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
• The Hague Convention 1970 for the
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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 Protocol for the suppression
of acts of violence at airports – 161 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 A33-1
• The Secretariat Study
• Very positive replies of States to a
questionnaire
• Secretariat Study Group
• The Special Legal Sub-Committee
Draft Amendments proposed by
the Sub-Committee
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Creation of new offences:
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
• Globaltime
• Modernization of the 1952 Rome
Convention
Main features of the draft
• First layer: Limited and strict liability
of the carrier
• Second layer: The Supplementary
Compensation Mechanism (SCM)
• Third layer: Is left for the solidarity
inside a State or between States
Main features (cont’d)
• Geographical 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
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Breakability of limits
Inclusion of other entities
Maximum SCM limits
Pre or post funding
Advantages of a new
convention
• For the carriers:
* Legal certainty
* Limited liability
* Better insurability of the risk
• 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 States
• If the texts are mature, diplomatic
conference to adopt new instruments