Mansour JabbariEbrahim Shoarian

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• Article 4Article 4: All civil, penal financial, economic, : All civil, penal financial, economic, administrative, cultural, military, political, and other laws and administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and Constitution as well as to all other laws and regulations, and the wise persons of the Guardian Council are judges in this the wise persons of the Guardian Council are judges in this matter.matter.• Article 94Article 94: All legislations passed by the Islamic : All legislations passed by the Islamic Consultative Assembly must be sent to the Guardian Council. Consultative Assembly must be sent to the Guardian Council. The Guardian Council must review it within a maximum of The Guardian Council must review it within a maximum of ten days from its receipt with a view to ensuring its ten days from its receipt with a view to ensuring its compatibility with the criteria of Islam and the Constitution. If compatibility with the criteria of Islam and the Constitution. If it finds the legislation incompatible, it will return it to the it finds the legislation incompatible, it will return it to the Assembly for review. Otherwise the legislation will be Assembly for review. Otherwise the legislation will be deemed enforceable.deemed enforceable.

►Article 3Article 3: :

1)1) The religion of the President of the Republic The religion of the President of the Republic has to be Islam.has to be Islam.

2)2) 2) Islamic jurisprudence is a main source of 2) Islamic jurisprudence is a main source of legislation. legislation.

►Article 127Article 127: :

The cabinet has the following powers: … The cabinet has the following powers: …

7) Concluding agreements and treaties in 7) Concluding agreements and treaties in accordance with the provisions of the accordance with the provisions of the Constitution…Constitution…

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Article 2Article 2: : Islam is the religion of the State.Islam is the religion of the State.

Article 9Article 9: : The institutions are not allowed: The institutions are not allowed: ….. practices that are contrary to the Islamic ….. practices that are contrary to the Islamic ethics ...ethics ...

Article 168Article 168: : When the Constitutional Council When the Constitutional Council considers that a treaty, an agreement or a considers that a treaty, an agreement or a convention is not constitutional, its convention is not constitutional, its ratification cannot take place.ratification cannot take place.

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► Article 3Article 3: : In Afghanistan, no law can be In Afghanistan, no law can be contrary to the beliefs and provisions of the contrary to the beliefs and provisions of the sacred religion of Islam.sacred religion of Islam.

►Article 90Article 90: : The National Assembly has the The National Assembly has the following powers:following powers:….. Ratification of international treaties and ….. Ratification of international treaties and agreements, or abrogation of the membership agreements, or abrogation of the membership of Afghanistan to them…. of Afghanistan to them…. 

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► Article 7Article 7: : (A) Islam is the official religion of (A) Islam is the official religion of the State and is to be considered a source of the State and is to be considered a source of legislation. No law that contradicts the legislation. No law that contradicts the universally agreed tenets of Islam, the universally agreed tenets of Islam, the principles of democracy, or the rights cited in principles of democracy, or the rights cited in Chapter Two of this Law may be enacted Chapter Two of this Law may be enacted during the transitional period.  ……during the transitional period.  ……

►Article 33Article 33: : .... (F) Only the National Assembly .... (F) Only the National Assembly shall have the power to ratify international shall have the power to ratify international treaties and agreements….treaties and agreements….

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► Article 3Article 3: : Islamic jurisprudence is the main Islamic jurisprudence is the main source of legislation. source of legislation.

►Article 48Article 48: : The House of Representatives The House of Representatives shall approve and ratify all general shall approve and ratify all general international political and economic treaties international political and economic treaties and agreements of all sorts and labels, and agreements of all sorts and labels, specially those related to defense, alliances, specially those related to defense, alliances, peace, change of border, or those with peace, change of border, or those with financial implications for the state or whose financial implications for the state or whose implementation requires the enactment of a implementation requires the enactment of a law. law. 8

► Article 6Article 6: : Islam is the religion of the State Islam is the religion of the State which …. which ….

► Article 1Article 1: : Tunisia is a free State, independent Tunisia is a free State, independent and sovereign; its religion is the Islam, …and sovereign; its religion is the Islam, …

► Article 2Article 2: : Islam is the religion of the State …. Islam is the religion of the State …. 9

► All of these countries have All of these countries have ratified the Warsaw Convention but ratified the Warsaw Convention but none of them are party to the none of them are party to the Montreal Convention.Montreal Convention.

  

►   What benefits are there for these What benefits are there for these countries to ratify the Montreal countries to ratify the Montreal Convention of 1999?Convention of 1999?

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►Unification of private international air law; Unification of private international air law; ►Provision for electronic ticketing and cargo Provision for electronic ticketing and cargo

documentation;documentation;►Strict liability on the carrier;Strict liability on the carrier;►Presumptive unlimited liability for a second Presumptive unlimited liability for a second

tier of claims;tier of claims;►States Parties shall require their carriers to States Parties shall require their carriers to

maintain adequate insurance;maintain adequate insurance;11

►The negotiation history: expanding “bodily The negotiation history: expanding “bodily injury” to include recovery for “mental injury” to include recovery for “mental injury”;injury”;

►Protecting the passenger;Protecting the passenger;

►An additional “fifth jurisdiction”An additional “fifth jurisdiction”12

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The Warsaw Convention has now been outdated. Montreal Convention prevails over any rule which apply to international carriage by air.Involvement of the developing countries during the process of the preparation of the Montreal Convention!The views of developing countries in the Montreal Conference.If developing countries do not ratify?

Warsaw Convention

Warsaw ConventionHague Protocol of 1955

Guatemala City Protocol of 1971

Montreal Protocols 1 – 4

Montreal Convention

Warsaw System

2. 2. Documents of CarriageDocuments of Carriage

►The air carriers have to spend great sum of The air carriers have to spend great sum of money in order to meet the documentation money in order to meet the documentation requirements under the Warsaw convention.requirements under the Warsaw convention.

► The Montreal Convention solved this problem The Montreal Convention solved this problem by simplifying the formalities of the documents by simplifying the formalities of the documents of carriage.of carriage.

►Does issuing ticket for passengers - as a written Does issuing ticket for passengers - as a written contract - is compulsory in Iranian and Islamic contract - is compulsory in Iranian and Islamic law? law?

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A. Islamic Law► In Islamic law, signs and conducts (acts) that called In Islamic law, signs and conducts (acts) that called

Moaatat are sufficient for making a contract. Moaatat are sufficient for making a contract.

►Legal code of “AL-MAJALLA AL AHKAM AL Legal code of “AL-MAJALLA AL AHKAM AL ADALIYYAH” :ADALIYYAH” :

►Article 2Article 2: “A matter is determined according to : “A matter is determined according to intention; that is to say, the effect to be given to intention; that is to say, the effect to be given to any particular transaction must conform to the any particular transaction must conform to the object of such transaction.”object of such transaction.”

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A. Islamic Law (continued)

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• Article 3: “In contracts effect is given to intention and meaning and not to words and phrases….”.

• An Islamic legal principle: “Contracts’ effects follow the intent of the parties to the contract”.

• This legal principle has been followed by some Islamic countries.

Example: Iranian Law ►Article 191 Article 191 and the subsequent articles of Civil and the subsequent articles of Civil

Code: for concluding a contract and doing a Code: for concluding a contract and doing a transaction, it is not necessary to use a special transaction, it is not necessary to use a special form, and contracting parties are authorized to form, and contracting parties are authorized to manifest their will by any means they wish. manifest their will by any means they wish.

►The consent of contracting parties is important.The consent of contracting parties is important.

►The Iranian jurists: a contract is considered to be The Iranian jurists: a contract is considered to be valid and effective only by consent of parties. valid and effective only by consent of parties.

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3- Liability3- Liability►A. A. The principle of presumption of fault was The principle of presumption of fault was

adapted by the Warsaw Convention.adapted by the Warsaw Convention.

►A longstanding problem with the Warsaw A longstanding problem with the Warsaw Convention has been that it sets limits of Convention has been that it sets limits of liability that are now considered to be too low.liability that are now considered to be too low.

►AA two-tier liability system adopted by t two-tier liability system adopted by the he

Montreal Convention.Montreal Convention.19

3- Liability (continued)

►a. Islamic Lawa. Islamic Law►In Islamic law, in some cases, the strict In Islamic law, in some cases, the strict

liability has been emphasized.liability has been emphasized.

►b. Example: Iranian Lawb. Example: Iranian Law►In Iranian law, a two-tier liability In Iranian law, a two-tier liability

system for passenger injury and death system for passenger injury and death can be adopted.can be adopted.

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4- Insurance

►State Parties are obliged to require their carrier to maintain adequate insurance.

►Advantages for Iranian aviation industry

►Iranian law adopted this kind of insurance in other types of carriages.

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5- Mental Injury5- Mental Injury

►Since 1929, Courts interpreted the “bodily Since 1929, Courts interpreted the “bodily injury” differently.injury” differently.

►Amending the bodily injury requirement Amending the bodily injury requirement

took priority in the Conference of the took priority in the Conference of the Montreal Convention of 1999.Montreal Convention of 1999.

►Courts must review the negotiation history Courts must review the negotiation history of the Montreal.of the Montreal.

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5- Mental Injury 5- Mental Injury (continued)(continued)

►a. Islamic Lawa. Islamic Law►According to Muslim Jurists, the According to Muslim Jurists, the

individuals have no right to impose individuals have no right to impose moral damages to others.moral damages to others.

►b. Example: Iranian Lawb. Example: Iranian Law►Recovery for mental injuryRecovery for mental injury has been has been

accepted in Iranian law. accepted in Iranian law. 23

Protecting Passengers Will Promote Tourism Industry

►Developing countries could have economic benefits Developing countries could have economic benefits by promoting regional tourism.by promoting regional tourism.

►The pilgrimage related religious tourist in many The pilgrimage related religious tourist in many developing world, among them, the Islamic developing world, among them, the Islamic countries, could become a source of revenue if they countries, could become a source of revenue if they develop their civil aviation industry.develop their civil aviation industry.

►Aviation plays a great role in developing tourism Aviation plays a great role in developing tourism industry. industry.

►Civil aviation promotes business, foreign trade and Civil aviation promotes business, foreign trade and tourism.tourism.

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Protecting Passengers Will Promote Tourism Industry (continued)

►Lack of safety of developing countries Lack of safety of developing countries airplanes can be one of the reasons behind airplanes can be one of the reasons behind the refusal of foreign tourists to visit these the refusal of foreign tourists to visit these countries. countries.

►People need to travel by airlines and want to People need to travel by airlines and want to be satisfied with their travel. be satisfied with their travel.

►Developing countries have to pay attention to Developing countries have to pay attention to civil aviation as a means of promoting civil aviation as a means of promoting domestic as well as international tourism.domestic as well as international tourism.

►Developing countries have to ratify Developing countries have to ratify conventions that protect passengers.conventions that protect passengers.

►The Montreal Convention protects passenger .The Montreal Convention protects passenger .25

Protecting Passengers Will Promote Protecting Passengers Will Promote Tourism Industry Tourism Industry (continued)(continued)

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Montreal Convention protects passenger

Developing countrieshave to ratify conventionsthat protect passengers

Aviation plays a greatrole in developing tourism industry

7- 7- Fifth jurisdictionFifth jurisdiction►The fifth jurisdiction ensures that the The fifth jurisdiction ensures that the

victims are treated fairly.victims are treated fairly.

►An additional ‘fifth jurisdiction’ would be An additional ‘fifth jurisdiction’ would be of some benefit to the developing of some benefit to the developing countries.countries.

►The fifth jurisdiction is consistent with the The fifth jurisdiction is consistent with the domestic law of developing countries such domestic law of developing countries such as Iran.as Iran. 27

ConclusionConclusion►Developing countries have to develop their civil Developing countries have to develop their civil

aviation. aviation. One encouraging way to develop the air One encouraging way to develop the air transportation is to adhere to new conventions transportation is to adhere to new conventions specially those that protect passengers. specially those that protect passengers.

►The 1999 Montreal Convention establishes a The 1999 Montreal Convention establishes a comprehensive and up-to-date set of rules defining comprehensive and up-to-date set of rules defining and governing the liability of air carriers. It updated and governing the liability of air carriers. It updated and simplified the rules governing documents of and simplified the rules governing documents of carriage. It provided a new jurisdiction, adopted carriage. It provided a new jurisdiction, adopted strict liability and made other changes that will be strict liability and made other changes that will be of benefit to claimants. This Convention should be of benefit to claimants. This Convention should be supported by developing countries.supported by developing countries.

29Thank you for your attention