1.

THE KINGDOM OF GONDOUR IS IN BREACH OF ITS OBLIGATIONS UNDER

THE CHICAGO CONVENTION AND THE TRANSIT AGREEMENT IN

CLOSING AIRWAY 666 AS IT HAS DONE BY WAY OF THE DODO ACT 2018

AND SUBSEQUENT ACTIONS:

In order to determine that the Kingdom of Gondour is in breach of its obligations under the

Chicago Convention, 1944 and the International Air Services Transit Agreement, 1944, it is

submitted that the aircrafts of the State of Carpania had been refused the freedom to fly through

the territory of the Kingdom of Gondour by way of the Dodo Act, 2018 and subsequent actions.

1.1 The Kingdom of Gondour has committed a breach of its obligations under the

Chicago Convention, 1944.

1.1.1 Both the State of Carpania and the Kingdom of Gondour are bound by the Chicago

Convention, 1944.

The State of Carpania and the Kingdom of Gondour are parties to the Convention on Civil

Aviation (hereinafter referred to as the CCA), also known as the Chicago Convention, 1944.

According to Article 2 paragraph 1 (f) of the Vienna Convention on the Law of Treaties

(hereinafter referred to as the VCLT), the term ‘Contracting States’ means a State that has

consented to be bound by a treaty, whether or not this treaty has entered into force. Under

Article 2 para. 1 (g), a State is also regarded as a “party” to a treaty, which has consented to be

bound by it and for which the treaty is in force. In the present case, both the State of Carpania

and the Kingdom of Gondour are parties to the Chicago Convention, 1944, and therefore are

bound by it.

1.1.2 The State of Carpania had been unjustly refused the opportunity to fly over the airspace

of Gondour.
 By signing the Chicago Convention, 1944, the undersigned governments have agreed to

conclude the said Convention on the basis that international air transport services are

established on the basis of equality of opportunity and operated soundly and economically.1

The Chicago Convention is applicable only to civil aircraft, and not to state aircraft as per

Article 3 (a) of the said Convention, and Article 9 as envisioned by the said Convention states

that a Contracting State can, for reasons of military necessity or public safety, restrict or

prohibit the aircraft of other States from flying over its territory. In the instant case, the aircraft

of the State of Carpania were refused to be allowed to fly over the airspace of the Kingdom of

Gondour on no ground envisioned by Article 9 as the Kingdom of Gondour was not a

prohibited area. Thus, the refusal of the aircraft was unjust and in direct conflict with the

Preamble of the Chicago Convention, 1944.

1.1.3 The Dodo Act, 2018 enacted by the Kingdom of Gondour is conflicting with the

Chicago Convention, 1944.

The Preamble to the Chicago Convention, 1944 mentions about development of international

civil aviation to preserve friendship, promote cooperation and provide principles and

arrangements of safe and orderly manner. 2 The purposes of the United Nations under Article

1 of the UN Charter state to maintain international peace and security, to develop friendly

relations among nations based on respect for the principle of equal rights and achieve

international cooperation.3

In accordance with Art. 37 of the Chicago Convention (hereinafter referred to as the CC), 1944,

‘Each contracting State undertakes to collaborate in securing the highest practicable degree

1
Preamble to the Chicago Convention, 1944.
2
Supra note 1.
3
Article 1 of the UN Charter.
 of uniformity in regulations, standards, procedures, and organization in relation to aircraft,

personnel, airways and auxiliary services in all matters in which such uniformity will facilitate

and improve air navigation.’4. Art. 54 of CC imposes the adoption of International Standards

and Recommended Practices (hereinafter referred to as SARPs). The Standards are mandatory

and the states should strive to fulfil them.5 These follow customary law and that gives them

the effect of legal principles.6 This has been further supplemented by Art. 38 which obliges the

States to inform the ICAO immediately if they cannot comply with these provisions or if they

have different practices than those of the ICAO. The implementation of ICAO standards is

considered globally necessary. The Chicago Convention also recognizes, through Article 38

notification of differences mechanism in dealing with matters concerned with safety, regularity

and efficiency of air navigation.7 The Dodo Act, 2018 has not been implemented as per the

procedural requirements laid down by the ICAO.

1.1.3.1 The 33rd Session of the ICAO Assembly, in Resolution A33-7, issued a Consolidated

Statement of Continuing ICAO Policies and Practices Related to Environmental Protection

to “incorporate new ICAO policies and guidance material regarding aircraft noise” and to

reflect the concept of a “balanced approach” to noise management.8. The balanced

approach to noise management consists of identifying the noise problem at an airport and

then analysing the various measures available to reduce noise. As defined in Appendix C

to noise through the exploration of four principal elements, namely reduction at source,

4
Article 37 of the Chicago Convention, 1944.
5
Alexander Engvers, The Principle of Sovereignty in the Air To what extent can it be upheld against aerial intruders?
2001.
6
Air & Space Law, Volume XIX, Number 3, 1994, p 121-2.
7
Manual on Notification and Publication of Differences, ICAO, 2015.
8
Annex 16, Volume I – Aircraft Noise to the Convention on International Civil Aviation, International Standards and
Recommended Practices.
 land-use planning and management, noise abatement operational procedures and operating

restrictions, with the goal of addressing the noise problem in the most cost-effective

manner.9 Assembly Resolution A39-1 urges States to refrain from environmental measures

that would adversely affect the orderly and sustainable development of international civil

aviation.10 The Dodo Act, 2018 was enacted in a span of 6 days before allowing the State

of Carpania to prepare for the operating restriction from the Kingdom of Gondour. The

balanced approach to noise management was not followed by the Kingdom of Gondour

where operating restrictions should be used as a last resort. Standards 4.1.2 (c) and 4.1.2

(d) of Annexure 15 on Aeronautical Information Services (hereinafter referred to as AIS)

state that Aeronautical Information Publication (hereinafter referred to as AIP) shall

include a list of significant differences between the national regulations and practices of

the State and the related ICAO SARPs that would enable a user to differentiate readily

between the requirements of the State and the related ICAO provisions; the choice made

by a State in each significant case where an alternative course of action is provided for in

ICAO SARPs. The primary purpose of reporting differences is to promote safety,

efficiency and regularity in air navigation by ensuring that governmental and other

agencies, including operators, concerned with international civil aviation are aware of all

national rules and practices in so far as they differ from those prescribed in SARPs. 11

1.1.3.2 Art.9 of the CC, 1944 states that a State may restrict the aircrafts of other states for reasons

of military necessity or public safety from flying over its territory. The object of the Dodo

9
Ibid.
10
Consolidated statement of continuing ICAO policies and practices related to environmental protection – General
provisions, noise and local air quality, Icao.int, https://www.icao.int/environmental-
protection/Documents/Resolution_A39_1.PDF (last visited Dec 1, 2019).
11
Icao.int,https://www.icao.int/safety/MoD/Manual%20on%20Notification%20and%20Publication%20of%20Differ
ences_V0.2_21092015.docx (last visited Dec 1, 2019).
 Act, 2018 is to protect the Dodo birds from noise from aircrafts. This falls neither in the

category of military necessity or public safety. This Act violates Art.9 of CC, 1944.

1.1.3.3 The State of Carpania and the Kingdom of Gondour are parties to the Agreement on Air

Transport and Other Matters (hereinafter referred to as AATOM), 1983 wherein Art. 2

specifies that each party shall permit the air carriers of other party to operate on the routes

specified. This allows the aircrafts of Carpania to operate on any intermediate point and

any point in Gondour. There is a blatant violation of the said provision as the closure of

Airway 666 prevented Carpa Airline from accessing the route. In addition, the Kingdom

of Gondour unilaterally limited State of Carpania on the basis of routing and the aircraft

types which violates Art. 3 of the said agreement. The Dodo Act, 2018 cannot be used a

basis for violation of any international agreement that a party has entered into (AATOM,

1983) due to the operation of Art. 27 of Vienna Convention on the Law of Treaties

(hereinafter referred to as VCLT). This provision says that a party may not invoke the

provisions of its internal law as justification for its failure to perform a treaty. The national

laws should not be used as an excuse for failure to comply with the provisions of a treaty

because the overriding rule is that treaties are superior to national laws.

The rights granted under the Convention are treaty rights which the state has undertaken to

comply with in relation to the individual concerned, irrespective of the due process rights under

the state’s constitutional law.12 In the exchange of Greek and Turkish populations case, it was

held that self-evident’ principle in international law, ‘according to which a state which has

contracted valid international obligations is bound to make in its legislation such modifications

12
LaGrand (Germany v US), 2001 and Avena and Other Mexican Nationals (Mexico v US), 2004.
 as may be necessary to ensure the fulfilment of the obligations undertaken.13 Therefore, Dodo

Act, 2018 is not acceptable for the State of Carpania.

1.2 The Kingdom of Gondour has committed a breach of its obligation under the

International Air Services Transit Agreement, 1944.

The Kingdom of Gondour has violated its obligation under the International Air Services

Transit Agreement, 1944 (hereinafter referred to as the IASTA, 1944) by the closure of Airway

666 with its Dodo Act, 2018 and subsequent actions. The IASTA, 1944 lays down in its Article

1, Section 1, Clause 1 that each contracting State grants to the other contracting States The

privilege to fly across its territory without landing14, and this privilege is subject to an

exception that it shall not be applicable in situations of active hostilities or of military

occupation, and in time of war.15 It is recognized that based on existing international law,

freedom of transit cannot be absolutely restricted by the transit state. Absolute restrictions are

only considered lawful if they are applied on a temporary and exceptional basis – justified by

war and civil unrest.16

In the immediate case, the Kingdom of Gondour excluded State of Carpania’s ‘Carpa Airline’

from the aforementioned privilege to fly across its territory, there being no grounds for doing

so as the Kingdom of Gondour was not known to be a conflict-area. Moreover, before an airline

can operate international services to another country, the government must first negotiate a

treaty level agreement with the destination country's government.17 The State of Carpania and

13
PCIJ (1925).
14
INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT, SIGNED AT CHICAGO, ON 7 DECEMBER 1944 (TRANSIT
AGREEMENT), Mcgill.ca, https://www.mcgill.ca/iasl/files/iasl/chicago1944b.pdf (last visited Dec 1, 2019).
15
Ibid.
16
Freedom of Transit and Regional Transit Arrangements, Unctad.org (2011),
https://unctad.org/en/Docs/TN08_FreedomofTransit.pdf (last visited Dec 1, 2019).
17
The Bilateral System—how international air services work, Infrastructure.gov.au,
https://www.infrastructure.gov.au/aviation/international/bilateral_system.aspx (last visited Dec 1, 2019).
 the Kingdom of Gondour had well settled into an agreement (Agreement On Air Transport

And Other Matters Between The Republic of Carpania And The Kingdom Of Gondour, 1983)

that permitted the air carriers of the other party to flyover their respective air spaces.

Therefore, there has been a violation of the IASTA, 1944 by the Kingdom of Gondour as it

had denied the State of Carpania its transit rights.

In addition to this, The International Air Transport Agreement which was signed at Chicago

on 07th December, 1944 states in its Article 1, Section 1, Clause 1 that each contracting state

grants to the other contracting states the privilege to fly across its territory without landing.18

(a) 2 REGULATION 261/18 OF 29 AUGUST 2018 CANNOT BE ENFORCED AS IT

INFRINGES APPLICABLE INTERNATIONAL LAW

In order to claim that Regulation 261/18 passed by the Kingdom of Gondour on 29th August, 2018

is unenforceable, it is submitted that the Regulation is in conflict with the provisions of Chicago

Convention, 1944, its Standards and Recommended Practices, the Agreement on Air Transport

and other matters and is resulting in economic implications for the State of Carpania.

i. 2.1 Regulation 261/18 is incompatible with the Chicago Convention, 1944.

By unilaterally imposing a stricter standard than the standard specified in Chapter 3 of Volume I

of Annex 16 to the Chicago Convention, the State of Carpania claims that the Kingdom of Gondour

is violating its obligations under the Chicago Convention and under the bilateral air services

agreements (AATOM, 1983 between Carpania and Gondour).

a.) 2.1.1 Regulation 261/18 violates Art. 33 of the CC, 1944

18
International Air Transport Agreement, https://www.jus.uio.no/english/services/library/treaties/07/7-
01/international-air-transport-agreement.xm (last visited Dec 1, 2019).
 Art. 33 of the CC, 1944 and Art. 8 state that ‘Certificates of airworthiness and certificates of

competency and licenses issued or rendered valid by the contracting State in which the aircraft is

registered, shall be recognized as valid by the other contracting States, provided that the

requirements under which such certificates or licenses were issued or rendered valid are equal to

or above the minimum standards which may be established from time to time pursuant to this

Convention.’ The Regulation violates Art.33 of the CC, 1944 and Art. 8 of the AATOM, 1983

because it refuses to give recognition to certificates of airworthiness granted by the competent civil

aviation authorities of Carpania despite Carpa Airline’s compliance with the ICAO standards.

b.) 2.1.2 Regulation 261/18 is discriminatory towards Carpa Airline

Art. 1 (5) of the AATOM, 1983 defines discrimination as differentiation of any kind without

objective justification. Gondour’s GonAir aircraft was allowed to fly without any interruption

whereas Carpania’s Carpa Airline was denied the permission to fly via Airway 666 when it also

meets the requirements laid down in Chapter 3, Volume 1 of Annex 16 of the CC, 1944 and

Chapter 4 of the same for recertification. This Regulation is contrary to the non-discrimination

obligation of Article 15 of the CC, 1944 and Art. 7 of the AATOM, 1983, which oblige both

parties to give each other's carriers a fair and equal opportunity to compete.

c.) 2.1.3 Regulation 261/18 does not comply with Art. 37 and Art. 38 of the CC, 1944

Articles 37 and 38 obligate all contracting states to have uniform standards, regulations, procedures

and organization in order to improve air navigation. The contracting states are obliged to inform

ICAO immediately if they cannot comply with these provisions or if they have different practices

than that of the ICAO. Article 54 imposes the adoption of SARPs.19 There is a contradiction

between Art. 3(3)(b) and Art. 3(4) of the Regulation as the former excludes aircrafts certificated

19
Supra note 5.
 after January 1st, 2006 and the latter says that the Regulation is not applicable to re-certificated

aircrafts. This means that Carpa Airline has been left with no choice as it was re-certificated on

December 22nd, 2006. This is a serious violation of Art. 37 of the CC, 1944, further, the Kingdom

of Gondour did not notify the ICAO of the differences between its Regulations and the ICAO’s

standards as per Art. 38.

ii. 2.2 Regulation 261/18 will cause economic implications for the State of Carpania.

Annex 9 – Facilitation of the CC, 1944 requires that the civil aviation community complies with

laws governing the inspection of aircraft, cargo and passengers by authorities concerned with

customs, immigration, agriculture and public health. The States are obligated to adopt standards

and expedite the necessary formalities in order to minimize operational delays. The main thrust of

the Annex consisted of efforts to reduce paperwork, standardize internationally the documents that

were to accompany traffic between States, and simplify the procedures required to clear aircraft,

passengers and cargo. It was recognized that delays due to cumbersome formalities was to be

reduced, because of cost to all the "customer groups" in the community.20

Regulation 261/18 has been passed in such a manner that the Kingdom of Gondour used Art. 3(2)

of the AATOM, 1983 to its full advantage where the latter says that neither Party shall unilaterally

limit the volume of traffic, frequency or regularity of service, routing, origin and destination of

traffic, or the aircraft type or types operated by the air carriers of the other Party, except for

customs.,etc. This Regulation will ultimately result in the delay of flights for the State of Carpania

as they have to use Airway 777 and then connect with Airway 666, as there is no direct flight

connecting Carpania with the rest of the world. This is in conflict with Art.22 of the CC, 1944 which

provides that ‘Each contracting State agrees to adopt all practicable measures, through the

20
ANNEX 9, Icao.int, https://www.icao.int/Security/FAL/ANNEX9/Pages/default.aspx (last visited Dec 1, 2019).
issuance of special regulations or otherwise, to facilitate and expedite navigation by aircraft

between the territories of contracting States, and to prevent unnecessary delays to aircraft, crews,

passengers and cargo, especially in the administration of the laws relating to immigration,

quarantine, customs and clearance’. Further, it is a breach of Art. 4 of the CC, 1944 which prevents

the misuse of civil aviation inconsistent with the aims of this Convention. Art. 44 of the CC, 1944

specifically lists down such aims in clauses d, e and f, all of which have been outrightly violated by

the Kingdom of Gondour.

3. the Kingdom of Gondour is responsible for shooting down the flight HHP 1234 and

liable for damages arising from this breach of an obligation under international law;

3.1 Gondour was required to exercise necessary & effective control

The state is responsible for failing to exercise the control necessary to prevent unlawful

acts by its citizens.21 Negligence on part of the state in restricting the commission of an

unlawful act by its individual amounts to its breach of an international obligation and

makes the state liable with the individual responsibility.22

Army of a country is the defence mechanism of that state, and taking reasonable care of

such weapons is responsibility of state, in order that such arsenal is not used to harm

innocent lives and commit crimes against humanity, which happened in this instant case.

21
Zafiro case
22
A. Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility in International Law’
 The army stores used by Gondour had a contract with the cleaning company of Don

Georgio, i.e, AlfClean Inc., additionally for access keys were also provided.23 So only the

government and the cleaning company had the access to use the shoulder missile which

was used to bring down the flight HP 1234, claiming 53 lives 24. The official declaration

from Gondour was the State could not have been responsible for the accident as all of its

forces had been off that day celebrating the State’s national day25, so reasonably it can be

concluded that the state of Gondour was negligent in safeguarding its arsenal which was

used by Don Georgio in committing a crime against humanity, no third entity had access

to the army stores.

3.2 Gondour breached its international obligations

3.2.1 The actions of Gondour were in violation of peremptory norms

Article 26 of ARSIWA has laid down:

“Nothing in this chapter precludes the wrongfulness of any act of a State which is

not in conformity with an obligation arising under a peremptory norm of general

international law.”

The rule specifies that there shall exist no defence, of any kind, for a state which

has violated the peremptory norms of Jus cogens26, and no action can be justified

23
Para 18, Moot Compromis
24
Para 15, Moot Compromis
25
Para 17, Moot Compromis
26
Article 53, UNCLT
 in this regard. Gondour like every state has a duty to prevent crimes against

humanity27 which the Preamble of UN Charter expresses, “to save succeeding

generations from the scourge of war, which twice in our lifetime has brought untold

sorrow to mankind” the negligence on part of Gondour claimed not only claimed

53 lives but question the credibility of international safeguards in maintain peace.

3.2.2 Gondour is in violation of its treaty obligations

Gondour under the Chicago Convention of 1944, was under an obligation towards

the Carpa Airline and the passengers on board from use of weapons28. Gondour was

also required to provide the requisite assistance to the crashed flight HPP 1234, in

distress, as were necessitated by the circumstances,29 but the Gondour’s authorities

initially took no further action after the shooting down, and only after repeated

requests from President Thomas of Carpania it instituted an accident

investigation30, which showcases the states’ reluctance in following the protocol.

As a result it can be concluded that the credibility of the investigation has been

compromised and a legitimate investigation be carried out as per the due

procedure.31

3.2.3 Indiscriminate attacks are prohibited under international law

27
Article 6(c), Nuremberg Charter
28
Article 3 bis, Chicago Convention
29
Article 25, Chicago Convention
30
Para 21, Moot Compromis
31
Annexure 13, ICAO
 The commission of violence against the flight HPP 1234 can be categorised as an

indiscriminate attack.32 It is a grave breach to launch an indiscriminate attack

affecting the civilian population or civilian objects in the knowledge that such

attack will cause excessive loss of life, injury to civilians or damage to civilian

objects33, commission of this act is prohibited. 34

3.3 Gondour didn’t provide fair & equal opportunity in its air transport services

Gondour in violation of the Agreement created barriers and restricted the right of Carpania in

exercising its right over the airspace by passing the Dodo Act 201835 & Regulation 261/1836 with

the malafide object of locking the aerial movement to and from Carpania because Gondour did not

attract as much tourism as Carpania and have increasingly lost custom to them, moreover this had

hurt national pride of Gondour greatly, much to the anger of its King, Miguel III. 37 Gondour was

required to provide a fair and equal opportunities to compete in the provision of air transport

services to Carpania.38

32
Rule 12, IHL D
33
85(3)(b), 1977 Additional Protocol I
34
Article 3(8), 1996 Amended Protocol II
35
Para 8, Moot Compromis
36
Para 9, Moot Compromis
37
Para 4, Moot Compromis
38
Article 17, the Agreement
Morover the authenticity of the Dodo Act 2018 is itself questionable as the whole rationale behind

implementation of the statute is depended upon the hearsay of a person, whose credintials are

unknown39, and his claim is not backed by any evidence40 whatsoever.

4. the Kingdom of Gondour is furthermore in breach of its obligations under the Beijing

Convention in failing to either prosecute Don Georgio for shooting down flight HHP

1234 or to extradite him to Carpania so that he can be prosecuted there.

4.1 BREACH OF OBLIGATION TO EXTRADITE THE CONVICTED PERSON

Each Contracting Party agrees to extradite to the other, persons found in its territory who

have been charged with, or convicted of, any of the offenses covered by the aviation

security conventions mentioned in this Agreement.41

According to this clause of the special agreement the kingdom of Gondour is in breach of

its obligation to not to extradite Don Georgio who has been charged with the killing of 53

civilians with a shoulder missile launcher on 30th July 2018. He has committed offences

which can be attributed under Article 1 clause b and h of Beijing Convention.

4.2 BEIJING CONVENTION IS THE LEGAL BASIS FOR EXTRADITION.

39
Para 7, Moot Compromis
40
Article 58, ICJ Statute
41
Article 10 clause 2 of special agreement
 If a State Party which makes extradition conditional on the existence of a treaty receives a

request for extradition from another State Party with which it has no extradition treaty, it

may at its option consider this Convention as the legal basis for extradition in respect of

the offences set forth in Article 1. Extradition shall be subject to the other conditions

provided by the law of the requested State.42

Since there is no Extradition treaty which has been signed between the state of Carpania

and Kingdom of Gondour, the above mentioned clause of Beijing Convention makes the

convention a legal basis for extradition in respect of the offence committed by Don

Georgio, which can be set forth in Article 1 of the Convention.

4.3 POLITICAL ACT CAN NOT BE AN EXCUSE TO BE EXRADITION UNDER

BREACH OF BEIJING CONVENTION.

None of the offences set forth in Article 1 shall be regarded, for the purposes of extradition

or mutual legal assistance, as a political offence or as an offence connected with a political

offence or as an offence inspired by political motives. Accordingly, a request for

extradition or for mutual legal assistance based on such an offence may not be refused on

the sole ground that it concerns a political offence or an offence connected with a political

offence or an offence inspired by political motives.43

42
Article 12 Clause 2 of Beijing Convention
43
Article 13 of Beijing Convention.
King Miguel III furthermore stated that even if Don Georgio was involved, he was acting on his

own and it was clearly a political act done for an environmental cause: the preservation of the

Dodo. 44

The statement given by king Miguel III where he states that the act done by Don Georgio

was clearly a political act done for an environmental cause shall not be held as a defence. As the

state of Carpania has proved in the pervious sub issues that the act committed by him are to be

dealt under Article 1 of the Beijing Convention. Thus the request made by the state shall not be

refused by the Kingdom of Gondour on the ground that the concerned act is a political offence.

4.4 DUTY OF THE KINGDOM OF GONDOUR UNDER INTERNATIONAL LAW TO

EXTRADITE OR PROSECUTE DON GEORGIO

Grotius , the father of modern international law took the stand that a state of a refugee has a duty

to either punish the offender or surrender him to the state seeking his return.45

Acts which constitute crimes under international law are also extraditable offences. This applies

not only to States parties to the international treaties which establish a duty to extradite. As noted

above, the prohibition of war crimes and crimes against humanity forms part of jus cogens and of

the obligations owed by each State to the international community erga omnes. As a consequence,

every State is entitled to assume jurisdiction over, and to extradite, the perpetrators of such

crimes.46

44
Section 22 of Moot Compromis
45
H.O. Agarwal, International Law & Human Rights, (2001) p.232
46
https://shodhganga.inflibnet.ac.in/bitstream/10603/8652/10/10_chapter%202.pdf
Since the act committed by Don Georgio can be termed as crime against humanity which is a

grave crime under international law, therefore is an extraditable offence. Thus kingdom of

Gondour is under a duty to extradite him to the State of Carpania so that proper prosecution can

be held.