These problems were brilliantly solved by Lorne Clark (then the General Counsel
of the International Air Transport Association (‘IATA’)) who came up with the idea
of a two-instrument approach.
This would comprise of the Cape Town Convention, which would be equipment-neutral, and separate Protocols for each of the three categories, which would enable each industry to proceed at its own speed without being held up by the others and would allow the Cape Town Convention provisions to be modified to suit the needs of the particular industry concerned. Unusually, therefore, the Protocols do not merely supplement the Cape Town Convention, they control its coming into force and they can modify it as necessary.
Despite these obvious advantages, the two-instrument approach proved controversial
and it was not until the first day of the diplomatic Conference ‘Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft
Protocol’ held at Cape Town from 29 October to 16 November 2001 (‘the diplomatic
Conference’).
that it quickly became clear that it was supported by a great majority of delegates
3 Invasion of New Areas
Certain parts of commercial law had traditionally been regarded as off-limits to
private commercial law conventions, among them property rights, priority rules
and the modifi cation of national insolvency laws.
All these taboos were broken by the Cape Town Convention and Protocols, which laid down rules for perfecting an international interest (primarily through registration), priority rules and rules for the protection of a creditor in the event of a debtor’s insolvency.
4 Treatment of Non-Consensual Rights or Interests
The Cape Town Convention was originally conceived as applicable only to
consensual interests. But most states have a battery of non-consensual rights and
interests, such as legal liens, statutory mortgages, preferential claims of employees
for wages and of states for taxes, judicial attachments and the like, which they
would be reluctant to subordinate to a registered international interest.
So art 39 of the Cape Town Convention makes provision for a Contracting State to make a declaration that categories of rights or interests which under that State’s law have priority over the equivalent of registered international interests are to retain such priority without themselves having to be registered in the International Registry. In this way,