirmation given by the parties to a

treaty concluded by their representatives. When a treaty is of such kind as to require

ratification, ratification is essential in order for its entry into force.34 The ratification of a

treaty with an explicit provision requiring such ratification is not a mere final act but an

32
Art. 34 VCLT; Blix, p. 353; Sorensen, p. 192.
33
Art. 2 para. 1 (b) VCLT; Roukounas, p. 131; Brownlie, p. 583.
34
McNair, p. 130.
 9

indispensable condition for its coming it into force.35 It is established that a treaty is

incomplete until it has been reciprocally ratified.36 Refusal to ratify must be presumed if

the treaty is not ratified for an unreasonable period of time.37 Finally, as stated in the

Costa Rica-Nicaragua Case, acquiescence cannot be regarded substitute for ratification.38

In the present case, the agreement transferring air traffic control tasks from

Mercuria to Patriarcha was signed in 1952. It requires, under Article 30, its ratification in

order for it to enter into force. This agreement was signed and submitted for ratification

to the Parliaments of both States. However, it has not been ratified by either Government.

Ratification of the agreement of 1952, required by the instrument itself, is in this

case missing, something that renders the treaty incomplete. Moreover, it may be assumed

that since the lapse of fifty-four years is an unreasonable period of time for the

ratification of a treaty and more so a bilateral one, such a long refusal by the two States to

ratify, indicates their will not to be bound by all or some of its provisions. Furthermore,

acquiescence to the agreement should not be considered to remedy the lack of

ratification.

It is therefore submitted that the agreement between Mercuria and Patriarcha is

not in force due to lack of consent to be bound, and none of its provisions may be

invoked in support of a claim.

35
Ambatielos Case, p. 43.
36
Eliza Ann Case, pp. 244, 248.
37
Lauterpacht, p. 908.
38
Costa Rica-Nicaragua Case, p. 226.
 10

1.4.2 The Bilateral Agreement Is Not Opposable to Icara

The bilateral agreement conducted between Mercuria and Patriarcha is not

opposable to Icara as it constitutes a res inter alios acta.39 Moreover, the bilateral

agreement may not create any obligation for Icara without its express consent.40

1.4.3 Registration under the U.N. Charter

After their entry into force, treaties shall be submitted to the Secretariat of the

U.N. for registration and publication.41 Under Art. 102(1) of the Charter, members of the

U.N. shall deposit any international agreement concluded between them to the Secretariat

for registration. Parties to this agreement may not invoke it before an organ of the U.N.

prior to its registration.42 Registration has always been considered an important factor in

determining whether an agreement was intended to be legally binding.43 Art. 102

provides an absolute obligation of U.N. member States and does not have a discretionary

character.44 All members of the U.N. parties to a bilateral or multilateral agreement are

equally obliged to register. The provision does not declare unregistered treaties not

binding, but simply disables any party thereto from invoking them before any organ of

the U.N. An unregistered treaty may not, therefore, be invoked before the ICJ which is, in

39
McNair, p. 309; Degan, p. 413.
40
Art. 35 VCLT.
41
Art. 80 VCLT.
42
Art. 102 (b) U.N. Charter.
43
Klabbers, p. 79.
44
CP/Jacques, p.1359; Broches/Boskey, p. 175; Simma, p. 1282; Cf. GA Res. 172 II, 254
B III.
 11

terms of Art. 7 of the Charter, an organ of the United Nations. Ergo an organ of the U.N.

may not permit a party to a dispute invoke an unregistered treaty before it.45

1.4.4 Registration with ICAO

Under Art. 83 of the Chicago Convention, any arrangements that fall under the

spectrum of the ICAO specialized agency and are not inconsistent with the rules set out

by the Convention shall be registered with the ICAO Council, in order for it to ensure its

publicity.

1.4.5 Mercuria Has Violated Its International Obligations for Registration and May

Not Invoke the Bilateral Agreement before This Court

Mercuria has failed to register with the ICAO and consequently with the U.N. the

bilateral agreement for delegation of air traffic services concluded with Patriarcha. It is

submitted that Mercuria breached its international obligations, set out by Art. 83 of the

Chicago Convention, and therefore falls under Art. 102 (1) of the U.N. Charter providing

for the obligation of all member States of the Organisation to submit the treaties

concluded between them for registration with the Secretariat in order to promote open

diplomacy.46 Moreover, Mercuria may not invoke this agreement before the ICJ as it falls

within the scope of the sanction provided in Art. 102 (2).

1.5 There Is no Local Custom with Respect to This Block of Airspace

It is submitted that no local custom has evolved with respect to the control of the

block of airspace is concerned. Alternatively, in case it is found that such local custom

45
McNair, p. 188.
46
Fourteen Points Speech.
 12

does indeed exist, it does not include the transferring of liability from Mercuria to

Patriarcha, and it is not opposable to third parties such as Icara.

A rule evolves in customary international law if a particular pattern of state

conduct acquires obligatory force through its general acceptance by States as a legal

obligation.47 In addition to general customary law binding upon all States, customary

rules may exist that are solely binding upon States of a certain geographical region, in

which case they constitute a regional or local custom.48 Regional customary rules, apart

from the two basic elements comprising general custom, need to meet two special

requirements.

First, the express recognition by the States concerned is necessary. In the case of

local custom, it is necessary to establish a States clear assent to the practice as law in

order for the rule to be invoked against it.49 This is because local custom is of particular

nature, unlike general customary law and instead constitutes a manifestation of the theory

of consent.50 Secondly, the burden of proof rests on the country invoking them with the

consequence that if this state fails to discharge its burden of proof, the claim based on the

alleged customary rule will be rejected.51

47
Briggs, p. 730; Nicaragua Case/1986, pp. 92-98; North Sea Continental Shelf Case, p.
44.
48
Asylum Case, pp. 266; Right of Passage Case, p. 39; Sorensen, p. 133; Guggenheim, p.
327; Cohen-Jonathan, p. 119; D Amato, p. 211; Francioni, p. 396.
49
Ibid; US Nationals in Morocco Case, p. 200; Cf. Fitzmaurice/1953, pp. 68-69.
50
Shaw 4th, p. 73.
51
Asylum Case, p. 276.
 13

In the present case, there is initially a lack of the two constitutive elements of

customary law. The fact that the international agreement between Mercuria and

Patriarcha has not been ratified indicates the clear refusal and objection to the rules set by

this agreement.52 Moreover, the practice between the two States, as regards the fact that

PatriControl has been operating in the specific block of airspace since 1952, is merely an

indicator of a constant usage; yet it may not be argued that this usage is considered to be

adhered to as the expression of a right and a duty appertaining to the two States

respectively,53 ergo lacking the vital element of opinio juris.

Moreover, the clear assent of all parties to it is required for the creation of local

custom. Icara has not given any such assent towards such a creation and therefore it may

not be invoked against Icara. Finally, assuming that there is a bilateral local custom

between the two States, this may not be invoked against third parties, as local custom

may not be invoked in favour, or against States that have not contributed to its creation.

1.6. Acquiescence

Absence of protest implies acquiescence only under the condition that the inactive

state is aware of the legal claims advanced at an international level by other members of

the international community.54 Acquiescence is equivalent to tacit recognition manifested

by unilateral conduct, which, by not raising protest against active practice of the other

52
Asylum Case, pp. 277-278.
53
Ibid.
54
Danilekno, p. 108.
 14

party may be interpreted as consent.55 However, abstention only gives rise to the

recognition of custom if it is based on a conscious duty to abstain, as held by the PCIJ in

the Lotus Case.56 The right of a government to protest is acquired only at the moment

when it is in full knowledge of the facts.57 Absence of protest implies acquiescence only

under the condition that the inactive state is aware of the legal claims advanced at an

international level by other members of the international community.58 Knowledge is all

the more essential when it comes to an allegation of general acquiescence, for

acquiescence is often implied in cases where it does not genuinely exist; but without

knowledge there can be no acquiescence at all.59 In order to make a plea of acquiescence

a state must prove that the second state had knowledge of its claim.60 Absence of protest

is indeed of relative value as States may not protest for a variety of reasons unconnected

with law.61

It is also argued that acquiescence means expressed consent and it is doubtful

whether the consent of States may be inferred simply from their inaction.62 In all cases

55
Gulf of Maine Case, p. 246; Cf. Grisbadarna Arbitration, pp. 226 et seqq.; Chan, p.
425.
56
Lotus Case, p. 18.
57
Pensions of Officials of the Saar Territory Case, p. 175.
58
Villinger, p. 20; Shaw, p. 64.
59
Johnson, pp. 332, 347.
60
Jasentuliyana, p. 28.
61
OConnell, p. 18.
62
Fauchille, p. 382; Perels, p. 44.
 15

there should be real consent and not merely passivity in the event of inevitable facts.63

Situations in which consent is not implied from silence include those in which the

inaction and abstention from protest has been that of a party without actual or

constructive knowledge of the acts to which the alleged acquiescence relates;64

acquiescence may not be lightly presumed.65

In the present case, it is evident that PatriControl has been operating in the

Mercurian block of airspace in question since 1952. Icarex Airlines has been using that

block of airspace in order to facilitate its services drawn by the ASA it has with

Montania, without a protest. However, Icara was not aware of the detailed legal

arrangements concerning this particular block of airspace. There was no way Icara could

have knowledge of any possible liability provisions, a fortiori as both Mercuria and

Patriarcha did not register the international agreement, if there exists, concluded between

them in order for it to become known to all interested members of the community.

Publicity is essential because acquiescence is essential and without publicity there can be

no acquiescence at all.66

Therefore, whilst it can be argued that Icara was aware of PatriControls

functions, it had no possible way of knowing any specific delegation of rights and duties

between the two contracting States. As such, in the event that the Court finds that Icara

63
Ross, p. 243; Cf. Elida Case, pp. 916-918.
64
MacGibbon, p. 172.
65
Kaikobad, pp. 197, 201.
66
Johnson, p. 347; Title to Islands In Passamaquoddy Bay Case, p. 95; Alaskan
Boundary Case, p. 531; Minquiers and Ecrehos Case Diss. Op by Judge Carneiro. pp.
106-107.
 16

has acquiesced to PatriControls usage because of its lack of abstention, it may be

considered to have acquiesced to nothing beyond that.

1.7. The Territorial Doctrine

As regards the material contents of liability in connection to delegation of air

traffic services, the territorial application of sovereign competences is prevailing. The

territorial doctrine suggests a model which does not incorporate the ideas of effective

control. On the contrary, it establishes the primary liability of the State in the territory of

which the damage occurs.67 Under the auspices of Eurocontrol there exists a consensus

establishing the sovereign nature of ANS within the spectrum of public functions whether

the service is provided by the State itself, or by a corporate or privatised agency. But

since, under the territorial theory, the exercise of sovereign functions is confined to

national boundaries, in the cases where a state delegates the responsibility for the

provision of air traffic services in its territory, even in a limited block of airspace to

another state; it does so without derogation of its national sovereignty.68

In the present case, Mercuria has delegated its air traffic services to PatriControl.

However, such a regime does by no means affect the fact that, as air traffic services is by

nature an expression of national sovereignty functions, Mercuria is liable for any damage

occurred in relation to it. It is therefore submitted that, according to the territorial doctrine

of liability, Mercuria is liable for all damage occurred as a result of the aerial accident.

67
Schubert, p. 75.
68
Annex 11, para 2.1.1.
 17

1.8. The Omissions of the PatriControl Personnel

Safety culture in aviation is relative to the personal dedication and accountability

of individuals engaged in any activity that has a bearing on the safety of flight

operations.69 Seeing aviation as an operation strictly related to human factors, it is self-

evident that it is also affected by them.

In the present case, it is submitted that the aerial accident was caused by he acts

and omissions of the personnel of Patri-Control. When the controller instructed the Icarex

crew at 11:34:49 hrs for the first time to expedite descent to FL 350, the horizontal

separation was practically already below 7 NM. This was necessary that night since the

controller worked under a degraded stand by system as a result of the technical work in

progress. The Icarex aircraft should have descended to FL 350 by 11:34:56 hrs to ensure

a vertical separation of 1.000 ft in the RVSM airspace.70 To achieve this, the instruction

to descend to FL 350 should have been given at 11:33:49 hrs at the latest - one minute

before this instruction was actually given. This time is based on a normal rate of descent

of approximately 1.000 ft per minute. It is therefore clear that the controller did not notice

the potential conflict early enough for an optimum separation to be achieved.

Likewise, when he did take action, the instruction he gave to the Icarex crew was

not adequate to get him the 7NM separation needed. Additionally, given that the situation

was critical, the controller ought to have closely monitored the actual separation after he

issued the instruction, which would have enabled him to take notice of the CargoGalax

aircraft initiating descent at 11:35:17. Such lack of close regard to the situation can be

69
ICAO Doc 9806.
70
Eurocontrol Navigation Domain RVSM.
 18

also inferred from the fact that the controller did not notice the STCA acoustic alert at

11:34:58 probably because he had to operate two workstations switching between them.

It is therefore submitted that the PatriControl staff acts and omissions were the sole and

immediate cause of the aerial accident.

2. Mercurias Liability to Icara for the Value of the Destroyed Aircraft

State responsibility, as enshrined in Arts. 1 and 2 of the ILC Arts., gives rise to an

obligation of reparation.71 The obligation to make full reparation is the second general

obligation of the responsible state as an indispensable consequence of the commission of

an internationally wrongful act.72 Under Art. 31 of the ILC Articles, the responsible State

is under the obligation to make full reparation for the injury caused by an internationally

wrongful act. Moreover, under Art. 34 of the ILC Articles, the injured State is entitled to

claim full reparation in the form of restitution in kind, compensation, and satisfaction.

Compensation is the most usual form of reparation73 to be measured by pecuniary

standards since, as Grotius said, money is the common measure of valuable things.74 The

duty to pay compensation has been based on the respect for private property75 and it

should cover any financially assessable damage including loss of profits insofar as it is

71
Rainbow Warrior Case, p. 251; Phosphates in Morocco Case, p. 28; Spanish Zones of
Morocco Case, p. 641; Gabcikovo-Nagymaros Case, p. 38; Chorzow Factory Case, p. 29;
Corfu Channel Case, p. 23; International Fisheries Company Case, p. 701; Shaw, p. 649;
Cheng, p. 170; Higgins p. 162.
72
Crawford, p. 201.
73
Chorzow Factory Case, p. 27.
74
Lusitania Cases, p. 34.
75
Norwegian Claims Case, p. 40; Cheng p. 478.
 19

established.76 In claiming property damage, the claimant must prove that there is a direct

causal link between the damage and the loss suffered on the property. When the loss of

property is definite and concrete, it is relatively easy to meet the causal link

requirement.77 Additionally, in order to establish the causal link between the act and the

injury, the loss must be a normal and foreseeable result of the act.78 The consequences

following an act are not necessarily the ones, which the actor actually foresaw, whilst

they only need to be those, which he should and could have foreseen.79 Therefore, given

the criterion of what is normal and foreseeable is the belief of a reasonable person, that

will be the injury presumed as causally related.80

In the present case, an internationally wrongful act attributable to Mercuria has

been committed. It is submitted that the acts and omissions of PatriControl and its staff

individually amount to a condition of the harm, thus satisfying the criteria of the conditio

sine qua non, as accepted by international jurisprudence.81 Finally, PatriControl should

and could have foreseen that its multiple omissions in respect to risk assessment and

mitigation and its long standing labour policy against the guidance of ICAO and

Eurocontrol were the primary and immediate cause for the occurrence of the accident.

76
Art. 36 (2) ILC Articles.
77
Hanqin p. 89.
78
Life Insurance Claims Case, p. 133; Angola Case, p. 1032; Cheng, pp. 245 et seqq.;
Shelton, p. 101.
79
Cheng, pp. 250-251.
80
Shelton, p. 101.
81
Honor, p. 67; Fleming, p. 177.
 20

It is therefore submitted that since all the requirements for the acquiring of

compensation are met, Mercuria shall compensate Icara for the damage suffered by the

mid-air collision, namely the destroyed aircraft.

3. Mercuria Indemnifies and Holds Harmless Icarex Airlines

It is submitted that Mercuria shall indemnify and hold harmless Icarex Airlines

for any claims arising from third parties in relation to the accident, and/or the legal

successors of the deceased passengers and crew aboard the aircraft, including present and

future claims.

3.1 The Concept of Damage

Damage denotes loss, whether this is a financial quantification of physical injury

or damage, or of other consequences of a breach of duty.82 Material damage is any type

of material loss suffered by the plaintiff. It includes loss of wages as well as medical or

funeral expenses.83 Moral damage includes all other forms of damage, which do not

cause a financial loss per se, such as the suffering physical or mental- of a victim of an

accident, or the suffering of the victims family in case of death.84

The proper criterion for damages is their forseeablity or proximate causality in

relation to the wrongful act. The existence of a clear, unbroken connection between the

act and the loss sustained is the essential element.85 If a loss is a normal consequence of

an act, it is attributable to the act as a proximate cause. The indemnity due from one who

82
Brownlie, p. 442.
83
Miller, p. 112.
84
Ibid.
85
Cheng, p. 242.
 21

has caused injury to another consists of all loss which may be considered as the normal

consequence of the act causing the damage.86

In the case of a persons wrongful death, claims for loss of breadwinner may

arise.87 No less than material injury sustained by the injured state, non-material damage is

financially assessable and may be the subject of a claim of compensation.88 The

evaluation of the losses of the surviving successors include the amounts which the

deceased, had he not perished, would probably have contributed to the claimant;

moreover, reasonable compensation for mental suffering or shock, if any caused by the

violent severing of family ties, as the claimant may actually have sustained by reason of

such death.89 It is submitted that, in the present dispute, Mercuria is liable for reparation

of both direct and indirect injuries.

3.2 Indemnify and Hold Harmless

The damage owed to a party may include, inter alia, the reimbursement of any

reasonable compensation which the other party had to pay to persons entitled through it.90

Indemnity is by definition the reimbursement, it is an equitable right under which the

entire loss is shifted from the party who is only technically or passively at fault to another

86
The Spyros Case, p. 28; Cheng, p. 244.
87
Brownlie State Responsisiblity, p. 225.
88
Lusitania Cases, p. 32; Chevreau Case, p. 1113; Gage Case, p. 226; Di Caro Case, p.
597; Heirs of Jean Maninat Case, p. 55.
89
Lusitania Cases, p. 35.
90
Corfu Channel Case, p. 181.
 22

who is primarily or actively responsible.91 Indemnity is an offensive right allowing an

indemnitee to seek indemnification.

On the contrary, holding harmless is defensive; it is the right not to be bothered by

the other party itself seeking indemnification. The one party assumes the liability inherent

in a situation, thereby relieving the other party of responsibility.92

3.3 Jurdisdiction of the Court

Under Art. 36 (2) (d) of the ICJ Statute, the jurisdiction of the Court covers all

legal disputes concerning the nature and extent of the reparation for a breach of an

international obligation in cases of compulsory jurisdiction.93 In the present case, both

Icara and Mercuria have accepted the compulsory jurisdiction of the Court. Additionally,

Mercuria has not raised preliminary objections to the application of Icara. Thereby, as the

issue of the submitted claim falls under the scope of Art. 36 of the ICJ Statute, the Court

is competent to decide upon the given submission.

3.4 Res Judicata

A judgement of the Court is res judicata, and it covers all matters which fall

under the spectrum of the decision in the judgement.94 As held by the PCIJ, res judicata

signifies the recognition of the fact that the terms of the judgement are definitive and

obligatory.95 Res judicata has two effects, first, its denitive nature, once a case has been

91
Blacks Law Dictionary, p. 769.
92
Black Law Dictionary, p. 731.
93
Lowe, p. 557.
94
Fitzmaurice, p. 584.
95
Societe commerciale de Belgique Case, p. 175.
 23

decided by a valid and final judgment; the same issue may not be disputed again between

the same parties, so long as that judgment stands.96 Additionally, res judicata is binding

upon the parties. As the awards are obligatory and definite, the parties involved are bound

to execute them.97

In the present case, in the event that the Court finds Mercuria to be fully

responsible for the aerial accident, the decision of the Court will constitute res judicata.

Thereby, as the basis of State responsibility and civil liability lies on the axiom that he

who is responsible is liable to make the injured party whole, Icara could by no means be

required to satisfy any claims in relation to the aerial accident brought against Icarex

Airlines. Such a claim would be contrary to the original judgement and thus contrary to

the principle of res judicata.

4. Mercuria Compensates Icara for Any Damage, Expenditure, Cost or Injury

Suffered from the Accident.

It is submitted that Mercuria is responsible to pay compensation to Icara for all

damage, expenditure, costs or injury it was faced with as a consequence of the aerial

accident. As the responsibility for the accident lies on the part of Mercuria, it is a matter

of equity for Mercuria to compensate Icara for all the above.98

4.1 Mercuria Compensates Iara for Loss of Profits Incurred as a Result of the

Destruction of the Icarex Airlines Aircraft.

Under Art. 36 (b) of the ILC Articles, compensation shall cover any financially

assessable damage including loss of profits as long as it is established. International

96
Cheng, p. 337.
97
Societe commerciale de Belgique Case, p. 176.
98
Cf. Supra Section 1.7.
 24

tribunals have awarded for loss of profits in compensation.99 Loss of profits may include

lost profits from income-producing property during a period when there has been no

interference with title as distinct from temporary loss of use.100 It involves claims for loss

of profits due to the temporary loss of use of the income-producing asset.101

In the present case, the Icarex aircraft was destroyed due to the aerial accident. It

follows that if the aerial accident had not taken place and the Icarex Airlines aircraft not

been destroyed, it would have been of use to the Airline and provide the latter with profit.

Therefore, it is submitted that Mercuria shall compensate Icara not only for the value of

the destroyed aircraft but also for the loss of profits Icarex Airlines suffered as a

consequence of the accident.

4.2 Mercuria Compensates Icara for Any Expenditure or Costs Resulting from the

Mid-Air Collision.

It is a principle of equitable relief that the party in wrong is the one responsible

to compensate and indemnify the other party for all expenses related to the legal

procedure, such as legal costs and lawyers fees. The party in wrong should also

compensate for any other expenditure connected to the proceedings, such as

disbursements. These are items of expense incurred by the counsel on the particular case.

These include the fees for medical reports, travelling expenses and the fees of other

experts, e.g. an accident expert.

99
Cape Horn Pigeon Case, p. 69; Delagoa Bay Railway Case, p. 329; Yuille Shortridge
and Co. Case, p. 78; Iranian Oil Company Case, pp. 187, 199.
100
Crawford, p. 229.
101
Montijo Case, p. 1421.
 25

As a result of the aerial accident, which came as a consequence of Mercurias

wrongful acts and omissions, Icara was obliged to bring a case before the ICJ in order to

seek reimbursement and the establishment of the situation existing before the occurrence

of the accident. As a result, Icara suffered particular expenditures and costs in connection

to the legal proceedings but also the actions necessary for its preparation. Consequently it

is submitted that Mercuria shall compensate Icara for any such expenditure or cost

incurred and/ or incurred in the future as a result of the aerial accident.

(i) Submissions

For the aforementioned reasons the Court is respectfully requested to adjudge and

declare:

a) that Mercuria is responsible for all damage caused by the mid-air collision

in the airspace of the State of Mercuria on 23 December 2006;

b) that Mercuria must compensate Icara for the Value of the destroyed

aircraft;

c) that Mercuria indemnifies and hold harmless Icarex Airlines in respect of

all claims made by :

i. third parties in connection with the aerial accident including claim by

CargoGalax Airways;

ii. the legal successors of the deceased passengers and crew aboard both

aircraft including present and future claims;

d) that Mercuria must compensates Icara for any damage, expenditure, costs

(including legal costs and lawyers fees) or injury already incurred and/or

incurred in the future as a result of the accident.