Painiting itself into a Corner

[Gadfly]

The fall-out from PADâ??s closure of two international airports is going to cause problems for Thailand in ways that had not occurred to me, and the Thai government has really painted itself in a corner on this one. See this article about Thailandâ??s aviation treaty obligations in yesterdayâ??s Bangkok Post.

 

The gist of the article is as follows: if the airport was closed because of a civil disturbance, the government is liable to everyone affected by the closure. This means that the major airlines which lost millions because of the closure and have the resources, incentives and obligations to their shareholders to recover these losses, can do so under Thailandâ??s aviation treaties in courts both in and outside of Thailand. If the airport was closed because of a terrorist act, the government is NOT liable. Because Khun Wirot was a partner in two major law firms and the managing partner of Cliffordâ??s Chanceâ??s office in Bangkok, I would pay attention to his summary of the Thailandâ??s obligations here (I havenâ??t seen anyone else post anything on this subject at all, but if anyone has seen something different, post away). And what he say makes perfect sense since you would expect a governmentâ??s security forces to prevent a protest from closing an airport, but terrorist acts are a different matters altogether.

 

Now turn to the front page front page of this same edition of the Bangkok Post. You will read about Thailandâ??s new Foreign Minister, Mr. Kasit. â??Mr Kasit hailed the shutdown of the capital's city's international airport, which left over 200,000 passengers stranded, as a "new innovation for public protests"â?Â

 

Mr. Kasit was a regular speaker at PAD protests. The very protests that closed the airports.

 

Kind of puts Thailand in a hard position. Its own Foreign Minister says the closure was a public protest, meaning that Thailand is liable under its aviation obligations for hundreds of millions, if not billions, of dollars. Theses lawsuits can and almost certainly will be filed outside of Thailand. But wait, the fun doesnâ??t end there. Thereâ??s plenty more

 

Several law firms in town are openly soliciting plaintiffs to file suits against the Thai government for damages. I don't think they would devote their time and money to this just for fun.

 

But that is small potatoes to what the airlines want to do. They are pressing for criminal terrorism charges under the US Patriotâ??s Act and EU equivalents against those responsible for the airport closure, and they are gaining serious traction. These laws also allow private actions for civil damages as well, and several airlines are looking at file such actions outside of Thailand.

 

If I was responsible for making these sorts of decisions, I would certainly want full compensation from the Thai government. And I suspect any court, local or foreign, would find Thailand's own Foreign Minister's comments on the subject very tellling.

 

Now imagine if PADâ??s leadership and the new Foreign Minister himself are fugitives under US and EU anti-terrorism charges. If you attended the US Ambassadors recent talk at an AMCHAM luncheon or the comments by the EU reps, they came just short of saying this. Imagine what happens when Khun Sondhi or even Thailand's Foreign Minister travels outside of Thailand.

 

Internal politics is one thing, but standing back and allowing - well here, applauding and encouraging - protestors to takeover a major international airport. I can see the fun and games going on for years, and I we are only seeing the tip of a much bigger iceberg.

 

[Flashermac]

Simple solution: sieze Sondhi's and Thaksin's billions of baht and use them to pay off any claims caused by their feud.

 

 

 

[Gadfly]

Simple solution: sieze Sondhi's and Thaksin's billions of baht and use them to pay off any claims caused by their feud.

 

That would be the fair solution, but I see this falling back on the Thai government and PAD's leaders and supporters.

 

Yeah, Thaksin was a corrupt bastard and set in motion the chain of events leading to this castrophe, but its going to be hard to charge him for the occupation of the airport. On the other hand, look at Sondhi and Thailand.

 

Thailand is obliged by treaty to prevent this sort of thing from happening, and airlines aren't exactly chartiable organizations. The litigation will raise all sorts of uncomfortable questions, Thailand will look like a failed state and they might be ordered to pays some pretty big amounts. They won't, of course, but that will only make Thailand look more like a rogue state.

 

From a government perspectiv, the US, the EU, Australia, Japan (well pretty much the rest of world) took the view that the occupation of the government house is an embarassment, but not an international act and didn't affect their citizens directly. Occupying an an airporat is an entirely different kettle of fish. The US Ambassador was very clear on the distinction. The EU and UK reps have been equally clear.

 

The current FM might call it innovative protest, and that certainly won't do Thailand any good when you look at its treaty obligations (Thailand has to pay if its security forces can't stop a protest from shutting down an airport), but when you look at it from the EU/US post-9/11 security perspective, it looks like terrorism. That is what I am hearing.

 

With Obama in power, I wouldn't expect any extraordinairy renditions, but when Sondhi and his friends are travelling outside of Thailand (and they are do like to do so), I wouldn't be surprised if they encounters a bit of difficulty at immigration. Or they might welecome with open arms - of course there will be handcuffs with those open arms since he might end up for a longer visit in the US than expected.

 

Will this happens? Who knows. And that is what makes it so interesting and difficult for PAD. Because they have to realize that several important countries are serioualy considering that option, and the only way they will really find out is when they land at SFO or LAX and ushered off in handcuffs to face federal terrorism charges. This has got to be in the back of their minds everytime they board an airline for somewhere outside of Thailand.

[Torneyboy]

Thailand is obliged by treaty to prevent this sort of thing from happening, and airlines aren't exactly chartiable organizations. The litigation will raise all sorts of uncomfortable questions, Thailand will look like a failed state and they might be ordered to pays some pretty big amounts. They won't, of course, but that will only make Thailand look more like a rogue state.

 

Sad ..but true

[cavanami]

Maybe they already seized the funds...but now the funds have disappeared?

 

Fat chance the airlines will see any compensation, IMO.

[buffalo_bill]

Great stuff , thanks for posting this .

[shygye]

So how many airlines have sued France, Germany, Greece, Italy, Australia, etc?

[Dexi]

Surely the US wouldnt indict the PAD leaders on terrorism charges and risk a major diplomatic rift with their biggest friend in the region....

[Gadfly]

Surely the US wouldnt indict the PAD leaders on terrorism charges and risk a major diplomatic rift with their biggest friend in the region....

 

Since PAD is not the government, there is no row. Even if a member of PAD is in the government, there is precedent for the US indicting cabinet officials in Thailand. Several years back a it was revealed that a prospective minister had been indicted on drug charges. I think he was quickly dropped. And I recall that a MP was extradicted to the US on drug charges (cannot remember name.)

 

The US Ambassador said last week that this government must arrest and prosecute those responsible for the airport closure. The EU and UK representatives have said the same thing. This is what the international community is saying.

 

More important, private parties can bring civil actions, and no government (not the US, not the UK, not the EU, etc.) has control over that. And private parties lost tens of milliions of dollars. They have strong incentives to make a bing stink about this.

 

How is Thailand going to defend the airport closure? To establish that it is not responsible for the airport disclosure, it has to take the position that the closure was an act of terrorism (I downloaded the relevant treaty, the Chicago Convention, and I am no expert in this area, but it appears that Khun Wirot is right; he should know, and his explanation certainly makes commonsense.)

 

Is this government going to take the position that the airport closure was an act of terrorism? It's own Foreign Minister applauded the tactic. And if it takes this position, the current government will have problems with PAD. PAD has already warned the curren government about this.

 

I prefer Abbhisit over anyone else who has held the PM position since, well, since I first arrived 14 years ago. But I think this government has realled painted itself into a corner on this one.

[shygye]

Oh, please. This is never going to happen, because no country has been sued due to airport closure caused by strikes or protests.

 

The international community says a lot of things for show. The international community were against the 3000 murders by police during the drug crackdown but did absolutely nothing.