Abstract
There are various offences that can be perpetrated by private individuals or groups of individuals against civil aviation, the earliest common species of which was hijacking of aircraft. Hijacking, in the late 1960s started an irreversible trend which was dramatised by such incidents as the skyjacking by Shiite terrorists of the TWA flight 847 in June 1985. The skyjacking of Egypt Air flight 648 in November the same year and the skyjacking of a Kuwait Airways Airbus in 1984 Abeyratne (1985, p. 120).
Keywords
- Security Council
- Civil Aviation
- Racial Profile
- International Civil Aviation Organization
- Security Council Resolution
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- 1.
Abeyratne (1985, p. 120).
- 2.
Abeyratne (2005a) (on file with author).
- 3.
See Abeyratne (2002a, pp. 406–420).
- 4.
- 5.
War Risk Exclusions, A35-WP/97, LE/8, 17/08/04, p. 1. See also, Abeyratne (2007, pp. 689–704).
- 6.
War Risk Exclusions, A35-WP/97, LE/8, 17/08/04, p. 3.
- 7.
See 1983 Strasbourg “Convention on the Compensation of Victims of Violent Crime”; and EU Council Directive 2004/80/EC (29 April 2004) relating to compensation to crime victims.
- 8.
See Crime Victim Compensation Programs Directory 2002 http://www.ojp.usdoj.gov/ovc/publications.
- 9.
Directory of International Crime Victim Compensation Programs 2004–2005.
- 10.
Harold Caplan, Damage to third parties on the ground caused by aircraft, Some basic issues of policy which re-merit examination in the context of modernization of the 1952 Rome Convention, unpublished Aide Memoire.
- 11.
- 12.
Grotius (1646, pp. 523–526).
- 13.
De Vattel (1916, p. 72).
- 14.
Blackstone (2001, p. 68).
- 15.
Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82.
- 16.
The Security Council is the branch of the United Nations charged with the maintenance of international peace and security. Its powers, outlined in the Charter of the United Nations, include the establishment of peacekeeping operations, the establishment of international sanctions, and the authorization for military action. The Security Council’s power are exercised through its Resolutions. The Permanent members of the Security Council are the United States of America, United Kingdom, France, the Russian Federation and the Republic of China.
- 17.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of 9 years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.
- 18.
I.C.J. Reports 1980, 116.
- 19.
I.C.J. Reports 1980, 122. By letter of 2 April 1992, a copy of which was transmitted to Libya by the Registrar, the Agent of the United States drew the Court’s attention to the adoption of Security Council Resolution 748 (1992) the text of which he enclosed. In that letter the Agent for the United States stated:
That resolution, adopted pursuant to Chapter V11 of the United Nations Charter, “decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) of 21 January 1992 regarding the requests contained in documents S/23306, S/23308 and S/23309.” It will be recalled that the referenced requests include the request that Libya surrender the two Libyan suspects in the bombing of Pan Am flight 103 to the United States or to the United Kingdom. For this additional reason, the United States maintains its submission of 28 March 1992 that the request of the Government of the Great Socialist Peoples’ Libyan Arab Jamahiriya for the indication of provisional measures for protection should be denied, and that no such measures should be indicated. See I.C.J. Reports 1980, 125.
- 20.
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed at Montreal on 23 September 1971, ICAO, Doc 8966. Article 8 of the Montreal Convention stipulates that the offences under the Convention shall be deemed to be included as extraditable offences in any extradition treaty existing between the Contracting States and that States undertake to include these offences as extraditable in any extradition treaty to be concluded by them. Article 11 of the same Convention requires Contracting States to afford one another the greatest measures of assistance in connection with criminal proceedings brought in respect of the offences, stating further that in such instances the law of the State requested shall apply at all times.
- 21.
I.C.J. Reports 1980, 129.
- 22.
I.C.J. Reports 1980, paragraph 40.
- 23.
Article 14(1) of the Montreal Convention requires any dispute between two or more Contracting States concerning the interpretation or application of the Convention which cannot be settled through negotiation to be, at the request of one of them, submitted to arbitration. The provision goes on to say that if within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
- 24.
I.C.J. Reports 1949, 35.
- 25.
I.C.J. Reports 1980, 138–139.
- 26.
I.C.J. Reports 1980, 140.
- 27.
I.C.J. Reports 1980, 155–156.
- 28.
Kelsen (1951, pp. 476–477). See I.C.J. Reports 1957 supra note 14, 167.
- 29.
I.C.J. Reports 1959, Id., 168.
- 30.
Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82.
- 31.
Black’s Law Dictionary defines condonation as “pardon of offense, voluntary overlooking implied forgiveness by treating offender as if offense had not been committed”.
- 32.
Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82, at 92.
- 33.
Hyde (1928, pp. 140–142).
- 34.
International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999.
- 35.
A/52/653, 25 November 1997.
- 36.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625 (XXV) 24 October 1970.
- 37.
Metz (2002).
- 38.
Becker (2006).
- 39.
- 40.
Becker (2006, p. 335).
- 41.
Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report, 1996, Chapter II Article 2.
- 42.
Rome Statute of the International Criminal Court, Article 8.2 (b) (ii), (V) and (XX).
- 43.
Rome Statute of the International Criminal Court, Article 8.2 (b) (XXIV).
- 44.
The Island of Palmas Case (1928) 11 U.N.R. I.A.A. at 829.
- 45.
The Island of Palmas Case (1928) 11 U.N.R. I.A.A. at 829.
- 46.
Starke (1989, p. 3).
- 47.
(1949) I.C.J.R. 1, 22.
- 48.
The Corfu Channel Case, ICJ Reports, 1949, p. 4.
- 49.
There are some examples of imputability, for example the incident in 1955 when an Israeli civil aircraft belonging to the national carrier El Al was shot down by Bulgarian fighter planes, and the consequent acceptance of liability by the USSR for death and injury caused which resulted in the payment of compensation to the victims and their families. See 91 ILR 287. Another example concerns the finding of the International Court of Justice that responsibility could have been be imputed to the United States in the Nicaragua case, where mines were laid in Nicaraguan waters and attacks were perpetrated on Nicaraguan ports, oil installations and a naval base by persons identified as agents of the United States. See Nicaragua v. the United States, ICJ Reports 1986, 14. Also, 76 ILR 349. There was also the instance when the Secretary General of the United Nations mediated a settlement in which a sum, inter alia of $7 million was awarded to New Zealand for the violation of its sovereignty when a New Zealand vessel was destroyed by French agents in New Zealand. See the Rainbow Warrior case, 81 AJIL, 1987 at 325. Also in 74 ILR at 241.
- 50.
Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, June 9 1949, at 21.
- 51.
A/RES/56/83, 56th Session, 28 January 2002.
- 52.
A/RES/56/83, Article 1.
- 53.
A/RES/56/83, Article 2.
- 54.
For a discussion on this point see Jorgensen (2000, pp. 249–254).
- 55.
Brownlie (1983, p. 39).
- 56.
Report of the International Law Commission to the United Nations General Assembly, UNGOAR 56th Session, Supp. No. 10, UN DOC A/56/10, 2001 at 73.
- 57.
de Arechaga (1968, p. 535).
- 58.
Differences Relating to Immunity from Legal Process of a Special Rapporteur, ICJ Reports 1999, 62 at 87.
- 59.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933. Weishaupt (1979, p. 223).
- 60.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Article 2.
- 61.
The meaning imputed to the words “beginning of the operations of departure until the end of the operations of arrival” is debatable. It is interesting that an earlier treaty, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) signed at Warsaw on 12 October 1929 applies liability for accidents taking place on board the aircraft or any of the operations of embarking or disembarking. The word “on board” has been interpreted judicially in different circumstances. See Abeyratne (2001, pp. 197–198).
- 62.
The weight of the aircraft was the weight with total maximum load as indicated in the certificate of airworthiness or any other official document.
- 63.
Protocol Supplementing the Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface (signed at Rome on 29 May 1933) concluded at Brussels, on 30 September 1938. Article 2 of the Protocol provides that the Protocol forms an integral part of the 1933 Convention.
- 64.
Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 355.
- 65.
Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 357.
- 66.
AT-WP/247, 7/12/51, p. 3.
- 67.
AT-WP/247, 7/12/51, p. 4.
- 68.
AT-WP/224, 10 October 51 at 10.
- 69.
AT-WP/224, 10 October 51 at 10.
- 70.
At that time it was statistically shown that aircraft accidents involving large third party claims occurred infrequently. See AT-WP/247, 10 October 1951, p. 6.
- 71.
AT-WP/247, 7/11/51, p. 11.
- 72.
Economic Aspects of the Mexico City Draft Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. AT-WP/248 7/12/51, p. 2.
- 73.
C-WP/1077, 10/12/51, p. 2.
- 74.
See Vol. II, page 13 for the details of the meetings.
- 75.
These studies are listed in Vol. II, page 14.
- 76.
No supplementary comment was formulated by the Council.
- 77.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933. Weishaupt (1979, p. 223).
- 78.
Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933, Article 2.
- 79.
The meaning imputed to the words “beginning of the operations of departure until the end of the operations of arrival” is debatable. It is interesting that an earlier treaty, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) signed at Warsaw on 12 October 1929 applies liability for accidents taking place on board the aircraft or any of the operations of embarking or disembarking. The word “on board” has been interpreted judicially in different circumstances. See Abeyratne (2001, pp. 197–198).
- 80.
The weight of the aircraft was the weight with total maximum load as indicated in the certificate of airworthiness or any other official document.
- 81.
Protocol Supplementing the Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface (signed at Rome on 29 May 1933) concluded at Brussels, on 30 September 1938. Article 2 of the Protocol provides that the Protocol forms an integral part of the 1933 Convention.
- 82.
Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 355.
- 83.
Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 357.
- 84.
AT-WP/247, 7/12/51, p. 3.
- 85.
AT-WP/247, 7/12/51, p. 4.
- 86.
AT-WP/224, 10 October 51 at 10.
- 87.
AT-WP/224, 10 October 51 at 10.
- 88.
At that time it was statistically shown that aircraft accidents involving large third party claims occurred infrequently. See AT-WP/247, 10 October 1951, p. 6.
- 89.
AT-WP/247, 7/11/51, p. 11.
- 90.
Economic Aspects of the Mexico City Draft Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. AT-WP/248 7/12/51, p. 2.
- 91.
C-WP/1077, 10/12/51, p. 2.
- 92.
See Vol. II, page 13 for the details of the meetings.
- 93.
These studies are listed in Vol. II, page 14.
- 94.
No supplementary comment was formulated by the Council.
- 95.
Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed at Rome on 7 October 1952. See ICAO Doc 7364.
- 96.
Volume 7, Minutes and Documents of the ICAO Legal Committee, p. 337.
- 97.
Volume 7, Minutes and Documents of the ICAO Legal Committee, p. 379.
- 98.
Article I. The franc used in the Convention, and defined in Article II (4) thereof, equalled US $0.66335, as indicated by the International Monetary Fund.
- 99.
Article 3.
- 100.
Article 4.
- 101.
Article 12 states that if the person who suffers damage proves that it was caused by a deliberate act or omission of the operator, his servants or agents, done with intent to cause damage, the liability of the operator shall be unlimited, provided that, in the case of such act or omission of such servant or agent, it is also proved that he was acting in the course of his employment and within the scope of his authority. If a person wrongfully takes and makes use of an aircraft without the consent of the person entitled to use it, his liability shall be unlimited.
- 102.
Article 15.
- 103.
Caplan (2004, p. 5).
- 104.
The Conference was attended by delegates from 58 States and observers from four organizations.
- 105.
See ICAO Doc. 9527. The Protocol opened for signature on 23 September 1978.
- 106.
For a detailed discussion of these issues, see Gerald (1979, pp. 29–74).
- 107.
Gerald (1979, p. 72).
- 108.
Report of the 31st Session of the Legal Committee, ICAO Doc 9765.
- 109.
Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, ICAO Doc 9740. The text of the Montreal Convention is also contained in Annals of Air and Space Law, vol. 24, p. 425 (1999).
- 110.
Legal Committee 32nd Session, Montreal, 15–21 March 2004, Report, Doc 9832-LC/192 at 3-1.
- 111.
Article 3.3(a) and (b). In the context of private air carrier liability under the Warsaw system there are two analogies that are worthy of note. In Haddad v. Cie Air France (1982) 36 RFDA 355, where an airline had to accept suspicious passengers who later perpetrated a hijacking, the court held that the airline could not deny boarding to the passengers who later proved to be hijackers. In that instance the airline had found it impossible to take all necessary precautions and was considered sound in defence under Article 20 (1). A similar approach was taken in the case of Barboni v. Cie Air-France (1982) 36 RFDA 358, where the court held that when an airline receives a bomb threat whilst in flight and performs an emergency evacuation, a passenger who is injured by evacuation through the escape chute cannot claim liability of the airline since it would have been impossible for the airline to take any other measure.
- 112.
Fleming (1983, p. 1).
- 113.
Second International Conference on Private International Law, 4–12 October 1929, Warsaw, Minutes, (translated by Robert C. Herner and Didier Legrez), Fred B. Rottman & Co., New Jersey, 1975, at 21.
- 114.
[1932] A.C. 562 (H.L.) Hereafter Donoughue.
- 115.
[1932] A.C. 562 (H.L.), 580.
- 116.
[1978] A.C. 728 (H.L.).
- 117.
[1978] A.C. 728 (H.L.), 751–752. See also the decision of Neilson v. Kamloops (City of), [1984] 2.S.C.R. 2 handed down by the Supreme Court of Canada which adopted the principle enunciated by Lord Wilberforce and adopted it consistently from 1984 to 2001.
- 118.
162 N.E. 99 (N.Y. 1928).
- 119.
Osborne (2003, p. 68).
- 120.
[1952] 2 All.E.R. 402 (C.A.).
- 121.
Under the Warsaw regime there are analogies in contributory negligence. For example, in Goldman v. Thai Airways International Ltd (1983) 3 All E.R. 693, it was held that a passenger is not guilty of contributory negligence if he keeps his seatbelt unfastened through the flight and suffers injury when there is no sign given by the aircraft control panel to keep the seat belt on. However, if a passenger removes a bandage or braces that he is required to keep on for an existing injury and he suffers injury in flight due to the removal of the support he would be found to have contributed to the negligence resulting in his injuries.
- 122.
(1969) 2 N.B.R. (2d) 131 (S.C.A.D).
- 123.
Following the events of 11 September 2001, where civil aircraft were used as weapons of destruction, aviation insurers gave seven days’ notice on 17 September that war risk third party liability coverage according to policy terms applying to the write back coverage for war, hijacking and other perils would be withdrawn. The most compelling reason for the cancellations was the emergence of an exposure in terms of third party bodily injury and property damage that was unquantifiable.
- 124.
See Report of the Special Group on the Modernization of the Rome Convention of 1952, Montreal, 10–14 January 2005, SG-MR/1 at 1&2-4.
- 125.
See Report of the Special Group on the Modernization of the Rome Convention of 1952, Montreal, 10–14 January 2005, SG-MR/1 at 1&2-4.
- 126.
See Report of the Special Group on the Modernization of the Rome Convention of 1952, Montreal, 10–14 January 2005, SG-MR/1 at 1&2-5.
- 127.
In 1993, the ICAO Secretariat undertook a study on civil/State aircraft with a view to advising the Council on the various determinants that go to differentiate between the two types of aircraft. The results of that study can be found in C-WP/9835, 22/9/93. 3.
- 128.
See generally, Abeyratne (1997, pp. 1–2).
- 129.
525 U.S. 155 (1999). In Gibbs v. American Airlines, Inc., the Court rejected the plaintiff’s argument that his statutory claims under Section 1981 of the Civil Rights Act were not preempted by the Warsaw Convention because they are based on a federal statute and Congress did not intend for the Convention to impede civil rights statutes. In rejecting the plaintiff’s argument, the Court relied on the United States Supreme Court’s decision in El Al Israel Airlines, Ltd. v. Tseng and the decisions of several other district courts that have held that the Convention preempts statutory discrimination claims as well as common law claims. See also Speiser and Krause (1978, Sect. 10.2) for a chapter on mid air collisions in the United States involving domestic air transport.
- 130.
In Buchbinder v. American Airlines, a passenger asserted state law claims against the air carrier and its catering company after becoming ill from a meal consumed on board the aircraft. The catering company filed a motion for summary judgment on the grounds that the plaintiffs’ state law claims were preempted. The Court, relying on Tseng decision, held that the Warsaw Convention provided plaintiff’s exclusive remedy and dismissed plaintiff’s state law claims against the catering company.
- 131.
C-WP/12391, 11/02/05, Modernizing the Rome Convention of 1952, Appendix A.
- 132.
Circular 303, Operational Opportunities to Minimise Fuel Use and Reduce Emissions.
- 133.
Market based measures are targeted through voluntary measures and emissions trading. With regard to the former, ICAO has developed a Template Agreement – Memorandum of Understanding that States and other parties concerned could use as a basis for voluntary measures. On emissions trading, the Assembly endorsed the further development of an open emissions trading system for international aviation.
- 134.
See the following working papers for background information: A35-WP/56: Civil Aviation and the Environment (which provides an overview); A35-WP/76: Market-based Measures regarding Aircraft Engine Emissions; A35-WP/77: Updating of Resolution A33-7; and A35-WP/352: Report on Item 15 for some details relating to the outcome of Assembly.
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Abeyratne, R. (2010). Principles of Responsibility. In: Aviation Security Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11703-9_2
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