These notes are offered to ICAO Council, Legal Committee and Special Group as an aid to re-examination of some basic policy issues. The proposal to prepare two unlinked Conventions is welcome in principle. In particular, a Convention dealing solely with surface damage or injuries caused by aircraft accidents has the best potential to satisfy the mandate for a modern version of the 1952 Rome Convention PROVIDED THAT it can be applied to all civil aircraft in a contracting State, and does not contain concepts derived from the passenger liability provisions of the 1999 Montreal Convention. However, the proposal for a separate Convention imposing liability on aircraft operators for the consequences of terrorism is unjust, deeply flawed and inconsistent with the well-established policy of a large number of States who already accept a duty to ensure that human victims are fairly compensated if criminal terrorists do not pay. In addition, leading developed nations with experience of terrorism have devised a variety of forms of public/private partnership – all of which include some kind of State support for the property insurance of terrorism risks. Hence, although there may be a case for international agreement on compensation for the consequences of terrorism generally, there is no justification for one restricted to aviation: it is simply not needed. Moreover, there are no precedents which might support proposals for collective States’ responsibility for the consequences of terrorism in any one State.
Air and Space Law