Backgrounder – Convention on International Civil Aviation and its annexes

The Convention on International Civil Aviation is also known as the Chicago Convention. There are 193 contracting States to the Convention, including Canada, Sweden, Ukraine, the United Kingdom and Iran.

The Convention was adopted to ensure that international civil aviation may be developed in a safe and orderly manner.

In the aftermath of the downing of Korean Airlines Flight 007 on 1 September 1983, the Convention was amended to include Article 3bis, which codified existing law in the following terms:

“The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.”  

Canada, Sweden, Ukraine, the United Kingdom and Iran are all contracting States to Article 3bis.

Iran admits that the Islamic Revolutionary Guard Corps (IRGC) launched the 2 surface-to-air missiles that targeted and caused the downing of Flight PS752 on January 8, 2020. Accordingly, it is the position of Canada, Sweden, Ukraine and the United Kingdom that Iran’s State responsibility is engaged: the IRGC’s use of weapons against Flight PS752 is a breach of Iran’s obligation under Article 3bis, and the actions of the IRGC, as an organ of the state, are attributable to Iran.

Pursuant to Article 84, any disagreement between 2 or more contracting States relating to the interpretation or application of the Chicago Convention that cannot be settled by negotiation can be referred to the Council of the International Civil Aviation Organization (ICAO Council) for a decision. On such a referral, the ICAO Council has an obligation to decide on the disagreement.

The 4 States have made multiple attempts to resolve this matter through negotiations since 2020, but Iran continues to deny its state responsibility and its obligation to make full reparations for the downing. Iran’s position is diametrically opposed to that of Canada, Sweden, Ukraine and the United Kingdom; therefore, there is no reasonable prospect that the parties can settle the dispute by negotiations.

By filing a joint Application and Memorial with the ICAO Council pursuant to Article 84 of the Convention, and in accordance with the ICAO Rules for the Settlement of Differences, Canada, Sweden, Ukraine and the United Kingdom request that the Council adjudicate their disagreement with Iran accordingly.

The 4 States are asking the ICAO Council to decide that Iran breached Article 3bis of the Chicago Convention and to order the following:

• Iran acknowledge its responsibility for the downing and apologize to the families of the victims, the Applicants, and the international civil aviation community;
• Iran provide assurances and guarantees of non-repetition, which is to be accomplished by providing a full account of the events that led to the downing, supported by evidence, and a list of specific safety measures designed to prevent a re-occurrence;
• Iran pay compensation, in accordance with the relevant principles of international law, for the damage caused by the downing; and
• Where possible, Iran return all personal belongings recovered from the crash site.

Following the referral of this case, the ICAO Council, or the President of the Council if the Council is not in session, will set a date for the Respondent, Iran, to file a Counter-Memorial. The Respondent in a dispute may also raise preliminary objections.

Proceedings before the ICAO Council, as in other international courts or tribunals, usually take several years. Pursuant to Article 84 of the Chicago Convention, a decision of the ICAO Council can be appealed to the International Court of Justice.