The Unlawful Interference Compensation Convention of 2009 and Principles of State Responsibility by Ruwantissa Abeyratne

The Convention on Compensation for Damage to Third Parties Resulting
from Acts of Unlawful Interference Involving Aircraft (Unlawful interference
Compensation Convention) is one of two treaties adopted by ICAO member
States in April 2009. This treaty, which is based on strict liability, brings to
bear several issues, such as the liability of senior management of an airline,
liability for mental injury caused by "recognizable" psychiatric illness,
compensation for damage caused in any State Party, whether or not the operator
is from a State Party, the establishment of an International Aviation
Compensation Fund, and the issue as to why airlines have to be liable for damage caused by acts of unlawful interference which are usually aimed at
States. In all these areas, perceived inconsistencies and illogicality arise which
are addressed and critically analyzed in this article. The major focus of this
article, in addition to the issues raised above, is on a topical and contentious
issue at public international law, which is the responsibility of States for private
acts of unlawful interference with civil aviation and principles related thereto.
This issue became prominent consequent upon the paradigm shift of 11
September 2001, when terrorists engaged in hijacking aircraft with a view to
using them as weapons of mass destruction, causing damage to civilians on the
ground. Over the years, international lawyers have continued to examine the
various theories of State responsibility and this article applies them to the
context of international civil aviation, concluding that risk management is a
preferred approach to dependence on compensation alone.