On 12 Might 2025, the Council of the Worldwide Civil Aviation Group (ICAO) introduced that it had adopted a call holding the Russian Federation liable for the downing of Malaysia Air flight MH17 in 2014. Performing below Article 84 of the Chicago Conference on Worldwide Civil Aviation (Chicago Conference) concerning the settlement of disputes, 22 Council members voted in favor of the choice, three members towards and ten abstained. The choice is noteworthy in that it’s the Council’s first ever choice on the deserves of an Article 84 dispute in its 80-year historical past. Earlier disputes have been finally settled by negotiation. As well as, the choice is important in that it was adopted not by a world tribunal of impartial judges, however by a Council of Member States appearing by way of its representatives to execute a quasi-judicial operate.
The Netherlands and Australia introduced the dispute earlier than the Council in March 2022. Malaysia Air flight MH17, a Boeing 777 airliner, was shot down on 17 July 2014 over the territory of Jap Ukraine ensuing within the loss of life of 298 passengers and crewmembers, most of whom have been residents of the Netherlands. A Dutch Security Board and subsequent Joint Investigation Crew from a number of sufferer nations concluded {that a} missile launched from a Buk surface-to-air system belonging to the Russian Federation downed the plane. The Council cited the outcomes of these investigations and a scarcity of submissions by Moscow to substantiate its choice inserting accountability on the Russian Federation alone. The Council’s reliance on the stories of the Dutch Security Board and Joint Investigation Crew was one in every of a number of causes listed by the Russian Overseas Ministry for its withdrawal from the proceedings in June 2024.
The ICAO Council
The Council is made up of 36-Member States elected each three years by the 193-member ICAO Meeting. Beforehand, the ICAO Meeting persistently elected the Russian Federation to the Council. Nonetheless, following its full-scale invasion of Ukraine in 2022, Moscow did not get the requisite variety of votes from the Meeting in 2022 and extra not too long ago in 2025. Representatives of the Council’s Member States meet at ICAO’s headquarters in Montreal roughly thrice a yr for periods lasting a number of weeks or extra. The representatives possess a various set of backgrounds and are liable for the chief and legislative features of the group. Notably, the Council approves worldwide Requirements and Really useful Practices contained within the Conference’s 19 technical annexes that Member States implement by way of home laws, thereby harmonizing the regulation of worldwide aviation. In that respect, Council members not solely signify their very own pursuits however should additionally take into account the priorities of all ICAO Member States in addition to the item and objective of the Chicago Conference.
Below Article 84, the Council is charged with deciding on the interpretation or utility of the Conference and its 19 annexes within the first occasion. Such a call requires adoption by a statutory majority of the Council’s members; and below Article 15(2)(v) of its procedural Guidelines for the Settlement of Variations, the textual content of the choice should state its conclusions and the explanations for reaching them. The historic choice gives some perception into how this political physique, much like a Safety Council for worldwide aviation, guidelines on the interpretation of the Conference in a quasi-judicial operate. Nonetheless, Article 84 additionally gives that ‘any contracting State could … enchantment from the choice of the Council to an advert hoc arbitral tribunal agreed upon with the opposite events to the dispute or to the Everlasting Court docket of Worldwide Justice’. As such, the Russian Federation, in maybe an indication of the Kremlin’s confidence of its authorized place, initiated its first ever referral to the Court docket by exercising this proper of enchantment contesting the Council’s choice.
The Council’s Choice
Within the choice, but to be printed by ICAO however reproduced in its entirety in paragraph 47 of Russia’s utility to the Worldwide Court docket of Justice, the Council addressed a number of authorized points which the Court docket must take into account in its evaluate. First, the Council confronted the query as to the scope of Conference Article 3bis. The Netherlands and Australia asserted of their utility to the Council that the Russian Federation had breached Article 3bis, which requires States to ‘chorus from resorting to using weapons towards civil plane in flight’. Article 3bis was adopted within the aftermath of the shootdown of Korean Airways flight 007 by a Soviet fighter jet on 31 August 1983. Whereas a majority on the Council agreed that Article 3bis incorporates ‘a direct prohibition on using weapons towards civil plane in flight’, it famous that there was a scarcity of consensus amongst Council members that Article 3bis ‘imposes an extra obligation to forestall using weapons towards civil plane in flight’; not less than regarding the atypical that means of the textual content or by reference to the travaux préparatoire of the 1984 Protocol including Article 3bis to the Conference. The excellence might help the Kremlin’s place if the operators of the Buk system weren’t below the efficient management of Russia’s armed forces.
Second, whereas the Council acknowledged that Article 3bis doesn’t restrict the appropriate to self-defense below the U.N. Constitution, there was disagreement amongst Council members as as to whether it nonetheless applies in time of struggle. Russia argues that it doesn’t, citing Article 89 of the Chicago Conference which states that in case of struggle ‘the provisions of this Conference shall not have an effect on the liberty of motion of any of the contracting States affected, whether or not as belligerents or as neutrals’. In its 2011 Draft Articles on the Results of Armed Conflicts on Treaties, the Worldwide Legislation Fee noticed that the existence of an armed battle doesn’t routinely droop the operation of a treaty. Particularly, the Fee states in Article 4 of its commentary that ‘[w]right here a treaty itself incorporates provisions on its operation in conditions of armed battle, these provisions shall apply’. The textual content of Conference Article 89 doesn’t point out that Article 3bis or any of the opposite provisions are to be suspended in time of struggle, suggesting that the Kremlin’s place on this problem is weak. Moreover, even when Article 3bis doesn’t apply in occasions of struggle, States are nonetheless obligated to stick to worldwide humanitarian regulation and the safety of civilians, a degree that Moscow readily concedes. Nonetheless, ought to the Court docket resolve that Article 3bis isn’t relevant on this circumstance on account of time of struggle, the Council’s jurisdiction could also be in query, because it solely has competence to resolve on the interpretation of the Chicago Conference and its annexes, and never different treaties that articulate the rights and obligations of States below worldwide regulation.
Lastly, the Council’s categorical reliance on the work of the Dutch Security Board and the Joint Investigation Crew, two fact-finding entities that have been extremely revered but in addition related to the candidates on this dispute, raises evidentiary points for the Court docket to evaluate. The Court docket has typically allowed the Council broad discretion in the way it reaches its choice as long as ‘the procedures adopted by the Council didn’t prejudice in any elementary method the necessities of a simply process’ (Attraction Referring to the Jurisdiction of the ICAO Council Below Article 84 of the Conference on Worldwide Civil Aviation, Bahr., Egypt, Saudi Arabia and U.A.E. v. Qatar, Judgment, ICJ 2020 Rep. 81, para. 122). As well as, the truth that the incident occurred greater than ten years in the past and the crash website was in a struggle zone made an impartial ICAO investigation impractical. Moreover, though below the Council’s Guidelines it might probably institute its personal fact-finding, consider proof and solicit professional witnesses, ICAO is restricted by its finances and manpower to independently conduct such pricey and sophisticated investigations. Because of this, it should depend on the technical and financial contributions of ICAO Member States. Lastly, the absence of data or justification on the a part of the Russian Federation in essence created a rebuttable presumption that the details contained within the stories of the Dutch Security Board and Joint Investigation Crew have been properly based; a presumption left unanswered on account of Russia’s withdrawal from the proceedings. Nonetheless, the reliance on proof gathered by one facet of the dispute raises the difficulty of the Council’s fact-finding methodology and the analysis of proof offered in Article 84 procedures, a degree raised by Moscow in its enchantment.
No matter one’s view of the Kremlin’s actions towards Ukraine or within the worldwide space typically, Russia’s Ministry of Overseas Affairs has persistently been very expert and deliberate in advocating its place at worldwide organizations and its enchantment to the Worldwide Court docket of Justice is probably going no exception. As such, Russia seeks to negate the Council’s choice by persuading the Court docket of jurisdictional or substantive error on the a part of the Council in its choice concerning this dispute. Because of this, the following months and probably years will present worldwide authorized students with higher perception into the Council’s execution of its quasi-judicial operate and permit ICAO Member States to evaluate the legitimacy and effectiveness of the Conference’s dispute decision mechanism below Article 84. Hopefully, it would additionally present some extent of justice to the victims of Malaysia Air flight MH17 and their surviving family members.
