Abstract
In the aftermath of the events of September 11, 2001, the Council of the International Civil Aviation Organization (ICAO) established a Special Group on Aviation War Risk Insurance (SGWI). The Special Group was tasked to review the problem of aviation war risk insurance in light of the then prevailing situation, and to “develop recommendations for coordinated and appropriate assistance mechanisms for airline operators and other affected parties to be operated if and when necessary to the extent that the conventional insurance markets were unable to provide sufficient war risk coverage”. As a short term solution, the SGWI recommended the establishment of a captive insurance organization that would provide aviation war risk coverage to operators in the global air transport industry, with multilateral government support. ICAO’s attempt to implement this recommendation resulted in the rather unsuccessful Globaltime scheme discussed in the immediately preceding chapter.
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Notes
- 1.
- 2.
- 3.
- 4.
It is important to note that, prior to these developments efforts had already been initiated by the Legal Committee to revise the Rome Convention of 1952. Indeed, the adoption of the new passenger liability regime—the Montreal Convention of 1999 provided the initial impetus for the modernization of the 1952 Rome Convention. It is reported that, during the 31st session of the ICAO Legal Committee held in August–September 2000, the Swedish delegate proposed that modernization of the 1952 Rome Convention should be included in the work program of the Legal Committee. This proposal was favorably received and preparatory work was already being carried out on it by the ICAO Legal Bureau before the terrorist events of September 11, 2001 occurred.
- 5.
310 UNTS 181 ICAO Doc. 7364 (1952). This Convention applied to damage caused on the surface of the territory of one Contracting State by an aircraft in flight registered in another Contracting State. It imposed strict liability on the operator of the aircraft without regard to fault. Only limited defenses were available. Liability for death or personal injury was limited with the values expressed in gold francs and varying according the weight of the aircraft. See Jennison (2005) p. 787. The biggest concern with this regime of third-party liability stemmed from the unrealistically low liability limits prescribed therein. In spite of the adoption in 1978 of an Amending Protocol that revised the liability limits upwards and expressed them in Special Drawing Rights, the Convention failed to attract the desired support from States.
- 6.
In 2006, the title of the project was amended from “Consideration of the Modernization of the Rome Convention of 1952” to read: “Compensation for damage caused by aircraft to third parties arising from acts of unlawful interference or from general risks”. See ICAO (2008a) p. 1.
- 7.
ICAO Doc. 9919 (2009).
- 8.
ICAO Doc. 9920 (2009).
- 9.
ICAO Doc. 9919 (2009) art. 2(1).
- 10.
Under the GRC, “operator” means the person who makes use of the aircraft, provided that if control of the navigation of the aircraft is retained by the person from whom the right to make use of the aircraft is derived, whether directly or indirectly, that person shall be considered the operator. A person shall be considered to be making use of an aircraft when he or she is using it personally or when his or her servants or agents are using the aircraft in the course of their employment, whether or not within the scope of their authority. The operator shall not lose its status as operator by virtue of the fact that another person commits an act of unlawful interference. See idem., art. 1(f).
- 11.
See Caplan (2008) p. 186.
- 12.
For this purpose, the GRC replicates the minimum insurance requirements prescribed for air carriers operating within, to and from European territory under EC Regulation 785/2004 OJ L 1 (2004b). The operator’s liability is thus limited according to the weight of the aircraft as follows:
Category
MTOM (kg)
Limit of operator’s liability (SDRs)
1
Less than 500
750,000
2
More than 500 but not exceeding 1,000
1,500,000
3
More than 1,000 but not exceeding 2,700
3,000,000
4
More than 2,700 but not exceeding 6,000
7,000,000
5
More than 6,000 but not exceeding 12,000
18,000,000
6
More than 12,000 but not exceeding 25,000
80,000,000
7
More than 25,000 but not exceeding 50,000
150,000,000
8
More than 50,000 but not exceeding 200,000
300,000,000
9
More than 200,000 but not exceeding 500,000
500,000,000
10
More than 500,000
700,000,000
See ICAO Doc. 9919 (2009), art. 4(1).
- 13.
See ICAO Doc. 9919 (2009), art. 4(3).
- 14.
This is considered to be an onerous burden because it is more difficult to establish the absence of fault than to positively offer proof of fault.
- 15.
ICAO Doc. 9919 (2009), art. 3(8).
- 16.
See Tompkins (2008) p. 82 where the author persistently points out that the GRC is unnecessary because the Rome Convention of 1952 which it seeks to replace has not played any part in compensating victims of any major accident over the last 50 years owing primarily to the fact that each state has existing laws governing liability to pay compensation for accidents, and adequate insurance has always been available.
- 17.
The efforts that eventually culminated in the adoption of the GRC were heavily influenced by the victim oriented features of the new passenger liability regime established under the Montreal Convention of 1999. That treaty represented a formal recognition by states of industry initiatives signifying a fundamental shift from the previous era in which the air transport industry needed protection from potentially debilitating passenger and cargo liability damages awards to one in which the need to compensate passengers and cargo shippers who suffered death, injury or damage to property during the course of transportation by air was of eminent concern. Owing to its broad acceptance among the majority of states, the victim oriented Montreal Convention of 1999 has been largely hailed as a success. As clearly pointed out by several commentators, however, there is no relationship between the passenger liability rules of the Montreal Convention of 1999 and the liability for damage to persons and property on the ground. Whereas passengers on a commercial aircraft are a confined and known group who are familiar with the liability limits and can take “self protective” measures through personal accident insurance, the same cannot be said about persons on the ground. According to one commentator, the latter is an “undefined group of random persons in relation to any aircraft accident and should be entitled to the same liability rules including damages as any other person who happens to be a victim of an accident involving a bus, car, taxi, railroad, objects falling from buildings, etc.”. As such the rules derived from the passenger liability provisions of the Montreal Convention of 1999 are wholly inappropriate for compensating third party victims on the ground. Much of the difficulty with the GRC, therefore, stems from the drafters insistence on implementing a liability regime for third-party compensation that closely mirrors the novel passenger liability regime laid out in the Montreal Convention of 1999. See Tompkins (2008) pp. 82–83; Caplan (2008) p. 188; Britton (2005) pp. 272 et seq.
- 18.
Article 1 of ICAO Doc. 9920 (2009) defines an “act of unlawful interference” as: “an act which is defined as an offence in the Convention for the Suppression of Unlawful Seizure of Aircraft, Signed at The Hague on 16 December 1970, or the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Signed at Montréal on 23 September 1971, and any amendment in force at the time of the event.” Under the Hague Convention of 1970, “[a]ny person who on board an aircraft in flight (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act commits an offence…”. The definition contained in the Montreal Convention of 1971 is even more extensive:
Any person commits an offence if he unlawfully and intentionally:
-
(a).
performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or
-
(b).
destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or
-
(c).
places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or
-
(d).
destroys or damages air navigation facilities or interferes with their operation if any such act is likely to endanger the safety of aircraft in flight; or
-
(e).
communicates information which he knows to be false thereby endangering the safety of aircraft in flight.
-
(a).
- 19.
In Chap. 4 above, these were identified as the risk of:
-
(a).
War, Invasion, Civil War, Warlike Operations, Hostilities, Insurrection, Rebellion, Revolution, Military or Usurped Power;
-
(b).
Hostile Detonation or use of any Nuclear Weapon of War, Radioactive Force or Matter, Chemical, Biochemical or Biological Materials;
-
(c).
Strikes, Riots, Civil Commotions or Labour Disturbances;
-
(d).
Acts for Terrorist or Political Purposes;
-
(e).
Malicious Acts and Acts of Sabotage;
-
(f).
Confiscation, Nationalization, Seizure, Restraint, Detention, Appropriation, and Requisition for Title or Use; and,
-
(g).
Hijacking or any Unlawful Seizure or Wrongful Control of the Aircraft or Crew.
-
(a).
- 20.
See ICAO Doc. 9920 (2009), preamble.
- 21.
For these criticisms, see sources cited in footnote 16 above.
- 22.
Article 40 of ICAO Doc. 9920 (2009) provides that the Convention shall enter into force 180 days after the deposit of the 35th instrument of ratification on condition that the total number of passengers departing in the previous year from airports in the states that have ratified the convention is at least 750 million.
- 23.
This is referred to as the three layer approach. See Kjellin (2008) p. 67.
- 24.
See ICAO Doc. 9920 (2009), arts. 4, 18 and 23.
- 25.
Under the UIC convention, an “event” occurs when damage results from an act of unlawful interference involving an aircraft in flight. See idem., art. 1. This is a system-wide limit applicable to the totality of claims from all third-party victims deriving from any one event. It is not a limit on the amount of compensation that each third-party victim can claim against the operator.
- 26.
This first tier of compensation of the UIC is similar in many respects to the GRC the only exception being that the liability of the operator under the UIC is absolutely limited to 700 million SDRs. See idem., art. 4(1). Compare with ICAO Doc. 9919 (2009), art. 3.
- 27.
The definition of the term “operator” in article 1 of the UIC convention is the same as that contained in the GRC. See footnote 10 above.
- 28.
Article 29 of the Convention reinforces the concept of channelling by providing that: “… any action for compensation for damage to a third party due to an act of unlawful interference, however founded, whether under this Convention or in tort or in contract or otherwise, can only be brought against the operator … and shall be subject to the conditions and limits of liability set out in this Convention. No claims by a third party shall lie against any other person for compensation for such damage.” See ICAO Doc. 9920 (2009), art. 29.
- 29.
The operator is granted a right of recourse against: (a) any person who has committed, organized or financed the act of unlawful interference; and, (b) any person. See idem., art. 24.
- 30.
See idem., art. 3(1) which provides that: “the operator shall be liable to compensate for damage within the scope of this Convention upon condition only that the damage was caused by an aircraft in flight.” [emphasis added].
- 31.
Compensable damage includes: damages due to death, bodily injury and mental injury; damage to property; and, environmental damage. Damage due to mental injury is compensable only if it is caused by a recognizable psychiatric illness resulting either from bodily injury or from direct exposure to the likelihood of imminent death or bodily injury. Damage caused by a nuclear incident as defined in 956 UNTS 263 (1960) or for nuclear damage as defined in 1063 UNTS 265 (1963) and any amendment or supplements to these Conventions in force at the time of the event, as well as punitive, exemplary or any other non-compensatory damages are not compensable under the convention. See ICAO Doc. 9920 (2009), art. 3.
- 32.
ICAO Doc. 9920 (2009), art. 3(2).
- 33.
See Kjellin (2008) p. 68 where he notes: “In a fair exchange for taking on the liability up to a high level and securing it by insurance, the operators would get a hard cap on their liability. In practice this means that the liability in the first layer is strict but limited.” The question as to whether this is a fair tradeoff particularly when considered from the point of view of operators was heavily debated during the diplomatic conference.
- 34.
ICAO Doc. 9920 (2009), art. 7(1).
- 35.
Idem., art. 7(2).
- 36.
- 37.
As can be seen, these problems bear striking resemblance to the dual objectives expressed in ICAO Doc. 9920 (2009).
- 38.
Comprising nuclear power stations, nuclear fuel enrichment and manufacture, nuclear waste treatment and disposal, and also, in certain cases, radioisotopes. See Nuclear Risk Insurers Ltd. (2008).
- 39.
Idem.
- 40.
Fitzsimmons (2004) pp. 87–88.
- 41.
Under 1063 UNTS 265 (1963), the upper ceiling for operator liability within the first tier is not fixed but is left within the legislative discretion of each member state. The lower limit may not be less than US$ 5 million. Under the 1960 Paris convention, liability is limited to not more than 15 million and not less than 5 million SDRs.
- 42.
IAEA (2007) p. 10.
- 43.
See World Nuclear Association (WNA) (2012).
- 44.
Idem.
- 45.
Fitzsimmons (2004) p. 88.
- 46.
Idem.
- 47.
The drafters of the UIC convention also failed to take into account the relative profitability of the nuclear energy industry as compared to the air transport industry. The nuclear energy industry can afford the cost of channelling and high liability limits because it is a very profitable endeavour.
- 48.
- 49.
The fact that the operator of a nuclear facility for instance is singled out and designated as the only liable party in the event of an accident causes the operator to avoid this liability by taking the appropriate amount of care to ensure that accidents do not happen.
- 50.
See ICAO Doc. 9920 (2009), art. 3(1), which provides that “[t]he operator shall be liable … upon condition only that the damage was caused by an aircraft in flight”.
- 51.
See Nell and Richter (2003) p. 32.
- 52.
It is reported that, during the meetings of the SGMR, the suggestion was made that the air transport sector ought to be liable for damage caused by acts of unlawful interference because it profited and reaped the main economic gains from the activity that provided the opportunity for terrorists to commit their acts. A majority of the group, however, refuted these claims, embracing instead the idea of burden sharing and solidarity. Thus, in moving away from the concepts of fault, blame and punishment, the group expressed a preference for strict liability of the operator, subject to liability limits in the first tier, as a means of ensuring that the financial viability of operators is not sacrificed in the process of adequately compensating victims. See Kjellin (2008) p. 70.
- 53.
This is because strict liability helps the victim in obtaining compensation since he is released from the heavy burden of proving fault under the negligence rule. See Faure (1995) p. 23.
- 54.
Typical liability scenarios in which a market relationship exists between the parties include product liability. In such cases, liability arises from a defective product that the injurer places on the market. In contrast, third-party liability as well as liability for environmental damage does not envisage any form of market relationship between the injurer and the victims. See Nell and Richter (2003) p. 32. See also Faure (1995).
- 55.
Faure (1995) p. 23.
- 56.
Efficient care can be found where the marginal costs of care are equal to the marginal benefits of accident reduction, assuming risk neutrality. See idem., p. 22.
- 57.
Nell and Richter (2003) p. 32.
- 58.
According to the literature, a negligence rule will not give incentives to the injurer to adopt an optimal activity level since the activity level is not incorporated in the due care standard that the court applies. Thus, when the negligence rule is applied, a defendant is not held liable if she exercises a level of care that equals or exceeds what amounts to due care under the legal system. As such, the defendant will not take the remaining risk into account and will therefore exceed the welfare maximizing activity level. In contrast, strict liability would lead to optimal care and control activity in an efficient way, since a defendant would in any case internalize the entire liability risk. This is because, under a strict liability rule, adopting an efficient activity level is also a way to minimize the total expected accident costs that the injurer has to bear. See Faure (1995) p. 23. See also Nell and Richter (2003) p. 32.
- 59.
See Nell and Richter (2003).
- 60.
The standard assumption of risk neutrality is especially crucial in this context considering that areas subject to strict liability usually bear extreme risks. If the parties are risk averse in reality, the results from an analysis based on risk neutrality might lead to substantial misjudgments and therefore incorrect policy recommendations. See idem., pp. 32–33.
- 61.
Faure (1995) p. 23.
- 62.
See Nell and Richter (2003) p. 33.
- 63.
Idem., p. 45.
- 64.
The rationale underlying this argument is that, by capping the exposure of the operator to liability for third-party damages resulting from acts of unlawful interference at 700 million SDRs per event and making the operator strictly liable, it is envisaged that the extent of losses associated with the risks will thereby become amenable to actuarial assessment, and this in turn would have the effect of enhancing the insurability of the risks in the conventional insurance markets. In the words of Henrik Kjellin, one of the principal architects of the UIC, “[t]he first layer builds on a modern approach to liability issues where the risk is attributed to a person who is in a good position to insure it, but who is also in need of protection from the potential financial consequences of the risk”. See Kjellin (2008) p. 68.
- 65.
- 66.
The International Civil Aviation Compensation Fund established by the UIC Convention is an organization with international legal personality separate from, but having its seat at the same place as, the International Civil Aviation Organization. It is made up of a Conference of Parties, consisting of the States Parties to the UIC Convention, and a Secretariat headed by a Director. Within the territory of States Parties, the International Fund enjoys tax exempt status and immunity from legal process except in respect of actions relating to credits obtained in accordance with article 17 or to compensation payable in accordance with article 18 of the Convention. See ICAO Doc. 9920 (2009), art. 8.
- 67.
Idem., art. 18. The International Fund is only liable to pay additional compensation if the damage is caused by an act of unlawful interference involving an aircraft engaged in an international flight. Third-party damage caused by an aircraft engaged in a domestic flight will fall within the scope of the UIC Convention only if the State Party concerned has made a declaration to that effect under article 2(2) of the Convention.
- 68.
Idem., art. 18(1). In effect, this means that the liability of the International Fund to pay additional compensation within this layer is strict. Also, third-party claims for additional compensation not exceeding the 3 billion SDR per event limit may only be brought against the International Fund.
- 69.
Idem., art. 18(3). If such a determination is made, the Conference of Parties shall also decide on a fee to be paid by the operators during the period to be covered, and payment of the fee shall be a condition for the performance of this action by the International Fund.
- 70.
Idem., arts. 9(k) and 28.
- 71.
“Where the International Fund is unable to meet valid compensation claims because insufficient contributions have been collected, it may obtain credits from financial institutions for the payment of compensation and may grant security for such credits”. See idem., arts. 9(n) and 17(4).
- 72.
Idem., art. 12(1).
- 73.
Idem., art. 12(1).
- 74.
Idem., art. 15(1).
- 75.
Idem., art. 16(1).
- 76.
Idem., art. 16(2) and (3). Where a State Party has by declaration included domestic flights within the scope of the UIC Convention, it is required to provide information on such domestic flights to the International Fund. In each case, such statistics shall be deemed to be prima facie evidence of the facts stated therein.
- 77.
Idem., art. 16(3).
- 78.
Idem., art. 13(1). Based on a budget to be drawn up by the Director of the International Fund, contributions are to be fixed having regard to:
-
(a).
The upper limit of compensation set out in article 18(2)—3 billion SDRs
-
(b).
The need for reserves where article 18(3) is applied
-
(c).
Claims for compensation, measures to minimize or mitigate damages and financial assistance under the Convention
-
(d).
The costs and expenses of administration, including the costs and expenses incurred by meetings of the Conference of Parties
-
(e).
The income of the International Fund; and
-
(f).
The availability of additional funds for compensation pursuant to article 17(4).
See idem., art. 13(3).
-
(a).
- 79.
Idem., art. 14(1).
- 80.
Idem., art. 14(2).
- 81.
Idem., art. 14(2). However, the period and rate of contributions shall be applied in respect of passengers and cargo departing from a State in respect of which the Convention subsequently enters into force.
- 82.
Idem., art. 14(3).
- 83.
See e.g., Kjellin (2008) p. 69.
- 84.
Caplan (2008) p. 201.
- 85.
Idem.
- 86.
Idem.
- 87.
Although, the International Fund has power to obtain lines of credit from financial institutions to pay compensation in the event that contributions collected are insufficient to meet claims, there is no guarantee that this option will be feasible in practice. In the absence of State guarantees, the only security that the International Fund can provide is revenue streams expected from future contributions. Financial institutions may not be impressed by such security because it is the very source from which the International Fund has been unable to build sufficient reserves thus bringing about the need to borrow in the first place. See idem., p. 202.
- 88.
See Kjellin (2008) p. 69.
- 89.
See generally Caplan (2008) p. 202. In terms of similarities, both schemes have a primary layer financed by operators and higher layers financed by users. Beyond these, there are significant differences between the two schemes. For instance, under the IOPC scheme, shipowners are not required to be liable for the criminal acts of other parties and can defend themselves in the event that pollution is caused by terrorists. In fact, shipowners may defend themselves not only in the event of terrorist attacks, but also in the event of major onslaughts outside their control such as war hostilities, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character. See 973 UNTS 3 (1969) art. III as amended by 1956 UNTS 255 (1992) art. 4(2). Under the UIC Convention, aircraft operators will not be able to avoid such liability within the first tier. Also, under the UIC Convention, the International Fund alone will have to provide compensation many times greater than all three layers of the IOPC scheme. On this, see Franklin (2006) p. 96 where the author notes: “While the IOPC may have been successful in practice, the amounts it has dealt with have been peanuts compared to the liabilities that can arise after a major aviation surface damage loss of 9/11 proportions”.
- 90.
Caplan (2008) p. 203.
- 91.
“The Governments of the countries in Western Europe have provided, and are in some cases still providing compensation to the affected population in their territories for contamination arising from Chernobyl, and these amounts alone in total have exceeded by several times the capacity of the nuclear insurance industry, thus reinforcing the view that such compensation can be considered solely for the account of Governments and not for the private insurance industry”. See Nuclear Risk Insurers Ltd. (2008).
- 92.
See Tompkins (2008) p. 83. Purely and simply stated, acts of unlawful interference are crimes. Where aircraft or other aviation installations are used to carry out such acts, the operator involved is very much a victim of the crime as are persons and property on the ground.
- 93.
Idem.
- 94.
15 UNTS 295 ICAO Doc. 7300/8 (1944). “Article 15 requires contracting States to make available all public airports and air navigation services on the same terms and conditions to all civil aircraft. There must be no discrimination as between national and foreign aircraft. The charges for such services must be publicized and notified to ICAO”. See Caplan (2008) p. 207.
- 95.
15 UNTS 295 ICAO Doc. 7300/8 (1944), art. 15.
- 96.
See, Caplan (2008) p. 207. By way of illustration, the author notes that “a charge levied on all arriving passengers and said to be payment for (say) promotion of the Olympic Games would be precluded” under article 15. In support, he cites two recent examples of the principle in practice, namely: (a) Carl Burleson’s (FAA Director of Environment and Energy) heavy reliance on article 15 in strong opposition to the EU’s proposed aviation emissions trading scheme; and (b) the UK’s Federation of Tour Operators claim that the introduction of an Air Passenger Duty by the British government was in breach of article 15.
- 97.
It has been suggested that, in practice, ICAO does not treat article 15 as an absolute prohibition on all charges unrelated to the use of airports or air navigation facilities. Copious reference is made to several resolutions of the ICAO Council contained in ICAO (2000, 2009). However, it is important to note that these Council resolutions are, at best, unilateral interpretations of article 15 and they do not amend the express provisions of the Chicago Convention by any means whatsoever.
- 98.
ICAO (2008b) para. 2.3.1.
- 99.
- 100.
See generally ICAO Doc. 9920 (2009), art. 23.
- 101.
Idem., art. 23(1).
- 102.
Idem., art. 23(2).
- 103.
Idem., art. 23(3).
- 104.
ICAO (2006).
- 105.
ICAO Doc. 9920 (2009), art. 23(4).
- 106.
Caplan (2008) pp. 205–206.
- 107.
This argument probably underscores the claim that the third tier of the UIC Convention is indeed invisible. The operator is by law, made primarily liable to pay additional compensation in this tier. However, since the operator’s assets (including any insurance it may have taken out) will not be sufficient to pay such additional compensation, it is expected that governments would step in one way or the other to make good those claims. Governmental involvement then (as opposed to operator liability) is the invisible part of the third tier since there is no express reference to it in the substantive text or even the preamble of the UIC Convention.
- 108.
Kjellin (2008) p. 70.
- 109.
Idem.
- 110.
Idem., [emphasis added].
- 111.
Idem., p. 75.
- 112.
Idem. Harold Caplan raises the question as to whom these rights of subrogation will be exercised against and hazards a guess that perhaps it would be exercised against terrorists and their supporters.
- 113.
ICAO Doc. 9920 (2009), art. 7(1) provides as follows:
Having regard to Article 4, States shall require their operators to maintain adequate insurance or guarantee covering their liability under this Convention. If such insurance or guarantee is not available to an operator on a per event basis, the operator may satisfy this obligation by insuring on an aggregate basis. State Parties shall not require their operators to maintain such insurance or guarantee to the extent that they are covered by a decision made pursuant to Article 11, paragraph 1(e) or Article 18, paragraph 3. [Emphasis added].
Since article 4 spells out the liability of the operator in the first tier only (i.e., up to 700 million SDRs in the worst case scenario), this provision as a whole can only be construed reasonably as limiting the scope of mandatory insurance exclusively to the operator’s liability exposure in the first tier. Even then, the operator is free of this obligation at any time when the drop-down mechanism is in effect.
- 114.
See e.g., Dauber (2003–2004) p. 290, where the author notes that “the federal government [of the US] has been involved in compensating the victims of calamities of various kinds, including victims of what we now call terrorism since the earliest days of the Republic.” In this article, the author compares the compensation schemes set up by Congress after the war with England in 1812 and the events of September 11, 2001 and points out striking similarities between the popular and political aftermath of each scheme.
- 115.
See Tompkins (2008) p. 83. This suggestion falls very much in line with the widely accepted principle that when violence is directed towards a State, it is the State (and not the industrial sector involved) that must assume ultimate responsibility for prevention (i.e., security) and for making reparations (i.e., paying compensation to innocent victims). It is also underscored by the doctrine that when compensation is not fully available from other sources, the State must contribute to compensate those who have suffered death, injury or property damage as a result of a violent crime, and that such State compensation must be paid even when the offender cannot be prosecuted or punished.
- 116.
- 117.
- 118.
See Annex to UN General Assembly (1985), Sections 12 & 13.
- 119.
The US government has, since 2004, compiled and updated a Directory of International Crime Victims Compensation Programs which provides details of such schemes in 36 countries. The Directory is publicly available online at http://www.ojp.usdoj.gov/ovc/publications/infores/intdir2005/welcome.html.
- 120.
See discussion of industry mutualization schemes in Chap. 5 above.
- 121.
A detailed discussion of the modalities for governmental involvement in the provision of insurance or guarantees for aviation war and terrorism risks is contained in the next chapter.
- 122.
See Tompkins (2008) p. 83, where the author states that “acts of terrorism are directed against governments and the political and religious beliefs and ideals of governments that are not acceptable to the political and religious beliefs and ideals of those who commit the acts of terrorism”. See also Fitzsimmons (2004) p. 87 where the author states that “[a]rguably, it is States (and of course terrorists) that ultimately cause and should therefore provide compensation for terrorism, since terrorism is the ultimate consequence of the failure of domestic policy or diplomacy at the highest levels”.
- 123.
- 124.
See Fitzsimmons (2004).
- 125.
i.e., the state in which the nuclear plant is situated.
- 126.
1041 UNTS 358 (1963) art. 3.
- 127.
Fitzsimmons (2004) p. 88, [emphasis added].
- 128.
Petras (2007).
- 129.
961 UNTS 187 TIAS 7762; 24 UST 2389 (1972). However, the proposal is restricted to the no-fault regime of the Convention applicable to damage caused on the surface of the earth and to aircraft in flight.
- 130.
The 1972 Liability Convention also establishes a fault-based regime for allocation of liability and payment of compensation with respect to damage caused by space objects to other space objects in space.
- 131.
This is used as an equivalent of the launching state concept that appears in the 1972 Liability Convention. Although it is oversimplified in the proposal, the state of embarkation probably refers to the state from which the flight in question last originated. However, the proposal envisages situations in which there will be multiple states of embarkation and provides that in such cases, the states concerned will be jointly and severally liable.
- 132.
Petras (2007) p. 335.
- 133.
Idem.
- 134.
Caplan (2008) p. 211.
- 135.
Idem.
- 136.
Idem., pp. 212–213, Appendix [emphasis added].
- 137.
Idem., p. 205.
- 138.
ICAO Doc. 9920 (2009), art. 40(1).
References
1041 UNTS 358, (1963) Convention supplementary to the convention on third party liability in the field of nuclear energy (as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982)
1063 UNTS 265, (1963) Convention on civil liability for nuclear damage
15 UNTS 295, ICAO Doc. 7300/8 (1944) Convention on International Civil Aviation
1956 UNTS 255, (1992) Protocol to the international convention on civil liability for oil pollution damage of 29 November 1969
2242 UNTS 350, ICAO Doc. 9740 (1999) Convention for the unification of certain rules for international carriage by air
310 UNTS 181, ICAO Doc. 7364 (1952) Convention on damage caused by foreign aircraft to third parties on the surface
956 UNTS 263, (1960) Convention on third party liability in the field of nuclear energy
961 UNTS 187, TIAS 7762; 24 UST 2389 (1972) Convention on international liability for damage caused by space objects
973 UNTS 3, (1969) International convention on civil liability for oil pollution damage
Abeyratne RIR (2004) Aviation in crisis. Ashgate, Aldershot, Burlington
Britton J (2005) Roads from Montreal do not lead to Rome: criticism and alternatives to the draft convention on third party liability. Air Space Law XXX(4–5):269–301
Caplan H (2008) Liability for third party damage on the ground – some fundamental issues for consideration by the council of ICAO prior to a diplomatic conference. Air Space Law XXXIII(3):183–213
Council Directive 2004/80/EC (2004a) Council Directive 2004/80/EC of 29 April 2004 relating to compensation of crime victims. OJ, L 261/15
Dauber ML (2003–2004) The War of 1812, September 11th and the politics of compensation. DePaul Law Rev 53:289–354
EC Regulation 785/2004 (2004b) Parliament and Council Regulation (EC) 785/2004 of 21 April 2004 on insurance requirements for air carriers and aircraft operators. OJ, L 138/1
ETS No. 116 (1983) European convention on the compensation of victims of violent crime
Faure MG (1995) Economic models of compensation for damage caused by nuclear accidents: some lessons for the revision of the Paris and Vienna conventions. Eur J Law Econ 2(1):21–43
Fitzsimmons A (2004) Terrorism – maximizing the insurability of a catastrophe risk. Ann Air Space Law XXIX:67
Franklin M (2006) Is a successful new convention on airline liability for surface damage achievable? Air Space Law 31(2):87–97
UN General Assembly (1985) Declaration of basic principles of justice for victims of crime and abuse of power, UNGA Resolution 40/34 (1985)
IAEA (2007) The 1997 Vienna convention on civil liability for nuclear damage and the 1997 Convention on supplementary compensation for nuclear damage – explanatory texts. IAEA International Law Series No. 3.
ICAO (2000) ICAO’s policies on taxation in the field of International Air Transport, ICAO Doc. 8632/3 3rd edn, (2000)
ICAO (2001a) Coordinated approach in providing assistance in the field of aviation war risk insurance. ICAO Assembly Resolution A33-20
ICAO (2001b) Report of the First Meeting of the special working group on aviation war risk insurance, 6–7 December 2001. ICAO Doc. SGWI/1
ICAO (2001c) Summary of decisions: assistance in the field of aviation war risk insurance (Subject No. 24.3). ICAO Council Decision C-DEC 164/1
ICAO (2002a) Report of the second meeting of the special group on aviation war risk insurance, 28–30 January 2002. ICAO Doc. SGWI/2
ICAO (2002b) Summary of decisions – assistance in the field of aviation war risk insurance (Subject No. 24.3). ICAO Council Decision No. C-DEC 165/6
ICAO (2006) International standards and recommended practices: security – safeguarding International Civil Aviation against Acts of Unlawful Interference, Annex 17 to the Convention on International Civil Aviation, 15 UNTS 295 8th edn
ICAO (2008a) Introductory note presented by the Secretariat – agenda Item 3: compensation for damage caused by aircraft to third parties arising from acts of unlawful interference or from general risks. ICAO Doc. LC/33-WP/3-1
ICAO (2008b) Report of the Rapporteur on agenda Item 3: draft convention on compensation for damage caused by aircraft to third parties, in case on unlawful interference ICAO Doc. LC/33-WP/3-3
ICAO (2009) ICAO’s Policies on charges for airports and air navigation services ICAO Doc. 9082/8, 8th edn, 2009
ICAO Doc. 9919 (2009) Convention on compensation for damage caused by aircraft to third parties
ICAO Doc. 9920 (2009) Convention on compensation for damage caused to third parties, resulting from acts of unlawful interference involving aircraft
Jennison M (2005) Rescuing the Rome convention of 1952: six decades of effort to make a workable regime for damage caused by foreign aircraft to third parties. Unif Law Rev 10(4):785–824
Kjellin H (2008) The new international regime for third party liability. Air Space Law XXXIII(2):63–80
Nell M, Richter A (2003) The design of liability rules for highly risky activities – is strict liability superior when risk allocation matters? Int Rev Law Econ 23(1):31–47
Nuclear Risk Insurers Ltd. (2008) The insurance of nuclear installations and associated risks. Nuclear Pools website http://www.nuclearpools.com/aboutUs.asp
Petras CM (2007) An alternative proposal to modernize the liability regime for surface damage caused by aircraft to address damage resulting from hijackings or other unlawful interference. Gonz J Int Law 10(3):315–347
Tompkins GN (2008) Some thoughts to ponder when considering whether to adopt the new aviation general risks and unlawful interference conventions proposed by ICAO. Air Space Law XXXIII(2):81–84
World Nuclear Association (WNA) (2012) Liability for nuclear damage. WNA website http://www.world-nuclear.org/info/default.aspx?id=504%26terms=liability
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Nyampong, Y.O.M. (2013). The Insurability of Aviation War and Terrorism Risks Under ICAO’s Unlawful Interference Convention of 2009. In: Insuring the Air Transport Industry Against Aviation War and Terrorism Risks and Allied Perils. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32433-8_6
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