District Court Holds Guyana Not A Party To Warsaw Convention

Judy Nemsick is a Partner in the New York office.

HIGHLIGHTS:

In deciding treaty status, courts place "controlling importance" on the governmental conduct of the countries at issue. Guyana's post-independence accession to other treaties – but its failure to formally accede to the Warsaw Convention – created a "strong inference" that the Guyanese government no longer considered Guyana to be a party to the treaty. In personal injury cases arising from the crash landing of Caribbean Airlines Flight BW523 in the Republic of Guyana in 2011, the court determined that Guyana, a former British colony, was not a party to the Warsaw Convention (WC) and denied the airline's motion to dismiss for lack of subject matter jurisdiction.1 Although the WC was considered to be in effect in British Guiana as early as 1935, the court found compelling that Guyana, unlike other British colonies, never formerly acceded to the treaty following its independence in 1966 even though it had formally acceded to other treaties that had applied to British Guiana. The court placed "controlling importance" on the post-independence conduct of the U.S. and Guyanese governments, specifically by their respective executive branches.2

The U.S. Government's Position

In determining the U.S. government's views on Guyana's party status, the court examined the historical changes to the State Department's annual publication Treaties in Force, which identifies treaties and other international agreements that have not been denounced or replaced by the parties, superseded by other agreements, or otherwise terminated.

The 1969 edition of Treaties in Force (published three years after Guyana's independence), identifies Guyana as a party to the WC. Importantly, however, this designation was linked through footnotes to a 1966 letter from the prime minister of Guyana to the secretary general of the United Nations (UN) stating that his government's desire is that each treaty applied to British Guiana be presumed as "legally succeeded to by Guyana and that action be based on such presumption until a decision is reached that it should be regarded as having lapsed."

By 1997, the State Department began omitting Guyana from the list of parties to the WC and inserted a new footnote stating that the "status of certain states to which the convention was applicable prior to their becoming independent is not determined." In 2002, the State Department completely omitted the footnote. The court construed...