An Alternative Proposal to Modernize the Liability Regime for Surface Damage Caused by Aircraft
| Citation | Vol. 10 No. 3 |
| Publication year | 2007 |
Cite as: Christopher M. Petras, An Alternative Proposal to Modernize the Liability Regime for Surface Damage Caused by Aircraft to Address Damage Resulting from Highjackings or Other Unlawful Interference, 10 Gonz. J. Int'l L. 316 (2007), available at http://www.gonzagajil.org.
On-going efforts within the International Civil Aviation Organization (ICAO) to modernize the liability regime for surface damage caused by aircraft in flight (aka the Rome Convention system) have become bogged down over treatment of the so-called "terrorist risk"-i.e., "the liability of the carrier [under the Rome Convention] arising from terrorist attacks, e.g. bombings, sabotage, rocket attacks of aircraft resulting in damage to third parties on the ground." This paper proposes a new treaty to address the "terrorist risk" modeled on the system for imposition of international liability and dispute resolution and compensation agreed to by Contracting States to the 1972 Convention on International Liability for Damages Caused by Space Objects (commonly referred to as the Liability Convention). The thesis of the paper is that a new Rome-type treaty modeled on Liability Convention's no-fault, state-liability scheme for damage on the surface caused by space objects would afford States and individual victims an alternate source of compensation for the potentially massive, otherwise uninsurable damages that could result from terrorist use of aircraft as weapons of mass destruction in their territory, while addressing other shortfall's in existing international and domestic legal regimes, as well.
I. Preface...................................................................................... 317
II. An Alternative to Rome........................................................... 319
III. The 1972 Liability Convention................................................ 326
IV. Overview of the Draft Convention......................................... 334
A. Principles....................................................................... 334
1. Article 1 (1), Definition of "Aircraft in Flight."................ 334
2. Article 1 (2), Definition of "Damage"............................. 334
3. Article 1 (3), Definition of "State of Embarkation"........... 335
4. Article 1 (4), Definition of "Aircraft"............................. 335
5. Article 2, Definitions of "Hijacking" and "Unlawful Interference" 335
6. Article 3(1), Scope, Domestic Flights............................ 335
7. Article 3(2), Scope, "Basic Risk" Damages..................... 336
8. Article 3(3), Scope, Nuclear Damage............................. 336
B. Liability Provisions.......................................................... 336
1. Article 4, Liability of the State of Embarkation................ 336
2. Article 4(2), Liability of the State of Embarkation, Bracketed Language 336
3. Article 5(1), Joint and Several Liability........................... 337
4. Article 5(2), Apportionment of Liability.......................... 337
5. Article 5(3), International Agreements on Apportionment of Damages 337
6. Article 6, Exoneration from Liability............................... 338
7. Article 7, Exclusion of Nationals.................................... 338
8. Article 7(2), Exclusion of Nationals, Bracketed Language. 339
C. Presentation and Third-Party Settlement of Claims.............. 339
V. Conclusion................................................................................ 339
At the 2004 Worldwide Conference on Current Challenges in International Aviation,[1] a panel of distinguished experts addressed the question of whether the liability regime for surface damage caused by aircraft in flight, embodied in the 1952 Rome Convention[2] and the associated 1978 Montreal Protocol,[3] should be updated.[4] Much of this dialogue centered on the on-going efforts within the International Civil Aviation Organization (ICAO)[5] to modernize the Rome Convention system.[6] Notably, liability for the intentional infliction of damage through wrongful taking of aircraft was identified as the single greatest cause of debate. Several factors were behind this polemic, including carrier objections to liability for criminal acts, victim group opposition to liability caps, and concern among all constituencies, but especially aviation insurers over the potential magnitude of another "unbounded event" like the terrorist attacks of September 11, 2001.[7] Thus, one panelist aptly observed that endeavoring to deal with the issue within the confines of the current modernization initiative might well produce an "unratifiable result."[8]
More recently, Dr. Ruwantissa Abeyratne, a senior ICAO official, noted that primarily "[a]s a result of various security measures taken by the international community following the events of 11 September 2001 to strengthen aircraft against attacks, attacks against aircraft . . . are not as prolific."[9] Nevertheless, he identified the hijacking and use of aircraft as weapons of destruction as a continuing threat to civil aviation.[10] ICAO likewise sees the specter of the 9/11 nightmare scenario as undermining public confidence in the industry and posing grave implications for its safety, efficiency and regularity, while endangering the lives of potentially thousands of persons, both in the air and on the ground.[11] ICAO member States have thus advocated expeditious reform of the Rome Convention system, while highlighting the imperative need for an "efficient, just and realistic" result with respect to third-party liabilities.[12]
With this in mind, it is worth considering whether an altogether different approach to a modernized Rome regime might provide a more viable solution for addressing the intentional infliction of damage on the surface by terrorists. Indeed, a study conducted by the ICAO Secretariat to outline the main features of a revised Rome system found that a majority of States favored a specialized treatment of the so-called "terrorist risk"-
The distinctive feature of this proposed treaty is that it would make States, as opposed to operators, answerable for damage caused on the surface of the earth by aircraft as a result of hijacking or other unlawful interference. Of course, holding governments pecuniarily liable for aircraft hijackings and terrorism is not in-and-of-itself a novel idea. For example, at the International Conference on Aviation Security held at The Hague in 1987, Professor Andreas F. Lowenfeld introduced a program of accountability that would have employed automatic or semi-automatic sanctions against States that promote terrorist attacks.[16]
Though Professor Lowenfeld's plan never enjoyed broad support on the international stage,[17] the concept of making state-perpetrators answerable for payment of damages to victims of airborne terrorism or their survivors unquestionably found acceptance in U.S law with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").[18] The AEDPA,
One could argue that the force of the AEDPA was successfully brought to bear in August 2003, when the Libyan government agreed to settle lawsuits surrounding the destruction of Pan American Airlines' flight 103 over Lockerbie, Scotland in 1988[21] and admit responsibility for the terrorist act, for the promise of normalized relations with the United Nations (U.N.) and the United States.[22] Nevertheless, looking to governments involved in carrying out or promoting terrorism to compensate its victims is, to say the least, problematic. Most obviously, there is the question of whether a claimant can realistically be expected to recover against the offending State.[23] In the United States, for example, the terrorist exception to the FSIA only allows suits against those countries designated as state-sponsors of terrorism by the State Department. Currently, seven nations are so...
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