Latest developments of the Legal work on terrorism in ICAO Latest developments of the Legal work on terrorism in ICAO Denys Wibaux Montreal, 15 September 2007 Latest developments of the Legal work on terrorism in ICAO Latest developments of the Legal work on terrorism in ICAO Denys Wibaux Montreal, 15 September 2007

Introduction

ICAO Aviation Security Conventions Tokyo Convention 1963 – 182 Parties Tokyo Convention 1963 – 182 Parties The Hague Convention 1970 for the unlawful seizure of aircraft – 182 Parties The Hague Convention 1970 for the unlawful seizure of aircraft – 182 Parties The Montreal Convention 1971 for the suppression of unlawful acts against the safety of aviation – 185 Parties The Montreal Convention 1971 for the suppression of unlawful acts against the safety of aviation – 185 Parties The Montreal Protocol for the suppression of acts of violence at airports – 161 Parties The Montreal Protocol for the suppression of acts of violence at airports – 161 Parties The MEX Convention 1991 on the marking of explosives – 132 Parties The MEX Convention 1991 on the marking of explosives – 132 Parties

The 1970 Hague Convention Major Achievements A.Criminalization of Hijacking B.Extradite or Prosecute Obligation

The Montreal Convention and Its Protocol A.Criminalization of Certain Acts: Sabotage B.Expansion of the scope of application to the airports serving international civil aviation

Review of the Conventions Assembly Resolution A33-1Assembly Resolution A33-1 The Secretariat StudyThe Secretariat Study Very positive replies of States to a questionnaireVery positive replies of States to a questionnaire Secretariat Study GroupSecretariat Study Group The Special Legal Sub-CommitteeThe Special Legal Sub-Committee

Draft Amendments proposed by the Sub-Committee Creation of new offences:Creation of new offences: Incorporation of certain common clauses in more recent conventions Incorporation of certain common clauses in more recent conventions

Proposed New Offences Using civil aircraft as a weapon Using civil aircraft to spread biological, chemical or nuclear substances to cause damage Use biological, chemical or nuclear substances to cause damage Threats to commit an offence defined in the Conventions

Incorporation of Common Provisions in the UN Treaties  Punishment of the organizers and directors of the offence  Exclusion of “the political offence exception”  Military exclusion clause  Fair treatment clause

Liability and Aviation War Risk Insurance GlobaltimeGlobaltime Modernization of the 1952 Rome ConventionModernization of the 1952 Rome Convention

Main features of the draft First layer: Limited and strict liability of the carrierFirst layer: Limited and strict liability of the carrier Second layer: The Supplementary Compensation Mechanism (SCM)Second layer: The Supplementary Compensation Mechanism (SCM) Third layer: Is left for the solidarity inside a State or between StatesThird layer: Is left for the solidarity inside a State or between States

Main features (cont’d) Geographical scopeGeographical scope * Accident occurs on the territory of a State party * Accident occurs on the territory of a State non-party * Opt-in for domestic accidents

Bones of contention Breakability of limitsBreakability of limits Inclusion of other entitiesInclusion of other entities Maximum SCM limitsMaximum SCM limits Pre or post fundingPre or post funding

Advantages of a new convention For the carriers:For the carriers: * Legal certainty * Limited liability * Better insurability of the risk For the victims:For the victims: * Mandatory insurance for carriers * Advance payments * Intervention if necessary of a solvent international fund * Recognition and enforcement of judgements For All: Stability of the air transport system (exclusive remedy clause)

Next Steps of the Work Legal Committee – it is open to all ICAO member StatesLegal Committee – it is open to all ICAO member States If the texts are mature, diplomatic conference to adopt new instrumentsIf the texts are mature, diplomatic conference to adopt new instruments