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Published online by Cambridge University Press: 07 July 2009
In the wake of the “decade” of decolonization – roughly the fifties and early sixties of this century – from time to time the world still faces the legal and political problems which result from the process of political emancipation of hitherto non-self-governing territories.
1. The legal status of New Guinea between 1954 and 1962 was not regulated by the Charter although the Government of the Netherlands (i.e., the European part of the Kingdom) considered all questions relating to New Guinea, except those affecting its internal administration, as “Kingdom Affairs”. For a more substantial outline of the evolution of the constitutional structure of the Kingdom of the Netherlands, in particular as regards the 1954 Charter, see van Panhuys, H.F., “The International Aspects of the Reconstruction of the Kingdom of the Netherlands in 1954”, 5 NILR (1958) pp. 1–31CrossRefGoogle Scholar. See also O'Connell, D.P., International Law vol. I (London, 1970) p. 359.Google Scholar
2. Art. 5(2).
3. Cf., the Preamble and Art. 41.
4. Art. 3.
5. This so-called colonial or territorial application clause will be dealt with again below. See Art. XXV of the Hague Protocol amending Art. 40 of the 1929 Convention.
6. The text of the draft articles adopted by the Commission so far may be found in ILC Yearbook 1976 Vol. II Part Two pp. 127–128.
7. Report of the Commission to the General Assembly, in ILC Yearbook 1974 Vol. II Part One pp. 162–269.
8. Cf., Analytical Compilation of Comments of Governments on the Final Draft Articles on Succession of States in respect of Treaties; UN Doc. A/Conf.80/5.
9. The Conference was held in Vienna, 4 April - 6 May 1977; see Report of the United Nations Conference on Succession of States in respect of Treaties, UN Doc. A/Conf.80/15. The remaining draft articles are to be discussed at the reconvened Conference in 1978.
10. Draft article 15 provides: “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.”
11. See paragraphs 3 and 7 of the ILC's commentary on draft article 15, Report of the Commission supra n. 7, ILC Yearbook 1974 Vol. II Part One pp. 211 and 212.
12. Art. 16 provides: “1. Subject to paragraphs 2 and 3, a newly independent State may, by a notification of succession, establish its status as a party to any multilateral treaty which at the date of the succession of States was in force in respect of the territory to which the succession of States relates. 2. Paragraph 1 does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the newly independent State would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty. 3. When, under the terms of the treaty or by reason of the limited number of the negotiating States and the object and purpose of the treaty, the participation of any other State in the treaty must be considered as requiring the consent of all the parties, the newly independent State may establish its status as a party to the treaty only with such consent.”
13. See paragraphs 2, 3 and 4 of the ILC's commentary on draft article 16, ILC Yearbook 1974 Vol. II Part One p. 215.
14. It is true that the Warsaw Convention can be characterized as a legislative or law-making convention (Cf., Brownlie, , Principles of Public International Law (Oxford, 1973) p. 647Google Scholar). See also Jenks, , “State Succession in respect of Law-making Treaties”, 28 BYIL (1952) pp. 105–144, at p. 105Google Scholar. Hudson included the Warsaw Convention in his survey of law-making treaties, see International Legislation Vol. V (Washington, 1936) p. 100 et seqGoogle Scholar. Nevertheless, according to the ILC's comments on draft article 15, the clean slate principle equally applies to the position of newly independent states in respect of legislative treaties. (See Report of the ILC to the General Assembly, ILC Yearbook 1974 Vol. II Part One p. 213, para. 14). Consequently, notification of succession is required.
15. For the text see the ILC's commentary on draft article 9, in ILC Yearbook 1974 Vol. II Part One p. 188.
16. See para. 14 of the ILC's commentary on draft art. 9 together with para. 3 of its commentary on draft art. 26, ILC Yearbook 1974 Vol. II Part One pp. 192 and 245 respectively.
17. The Antilles are expected to achieve independence in the early eighties.
18. Introduction to the ILC's Report, ILC Yearbook 1974 Vol. II Part One p. 170.
19. Para. 2 of this draft article introduces an exception to the first paragraph: “2. Para. 1 does not apply if: (a) the States concerned otherwise agree; or (b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor State would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.”
20. Annex I to the Report of the Commission to the General Assembly. Observations of Member States on the Draft Articles on Succession of States in respect of Treaties Adopted by the Commission at its Twenty-fourth Session, in ILC Yearbook 1974 Vol. II Part One pp. 317–318.
21. The Netherlands Government, in its comments, refers to articles 27 and 28(2) respectively of the 1972 draft, which are equivalent to arts. 33(1) and 33(3) respectively of the final 1974 draft. Art. 33(3) reads as follows: “Notwithstanding paragraph 1, if a part of the territory of a State separates from it and becomes a State in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent State, the successor State shall be regarded for the purposes of the present articles in all respects as a newly independent State”
22. Text in 137 LNTS p. 11 et seq.; or Hudson, , ed., International Legislation Vol. V (Washington, 1936) p. 100 et seq.Google Scholar; or Shawcross and Beaumont on Air Law Vol. 2, 4th ed. (London, 1978) App. A p. 60 et seq.Google Scholar
23. On the ninetieth day after the deposit of the fifth ratification, in accordance with art. 37(2).
24. Text in 478 UNTS p. 371 et seq.; or Shawcross and Beaumont, Vol 2, App. A p. 144 et seq.
25. On the ninetieth day after the deposit of the thirtieth instrument of ratification, in accordance with art. 22(1).
26. See Drion, , Limitation of Liability in International Air Law (The Hague, 1954) pp. 57–58CrossRefGoogle Scholar. Voyage charters should be distinguished from time charter agreements by which an aircraft with crew is put at the disposal of someone for a certain time. Time charters are not covered by the term “carriage”.
27. Art. 25 of the amended Convention prohibits the application of the limits of liability if it is proved that “the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment”.
28. Art. 22(4); the value of the French franc had been stabilized in 1928 by the then Prime Minister Poincaré, and consisted of 65.5 milligrams of gold of millesimal fineness 900.
29. See Swart, , “Wijzigingen Verdrag van Warschau”, in NJB (1976) pp. 229–231 at p. 230Google Scholar. Cf., the decision of the Dutch Supreme Court with regard to the interpretation of the gold-clause in a similar convention, viz., Art. 3(6) of the Convention of 1957 Relating to the Limitation of Liability of Owners of Seagoing Ships (Trb. 1958 No. 46): Hoge Raad, 14 April 1972, NJ (1972) No. 269; this decision was referred to and translated in 5 NYIL (1974) p. 408. Cf., also, Art. 9(2) of the Athens Convention of 1974 Relating to the Carriage of Passengers and their Luggage by Sea (14 ILM p. 945 et seq.).
30. The three Additional Protocols of Montreal of 1975 confirm this practice by expressing the limits set by the Convention, the Hague Protocol and the Guatemala Protocol (to be discussed below) in SDRs. The Protocols have not yet entered into force. See Swart, op.cit., at p. 230. For the decision to abandon the gold franc see CAB Order 74–1-1976 (in Shawcross and Beaumont, Vol. 2, App. C p. 52). See also Bin, Cheng and Austin, , “Air Law”, The Present State of International Law and Other Essays, ed. Bos, (Deventer, 1973) pp. 183–200 at p. 186 et seqGoogle Scholar. See also Mankiewicz, , “The Judicial Diversification of Uniform Private Law Conventions; The Warsaw Convention's Days in Court”, in ICLQ (1972) pp. 718–757 at p. 719 et seq.Google Scholar
31. The inadequacy of damages has been convincingly demonstrated by Martin, , “Death and Injury in International Air Transport”, JALC (1975) pp. 255–269.Google Scholar
32. This limit is inclusive of legal fees and costs, otherwise the limit is US $58,000. For the Montreal Agreement (Agreement CAB no. 18,900) see Shawcross and Beaumont, op.cit, Vol. 2, App. D p. 35. The Montreal Agreement also favours the relative legal position of travellers to, from or via the United States in another respect, by introducing no-fault liability, in derogation from Art. 20 of the Convention though without prejudice to the possibility of intentionally caused damage under Art. 25.
33. See Bertrams, , “The Tenerife Aircrash; American Multistate Litigation and Related Problems”, 24 NILR (1977) pp. 445–473 at p. 464CrossRefGoogle Scholar. The International Air Transport Association (IATA) prepared a partial listing of the carriers concerned in 1976. The following carriers are listed: Aer Lingus, Air France, Air New Zealand, Alitalia, Austrian Airlines, British Airways, Japan Airlines, KLM, Lufthansa, Olympic Airways, Sabena, Scandinavian Airlines, and Swiss Air. IATA pointed out that the list is not claimed to be definitive, and at least one carrier, Surinam Airways, has followed suit.
34. See Martin, loc.cit.
35. Cf., Haskell, , “The Warsaw System and the US Constitution Revisited”, JALC (1973) pp. 483–517 at p. 483Google Scholar. See also Bertrams, loc.cit., at p. 446 n. 3, and Kreindler, , Aviation Accident Law Vol. II (New York, 1977)Google Scholar paras. 11.03(1) and 3.13(13)(a). Kreindler points out in the latter paragraph that: “…limitation in the amount of damages that may be awarded for personal injury or wrongful death are uniformly held to be contrary to public policy and unenforceable. No airline tariffs have such limitations”. In 1970 the US Civil Aviation Board released a survey showing that recovery in non-Warsaw Convention cases averaged almost $200,000. See Hay, , “The Warsaw Convention in Recent United States Case Law”, in Law in the United States of America on Topics of Major Concern as Established for the IX Congress of the International Academy of Comparative Law eds. Hazard, and Wagner, (Brussels, 1974) p. 39Google Scholar. The amount of $200,000 is only an average, and was calculated over a period up to eight years ago.
36. Art. VIII; text in Shawcross and Beaumont, Vol. 2, App. A p. 219 et seq.
37. Art. XV, inserting Art. 42 into the Warsaw Convention. The limit, however, was made unbreakable; in other words, the Protocol deprived passengers of the possibility of claiming unlimited liability even in the event of the carrier's wilful misconduct under Art. 25 of the unamended Convention. Cf., Cheng and Austin, loc.cit., at p. 191. For a summary of developments leading up to the Guatemala City Protocol, see Guldimann, , “Air Carriers' Liability in respect of Passengers; From Warsaw 1929 via The Hague 1955 to Guatemala City 1971”. 135 Hague Recueil (1972-I) pp. 453–477.Google Scholar
38. Art. XIV, inserting Art. 35A into the Convention.
39. Shawcross and Beaumont, Vol. 2, App. A p. 26. The lack of enthusiasm to ratify the Protocol can be explained by the fact that the limits of liability are tied to the price of gold; the freeing of the gold price from the dollar also occurred in 1971. Gold is at present valued at US $223 per ounce (5 October 1978) – much above its pre-1971 values. According to Swart, op.cit., p. 231, ratification of the Protocol has been hampered by the possibility that a judge would apply the free market price, which would result in a multiple increase of the established limits. Meanwhile, substitution of the Poincare franc by SDRs is being provisionally applied in contracts.
40. Warsaw Convention Arts. 37(1) and 38(2); Hague Protocol Aits. 21(3) and 23(3).
41. There are three other conventions which extend the ambit of the Warsaw Convention, viz.: (i) The Guadalajara Convention, which was signed at Guadalajara (Mexico) on 18 September 1961, and which entered into force on 1 May 1964 (text in 500 UNTS p. 31 et seq. and in Shawcross and Beaumont, Vol. 2, App. A p. 192). This Convention was designed to extend the scope of applicability of the Warsaw Convention to international carriage by air performed by persons other than the contracting carrier, and not being successive carriers within the meaning of Art. 1(3) of the Warsaw Conventions,
(ii) The Rome Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, signed at Rome on 29 May 1933; the Convention entered into force on 13 February 1942 (text in Shawcross and Beaumont, Vol. 2, App. A p. 73). As of 1 December 1974, the Convention was in force between no more than the required minimum number of states, namely, five. It has for the greater part, been replaced by the convention mentioned hereunder.
(iii) The Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed at Rome on 7 October 1952; this Convention came into force on 4 February 1958 (Text in 310 UNTS p. 181 and Shawcross and Beaumont, Vol. 2, App. A p. 130). In the present context no more than a passing reference needs to be made to these conventions, since the Warsaw Convention has been emphasized in view of the relevance of the standpoint of its depositary, Poland, to problems of state succession. The three above-mentioned conventions fall outside the scope of the present enquiry because the Government of Mexico has been assigned the role of depositary of the Guadalajara Convention, the Government of Italy of the first Rome Convention and the ICAO of the second Rome Convention. The Rome Conventions are irrelevant for another reason: the Netherlands is not a party to either of them. Though it is among the signatories of the 1952 Convention, the Netherlands has not yet ratified it.
42. For lack of an appropriate term, “adherence” has been used in a wider sense than merely accession, which is the usual meaning attributed to it: it includes succession by a declaration of continuity.
43. The provision may be added that the Convention needs to be incorporated into the national legal order of the forum concerned before a judge can apply it. However, the provisions of the Convention are self-executing, and can be directly applied in “monist states”.
44. Cf., Art. 1(2).
45. On the assumption that the Antilles will, sooner or later, succeed to the Convention, discussion is restricted to what may happen as a result of delayed succession.
46. Non-succession is far from being the only cause of forfeiting the benefits of the Convention. Apart from the Antilles, there is hardly a dependent territory left in the world which is able to run an airline on its own.
47. Zemanek, , “State-Succession after Decolonization”, 116 Hague Recueil (1965-III) pp. 187–300 at pp. 271 and 278.Google Scholar
48. (i) Order of 15 September 1933, providing for publication in the Official Bulletin of the Netherlands Act of 1933 Approving the Warsaw Convention (Publicatie-blad van Curacao 1933 no. 95).
(ii) Order of 6 September 1960, providing for publication in the Official Bulletin of the Kingdom Statute of 28 July 1960 Approving the Conclusion of the Hague Protocol (Publicatie-blad Nederlandse Antillen 1960 no. 176).
Why does air transport legislation warrant the qualification “Kingdom Statute”? Despite the absence of air transport from matters regarded as “Kingdom affairs” by virtue of Art. 3 of the Kingdom Charter, such qualification is, nevertheless, justified. Art. 37 of the Charter includes matters pertaining to aviation among matters in which the interests of at least two Countries of the Kingdom are involved. Such matters call for consultation between the Countries concerned. Art. 38 provides that the Countries may enter into mutual arrangements. It is beyond any doubt that those mutual arrangements are meant to concern the matters referred to in Art. 37. In addition, Art. 38 provides that the mutual arrangements shall be enacted in Kingdom Statutes or Kingdom Ordinances. In fact, the Act Approving the Conclusion of the Hague Protocol was enacted in the form of a Kingdom Statue. In 1933 the legal phenomenon of “Kingdom Statue” was still unknown, but, as a result of Art. 57 of the Charter, statutes and ordinances applicable to Surinam or the Netherlands Antilles (i.e., before 1954) acquired the status of Kingdom Statute or Kingdom Ordinance. (The proviso was added in Art. 57 that, in so far as those pre-1954 statutes could be amended by Country Statutes pursuant to the Charter, they should acquire the status of Country Statutes).
49. Acts of 28 July 1960, Stb. nos. 326 and 327.
50. Publicatie-blad Nederlandse Antillen 1966 no. 37.
51. The possibility might, however, be raised that an Antillean court might deny itself jurisdiction since Art. 28 of the Convention confers jurisdiction exclusively upon courts in the territories of High Contracting Parties. Though, obviously, the Netherlands Antilles Ordinance and the parallel Netherlands Act both omit the jurisdictional provision of the Convention, both instruments recognize the priority of provisions of the Convention whenever there is a discrepancy between them and the provisions of the Ordinance/Act. However, it is likely that the scope of this recognition is limited to substantive provisions. Besides, if the new Government issues a unilateral declaration purporting to bring about provisional application of multilateral treaties, it is beyond all doubt that Antillean courts would accept jurisdiction. For an analysis of the several alternatives available to a non-Warsaw forum, see McKenry, , “Judicial Jurisdiction under the Warsaw Convention” JALC (1963) pp. 205–229 at p. 219.Google Scholar
52. ILR (1953) p. 41 et seq. Although this case concerned liability for carriage of goods, it yields information which can analogously be applied to liability for carriage of passengers.
53. The legal questions with which the Court was faced arose from the application of a plaintiff who was himself relying upon the Convention; in the remaining cases dealt with in this paper, it is always the defendant air-carrier which invokes the Convention. It was the defendant who was denying the international character of the carriage concerned within the meaning of the Convention and of the Indian Carriage by Air Act. A possible explanation of this unusual phenomenon of the customer invoking the Convention may be as follows. The Indian Carriage by Air Act (1934) has to be regarded as an enactment applying the United Kingdom Carriage by Air Act (1932) in British India. It was not until 1953 (after India had become independent) that rules on liability were laid down in the United Kingdom for non-international carriage; this was done in the Carriage by Air (Non-International Carriage) Orders. (See Shawcross and Beaumont, op.cit., 3rd ed. (1975) Vol. 2 App. C p. 52). Hence, it is highly probable that the applicant, Dabrai, could not rely upon any domestic rules of law determining the grounds and modalities of liability of a carrier. It was thus in his interest to avail himself of liability rules relating to international carriage, even taking the limitation of liability into the bargain. It is respectfully submitted that O'Connell in State Succession in Municipal Law and International Law (Cambridge, 1967) Vol. II at p. 325Google Scholar has wrongly presented the defendant, Air India, as pleading the limitation provisions and the applicant, Dabrai, as seeking to establish that India was not a party to the Convention.
54. 39 ILR p. 453 et seq. RGA (1964) p. 178 et seq.
55. RFDA (1963) p. 234 et seq.
56. 62 RGDIP (1958) p. 725 et seq.
57. Art. 29.
58. The Court of Appeal of Paris, in its judgment of 17 June 1960, did not deal with the applicability of the Convention. 39 ILR p. 405 et seq., RFDA (1961) p. 276 et seq.
59. 39 ILR p. 467 et seq., RFDA (1960) p. 214 et seq.
60. RGA (1964) p. 130 et seq.
61. The Government of Senegal, though, apparently did not share the view of this Court and of the court of Dakar (see the case Air France v. Consorts Diop discussed above) as appears from its express accession to the Convention and Protocol alike on 19 June 1964, a few months after the decision of the French court. Cf., Shawcross and Beaumont, Vol 2, App. A p. 19.
61a. Dutch Code of Civil Procedure, Art. 126(3).
62. O'Connel, op.cit., Vol. II at p. 326.
63. Art. 38.
64. Paragraph 8 of the ILC's commentary on draft art. 16, in ILC Yearbook 1974 Vol. II Part One, at p. 216.
65. See “Status on 1 August 1977 of the Warsaw Convention and The Hague Protocol as Transmitted to the ICAO by the Polish Government”, Shawcross and Beaumont Vol. 2, App. A p. 16 et seq.
66. Circuit Court of Cook Country, Illinois, United States. See VIII ILM (1969) p. 83 et seq.
66a. Though Burdell had bought his ticket in Singapore, the court did not consider the venue provisions of Art. 28 of the Convention as an impediment to its jurisdiction.
67. The letter was dated 19 February 1968; cf., VIII ILM (1969) at p. 91.
68. The question whether or not Singapore had automatically succeeded to the rights and duties under the Convention was complicated by another problem, namely, whether or not Singapore's direct predecessor, the Federation of Malaysia, had been a party to the Convention. In fact, the plaintiffs in the Burdell case asserted that the Federation had never complied with the requirements for adherence. The “Status of the Warsaw Convention” (cf., supra n. 65) does not list the receipt of Malaysia's notification of adherence earlier than as from 3 September 1970. Notwithstanding the fact that the particular case of the succession of Singapore to Malaysia was one of secession, a process which carries different rules of state succession from those applicable to independence in the context of decolonization, the Burdell case is an appropriate example for model (f) for two reasons: (i) The Illinois court did apply the clean slate principle; (ii) Singapore, after seceding from Malaysia, persistently adopted a posture similar to that of newly independent states formerly under colonial rule.
For Singapore's stand in respect of succession to multilateral treaties see para. 18 of the ILC's commentary on draft arts. 33 and 34, in ILC Yearbook Vol. II Part One p. 264. The Convention was applicable to Singapore before that country acceded to the Malaysian Federation merely as a result of its territorial application by the United Kingdom. Singapore was not a party in its own right, as an independent state.
69. VIII ILM (1969) p. 93 et seq. The Court's opinion, incidentally, was withdrawn. Before an order was entered pursuant to this opinion, a motion for rehearing was granted and a new opinion filed in which the Court merely held that the Warsaw Convention was inapplicable on the facts of the case. The case was later settled. See also Haskel, op.cit., p. 492.
70. The Legal and Treaty Department of the Ministry for Foreign Affairs of Poland neither confirmed nor denied the author's suggestion that at the time of the Burdell case the Polish Government did not take the initiative to provide successor states with the necessary information. The Legal and Treaty Department observed that in cases when notification of succession is not forthcoming within a reasonable tim e, Poland informs a newly independent state that the Convention extended to its territory prior to independence, and asks the state in question to clarify its position towards the Convention. This attitude is confirmed by the fact that at the Vienna Conference Poland was co-sponsor of a proposed amendment to the Draft Convention which was intended to extend the duties of the depositary of a multilateral treaty. (See Report of the UN Conference on Succession of States in respect of Treaties, UN Doc. A/Conf.80/15, Annex II at p. 63). See also the statement of one of the Polish delegates, Mrs. Sapieja-Zydzik, at the State Succession Conference (A/Conf.80/C1/SR.29). Gratitude is due to Dr. Jan Witek, Dr. Renata Szafarz and Dr. Mieczyslaw Paszkowski for their enlightening information on the Polish Government's views in respect of a number of problems dealt with in the present chapter.
71. In the discussion it is assumed that a publicly owned air carrier will continue with the present public corporation ALM (Antilliaanse Luchtvaart Maatschappij [Antillean Airlines]).
72. For art. 16 see n. 12 above; art. 17, which comprises provisions parallel to those of art. 16, relates to treaties not yet in force at the date of succession of states.
73. ILC Yearbook 1974 Vol. II Part One p. 320.
74. See Analytical Compilation of Comments of Governments on the Final Draft Articles on Succession of States in respect of Treaties; Working Paper Prepared by the Secretariat, UN Doc. A/Conf.80/5, 4 March 1977.
74a. See n. 70.
75. Paragraph 14 of the ILC's Commentary on draft article 8 (concerning devolution agreements), in ILC Yearbook 1974 Vol. II Part One p. 185. The statement in the letter can be indirectly confirmed by an example taken from state practice. The devolution agreement concluded between the United Kingdom and Nigeria (see UN Legislative Series; Material on Succession of States. UN Doc. ST/LEG/SER.B/14) may be said to illustrate the limited significance attached by Poland to this kind of agreement. The British Government, informing the Nigerian authorities of the procedure for Nigeria's succession to the Convention, explained that in its view the effect of the Exchange of Letters Concerning Treaty Rights and Obligations, dated 1 October 1960 (i.e., the devolution agreement) was that Nigeria was a separate High Contracting Party to the Convention (without notification being necessary). The Nigerian authorities reluctantly accepted the British view that Nigeria, by concluding a devolution agreement, had agreed to accept the rights and obligations arising under all treaties signed by the United Kingdom prior to independence and applicable to Nigeria. Accordingly, they decided that no further action by Nigeria was necessary. In spite of the alleged effect of this devolution agreement, the Polish Government listed Nigeria as a party to the Convention only as from 9 October 1963, on which date Nigeria had declared by note that it considered itself bound (see Shawcross and Beaumont, Vol. 2, App. A at p. 23). This piece of state practice leads to the conclusion that Poland ignored the effect of a devolution agreement.
75a. See the Summary Records of the Conference, Committee of the Whole: A/Conf.80/C1/SR.15.
76. In ILC Yearbook 1974 Vol. II Part One p. 187.
77. Resultaten van de Ronde Tafel Conferentie [Round Table Conference Agreement] See 69 UNTS pp. 1–397. Art. 5 of the Agreement on Transitional Measures, which forms part of the Round Table Conference Agreement, contains the following general devolution clause: “1. The Kingdom of the Netherlands and the Republic of the United States of Indonesia understand that, under observance of the provisions of para. 2 hereunder, the rights and obligations of the Kingdom arising out of treaties and other international agreements concluded by the Kingdom shall be considered as the rights and obligations of the Republic of the United States of Indonesia only where and inasmuch as such treaties and agreements are applicable to the jurisdiction of the Republic of the United States of Indonesia and with the exception of rights and duties arising out of treaties and agreements to which the Republic of the United States of Indonesia cannot become a party on the ground of the provisions of such treaties and agreements.
2. Without prejudice to the power of the Republic of the United States of Indonesia to denounce the treaties and agreements referred to in para. 1 above or to terminate their operation for its jurisdiction by other means as specified in the provisions of those treaties and agreements, the provisions of para. 1 above shall not be applicable to treaties and agreements in respect of which consultations between the Republic of the United States of Indonesia and the Kingdom of the Netherlands shall lead to the conclusion that such treaties and agreements do not fall under the stipulations of para. 1 above.”
78. See the statement of the Dutch delegate, Mr. Stutterheim, at the State Succession Conference in the Committee of the Whole (A/Conf.80/C1/SR13). It is remarkable that, contrary to the present policy, the Netherlands tried and failed three years ago to give new life to devolution agreements. A proposal to this effect was put forward by the Dutch delegate to the Sixth Committee during the discussions on the ILC draft, but it did not meet with favourable responses from the other delegations. Dr. Kaufmann held the opinion that the delicate balance between the preservation of the continuity of treaty relations and the interests of new states had tipped somewhat in favour of the latter interest. In order to restore the equilibrium in cases of state succession which represent an evolutionary separation, he proposed to improve the ILC draft by adding to art. 8 a formula providing that a devolution agreement could contribute to the transfer of obligations and rights from the predecessor to the successor state, on the condition that the agreement clearly indicated the intention of the successor to give it legal effect, either for certain treaties or for all treaties, to which the predecessor had been a party. According to Kaufmann, the legal effect for multilateral treaties not referred to in art. 16 paras. 2 and 3 (see n. 12) would be a notification of succession to the depositary. The notification would become effective by registration of the devolution agreement under Art. 102 of the UN Charter. See 29th session, Sixth Committee, 1494th Meeting.
78a. Not surprisingly the Illinois court in the Burdell case ignored – it is suggested correctly – the devolution which Malaysia and Singapore purported to achieve in para. 13 of Annex B of the “Agreement Relating to the Separation of Singapore from Malaysia as an Independent and Sovereign State” (See State of Singapore Government Gazette August 9, 1965 p. 2195 et seq. at p. 2198; reprinted in IV ILM (1965) p. 938 et seq. at p. 941).
79. As regards the independence of Indonesia, it is interesting to note that Poland has listed Indonesia as a party to the Warsaw Convention as from 2 January 1952, two years after the agreement between the Netherlands and Indonesia. In doing so, the Polish Government relied upon an express declaration by Indonesia that it considered itself bound. However, the ninetyday period required for the entry into force of the Convention in respect of the adhering state was abandoned. This is a common feature of the way Poland handles the problem of the adherence of newly independent states which declare themselves to be already bound.
80. The agreements concerned, inter alia, Assignment of Nationalities, Settlement, Double Taxation and Development Co-operation; Cf., Trb. 1975 Nos. 131–140.
81. In a letter dated 29 November 1975 from Prime Minister Arron to the Secretary-General of the United Nations.
82. See the ILC's Commentary on draft art. 9, ILC Yearbook 1974 Vol. II Part One p. 187 et seq.
83. Rapport van de Koninkrijkscommissie ter Voorbereiding van de Onafhankelijkheid van Suriname (The Hague, October 1974).
84. A list compiled in the second half of 1977 by Prof. Mr. Dr. F.E.M. Mitrasing, in Surinaams Juristenblad, no. 25, December 1977, pp. 17/18. The United States, though, lists Surinam among the parties in virtue of the general unilateral declaration of the Prime Minister. See Treaties in Force: A list of Treaties and Other International Agreements of the United States in Force on 1 January 1978 (Washington, Department of State Publication 8934, US Government Printing Office, 1978) p. 269.Google Scholar
85. The only substantial difference between the Surinamese and the Antillean situation which may influence the attitude of Dutch courts is the lack of a Surinamese equivalent of the Netherlands Air Transportation Act and the Netherlands Antilles Air Transportation Ordinance. This makes it unlikely that Dutch courts would observe the principle of the continuity of the legal system when entertaining claims against Surinamese Airways or KLM in connection with flights to, from or via Surinam.
86. In answer to an enquiry, American Airlines, which maintains flights to Aruba, wrote on 9 March 1978 that there would be an effect upon the company's insurance rates. Failure of the Netherlands Antilles to succeed to the Convention would, however, have very little impact on American's operations, since it already had unlimited liability with respect to domestic transportation within the United States. KLM, which maintains flights to Curacao, wrote on 1 February 1978 that, in assessing the risks involved, total transport on all routes had to be taken into account.
87. Dutch Code of Civil Procedure, Art. 126(3).
88/89. There are, apart from KLM, three big companies carrying out flights to the Antilles: American Airlines, Air France and Viasa. In the case of Air France an additional factor contributes to the marginal character of the difference it makes for a big company whether the Convention is applicable or not. If Air France were to be sued before a French court without being able to rely upon the Convention, the French judge would have to apply the French Law No. 76–529, dated 28 June 1976, which provides for a limitation of 300,000 French francs. This Law covers international and non-international transport alike. This information was gathered from M.D. Mandefield, Division des Affaires Juridiques et du Contentieux, Air France. Venezuela has a similar law (See n. 92 below).
90. In connection with the recent Tenerife disaster, which is expected to lead to litigation against KLM and Panam as well as Boeing, the manufacturer of the aircraft involved in the accident, Bertrams argues that a Californian court is likely, inter alia, to exercise jurisdiction in respect of claims for damages by Californian plaintiffs against KLM, and to apply Californian law as the lex fori. He proceeds to point out that the Netherlands has an interest in not having its corporations exposed to claims for damages by Californian plaintiffs, which under Dutch law would be considered excessive, and which may not have been taken into account in insurance policies (see Bertrams, loc.cit. supra n. 33 at p. 467.)
91. This number of flights is not likely to be reduced after independence when the Antilles and the United States renegotiate the existing air transport treaty between the Netherlands and the US as far as it pertains to traffic with the Antilles. The ILC, referring to the second study of the UN Secretariat on “succession in respect of bilateral treaties” (ILC Yearbook 1971 Vol. II Part Two p. 111 et seq.) noted that in the category of bilateral air transport treaties continuity in one form or another occurs with impressive regularity (see para. 4 of the ILC's commentary on draft art. 23 in ILC Yearbook 1974 Vol. II Part One p. 237).
91a. Eck v. United Arab Airlines, 360 F.2d 804 (2d Cir. 1966).
92. See n. 35. To what levels claims can rise is apparent from the following quotation from the decision of the US Court of Appeals for the Second Circuit in Reed v. Wiser and Neuman. The appeal was from a decision of the US District Court for the Southern District of New York based upon the conclusion that the Convention's liability limitations should not be extended to airline employees. (See XVII ILM (1978) p. 62 et seq. at p. 75).
“The district court's decision … would raise the very real prospect that in future international air disaster cases the plaintiffs would seek to circumvent the Convention's limitation by bringing suit against the pilot or some other employee of the airline involved, thus requiring the court to determine what domestic law applies and whether under that law recovery might be had for an amount greater than that recoverable against the airline. Indeed in one lawsuit just commenced in New York seeking US $4.5 million for the death of a passenger killed in the recent collision of two Boeing 747 planes in the Canary Islands, the plaintiffs have taken the cue from the district court's decision here and joined one of the pilots as a co-defendant.”
If the ALM is not protected by the Convention, plaintiffs will not even need to circumvent it in order to claim and maybe have awarded fabulous sums of money.
What is the situation in other states to which ALM maintains flights? In the first place the situation in Venezuela should be examined, because the ALM maintains even more intensive traffic with this state than with the United States. Fortunately for the Antilles, no problems will arise with regard to this traffic. Art. 46 of the Civil Aviation Law of 1 April 1955 (Gaceta Official 24766, June 1955) provides for a limit of 20,000 bolivares (at present approx. $5,000) on liability in respect of non-international traffic. This law is also printed in Codigos y Leyes de Aviation Civil de Iberoamerica (Madrid, 1970)Google Scholar and in Air Laws and Treaties of the World Vol. II (Washington, 1965) p. 3035 et seqGoogle Scholar. As to Colombia and the Caribbean States, no reliable evidence was obtainable.
93. Being a public-owned company, the ALM could possibly raise the plea of sovereign immunity from jurisdiction in view of the fact that, if the Warsaw Convention does not apply, the extension of its application under Art. 2(1) to “carriage by a State or legally constituted public bodies” does not obtain either. However, such a plea is not likely to be successful, since in 1952 the US State Department, in the Tate Letter, announced its intention to follow the restrictive principle of immunity (See Brownlie, op.cit., p. 321). According to Brownlie (ibidem) it is clear that the courts will adopt that principle. As to state-trading ships, which raise a similar problem, O'Connell remarks that the welcome given by the US Supreme Court to the Tate Letter leads one to conclude that the previous rule of 1926 to the effect that sovereign immunity includes ships of commerce, has now been buried (O'Connell, op.cit., p. 870) See also Starke, , Introduction to International Law (London, 1977) p. 290.Google Scholar
93a. Digest of United States Practice in International Law 1975, McDowell, Eleanor C. ed. (Washington, Department of State Publication 8865, US Government Printing Office, 1976) p. 271.Google Scholar
94. See the advice to international passengers on limitation of liability as included in passenger tickets.