A Legal Analysis of Aviation Security under the International Legal Regime

Presented by

JUNG, SANG YOOL

Faculty of Law
Institute of Air and Space Law
Mc Gill University, Montreal, Canada

March 2005

A thesis submitted to McGill University in partial fulfillment of the requirements of the

degree ofMaster of Laws (LL.M.)

© JUNG, SANG-YOOL, 2005

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 ABSTRACT

The safety of civil aviation has been endangered not only by terrorism, but also by many
other unlawful acts committed by persons with varying motivation. The international
community has worked to provide a secure and safe air transportation system for general
people and thus has deve10ped aviation security systems in the legal and technical fields to
combat and prevent the man-made intentional harm against civil aviation.
The legal instruments are mainly based on several multilateral conventions, resolutions and
dec1arations. They are aIl focused on how to eliminate safe heavens for unlawful actors
against civil aviation, secure the safety of passenger and crew, and facilitate the resumption of
affected aircraft.
The technical instruments, dealing with specific preventive security measures to suppress the
unlawful a cts against civil aviation 0 n a p ractical b asis, have b een d eveloped b y ICAO as
"Standards and R ecommended P ractices" ( SARPs) in the f orm 0 f Annexes. In addition, t 0
promote global aviation security, ICAO launched its "Univers al Security Audit Programme"
immediately following the tragic events of September Il, 2001.
This thesis critically analyses the legal and technical aviation security systems under current
international legal regimes and provides several recommendations to improve the remaining
problems in the international aviation security system.
 Résumé

La sûreté de l'aviation civile a été mise en péril, non seulement par le terrorisme, mais aussi
par d'autres actes d'intervention illicites commis par des personnes ayant des motifs variés.
La communauté internationale a travaillé afin d'assurer un système de transport aérien
sécuritaire et sûr pour les voyageurs et a ainsi développé des systèmes de sûreté pour
l'aviation dans les domaines légal et technique afin de combattre et de prévenir le dommage
causé par l'humain contre l'aviation civile.

Les instruments légaux sont basés principalement sur plusieurs conventions multilatérales,
déclarations et résolutions. Ils se concentrent tous sur la façon d'éliminer les zones protégées
pour les acteurs illicites contre l'aviation civile, d'assurer la sûreté du passager et de l'équipe
et de faciliter la reprise d'aéronef affecté.

Les instruments techniques de sûreté utilisés comme des mesures préventives spécifiques afin
de réprimer les interventions illicites contre l'aviation civile sur une base pratique ont été
développés par l'OACI sous le nom de «Normes et pratiques recommandées» (SARP) dans
la forme d'Annexes. D'autant plus, afin de promouvoir la sûreté globale de l'aviation,
l'OACI a établi le «Programme universel d'audits de sûreté» immédiatement après les
évènements tragiques du Il septembre 2001.

Cette thèse analyse de façon critique les systèmes de sûreté légal et technique d'aviation sous
les régimes légaux internationaux actuels et fournit de nombreuses recommandations afin
d'améliorer les problèmes restants dans le système de sûreté d'aviation internationale.

ii
 ACKNOWLEDGEMENT

First of aIl, l would like to use this opportunity to express my special thanks to my
colleagues and supervisors in my office in Korea who inspired and supported me to study
abroad for aviation security.
Next, l should like to express my sincere appreciation and gratitude to my thesis supervisor,
Professor Dr. Michael Milde for his sincere guidance and advice. In addition, l greatly
benefited from his illustrious knowledge of international aviation law, moral rectitude and
humanity in his lectures.
Also, l must thank Mr. Chang, Man-Heui, a diplomat belonging to the representative office of
Korea on the Council of ICAO, for pro vi ding me with ICAO Documents and valuable
materials for my research, Mrs. Nancy Park, Ms. Helen Dragatsi and my c1assmate Mr. Yaw
Otu Nyampong for their linguistic assistance while l wrote this thesis, and my lifelong friend
Hwang, Jung-Ho for sparking me to see the world when he made a gift to me of a book about
Law Schools in North America 12years ago.
FinaIly, l would like to thank my wife Jang, Ji-Hyun for her quiet and sincere support ofmy
studies at McGill University in Montreal and my two lovely children, Hyun-Seo and Hyun-
Sung for inspiring me do my best whenever l see them.
l would like to dedicate this work to my family and friends.

iii
 Table of Contents

Page

Abstract .................................................................................................. i
Resume ................................................................................................... ii
Acknowledgements .................................................................................... iii

INTRODUCTION ................................................................................... 1

CHAPTER 1. Aviation Security System before the Tokyo Convention of 1963 .............. 3

1. The 1937 Geneva Convention for the Prevention and Punishment of Terrorism .......... 3
2. The D.N. Charter ..................................................................................... 5
3. The 1944 Chicago Convention on International Civil Aviation .............................. 6
4. The 1958 Geneva Convention on the High Seas .............................................................. 9
5. Conclusion ............................................................................................ Il

CHAPTER II. Aviation Security System under Multilateral Conventions ................... 12

1. Background and Generalities............................................................................................. 12

2. The Tokyo Convention of 1963 ................................................................. 15

A. Scope of Application ............................................................................. 15
B. Jurisdiction .......................................................................................... 16
C. Powers of t he A ircraft Commander and 0 thers .......................................... 17
D. Powers and Duties of Contracting States .................................................... 18
E. Extradition ........................................................................................ 19
F. Conclusion ......................................................................................... 20

3. The Hague Convention of 1970 ................................................................. 21

A. Introduction ........................................................................................ 21
B. Scope of Application ............................................................................. 22
C. Jurisdiction ........................................................................................... 24
D. Powers and Duties of States ................................................................... 25
(a) Severity of the Penalty .......................................................................... 25
(b) M andatory Legal P roceedings ... ........................................................... 26
(c) Other Rights and Obligations ................................................................. 27
E. Extradition ........................................................................................... 28
F. Conclusion ........................................................................................... 29

4. The Montreal Convention of 1971 .............................................................. 30

A. Introduction ..................................................................................... 30
B. Definition of the Offence ....................................................................... 31

iv
 C. Scope of Application .............................................................................. 33
D. Cornrnon Provisions with the Hague Conventions ........................................ 35
(a) Jurisdiction ..................................................................................... 35
(b) Prosecution and Extradition .................................................................... 36
(c) Other Provisions ............................................................................. ,. 36
E. Conclusions ........................................................................................ 36

5. The Montreal Supplernentary Protocol of 1988 ................................................ 37

A. Introduction ........................................................................................ 37
B. Scope of Application and Jurisdiction ....................................................... 38
C. Conclusion .......................................................................................... 39

6. The Montreal Convention of 1991 ............................................................... 39

A. Introduction ........................................................................................ 39
B. Obligations of States ............................................................................ 41
C. Legal Status of the Technical Annex ......................................................... 42
D. Conclusion ........................................................................................ 42

CHAPTER III. Aviation Security System under Multilateral Actions ........................ 44

1. The 1977 European Convention on the Suppression of Terrorism ....................... 44

A. Introduction and Definition of the Offences .................................................. 44
B. Extradition ......................................................................................... 45
C. Jurisdiction ........................................................................................ 45
D. Conclusion ........................................................................................ 46

2. The 1978 Bonn Declaration on Hijackings ..................................................... 46

A. Introduction ...................................................................................... 46
B. The Scope of the Declaration .................................................................. 47
C. The Legal Status and the Enforceability of the Declaration ............................... 48
(a) Against the G-7 States ......................................................................... 48
(b) Against the Offending State ................................................................. 49
(c) Against Third States ............................................................................ 52
D. Conclusion ......................................................................................... 52

CHAPTER IV. Preventive Security Measures under the International Legal Regime ... 54

1. Background ........................................................................................................................ 54

2. Annex 17 of the Chicago Convention................................................................................ 56

A. Historical Background of Annexes ................................................................................. 56
B. Law Making Process of the ICAO Council ................................................................... 57
C. Legal status of Annex 17 ................................................................................................. 58
(a) Theory............................................................................................................................ 58
(b) Reality ......................................................................................................................... 59
D. Security SARPs in Amendrnent 10 to Annex 17 ............................................................ 60

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 (a) Objectives and Organization of Annex 17 .................................................................. 60
(b) International Cooperation .......................................................................................... 61
(c) Administrative and Coordinative Actions .................................................................... 61
(d) Quality Control ............................................................................................................ 61
(e) Preventive Security Measures ....................................................................................... 62
(f) Responsive Measures to Acts of Unlawful Interference ............................................ 63

3. Security SARPs in Other Annexes .................................................................................... 64

4. Aviation Security Audit Programme ................................................................................... 65

A. Legal Status of Aviation Security Audit Programme ....................................................... 65
B. Auditing Procedures in the Security Audit Programme ................................................... 67
(a) Notification and MOU .................................................................................................. 67
(b) Duration of the Audit and the Assignment of an Audit Team ...................................... 67
(c) Audit Procedures in the Audited State ........................................................................ 68
(d) Audit Report ................................................................................................................. 68
(e) Corrective Action Plan ................................................................................................. 69
(f) Follow-up Action and Audit Follow-up Visits ............................................................. 69

5. New Preventive Security Measures .................................................................................... 69

A. Advance Passenger Information System (APIS) ............................................................ 69
B. Biometric Identification ................................................................................................... 70

CHAPTER V. Conclusion ..................................................................................................... 74

Selected Bibliography ............................................................................................................. 77

vi
 INTRODUCTION

Aviation security refers to safety from man-made intentional harm. The history of criminal
acts against civil aviation has long coincided with the history of international civil aviation,
, even though these acts were not foreseen during the period when the civil aviation fledged
and the Chicago Convention was drafted. At that time, people were mainly concerned about
the s afety of flight and air navigation. As the rising n umber 0 fi ncidents and i nability to
obtain jurisdiction over a substantial number of criminals who jeopardized the safety of
international civil aviation and often exacerbated international relations, the international
community began to establish international solutions. Taking into account the fact that the
safety of civil aviation has been endangered not only by terrorism, but also by many other
unlawful acts with different motivations (e.g. pure criminal acts aimed at private gain,
refugees, insane or mentally deranged persons), the solutions have been consisted of security
programmes in the legal and technical fields. These are essential and necessary to combat
and prevent acts of unlawful interference against civil aviation.
The legal instruments are based on several multilateral Conventions drafted under the
auspices of ICAO and several air security Agreements or Resolutions adopted out si de ICAO
auspices, including the "European Convention" and "Bonn Declaration". The legal
instruments have mainly focused on how to get rid of the safe heavens for unlawful actors,
secure the safety of passengers, crew, and facilitate the resumption of affected aircraft. In
particular, considering the fact that the Tokyo, Hague and Montreal Conventions, the
Montreal Protocol, and the Montreal Convention of 1991 continue to rank among the most
widely accepted international Conventions and the fact that this trend demonstrates that each
State recognizes the importance of aviation security, these legal instruments seem to have
established a new international aviation security culture which could force each State to
show good will as a sound member of the international community in the fight against
aviation terrorism and this could lead to air transport isolation against aState that failed to
do so, without a uniform and universal enforcement system for the Conventions.
The technical aviation security programmes dealing with specific preventive measures on
a practical basis, have been developed by ICAO since the 1970s immediately following
several terrorist attacks against civil aviation. As the acts of unlawful interference against
civil aviation have revealed sorne of the loopholes in the security system and have
introduced a new form of terrorism, new technical security programmes have been
introduced to counter the challenges. At last, ICAO adopted aviation security audit
programmes in June 2002 to evaluate the security in place and to correct the deficiencies in
the performance of ICAO security related standards in an Contracting States.

1
 The development of aviation security programmes has been the results of compromises
between what could be done and what needed to be done among States depending on the
prevailing international political atmosphere at the time of any given incident to achieve the
greatest number of ratifications. This is a testimony to the level of efficient cooperation at an
internationallevel and the harmonization of the political will of States.
Thus, to determine how the international community and States have undertaken a variety
of measures in an attempt to counter, suppress and prosecute unlawful acts/actors against
civil aviation and what needs to be improved in the CUITent internationallegal and technical
aviation security programmes, this thesis will focus only on the theoretical and practical
analysis of the international aviation security programmes, and not on the root of teITorism
which is beyond the scope of this paper. In order to facilitate a chronological understanding
of the development of aviation security programmes and policies, Chapter 1 reviews the
aviation security system before the 1963 Tokyo Convention, Chapter Il examines multilateral
aviation security Conventions and Protocol under the auspices of ICAO, Chapter III analyzes
multilateral actions outside ICAO auspices, and Chapter IV deals with preventive security
measures: Annex17, the Aviation Security Audit Pro gram and new emerging aviation
security technologies.

2
CHAPTER 1. Aviation Security System before the Tokyo Convention of 1963

.1. The 1937 Geneva Convention for the Prevention and Punishment of Terrorism

When several Peruvian revolutionaries took control of a recorded civil aircraft (a mail
plane belonging to Pan American) and diverted it from its scheduled destination in order to
drop propaganda leaflets over the capital, Lima, in May, 1930/ the first incident of modern
day aircraft seizure, there was no legislation in place to regulate these kinds of unlawful acts
against civil aviation in the world, because such acts were unknown at that time. Before the
1963 Tokyo Convention, most of the legal work on international civil aviation security was
undertaken by the League of Nations and thereafter by the United Nations? But, since the
unlawful acts against civil aviation were unknown, there was no actual international legal
regime in the civil aviation security field, except the multilateral attempts to suppress the
increasing terrorist activities after the First World War. After the assassinations of King
Alexander 1 of Yugoslavia during his visit to France and the French Foreign Minister, Mr.
Louis Barthou, r eceiving t he King in M arseilles 3 on 0 ctober 9, 1934, the C ouncil 0 ft he
League of the Nations adopted a resolution on December10, 1934 to establish a committee
of experts to study the efficient means for the repression of conspiracies or crimes
committed with political purposes or terrorist activities, and for international cooperation in
this matter. 4 AIso, on October 10, 1936, the 1i h Assembly of the League of Nations adopted
a resolution to provide the following guidelines for the future Conventions:

1. Prohibit any form of preparation or execution of terrorist outrages upon the life or liberty of persons
taking part in the work of foreign public authorities and services;

1 See N arinder Aggarwala, "Political Aspects 0 fHijacking" inA ir H ijacking: An International Perspective
(New York: Carnegie Endowment for International Peace, November 1971, No.585) at 8; See Kenneth C.
Moore, Airport, Aircraft and Airline Security (Los Angles: Security World Pub., 1976) at 4; See S.K.Ghosh,
Aircraft Hijacking and the Developing Law (New Delhi: Ashish Pub., 1985) at 1; See also Peter St. John, Air
Piracy, Airport Security, and International Terrorism: winning the war against hijackers (New York: Quorum
Books, 1991) at 5.
2 EI-Muner EI-Harudi, New Development in the law of aviation security (LL.M. Thesis, Montreal, McGill
University, 1989) [unpublished] at 5; Ruwantissa I.R. Abeyratne, Legal and Regulatory Aspects of Unlawfitl
Interference with Civil Aviation (D.C.L. Thesis, Montreal, McGill University, 1996) at 195-196.
3 Edward McWhinney, Aerial Piracy and International Terrorism, The illegal Diversion of Aircraft and
International Law, 2nd ed. (Dordrecht, the Netherlands ; Boston: Martinu Nijhoff, 1987) at 128.
4 "League of Nations Official Journal" (VoLl5) (London:Harrison and Sons, 1934) online: Hawaii Supreme
Court Law Libary <http://www.heinonline.org/HOLIPage?handle=hein.journals/leagon 15&size=2&rot=0&
collection=journalsid= 1689> (date accessed: 25 August 2004) at 1758-1760.
th
5 "Record of the 17 Assembly of the League of Nations, Plenary Meetings, at 135" in EI-Muner EI-Harudi,
supra note 2 at 7.

3
 2. Ensure the effective prevention of such outrages, in particular, to establish collaboration to facilitate
early discovery of preparation of such outrages;
3. Ensure punishment of outrages of a terrorist character, in the strict sense of the word, which have an
international character by virtue of either the place in which preparations for them were made or the place in
which they were carried out, or by virtue of the nationality of those participating in such outrages or of their
victims.

According to those resolutions, the committee of experts prepared a draft Convention for the
Prevention and Punishment of Terrorism. The international conference held in Geneva on
November 1-16, 1937 adopted the Convention which was opened for signature at Geneva on
November 16, 1937. 6 Unfortunately, this Convention never entered into force, mainly owing
to the outbreak of the Second World War in September 1939.
But, certain provisions of the Convention were directly relevant to the unlawful acts
against civil aviation and affected the formation of the following international aviation
security legal regime. In particular, Article 2 (2) of the Convention, providing "willful
destruction of, or damage to, public property or property devoted to a public purpose belong
to or subject to the authority of another High Contracting Party", could apply to protect
aircraft and airports serving international civil aviation, and Article 2 (3) of the Convention,
providing "any willful act calculated to endanger the lives of members of the public", could
be used to suppress unlawful acts of violence against passengers at international airports.
Also, Articles 8 and 10 of the Convention seemed to establish an extradition and a quasi
univers al jurisdiction regime among the High Contracting Parties by providing:

Article 8
1.... , the offences set out in Articles 2 and 3 shall be deemed to be included as extradition crimes in any
extradition treaty which has been, or may hereafter be, concluded between any of the High Contracting Parties.
3. For the purposes of the present article, any offence specified in Articles 2 and 3, if committed in the
territory of the High Contracting Party against whom it is directed, shall also be deemed to be an extraction
crime.
Article 10
Foreigners who are on the territory of a High Contracting Party and who have committed abroad any of
the offences set out in Articles 2 and 3 shall be prosecuted and punished as though the offence had been

6 Convention for the Prevention and Punishment of Terrorism (Geneva, 1937) in "International Legislation: A
Collection of the Texts of Multipartite International Instruments of General Interest" (Vol.VII, 1935-1937)
edited by Manley O. Hudson (Washington DC: Carnegie Endowment for International Peace, Division of
International Law, 1941) [Never entered into force] at 862.

4
committed in the territory ofthat High Contracting Party, if the following conditions are fulfilled-namely, that :
(a) Extradition has been demanded and could not be granted for a reason not connected with the offence
itself;

Therefore, when the offences in Articles 2 and 3 of the Convention occurred, the Convention
obliged contracting States either to extradite or to prosecute the alleged offender who
committed any of the offences provided in Articles 2 and 3. 7
This international legal regime for extradition or prosecution III the 1937 Geneva
Convention seemed to be deeply reflected in the formation of the following provisions of the
Hague Convention of 1970, especially Articles 4, 7 and 8, and the Montreal Convention of
1971, especially Articles 5, 7 and 8.

2. The V.N. Charter

When the delegates of 50 States met in San Francisco on April 25, 1945 for the United
Nations Conference on International Organization and drew up the 111- article Charter
which was signed on June 26, 1945 and came into force on October 24, 1945,8 there was no
directly relevant provision to the civil aviation security in the Charter. But, taking into
account the following fact that: the most important spirit of the "General Princip le of Law"
and "Humanity" is to ensure the protection of innocent civilians and their property from
dangers; the U.N. Charter contains the principles of human rights and fundamental
freedoms; and civil aircraft is presumed to transport civilians and their property, the U.N.
Charter has become one of the most important international legal guidelines and legal
resources to solve civil aviation security problems. 9 Especially, these princip les in the
Charter are found in the preamble and the following articles:

Preamble: the peoples of the U.N. member states will "practice tolerance and live together in peace with
one another as good neighbors, and unite our strength to maintain international peace and security."
Article 1 (2): the purposes of the U.N. are "To develop friendly relations among nations based on respect
for the princip les of equal rights and self-determination of peoples, and to take other appropriate measurcs ta

7 Sec El-Muner El-Harudi, supra note 2 at 9.

8 Sec "About the United Nations/History" online: U.N. <http://www.un.org/aboutunlhistory.htm> (date
accessed: 25 August 2004).
9 See El-Muner El-Harudi, supra note 2 at 13; See Runwantissa I.R. Abeyratne, Aviation Security: Leal and
Regulatory Aspects (England: A shgate Pub., 1998) a t 138; S ce a Iso H. Lauterpacht, 1 nternational Law and
Human Rights (London: Stevens & Sons, 1950) at 149.

5
strengthen universal peace"
Article 2 (4): AIl members shaIl refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.
Article 55(c): "the United Nations shaIl promote universal respect for, and observance ofhuman rights and
fundamental freedorns for aIl without distinction as to race, sex, language, or religion."
Article 56: AIl members pledge themselves to take joint and separate action in cooperation with the
Organization for the achievement of the purposes set forth in Article 55.

But, Article 51, providing that "Nothing in the present Charter shall impair the inherent
right of individual or collective self-defense if an arrned attack occurs against a member of
the United Nations," has the possibility to be willfully used to support the use of weapons
against civil aircraft during interception when a civil aircraft departs from its flight plan and
flies over other States' airspace without authorization, because no authoritative definition of
an arrned attack has been adopted internationally.lO However, in order to respect the
founding spirit of the United Nations, the inherent right of self defense in Article 51 shaH be
restricted not only by "General Princip le of Law", but also by the Preamble, Article 1 (2),
Article 2 (4), Article 55, and Article 56 of the U.N. Charter to secure "the elementary
consideration of humanity," unless there are the clear and present dangers and no reasonable
means other than using weapons against the unauthorized over flying unarrned civil
aircraft. Il
Therefore, the U.N. Charter imposes a legal obligation on member states to protect
hum an rights and freedoms, and to oppose the use of force against civil aircraft. Also, the
Charter had functioned as one of the most important international legal instruments to
protect civil aircraft from an arrned attack by state aircraft and to criticize the use of force
against civil aircraft until Article 3 bis (non-use of weapons against civil aircraft) of the
Chicago Convention entered into force on October 1, 1998. 12

3. The 1944 Chicago Convention on International Civil Aviation 13

10 See Park, Won-Hwa, Aviation Law (Seoul: Myung-ji Pub., 1990) at 130; See also Runwantissa I.R.
Abeyratne, supra note 9 at 138-139.
Il See Park, Won-Hwa, Ibid.; See also B.Cheng, General Principles of Law as Applied by International Courts
and Tribunals (London: Stevens & Sons, 1953) at 97.
12ICAO, "Status of Certain International Air Law Instruments" (1999) 54:6 ICAO J. 33.
13Convention on International Civil Aviation, 7 December 1944(Chicago), 15 U.N.T.S.295, ICAO Doc.
7300/8 (entered into force on April 4, 1947 and ratified by 188 States as at October, 2004): See "ICAO List and

6
 During the drafting conference of the Chicago Convention on International Civil
Aviation in 1944, though several States made references to the significance of the
Convention to national security and safety of air travel, no explicit mention was made of
aviation security against unlawful acts since such acts were not known at that time. 14
Therefore, the Chicago Convention System had not contained any directly relevant provision
to civil aviation security until Annex 17 to the Convention was adopted on March 22,
1974,15 even though, taking into account the fact that, in spite of deficiency of the term
"security" in the Convention, aviation security is one of main tools to assure the overall
safety of civil aviation, it is logical to regard that the concept of "security" is incorporated
into that of "safety" in the Chicago Convention.
However, the general principles for the safety and security of civil aviation not only
from the man made intentional harm (to be discussed in Chapter IV), but also from the armed
attack by state aircraft, are found in the preamble and in several articles of the Chicago
Convention, even before Annex 17 and Article 3bis entered into force. Specifically, the
preamble declares its potential role for international civil aviation by stipulating "avoiding
friction and promoting cooperation between nations and peoples upon which the peace of the
world depends" and obliges member States to abide by "certain principles and
arrangements" to develop international civil aviation in a safe and orderly manner, to
establish international air transport services on the basis of equality of opportunity, and to
operate the services soundly and economically.
Especially, to protect civil aircraft from state or state aircraft during an interception,16
Article 25 of the Convention obliges member States to "provide such measures of assistance
to aircraft in di stress in its territory as it may find practicable." Though there are some legal
disputes about the meaning of "aircraft in distress" because the "aircraft in distress" is not
defined in any internationallegal instrument, the principal objective of Article 25 could be

Status of International Air Law Multilateral Treaties" on line: ICAO <www.icao.int/cgi/goto mpl?/icao/en
/leb/treaty.htm> (date accessed on Oct 5, 2004) (hereinafter Chicago Convention).
14 See EI-Muner El-Harudi, supra note 2 at 9; See also Runwantissa I.R. Abeyratne, supra note 9 at 136-137.
15 According to Assembly Resolutions A 17-10 and A18-1 0, the ICAO Council adopted "International Standards
and Recommended Practices- Security- Safeguarding International Civil Aviation against Acts of Unlawful
Interference" on March 22, 1974 and designated it as Annex 17: See the "F oreword" in Annex 17.
16 During interception, there have been several attacks against civil aircraft, e.g., the 1952 Air France incident
by Soviet fighters (5 injured), the 1954 CPA incident by Chinese fighters(10killed, 8 injured), the 1955 EL AL
incident by Bulgarian fighters(58killed), the 1973 Libyan aidine incident by Israeli fighters (108 killed) , the
1978 Korean aidine incident by Soviet fighters(2killed and 11 injured), the 1983 Korean airline incident by
Soviet fighters (269killed) and the 1988 Iran Air incident by U.S. warship (290killed) : See Park, Won-Hwa,
The Boundary of the Airspace, Its Violations and International Law (D.C.L. Thesis, Seoul, Korea University,
1993) at 58-85.

7
interpreted as to provide full security measures for the safety of international civil aviation,
regardless of the terrninology used, considering the establishing spirit of the Convention and
the principles of customary internationallaw for hurnanity.17
AIso, Article 3 (d) provides another security instrument for civil aviation safety by
obliging each contracting State to undertake "due regard" even when contracting States
exercise "exclusive sovereignty" by using state aircraft.

Article 3
(a) This convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft
(b )Aircraft used in military, customs and police services shaH be deemed to be state aircraft.
(c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon
without authorization by special agreement or otherwise, and in accordance with the terms thereof.
(d)The contracting States undertake, when issuing regulations for their state aircraft, that they will have
due regard for the safety of navigation of civil aircraft.

But, as Article 3 (a) limits the applicable scope of the Chicago Convention only to "civil
aircraft", it is apparent that the Chicago Convention does not apply to State aircraft and that
the law making power of the ICAO Council to adopt Standard and Recommended Practices
(SARPs) and the overall mandate of the organization is restricted only to civil aircraft. 18
When the ICAO Air Navigation Commission initiated studies to amend Annex 2 (Rules of
the Air) to include Standards governing the interception of civil aircraft by military aircraft
and the related activities of the interception control in 1984, several States, based on Article
3 (a), opposed this initiative and maintained that "ICAO has no jurisdiction whatsoever to
deal with military aircraft". But the majority of States insisted that "such regulation of
interception was aimed at safety of civil aviation - the primary aim and purpose of ICAO -
and did not purport to regulate the conduct of military aircraft but the conduct of States with
respect to the safety of civil aviation foreseen in Article 3 (d) of the Convention.,,19 Prof.
Dr .Michael Mildéo in his essay strongly argued that:

It would be incorrect to believe that ICAO does not consider matters related to military aircraft. There is a

17 See Edward McWhinney, supra note 3 at 131; See EI-Muner EI-Harudi, supra note 2 at 10; See also
Runwantissa I.R. Abeyratne, supra note 9 at 136-137.
18 See Michael Milde, "Status of Military Aircraft in International Law" (2000) in Milde, M. and Khadjavi, H.,

ed., Public International Air Law (IASL, Fall Term Course material (Vol. one)) (Montreal: McGill University,
2001) at 219 -223.
19 Ibid. at 222.
20 Full Time Professor and Former Director of Institute of Air and Space Law, Faculty of Law, McGill
University, Montreal, Canada.

8
solid tradition that each regular session of the 1CAO Assembly adopts (without exception unanimously) an
extensive Resolution entitled "Consolidated Statement of ICAO Continuing Policies and Associated Practices
Related Specifically to Air Navigation". An integral part of such a Resolution is Appendix P-"Co-ordination of
civil and military air traffic". That part of the resolution explicitly recognizes that the airspace as well as many
facilities and services should be used in common by civil and rnilitary aviation and that full integration of the
control of civil and rnilitary air traffic may be regarded as the ultimate goal. 21

Essentially, when an aircraft is categorized as a "state aircraft", the Chicago Convention

is not applicable to that aircraft. 22 But, because the main goal of the Chicago Convention is
to preserve the safety of international civil aviation and for this principal goal, Article 3 (d)
provides certain obligations to contracting States to undertake "due regard", astate aircraft is
not wholly outside of the Convention criteria. Therefore, in the interests of global safety of
air navigation, it is natural to consider that each contracting State has a dut y to ensure that its
state aircraft adheres to the rules stipulated in the Chicago Convention system. This includes
the interception procedures to prevent tragic accidents, though state aircraft can not enjoy the
rights and privileges granted by the Convention.

4. The 1958 Geneva Convention on the High Seas

The Convention on the Righ Seas23 was the first treaty in the internationallegal regime
which directly contained civil aviation security. Articles 14-22 ofthe Convention clearly deal
with acts of piracy whether committed by ships or by aircraft over the high seas. 24
By incorporating the rules of customary international law that Piracy is a so-called
international crime, the Convention makes the pirate be considered the enemy of all States
and be brought to justice anywhere. 25 Article 14 of the Convention obliges contracting
States to "cooperate to the full est possible extent in the repression of piracy on the high seas"
and Article 19 introduces "universal jurisdiction" by providing "every state may seize a
pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest
the persons and seize the property on board." As a result, contracting States are entitled to
exercise their municipal jurisdiction to cover acts of piracy committed outside their

21 Michael Milde, supra note 18 at 223.

22 Ibid. at 224.
23 Convention on the High Seas, 29 April 1958(Geneva), 450 U.N.T.S.82 (No. 6465) (entered into force on
September 30, 1962).
24 See EI-Muner EI-Harudi, supra note 2 at 14; See a1so Runwantissa I.R. Abeyratne, supra note 9 at 139-145.
25 See EI-Muner EI-Harudi, Ibid.

9
territorial jurisdiction.
However, sorne questions arise whether this Convention can be applicable to unlawful
acts against civil aviation in practice. This is because Article 15 defines piracy as follows:

1. Any illegal acts of violence, detention or any act of depredation, conunitted for private ends by the
crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship
or aircraft;
(b )Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
2. Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts
making it a pirate ship or aircraft;
3. Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph
2 of this article.

Considering the definition of piracy in Article 15, it seems that this Convention is
inapplicable to civil aviation security. First of all, Article 15 (1) severely limits its applicable
scope 0 nly t 0 "private ends". Aeeording toP rof. Dr. M iehael M ilde, "While h undreds 0 f
violent aets against eivil aviation have been committed during the last 30 years leading to
almost 4,000 fatalities, their statistieal analysis would indieate that only sorne 14% of them
are attribut able to aets of terror, 19% of them are attributable to pure criminal aets without
any politieal motivation and aimed at private gain, 39% of them are committed by refugees
or would be refugees, sorne 16% of them are by insane or mentally deranged persons and
remaining 12% of cases appear hard to classify.,,26 Therefore, it is apparent that many other
unlawful aets with different motivations endanger the safety of the eivil aviation in reality
and that this Convention cannot eover most of the unlawful acts against civil aviation.
Second, Article 15 (1) (a) only applies to those aets which are committed by crews or
passengers of the pirate ship or aircraft against another ship or aireraft. As a result, the aets
committed on board a ship or aircraft by the crew or passenger and directed against the
aircraft itself or against persons or property on board are excluded from the scope of piraey
in the Convention. But, in reality, most of the unlawful acts against civil aireraft in flight are
eommitted not byan offender who is not onboard the aireraft and enter the aireraft from
outside while the aireraft is in flight, but by passengers or crew who are on board the flight.
Third, Article 15 (1) (a) and (b) require the aets to be eommitted on the high seas or in

26 Michael Milde, "The International Fight against Terrorism in the Air" in C-J. Cheng(ed), The Use of
Airspace and Outer Space for ail Mankind in the 2l st Century (The Netherlands: Kluwer Law International,
1995) at 143; See also Peter St. John (1991), supra note 1 at 43-66.

10
any place outside the jurisdiction of any State. But, in reality, unlawful acts may occur
anywhere.
Consequently, it is worth noting that the 1958 Geneva Convention on the High Seas
attempted to formulate an international legal instrument on civil aviation security. But, while
there are similarities between the acts of piracy against ships and those acts against aircraft,
the unlawful acts against civil aviation do not fall within the aircraft piracy as defined by the
Geneva Convention on the High Seas. 27

5. Conclusion

Before the 1963 Tokyo Convention, there was no direct legislation to regulate unlawful
acts against civil aviation in the world and hijackers from Eastern Block countries were
never looked upon as criminals in Western Block countries. Most of the multilateral
Conventions, the U.N. Charter and even the Chicago Convention are mainly interpreted to
secure civil aviation safety not from unlawful acts committed by individuals, but from
sovereign States by requiring them to refrain from using weapons against civil aircraft when
they exercise "exclusive sovereignty" with state aircraft, etc. AIso, though the 1958 Geneva
Convention on the High Seas introduced aviation security into the internationallegal regime,
the Geneva Convention could not cover the unlawful acts against civil aviation in practice,
owing to the definition of the piracy.
During the infancy of civil aviation, international society's principal concerns were the
condition of aircraft and airports, the technique of the pilot, and the protection of national
security against the possibility of air attack by enemy States. Hence, before the international
community experienced the newly emerging international challenges (hijackings, airport
attacks, sabotages, etc.), the 1egal instruments and the t echnical s ecurity m easures for the
prevention of unlawful interference against civil aviation were not able to be introduced into
the intemationallegal regime.

27 See Haro F. Van Panhuys, "Aircraft Hijacking and International Law" (1970) 9 Colum. 1. Transnat'l L. 1
at 4-12; See EI-Muner EI-Harudi, supra note 2 at 17; See also Runwantissa I.R. Abeyratne, supra note 9 at
143.

11
 CHAPTER II. Aviation Security System under Multilateral Conventions

1. Background and Generalities

The first wave of hijackings began in July 1947 when three Rumanian army officers
commandeered a State-owned DC-3 aircraft in flight and ordered it to land in Turkey.28
Since then, especially during the cold war period, people rebelling against their political
environment and s eeking a s afe h aven, h ij acked a ircrafts en route f rom their c ountries t 0
Western Europe and U.S.A. etc. The number ofworld wide aircraft hijackings, from January
1, 1930 - December 31, 1963, is as follows: 29

YEAR NUMBER YEAR NUMBER

1930 1 1956 1
1947 1 1958 5
1948 7 1959 4
1949 7 1960 8
1950 3 1961 10
1952 1 1962 3
1953 1 1963 2

The period 1948-1950 was marked by political turmoil in Eastern Europe especially,
Czechoslovakia and in China. From 1958-1963, the majority of cases resulted from the
des ire ofindividuals to escape the Castro regime which took power in Cuba. 30
But whatever causes the hijackers might have, as the violence on board an aircraft in
flight was an obvious danger to the safety of all concerned, the figures indicated an alarming
increase and frequency in aircraft hij ackings. This was enough to shock the international
community to recognize the dangerous nature 0 fhijackings. As a result, the international
community began to make a concerted effort aimed at finding possible solutions on the basis

28 Narinder Aggarwala, supra note 1 at 8; S.K.Ghosh, supra note 1 at 1; Peter St. John, supra note 1 at 6-7.
29 Statistical data on the aircraft hijackings vary according to the compiler's criteria. In this thesis, for the
period from 1930 to 1947, the FAA data in Narinder Aggarwala, supra note 1 at 9, is used, and for the period of
from 1948 to 1968, the data in Alona E. Evans, "Aircraft Hijacking: What is Being Done" (1973) 67 AJ.I.L.
641 at 643 and "Aircraft Hijacking: !ts Causes and Cure" (1969) 63 A.J.I.L. 695 at 698 as well as that in David
. G. Hubbard, The Skyjacker: His Flights of Fantasy (New York: Macmillan, 1971) at 257-262 are used.
Following these periods, the official data in "ICAO Annual Report of the Council" is used.
30 Alona E. Evans, "Aircraft Hijacking: Its Causes and Cure" (1969) 63 A.J.I.L. 695 at 698; Narinder
Aggarwala, supra note 1 at 8-10; S.K.Ghosh, supra note 1 at 1- 2.

12
ofuniversally accepted international treaties or other measures under the auspices oflCAO.
In 1950, the legal Committee of ICAO appointed a rapporteur to deal with the legal
status of aircraft and in 1953, it appointed a sub-committee with the same aim. 31 However,
ICAO could not take any special steps in the matter until 1956 when the sub-committee
decided to confine its work to a detailed examination of sorne particularly important matters,
namely crimes and offences committed on board aircraft, jurisdiction relating to such crimes
and the resolution of jurisdictional conflicts. 32 This is because with regard to international
legislation, one of the most debated topics had been the civil or criminal nature of unlawful
acts or similar acts committed on board aircraft. 33 Prof. Dr. Matte explained the difficulties
in the following manner34 :

The problem is not a simple, since factors such as the condition of the aircraft and national interests and
laws, create major obstacles in this field. On the one hand, the aircraft moves so rapidly that it is often difficult
to accurately identify above which State the recriminatory act has been committed; nor is the situation made
any easier if these acts take place over the High Seas. Moreover, numerous conflicts of interest can enter into
consideration when such acts occur. It may happen that a number of States are interested in sanctions (the State
in which the aircraft is registered; the over flown State; the State from which the aircraft takes off, the State of
landing, etc) or, each of these States may try to evade any responsibility for the investigation of certain
unlawful acts, especially when the alleged offender is not a national of one of the States concemed.

Actually, there were several decisions demonstrating the fact that national legislation
was often not fit to punish particular unlawful acts committed on board aircraft or, that when
aState tried to do so, other States intervened in defense of distinct, selfish interest. 35 For
instance:

<D In the Loewenstein case, which occurred in 1928, a Belgian businessman, Loewenstein, disappeared
from the aircraft while flying from Croydon (England) to Le Bourget (France). His body was found in
Manchester. It was discovered that the accident had occurred while the aircraft was flying above British
territorial waters. Consequently the French requested the aircraft to return to Croydon, so that the British
authorities could undertake investigations. While the British authorities believed they had jurisdiction to
decide the matter, the Belgian authorities intervened, and claimed the right to deal with it, giving as a reason

31 Nicolas Mateeso Matte, Treatise on Air Aeronautical Law (Montreal: ICASL-McGill University; Toronto:
Carswell, 1981) at 334; Runwantissa I.R. Abeyratne, supra note 9 at 144.
32 Runwantissa I.R. Abeyratne, ibid.
33 Nicolas Mateeso Matte, supra note 31 at 325-326.
34 Ibid.
35 Ibid.

13
the fact that Lowenstein was a Belgian citizen. 36

® In u.s. v. Cordova, while the aircraft (owned by Flying Tigers, Inc., an American corporation) was
flying over the high seas from San Juan, Puerto Rico, to New York on August 2, 1948, two passengers,
Cordova and Santano, began fighting in the rear section of the plane, and the other passengers gathered around
them to watch the fighting. The result was that the weight increased in the rear section of the plane, and the
pilot had difficulty in redressing the balance and completing the journey. When the captain intervened in the
fighting after he turned the controls over to his first officer, Cordova bit him on the shoulder as well as
assaulted the stewardess. Upon arrivaI at La Guardia Field on August 3, 1948, Cordova and Santano were
immediately apprehended in this District and charged with assault. But, the legal proceedings against Cordova
and Santano were unsuccessful due to the absence of any laws covering these unlawful acts above the High
Seas; consequently, the two unruly passengers were allowed to go free. 37

@ In Ruest v. The Queen, there was a conspiracy between Ruest and an individual called J. Albert Guay,

to place a bomb on a passenger aircraft belonging to a Canadian company flying from Montreal to Sept Iles.
On September 9, 1949, the aircraft exploded while in flight in the province of Quebec, killing all twenty-three
people on board. Ruest was sentenced but the question arose of what might have happened if this crime had
occurred outside Canadian borders. Faced with the risk of the lack of jurisdiction in this latter situation, the
Canadian Criminal Code was amended. 38

Upon facing the following possibilities that: in the absence of an internationally

recognized system to exercise national jurisdiction, offenders may go unpunished; several
States may daim jurisdiction over the same offence committed on board aircraft; the same
offence may be tried in different States and may result in the offender being puni shed more
than once for the same offence, the international community recognized that resolving these
problems was of vital importance and it was necessary to reach an international Convention
for these matters. 39 Under these international political circumstances, the legal committee of
ICAO deeply discussed these subjects and drew up a final draft Convention in its 141h
Session (August 28 - September 15, 1962) held in Rome. After being amended during the
Tokyo Conference (August-September 1963), the Convention was signed on September 14,

36 LH.Ph. de Rode-Verschoor, "Les problèmes concernant les délits commis à bord des aéronefs
particulièrement quant à la j urisdiction", Revue internationale de droit pénal, 2 7th year, 1st and 2nd quarters,
1957, nos. 1 and 2, at 431; Nicolas Mateeso Matte, supra note 31 at 326.
37 U.S. v. Cordova, 89 F. Supp. 298 (E.D.N.Y. 1950); Nicolas Mateeso Matte, supra note 31 at 326.
38 Ruest v. The Queen, 104 c.c.c. 1 (May 12, 1952); Nicolas Mateeso Matte, supra note 31 at 327.

39 Report of the Sub-Committee, LC/SC 'Legal Status', WD No. 23, 10 October 1956; Runwantissa I.R.
Abeyratne. supra note 9 at 144 -145.
~

14
1963 by the 49 representatives of ICAO member States and entered into force on December
4, 1969 after ratification by fifteen States. 40 At last, the first multilateral convention which
directly deals with civil aviation security was introduced under the internationallegal regime.

2. The Tokyo Convention of 196341

A. Scope of Application

Article 1 of the Tokyo Convention provides its applicable scope as follows:

1. This Convention shaH apply in respect of:

(a) offences against penallaw;
(b) acts which, whether or not they are offences, may or do jeopardize the safety of the airera ft or
of persons or property therein or which jeopardize good order and discipline on board.

In case of "offences", although Article 11 (1 )42 provides the circumstances that shall
constitute the offence, the Convention did not clearly define the offence at an international
level. Thus, the offence is not made a crime under international law and the definition of the
offence is left to the jurisdiction of national laws of contracting States. As a result, the
Convention applies to any act that is an offence under the penal laws of a Contracting
State,43 except offences against penallaws of a political nature or those based on racial or
religious discrimination (Article 2). At this point, a question arises whether the word "penal"
must include only unlawful acts against tort or criminallaws, or also customs, administrative
laws, etc.,44 but the Convention is silent on this question. Considering the main purpose of
the Tokyo Convention, it is reasonable to regard that the scope of penal laws should be
limited to unlawful acts against tort or criminallaws which endanger the safety of aircraft in

40 Nicolas Mateeso Matte, supra note 31 at 334; Robert P. Boyle, "International Action to Combat Aircraft
Hijacking" in Lawyers of the Americas (Denver, Colorado: 1969) at 463.
41Convention on Offences and certain other acts committed on board aircraji, 14 September 1963(Tokyo),
ICAO Doc.8364 (entered into force on December 4, 1969 and ratified by 178 States as at October, 2004): See
"ICAO List and Status of International Air Law Multilateral Treaties" on line: ICAO <www.icao.int/cgil
goto m.pl?/icao/en /leb/treaty.htm> (date accessed on Oct 5,2004) [hereinafter the Tokyo Convention].
42 Article Il (1) : When a pers on on board has unlawfuHy committed by force threat thereof an act of
interfererlce, seizure, or other WTongful exercise of control of an aircraft in flight or when such an act is about
to be committed, '" .
43 See Nicolas Mateeso Matte, supra note 31 at 335; See A lona E. Evans, supra note 29 at 708; See also
Runwantissa I.R. Abeyratne, supra note 9 at 146.
44 See Nicolas Mateeso Matte, ibid. at 337.

15
flight. 45 In practice, no civil aircraft in flight can make an emergency landing for unlawful
acts against customs, financial, administrative laws, etc. and disembark or deliver the
violator to the 1anding State. A Iso, there is no p ossibility that any contracting State shall
permit the emergency landing of a civil aircraft in flight for those reasons.
On the other hand, in case of')eopardizing acts", if the aircraft commander, crew or
passengers on board an aircraft objectively believe that any act, without being offences, may
jeopardize the safety of the flight, the act is sufficient to be ')eopardizing acts".46 Prof.
Dr .Michael Milde explained "the acts" as follows:

ln the worst scenario it leads to criminal acts against the crew or other passengers (physical or verbal
assault or threats, various forms of intimidation, causing destruction or damage to property or equipment on
board, sexual assault or other misconduct). A less dramatic but potentially even more dangerous scenario is
represented by refusaI to follow instructions of the commander and of his crew for securing of safety of the
flight and of the persons on board (e.g., an order to retum to the seats and to fasten the seat belts, to refrain
from the use of any electronic devices, to stop smoking, to refrain from handling any aircraft equipment, etc).

Any such act necessarily leads to an interference with the crew's performance oftheir duties. 47

In order to apply the Convention, besides the above mentioned conditions are
fulfilled, Article 1(2) requires that the offences or acts should be committed by a person on
board an aircraft which is registered in a Contracting State and not used in military, customs
or police services,48 while that aircraft is in flight 49 or on the surface of the high seas or of
any other area outside the territory of any State.

B. Jurisdiction

Chapter Il of the Convention provides the jurisdiction over offences and acts

committed on board aircraft. Especially, Article 3 (1) stipulates:

45 But, Gerald F. Fitzgerald e xpressed the 0 pinion t hat 0 ther p enall aws a re applicable t 00, ifs anctions are
provided for t he violation, in h is e ssay "The D evelopment 0 f 1 ntemational Rules Conceming 0 ffences and
Certain Other Acts Committed on Board Aircraft" (1963) 1 Cano y. B. Int'l L. 236.
46 Article 6 of the Tokyo Convention; See Nicolas Mateeso Matte, supra note 31 at 335.
47 Michael Milde, "Unruly passengers and the law" in Milde, M. and Khadjavi, H., ed., Public International
Air Law (lAS L, Fall Term Course material (Vol. two)) (Montreal: McGill University, 2001) at 260.
48 Article 1(4) excludes the so called state aircraft, by stipulating that "this Convention shall not apply to
aircraft used in military, customs or police services."
49 The period of "in flight" is defined in Article 1 (3) and Article 5 (2) of the 1963 Tokyo Convention.

16
 1. The State of registration of the aircraft is competent to exercise jurisdiction over offences and acts
committed on board.

By adopting this provision, at last, the international community has a legal guide line to
solve the jurisdictional conflicts over an act of international nature such as hijacking among
States, and removes the p ossibility that the offender may go unpunished. This becomes a
sound legal basis for extra-territorial exercise of criminal jurisdiction extending ev en to
cases of flight within foreign airspace. 50 Therefore, under the international legal regime, no
matter where, by or against whom the offences or acts committed on board an international
aircraft can be puni shed by at least one State - the State of aircraft registration,51 although
third-party states may exercise their jurisdiction under certain cases. 52
AIso, to make aIl contracting States get ready to combat the unlawful acts when the
need arises, Article 3 (2) obliges each State to take necessary measures (e.g., the adoption of
an appropriate legislation, etc.) to establish its jurisdiction as the State of registration over
those a cts. Top rovide more 1egal g rounds 0 f j urisdiction 0 ver s uch u nlawful a cts a nd an
internationally accepted legal basis for the application of existing nationallaws, Article 3 (3)
clearly expresses that any form of criminal jurisdiction exercised by aState under its
nationallaw would still be available regardless ofthis Convention. 53

C. Powers of the Aircraft Commander and Others

Chapter III of the Convention empowers the aircraft commander, crew and

passengers with the necessary authority to combat "offences or acts" committed on board an
aircraft which may or do jeopardize the safety of the aircraft through use ofreasonable force
when required, without fear of subsequent retaliation through civil suit or otherwise.
Specifically, according to Article 6, the aircraft commander may: take reasonable
measures against any person on board who may or does jeopardize the safety of the aircraft,
including restraint ofthe person while in flight (para. 1); require or authorize the assistance of
other crew members; and request or authorize the assistance of passengers (para.2) for

50 See Runwantissa I.R. Abeyratne, supra note 9 at 149.

51 See A.I. Mendelson, "In-Flight Crime, The international and Domestic Picture under the Tokyo Convention"
(1967) 53:3 Va. L. Rev. 509 at 515.
52 Article 4 of the 1963 Tokyo Convention pro vides five cases.
53 See Robert P.Boyle & Roy Pulsifer, "The Tokyo Convention on Offenses and Certain Other Acts Committed
on Board Aircraft" (1964) 30 J. Air L. & Comm. 305 at 336; See also A.I. Mendelson, supra note 51 at 514.

17
certain objectives. 54 Even any crew or passenger may take reasonable preventive measures
without any authorization from the commander (para.2) when the danger of aircraft or
persons and property on board is clearly present. 55
AIso, in order to suppress any unlawful act which may or does jeopardize the safety
of aircraft, Articles 8 and 9 provide the aircraft commander with the authority to disembark
any person who commits or attempts to commit an act contemplated in Article 1(1) (b) in the
territory of any State in which the aircraft lands, and to deliver any person who commits an
offence provided in Article 1(1) (a) to the competent authorities of any contracting State. In
any event, the commander, c rew and p assengers who t ake r estraint actions in a ccordance
with this Convention are protected from any liability in civil, penal or other proceedings
taken by the person who has undergone such treatment (Article 10). This protection is given
to the aircraft commander and others to encourage to fight the unlawful acts contemplated by
the Convention. But, if there is abuse when the restraint measures are taken, liability could
be pleaded. 56

D. Powers and Duties of Contracting States

Chapter IV and V of the Convention stipulate the authorities and duties of the

contracting State in which an aircraft lands after "the offences or acts" provided in this
Convention occur, over any offenders that may be disembarked in the territory of that State
or delivered to its authorities, and over the aircraft and the passengers.
In detail, Article Il imposes certain obligations on the landing State to: take all
appropriate measures to restore or preserve the aircraft commander's lawful control of the
aircraft (para. 1); permit the passengers and crew to continue their joumey as soon as
practicable and retum the aircraft and its cargo to the persons lawfully entitled to possession
(para. 2). As mentioned above (in part "A. Scope of Application"), the question ofwhether a
particular aet is lawful or unlawful is to be judged by the laws of the State of aircraft
registration or the laws of the State in which the aireraft lands. 57 The words "appropriate
measures" are intended to mean only those things which it is feasible and lawful for a

54 Article 6 (1) pro vides the objectives as follows : (a) to protect the safety of the aircraft, or of pers ons or
property t herein; 0 r (b )to rnaintain good 0 rder and discipline 0 n board; 0 r ( c)to e nable h im t 0 d eliver su ch
~erson to competent authorities or to disembark him in accordance with the provisions ofthis chapter.
5 See Robert P.Boyle & Roy Pulsifer, supra note 53 at 340.
56 See Nicolas Mateeso Matte, supra note 31 at 344.
57 See Robert P.Boyle & Roy Pulsifer, supra note 53 at 345-348; See also Runwantissa I.R. Abeyratne, supra
note 9 at 151-152.

18
contracting State to dO. 58
AIso, Articles 12 and 13 impose other obligations on each contracting State. Article
12, a corollary to Articles 6 and 8 of the Convention, obliges the landing State to permit
disembarkation of the offender at the request of the commander. Article 13, another corollary
to the authority given to the aircraft commander under Articles 6, 7, and 9, requires the
landing State to take delivery of the offender from the aircraft commander (para. 1). Article
13 (2) requires the landing State, after it has taken delivery of the alleged offender, to take
custody of the person to ensure the presence of the alleged offender as long as such measures
are reasonably necessary to enable any criminal or extradition proceedings to be instituted,
only if it is satisfied that the circumstances warrant such action. Thus, the State is left free to
judge for itself whether the act is of such a nature as to warrant such action on its part and
whether the act is consistent with its law, since under this paragraph any such custody is to
be affected only pursuant to the law of the State taking custody.59
Furthermore, to protect the person delivered or in custody by calling the situation to
the attention of his/her government as well as the State of aircraft registration by advising it
of the offence or acts occurred on board, Article 13 requires the landing State which takes
delivery of the alleged offender to: make "a immediate preliminary enquiry,,60 into the facts
(para. 4); notify the interested States of the facts and report its findings to the c oncerned
States, indicating whether it intends to exercise jurisdiction (para. 5).

E. Extradition

Article 16 of the Convention provides that the Convention itself is not considered as
creating an independent obligation to grant extradition (para. 2). Thus, as there is no legal
system of mandatory extradition in the Convention, contracting States are obliged to
extradite the offenders, if at all, only under provisions of extradition treaties among them.
But, e ven t hough t his loophole i s c onsidered a sone 0 f major f ailings 0 ft he Convention,
1aking into account the fact that Paragraph 2 is intentionally provided as a compromise: to
calm the fears of States which regarded that the introduction of mandatory extradition would
divest member States of their sovereign rights to determine whether to grant political asylum

58 See Robert P.Boyle & Roy Pulsifer, Ibid.

59 Ibid.
60 Robert P. Boyle explained "preliminary enquiry" as follows: "it is not the same in all legal systems of the
world. Although no exact agreement as to the meaning of the phrase as used in the Convention was achieved,
the provision appears desirable on the theory that sorne prompt enquiry, formaI or informaI, into the
circumstances is a desirable thing in principle and, since a report of the enquiry is required, in most cases it
shouid operate as a protection to an individuai who had been "delivered" to the authorities of a contracting
State": Robert P.Boyie & Roy Puisifer, supra note 53 at 348.

19
to a hijacker; and to recelVe more support from States, it IS necessary to evaluate the
introduction of "para. 1":

Offences committed on aircraft registered in a Contracting State shaH be treated, for the purpose of
extradition, as if they had been committed not only in the place in which they have occurred but also in the
territory of the State of registration of the aircraft.

By introducing this provision in the Convention at the time when the principle of absolute
sovereignty was strongly advocated, on the one hand, the Convention removes the bilateral
nature of extradition treaties, according to which offences must be committed on the territory
of the State that requests extradition. On the other hand, the provision of extradition
represents a legal basis t 0 cover those situations in countries that do not have extradition
procedures. 61

F. Conclusion

The Tokyo Convention of 1963 has considerable legal weaknesses, mainly resulting
from the compromise between what needed to be done to curb aircraft hijackings and what
could be do ne to achieve subsequent ratification by a large number of States with important
aviation interests. 62 First of aIl, Article 3 does not impose any dut y on the State of aircraft
registration to exercise the given jurisdiction. Second, Article 1 does not define the
"offences" and "acts" falling in the Convention. Third, the Convention's application is
confined to unlawful acts committed on board an aircraft (Article 1 and 3). Thus, an act of
sabotage that occurs before the aircraft departs does not fall within the Convention's scope. 63
Fourth, the Convention does not create an obligation with respect to extradition of offenders.
Fifth, the sole jurisdiction of the State of registry is not the best solution in the rapidly
changing economic reality, since a high percentage of aircraft is registered in one State but
operated in another State bound by the "lessor-Iessee" relationship under the terms oflease. 64
However, in spite of the above mentioned several shortcomings, the Tokyo
Convention should be properly evaluated for the contribution to the development of public
international air law and to the safety of civil aviation from any intentional dangers by

61 See Nicolas Mateeso Matte, supra note 31 at 349; See also R.1. Smith McKeithen, "Prospects for the
Prevention of Aircraft Hijacking through Law" (1970) 9 Colum. J. Transnat'l 1. 60 at 68.
62 See Robert P.Boyle & Roy Pulsifer, supra note 53 at 353.
63 See Paul Stephen Dempsey, "Aviation Security: The Role of Law in the War against Terrorism" (2003) 41
Colum. J. Transnat'l 1. 649 at 665-666.
64 See Michael Milde, supra note 26 at 147; See also Runwantissa I.R. Abeyratne, supra note 9 at 153.

20
introducing the f oundation for i ntemational a greements a iming a t p reventing the 0 ffences
from remaining unpunished in particular with respect to criminal jurisdiction, and the
powers of the aircraft commander.

3. The Hague Convention of 1970

A. Introduction

The increased number of acts of unlawful interference against civil aircraft in the
late 1960s as well as the inadequacy of the Tokyo Convention which mainly arose from the
reality that it was drafted at the time when there were few hijackings, created a manifest
necessity for new measures to cope with the newly changing unlawful acts against civil
aviation. 65 The statistics on hijackings from January 1, 1964 to December 31, 1970, as
follows, show the urgency66:

< Worldwide Hijackings >

Year World Wide Hijackings U.S. Other Countries

1964 2 1 1

1965 5 4 1
1966 5 1 4
1967 6 1 5
1968 35 20 15
1969 88 37 51
1970 83 27 56
Total 224 91 133
Specifically, the dimensions of the aerial hijacking problems through the 1960s
expanded from a regionally limited, US-Cuban, inter American or Caribbean, problem 67 to a

65 See Sami Shubber, "Airera ft Hijaeking under the Hague Convention 1970-A new Regime?" (1973) 22
I.C.L.Q. 687 at 687-689; See Edward MeWhinney, supra note 3 at 40-41; See also Paul Stephen Dempsey,
supra note 63 at 654 and 666.
66 This data includes international and domestie hijaekings as well as attempts: Alona E. Evans, "Airera ft
Hijaeking: What is Being Done" (1973) 67 AJ.I.L. 641 at 641-643; David G. Hubbard, supra note 29 at 257-
262; Peter SUohn, supra note 1 at 210-213.
67 Paul Stephen Dempsey presented the data in his book "Law and Foreign Poliey in International Aviation"
(New York: Transnational Pub., 1987) at 355 and in his Article, supra note 63 at 655, as follows: during 1968-
1969, the pereentage of hijaekings to Cuba took 80% of the total worldwide hijaekings. But, during the
following years in 1970-1971, the figure was 41 % and after that period, the pereentage began to de cline rapidly.

21
more genuinely world-wide problem affecting equally a number of countries with differing
political-ideological bases. 68 From 1969, the number of wOrldwide hijackings began to
exceed those originating in the United States again. 69 AIso, from 1968, the character and
motivation of the offences, committed usually for what may be described as "personal" or
"private" objectives (by fugitive from justice, the escapee from an oppressive society, the
real or alleged political offender, the homesick political refugee, the mentally deranged
person), evolved into the weapon of persons acting for "public" or political reasons. 70
The increasing incidence of hijackings beginning in 1968 led to new measures
designed toc ombat t his e merging menace. A s a r esult, the 1 6th ICAO Assembly, h eld in
Buenos Aires on September 3-28, 1968, adopted Resolution A16-37 on this matter. 7 ! This
resolution requested that the Council of ICAO institute a study of proper measures to cope
with the problem of unlawful seizure of aircraft. Following this step, the Legal Committee
prepared an outline of the Convention and presented it to the Diplomatie Conference held in
Hague on December 1-16, 1970. 72 As the international community was under pressure with
a sense of urgency about the need for international measures to control the offenses, mainly
resulted from the PFLP's hijacking spree in September 197073 which occurred immediately
before the Conference, the Conference reached a speedy conclusion of the Hague
Convention on December 16, 1970. 74

B. Scope of Application

While Article 1 of the Tokyo Convention: does not define the offences at an
internationallevel; does not explicitly explain the nature of the offences75 ; and only applies

68 See Edward Mc Whinney, supra note 3 at 40-41.

69 See Alona E. Evans, supra note 66 at 644.
70 Ibid. at 644 - 645.
71 ICAO Doc.8776 (Assembly Res. A16-37, 1968) at 92.
72 Edward McWhinney, supra note 3 at 44; Nicolas Mateeso Matte, supra note 31 at 354-356; Runwantissa I.R.
Abeyratne, supra note 9 at 156-157.
73 The Popular Front for the Liberation ofPalestine(PFLP) hijacked four aircrafts (TWA 707, Swiss Air DC-8,
Pan Am 747, BOAC VC-10) to "Dawson's field" in Jordan on September 6-September 9, 1970 and blew up the
four aircrafts in full view of media cameras. This was the first extensively televised terrorist hijackings: See
Narinder Aggarwala, supra note 1 at 8; See Kathleen M. Sweet, Terrorism and Airport Security (Lewis ton,
N.Y.: Edwin Mellen Press, Symposium Series Vo1.68, 2002) at 23; See Rodney Wallis, How safe are our
Skies?: assessing the airlines'response to terrorism, (Wesport, Conn.; London: Praeger, 2003) at 60-61; See
also Peter, St. John, supra note 1 at 24-25.
74 Convention for the Suppression of Unlawfu! Seizure of Aircrajt, 16 December 1970(Hague), ICAO
Doc.8920 (entered into force on October 14, 1971 and ratified by 177 States as at October, 2004): See "ICAO
List and Status of International Air Law Multilateral Treaties" on line: ICAO <www.icao.int/cgi/gotoll1.pl?/
icao/en /leb/treaty.htm> (date accessed on Oct 5, 2004)[hereinafter cited as the Hague Convention].
75 See Alona E. Evans, supra note 30 at 708; See also Runwantissa I.R. Abeyratne, supra note 9 at 146 and 158.

22
in respect of "acts" regardless of wh ether or not the acts are offences, Articles 1 and 3 of the
Hague Convention specify the acts constituting "the offences" and show the Convention's
applicable scope as follows:

Article 1
Any pers on who on board an aircraft in flight:
(a) unlawfully, by force or threat thereof, or by any other forrn of intimidation, seizes, or exercises
control of, that aircraft, or attempts to perform any such act, or
(b) is an accomplice of a person who performs or attempts to perform any such act
commits an offence.

Article 3
1. For the purpose of this convention, an aircraft is considered to be in flight a t any time from the
moment when all its external do ors are closed following embarkation until the moment when any such door is
opened for disembarkation. In case of a forced landing, ....
2. This Convention shall not apply to aircraft used in rnilitary, customs or police services.
3. This Convention shall apply only if the place oftake-off or the place of actuallanding of the aircraft
on board w hich the offence is committed i s s ituated outside the territory of the State 0 f registration of that
aircraft; it shall be immaterial whether the aircraft is engaged in an international or domestic flight.

As far as the conditions in Article 1 are concemed, the offence must be committed
by any person "on board an aircraft" in flight. Therefore, like the Tokyo Convention, the
Hague Convention excludes the offence committed by any person not on board the aircraft
such as saboteurs who remain on the ground. 76 Furthermore, owing to the conditions in
Article 1 (1), the Convention only applies to accomplices who are also onboard an aircraft in
flight, and n ot t 0 t hose who m ay b e 0 n the g round a iding a nd a betting the 0 ffence, e ven
though it is obviously possible to be an accomplice without being on board an aircraft. 77
According to the expression "in flight" in the Article 3 (1) which only repeats
Article 5 (2) of the Tokyo Convention, the Hague Convention is not applicable to any
hijacking initiated or attempted before the closing or after the opening of the aircraft doors.
As a consequence, such acts are punishable only under the general criminallaw or air law of

76 See R.H.Mankiewicz, "The 1970 Hague Convention" (1971) 37 1. Air L. & Corn. 195. at 200; See Chung,
D.Y., Sorne Legal Aspects of Aircraft Hijacking in International Law (LL.M. Thesis, University of Tennessee,
1976) at 150 ; See also Runwantissa I.R. Abeyratne, supra note 9 at 158-159.
77 See R.H.Mankiewicz, Ibid.; See also ICAO Doc.9050 LC/169-2 at 72.

23
the State where committed. 78
AIso, Article 3 (3) requires the offence to be committed on board during flight with
"international character". Thus the Convention is inapplicable to domestic flights within the
State of aircraft registration. On the other hand, if the place of take-off or the actual land ing
place of the aircraft is different from the State in which the aircraft is registered, regardless
of an international or domestic flight, the Convention is applicable. Article 3 (2) excludes
from its application aircraft used in military, customs or police services.

C. Jurisdiction

In order to assure effective control of the unlawful acts against civil aviation and to
prevent each State from being used as an available safe heaven for the offender or the
alleged offender, Article 4 stipulates the applicable jurisdiction as follows:

1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction
over the offence and any other act of violence against passengers or crew committed by the alleged offender in
connection with the offence, in the following cases:
(a) when the offence is committed on board an aircraft registered in that State ;
(b) when the aircraft on board which the offence is committed lands in its territory with the alleged
offender still on board;
(c) when the offence is committed on board an aircraft leased without crew to a lessee who has his
principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.

To begin with, to provide internationally accepted legal basis for the jurisdiction
over such unlawful acts, Article 4 significantly enlarges the applicable States which are
entitled to establish the jurisdiction over the offence and extends the applicable scope of
j urisdiction.
Specifically, Article 4 provides the various competent jurisdictions over the offence
and any other act of violence. The lists are as follows: first, the State of aircraft registration;
second, the State of landing if the offender is on board the aircraft; third, any party to the
Convention within who se boundaries the alleged offender is present. 79
Article 4 (1) requires each contracting State to establish jurisdiction over "any other
act of violence", in addition to establishing its jurisdiction over the offence. Article 4 (1) (b)
gives each contracting State a legal instrument to extend the basis of its jurisdiction under

78 See R.H.Mankiewicz, supra note 76 at 200-201.

79 Nicolas Mateeso Matte, supra note 31 at 358-360; Runwantissa I.R. Abeyratne, supra note 9 at 160.

24
international law by providing the jurisdictional power to the State of landing with the
offender 0 n board, 0 therwise c ontracting States may 1ack a ny 1ink b etween t hem and the
situations. 80 AIso, taking into account the increasing number of aircraft leased without crew,
Article 4 (1) (c) requires the State of the principal place of business or permanent residence
of the lessee of an aircraft to establish its jurisdiction. 81
Furthermore, in order to increase the possibility of effective punishment no matter
where the offence took place as long as the alleged offender is present in a Contracting State,
Article 4 (2) requires each contracting State to take necessary measures to establish its
jurisdiction over the offence in the case where the alleged offender is present in its territory
and it does not extradite him pursuant to Article 8 to any of the States mentioned in
paragraph lof t his Article. Therefore, b y r equiring a 11 States w hich have sorne points 0 f
contact with the offence to prosecute or extradite the alleged offender, this provision seems
to introduce the princip le of "universal jurisdiction" into the Hague Convention, even though
it is not the same thing as "univers al jurisdiction" because it cornes from the obligation to
institute legal proceedings and not from a specifie provision. 82

D. Powers and Duties of States

(a) Severity of the Penalty

Article 2 requires that "each Contracting State undertake to make the offence
punishable by severe penalties." Thereby, contracting States are obliged to include the
offence in their national legislation, under their criminal law. However, as the Convention
does not specify minimum penalties on the part of contracting States with the consideration
that such a prescription would unduly interfere with the sovereignty of State and this would
result in hampering the effort to attract the maximum number of ratification,83 each
contracting State is only under the obligation to apply the penalties stipulated within the
exclusive jurisdiction of each State and in the mIes of domestic law that would be applicable
to serious offences occurring within its border with the consideration of Article 7 of the
Convention. 84 Furthermore, the concept of "severe penalty" is apt to differ from one State to

80 See Runwantissa I.R. Abeyratne, ibid.

81 See R.H.Mankiewicz, supra note 76 at 203-204.
82 Nicolas Mateeso Matte, supra note 31 at 359-360; Runwantissa I.R. Abeyratne, supra note 9 at 160.
83 Abraham Abramovsky, "Multilateral Conventions for the Suppression ofUnlawful Seizure and Interference
withAircraft, Part Il: The Montreal Convention" (1975) 14 Colum. J. Transnat'l L.268 at 295.
84 See Edward McWhinney, supra note 3 at 42; See Nicolas Mateeso Matte, supra note 31 at 362; See also
Paul Stephen Dempsey, supra note 63 at 666.

25
the other. 85 As a result, the punishments are inconsistent among contracting States.

(b) Mandatory Legal Proceedings

To maximize the possibility of prosecution by preventing exoneration of the

offender who invokes political reasons for his act, Article 7 requires each contracting State to
take "mandatory legal proceedings,,86 in the following words:

The Contracting State in the territory of which the alleged offender is found shall, if it does not
extradite him, be oblige d, without exception whatsoever and whether or not the offence was committed in its
territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall
take their decisions in the same rnanner as in the case of any ordinary offence of a serious nature under the law
of that State.

According to Article 7, if a contracting State does not extradite the alleged

offender, the contracting State is under the obligation to submit the offence case to its
competent authorities "without exception whatsoever" as long as the offender is present in
the State. Once the case is submitted to the legal authorities, the last sentence of Article 7
requires the legal authorities to deal with the case in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State.
However, there is no agreed definition of "without exception whatsoever" among
States, though the United States, the Soviet Union, and several other States supported the
words "irrespective ofits motivation,,87 by insisting that "hijacking, whatever its motivation,
is universally a serious crime and is not a mere political offence.,,88 Taking into account the
following fact that: the adopting purpose of this provision is to encourage States to take legal
proceedings for politically motivated offences and not to create a safe heaven for any
offender89 ; and, to respect sovereign discretion in these matters, Article 7 only requires each
contracting S tate t 0 s ubmit the case toi ts 0 wn legal a uthorities t 0 d etermine w hether the
offence is acceptable or not to take legal proceedings for the prosecution and Article 7 does
not oblige the State to prosecute the alleged offender, the phrase "without exception
whatsoever" should be interpreted as "whatever the offender's motives for acts of unlawful
interference with civil aviation" to respect the adopting intention of Article 7 which resulted

85 See Nicolas Mateeso Matte, supra note 31 at 364-365.

86 Ibid.
87 R.H.Mankiewicz, supra note 76 at 204-206.
88 Nicolas Mateeso Matte, supra note 31 at 361.
89 See Michael Milde, supra note 26 at 148; See also Nicolas Mateeso Matte, ibid. at361-362.

26
from the compromIse among States at the Diplomatic Conference held in Hague on
December 1-16, 1970.
Also, considering that the last sentence of Article 7 only requires the competent
authorities to deal with the case "in the same manner as in the case of any ordinary offence
of a serious nature under the law of that State," aState may lawfully refuse to prosecute the
alleged offender who the State does not want to extradite, if the competent authorities
consider that the prosecution is inappropriate for any reason. 90
Conclusively, the legal proceedings in Article 7 are only mandatory to the extent
that the legal authorities judge it to be necessary.91 But, to respect the adopting objectives of
Article 7, "either extradite or present the case for prosecution, but do not create a safe
heaven for any offender,,,92 it is necessary for each contracting State to show good will to
control the matter.

(c) Other Rights and Obligations

Articles 6, 9, and 12 of the Convention generally reiterate Articles 13, Il, and 24
of the Tokyo Convention. But, compared to Article Il (2) of the Tokyo Convention which
passively requires contracting States to: "permit" the passengers and crew to continue their
journey; return the aircraft and its cargo to the persons lawfully entitled to possession
without making any specification as to the timing, Article 9 (2) of the Hague Convention
actively requires contracting States to "facilitate" the continuation of the journey and to
return the aircraft and its cargo "without delay".93 Thus, the importance of passenger and
crew safety, and the speedy restoration of the aircraft are more emphasized in Article 9 of the
Hague Convention than in Article 13 of the Tokyo Convention. 94
Article la requires contracting States to provide mutual assistance among
contracting States in connection with criminal proceedings brought in respect of the offence
and other acts mentioned in Article 4. Also, taking into account the fact that "a permanent
Committee on Unlawful Interference with International Civil Aviation was established by the
ICAO Council on April la, 1969, with a mandate to collect and centralize information on
hijackings and to promote possible preventive action,,,95 Article Il obliges each contracting

90 See R.H.Mankiewicz, supra note 76 at 204-206.

9\ See Edward McWhinney, supra note 3 at 43; See a1so Nicolas Mateeso Matte, supra note 31 at 364.
92 See Michael Mi1de, supra note 26 at 148.
93 See Edward McWhinney, supra note 3 at 44; See a1so William Mutz, Civil Aviation Security and the Law
(LL.M. Thesis, Montreal, McGill University, 1981)[unpublished] at 183.
94 See Nicolas Mateeso Matte, supra note 31 at 365.
95 R.H.Mankiewicz, supra note 76 at 207.

27
State to report promptly to the ICAO Council: any relevant information concerning the
circumstance of the offence; the action taken pursuant to Article 9; the measures taken in
relation to the offender; and, in particular, the results of any extradition proceeding or other
legal proceedings.
As a result of Articles 10 and Il, the response of each contracting State to acts of
unlawful seizure of aircraft is subject to international scrutiny, although no sanction has been
introduced in the case ofnoncompliance. 96 Therefore, Articles 10 and 11 indirectly put each
contracting State under the obligation to show good will as a sound member of the
international community by prosecuting or extraditing the offender of unlawful acts
committed on board, unless each State intends to lose national face.

E. Extradition

As each State has the sovereign discretion to grant asylum on the ground that: the
offence committed is of a political nature; or, there is no existence of an extradition treaty
between the requesting and requested States; or, if any, there is no provision for the unlawful
acts against civil aviation in it, the extradition of the offender has failed, frequently.97 To
assure the effective suppression of the offence by increasing the possibility of extradition,
the international community introduced a new extradition provision (Article 8) into the
Convention as follows:

1. The offence shan be deemed to be included as an extraditable offence in any extradition treaty
existing between Contracting States. Contracting States undertake to include the offence as an extraditable
offence in every extradition treaty to be concluded between them.
2 .... , it may at its option consider this Convention as the le gal basis for extradition in respect of the
offence .... .
3. C ontracting States ... sh an r ecognize the 0 ffence a san e xtraditable 0 ffence b etween t hemselves
subject to the condition provided by the law of the requested State.
4. The offence shan be treated, for the purpose of extradition between Contracting States, as if it had
been committed not only in the place in which it occurred but also in the territories of the States required to
establish their jurisdiction in accordance with Article 4, paragraph 1.

Article 8 (1) declares the unlawful seizure of aircraft as "an extraditable offence" in
any existing extradition treaty and requires contracting States to include the offence in every

96 See Michael Milde, supra note 26 at 148.

97 See William Mutz, supra note 93 at 181-182; See also R.L. Smith, McKeithen, supra note 61 at 68.

28
new extradition treaty among them. 98 Furthermore, Article 8 (2) authorizes contracting
States to use this Convention as the legal basis for extradition, in the absence of such a
bilateral or multilateral agreement binding the States concerned. 99 AIso, according to Article
8 (4), extradition is open to an concerned States stipulated in Article 4 (1).
Thus, extradition becomes more feasible than before among an contracting States.
But, as the Convention does not adopt mandatory extradition and States still maintain their
traditional sovereign right to grant asylum, the requested State may lawfully refuse to
extradite the alleged offender to the requesting State. IOO In this case, according Article 7, the
requested State is only under the obligation to present the case to its competent authorities
for the purpose of prosecution.

F. Conclusion

There are a few inadequacies in the Hague Convention. First of aIl, the Convention
does not address the issue of aircraft sabotage committed on the ground, nor does it cover
unlawful interference with air navigation facilities and services such as airports, radio
communications. lOI Second, the Convention only refers to "severe penalties", but does not
define the term nor provide certain guideline for "severe penalties".
But, in order to create a uniform system of deterrence to the unlawful acts against
civil aviation, the Hague Convention has enlarged the number of States competent to
exercise jurisdiction over the offence by introducing the princip le of "universal jurisdiction".
AIso, the Convention requires contracting States to: either extradite or present the offender to
their authorities; provide assistance to other contracting States in relation to the criminal
legal proceedings; and report the results of any extradition or other legal proceedings to the
ICAO Council. These legal measures aim to prevent each contracting State from being an
available safe haven for any offender, and to put the responses of States on the offence under
international scrutiny.102
Therefore, considering the contribution to the safety of civil aviation against any
intentional danger by introducing the above provisions into the Convention and by giving an
impetus to each State to develop its domestic legislation to cover the unlawful acts against
civil aviation on a world wide basis, the Hague Convention deserves to be properly
evaluated as a significant step in the development of aviation security system under the

98 See Edward McWhinney, supra note 3 at 43; See also Nicolas Mateeso Matte, supra note 31 at 363.
99 See Edward Mc Whinney, Ibid.
100 See William Mutz, supra note 93 at 181-182; See also Runwantissa I.R. Abeyratne, supra note 9 at 162-163.
101 See R.H.Mankiewicz, supra note 76 at 209.
102 See Michael Milde, supra note 26 at 148.

29
internationallegal regime. 103

4. The Montreal Convention of 1971

A. Introduction

While the Hague Convention was being prepared in 1970, the international
community experienced a wave 0 fa cts 0 f sabotage t 0 a ircraft in flight a nd a t a irportS. 104
From 1970, while the total number of aircraft hijackings was decreasing, largely attributed to
the signing of the 1973 United States-Cuba Memorandum of Understanding to prosecute
hijackers destined for U.S. and Cuba, the sabotage of aircraft by using bombs designed to
exp Iode during flight and the incidents of terrorism at airport ground facilities began to
occur. 105 The statistics on the acts of unlawful seizure and sabotage from January 1, 1969 to
December 31, 1980, are as follows 106 :

< Acts ofUnlawful Seizure >

Year 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980

Number 73 49 38 43 17 13 11 13 18 13 16 29

< Acts of Sabotage>

Year 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980

Number 0 13 3 13 12 20 24 28 31 11 11 8

Facing newly emerging intentional dangers against civil aviation, the international
community recognized the main deficiency in the Hague Convention which applies only to
"unlawful seizure committed on board aircraft" while a large number of acts of violence on
airports and air navigation facilities began to occur. Thus, even before the Hague Diplomatic
Conference took place (December 1-16, 1970), the 1i h session of the ICAO Assembly, he Id

103 See Abraham Abramovsky, "Multilateral Conventions for the Suppression of Unlawful Seizure and
Interference with Aircraft, Part 1: The Hague Convention" (1974) 13 Colum. J. Transnat'l L.381 at 405; See
Nicolas Mateeso Matte, supra note 31 at 361; See also Runwantissa I.R. Abeyratne, supra note 9 at 164.
104 See Michael Milde, supra note 26 at 148-149.
105 See Paul Stephen Dempsey, supra note 63 at 669.

106 ICAO Doc.9506, "Annual Report of the Council-1986", Chapter Vll.Aviation Security at 105.

30
in Montreal in June 1970, took steps towards drafting the Montreal Convention by resolving
to establish a special committee to prepare a draft Convention goveming the commission of
acts of sabotage against civil aircraft. 107 Though there was a suggestion to delay the
adoption of the Hague Convention and to draft one single Convention covering both
unlawful seizure of aircraft and acts of sabotage, it was rejected on the fear that the political
momentum would be lost for the Hague Convention. 108 As a result, while the ICAO legal
commÏttee was working on a new draft for acts of sabotage, the Hague Convention was
adopted as scheduled in December, 1970. Finally, nine months later after the adoption of the
Hague Convention, "The 1971 Montreal Convention" 109 was adopted at a diplomatie
conference held in Montreal on September 8-23, 1971 without few substantive difficulties
because the legal committee inc1uded most of the structures and the main principles agreed
upon in the Hague Convention into the new Convention. 1 10

B. Definition of the Offence

While the Tokyo Convention did not define specifie offences and the Hague
Convention defined only the offence of unlawful seizure of aircraft, the Montreal
Convention defines and enumerates the offences of unlawful interference with civil aircraft
in Article 1 as follows:
1. Any person commits an offence ifhe unlawfully and intentionally:
(a) performs an act of violence against a pers on on board an aircraft in flight if that act is likely to
endanger the safety of that aircraft; or
(b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of
flight or which is likely to endanger its safety in flight; or
(c) places 0 r causes t 0 b e places 0 n a n a ircraft in service, b y a ny means whatsoever, a d evice 0 r
substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight,
or to cause damage to it which is likely to endanger its safety in flight; or
(d) destroys or damages air navigation facilities or interferes with their operation, if any such act is
likely to endanger the safety of aircraft in flight; or
(e) communicates information which he knows to be false, thereby endangering the safety of an

\07 Nicolas Mateeso Matte, supra note 31 at 368-369; R.H.Mankiewicz, supra note 76 at 209.
\08 Michael Milde, supra note 26 at 148-149.
\09 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971

(Montreal), ICAO Doc.8966 (entered into force on January 26, 1973 and ratified by 180 States as at October,
2004): See "ICAO List and Status of International Air Law Multilateral Treaties" on line: ICAO
<www.icao.int/cgi/gotom.pl?/icao/en/leb/treaty.htm> (date accessed on October 5, 2004) [hereinafter cited as
the Montreal Convention].
llO Michael Milde, supra note 26 at 148-149.

31
aircraft in flight.
2. Any pers on also commits an offence ifhe:
(a) attempts to commit any of the offences mentioned in paragraph 1 ofthis Article; or
(b) is an accomplice of a pers on who commits or attempts to commit any such offence.

Before analyzing each paragraph in detail, it should be noted that in order for an act
to constitute the offence in this Convention, at least two elements are required. lll First, all
the offenses enumerated commonly require the unlawfulness and the intention. Second, an
act must be of a nature likely to endanger the safety of an aircraft in flight, regardless of
whether the act is committed on board an aircraft in flight as well as whether the gravit y or
heinous of the act exists.
To begin with, as Article 1 (1) (a) employs the term "violence", any act of violence
which is perpetrated against a person on board an aircraft in flight and which is likely to
irtterfere with the safety of that aircraft, falls within the scope of the offence, regardless of
112
whether a weapon is used or not. In the case of attacks upon cabin crew and passengers
on board a flight, especially such situations as a fist fight, sexual assault or various forms of
intimidation between two passengers, disputes may arise whether such attacks may interfere
with the safety of the aircraft or not. One may argue that "such acts do not directly endanger
the safety of the aircraft and, hence, do not come within the ambit of the Convention."l13
But, since such acts cause the tumult and panic in the cabin and necessary lead to an
interference with the crew's performance of their duties, the acts may place within the scope
of the offence in Article 1. Prof. Dr. Michael Milde explained the reasons in the following
manner l14 :
To r estore 0 rder 0 n board, the flight c rew may have toI eave t heir position a t the c ontrols 0 ft he
aircraft to assist the cabin crew and thus their ability to perform their duties is lessened, the good order and
discipline on board and the safety of flight are jeopardized.

Article 1 (1) (b) encompasses attacks both from within and without an aircraft to
deter and penalize acts of sabotage perpetrated against aircraft itself. "Destruction" refers to
substantial destruction of an aircraft beyond the possibility of rendering it airworthy through
repairs. "Damage" includes any damage which renders an aircraft incapable of flight or

III See Abraham Abramovsky, supra note 83 at 283.

112 Ibid.
113 Ibid. at 285.
114 Michael Milde, supra note 47 at 260.

32
endangers its safety in flight. 115
Article 1 (1) (c), in using the phrase "by any means whatsoever", attempts to
encompass aU situations in which explosives or other incendiary devices are placed or
caused to be placed on board an aircraft. "Places or causes to be placed" includes the
foUowing cases that such dangerous items are carried on board by the perpetrator of the act
or any unwitting accomplice, sent on board in air cargo or by mail, or even attached to the
outside of an aircraft before it undertakes its journey.116
Article 1 (1) (d) focuses on the destruction or damage of air navigation facilities for
the safety of aircraft in flight, but does not specify the scope of air navigation facilities.
However, considering that the drafters' intention and Article 4 (5) of this Convention restrict
the scope of air navigation facilities, the scope of air navigation facilities is restricted to
airports, radio and meteorological services used in international flights as stipulated in
117
Article 28 (Air navigation facilities and standard systems) of the Chicago Convention.
Article 1 (1) (e) attempts to deter and penalize those individuals who communicate
false information for pecuniary gain, political blackmail, social upheaval, or as practical
jokes. ll8 To be the offence, this paragraph requires that the person must know that the
information is false. Thus, the communication of useful information concerning a possible
disaster when the information is given in good faith though premised on error shaU not be
the offence. One may argue'that "False bomb alerts, which cause only delay and no damage
to the aircraft, are not covered. False alarms thus remain outside the Convention's reach.,,119
But, considering the foUowing facts: that false alerts usuaUy force an aircraft in the air to
make an emergency landing and the unscheduled emergency landing has always the
possibility to put an aircraft in flight under danger; and that the objective ofthis paragraph is
to restrain such acts which definitely interfere with the orderly conduct of commercial air
services, the faIse bomb alert may also place within the scope of the Convention.
AIso, according to Article 1 (2), an attempt to commit one of the offences listed in
the paragraph 1, as weU as the case ofbeing an accomplice to commit or attempt to commit
any such act constitutes an offence.

c. Scope of Application

115 See Gerald F. Fitzgerald, "Toward Legal Supression of Acts Against Civil Aviation" in Air Hijacking: An
International Perspective (New York: Carnegie Endowrnent for International Peace (No.585), November 1971)
at 68; See also El-Muner EI-Harudi, supra note 2 at 66.
116 See Gerald F. Fitzgerald, Ibid.
117 SeeAbrahamAbramovsky, supra note 83 at 286; See also William Mutz, supra note 93 at 187.
118 See Abraham Abramovsky, Ibid.
119 I.H.Ph. D iederiks-Verschoor, AnI ntroduction to A ir Law, 6 th revised e d. (The N etherlands: Kluwer Law
International, 1997) at 216.

33
 In addition to repeating the tenn "in flight" which was defined in the Tokyo and
Hague Conventions, Article 2 adopts a new tenn "aircraft in service" to enlarge the scope of
the Convention in relation to the newly emerging threats which can be committed without an
offender being on board an aircraft. Article 2 (b) defines "aircraft in service" as follows:

An aircraft is considered to be in service from the beginning of the preflight preparation of the aircraft
by ground personnel or by the crew for a specific flight until twenty-four hours after any landing. The period of
the service shaH, in any event, extend for the entire period during which the aircraft is in flight as defined in
paragraph (a) ofthis Article.

Thus, the tenn "in service" covers such acts as the bombing of and discharge of
weapons against an aircraft on the ground, as weIl as similar acts against an aircraft in flight,
whether or not the acts were committed by a person on board or outside the aircraft. 120 AIso,
the Convention provides additional protection to an aircraft, which has to have stopovers in
several countries before resuming its return flight and becomes the object of a seizure or any
other unlawful act. 121
In the light of the "in service" concept, Article 4 stipulates the exact scope of this
Convention. To begin with, Article 4 (1), like the Tokyo and Hague Conventions, excludes
aircraft used in military, customs or police services from the application of the Convention.
Article 4 (2) restricts the application of the Convention in respect of the offences
contemplated in Article 1 (a),(b),(c) and (e) only to international flights, unless the domestic
flight have international features as follows:

(a) the place of take-off or landing, actual or intended, of the aircraft is situated outside the territory of
the State of registration of that aircraft; or
(b) the offence is committed in the territory of aState other than the State of registration of the aircraft.

However, Article 4 (3), by stating that in the case of a domestic flight, "if the
offender or the alleged offender is found in the territory of aState other than the State of
registration of the aircraft, the Convention shaH aiso appIy," provides an exception to
paragraph 2, aiming at providing the jurisdiction to the State. 122

120 Runwantissa I.R. Abeyratne, supra note 9 at 165-166.

121 C.S.Thomas and M.J.Kirby, "The Convention for The Suppression of Unlawful Acts against The Safety of
Civil Aviation" (1973) 221.C.L.Q. 163 at 167-168; Nicolas Mateeso Matte, supra note 31 at 368-369.
122 See C.S.Thomas and M.J.Kirby, ibid.

34
 In the case of air navigation facilities contemplated in Article 1 (1) (d), Article 4 (5)
stipulates that "this Convention shall apply only if the air navigation facilities are used in
international air navigation." Thus, the sabotage of domestic air navigation facilities is
outside the scope of the Convention, notwithstanding the possibility that the saboteur of
123
domestic facilities may be found in another State.

D. Common Provisions with the Hague Convention

(a) Jurisdiction

Article 5 (1) requires each contracting State to take necessary measures to establish
its jurisdiction over the cases contemplated in: subparagraphs (b), (c) and (d) which are the
same as those contained in Article 4 of the Hague Convention; and subparagraph (a) of
"wh en the offence is committed in the territory of that State." The fourth case just reaffinns
and codifies the traditional jurisdictional basis of territoriality.124
In the case of Article 5 (1) (c), providing that "when the aircraft on board which the
offence is committed lands in its territory with the alleged offender still on board", it should
be noted that, while in the cases contemplated by the Hague Convention the perpetrator is
necessarily on board the aircraft, the offender contemplated by the Montreal Convention
needs not be on board. 125 Furthennore, in the case of seizures of aircraft, the landing State
may base its exercise of jurisdiction in part upon the fact that "the hijacking offence is a
continuing one."
Article 5 (2) and (3) of the Convention are patterned after and are identical to the
corresponding provisions (Article 4 (2) and (3)) in the Hague Convention. However, while
the provisions in the Hague Convention only apply to a flight which has international
elements, Article 5 (2) of the Montreal Convention, "the limited univers al jurisdiction", is
also applicable to a domestic flight according to Article 4 (3), "if the offender or the alleged
offender is found in the territory of aState other than the State of registration of the
aircraft. ,,126
As Article 5 empowers at least five States to exercise concurrent jurisdiction over
the offences and the Montreal Convention does not provide a system of priorities in the
exercise of jurisdiction like the Hague Convention, disputes between States competing for

123 Ibid.; See also Runwantissa I.R. Abeyratne, supra note 9 at 170.
124 See Abraham Abramovsky, supra note 83 at 289-291.
125 Ibid.
126 See CS.Thomas and M.J.Kirby, supra note 121 at 169.

35
jurisdiction may arise. In practice, the State which first apprehends the alleged offender
exercises the primary j uri sdiction. 127

(b) Prosecution and Extradition

The provisions for prosecution and extradition in the Montreal Convention

correspond with those embodied in the Hague Convention in the interests of conformity and
to avoid unnecessary conflict between the two Conventions. 128 Article 7 of the Montreal
Convention, requiring the contracting State to either extradite the alleged offender or take
mandatory legal proceedings, is identical to its predecessor, Article 7 of the Hague
Convention. Also, the provisions of Article 8 of the Montreal Convention are pattemed after
Article 8 of the Hague Convention and the rationale underlying the extradition provisions in
both Conventions is identical. The only difference between the two Articles is that, while the
Hague Convention deals with the unlawful seizure of aircraft, Article 8 of the Montreal
Convention encompasses aU the offences delineated in Article 1 within its scope.

(c) Other Provisions

Article 12 newly obliges the contracting State to provide any advance

information relating to the offences mentioned in Article 1 to the concemed States to take
preventive security measures. Beyond the above mentioned provisions, the Montreal
Convention repeats the Hague Convention provisions relating to: the taking of the alleged
offender into custody; the continuation of the joumey of the passengers and the crew as weIl
as restoration of the aircraft to its lawful commander; the judicial assistance between States
in connection with criminal proceedings; the reporting obligation to the ICAO Council
relating to an unlawful act committed on, or against, an aircraft or air navigation facilities;
and the dispute settlement procedures.

E. Conclusions

While the Tokyo and Hague Conventions were exclusive1y concemed with acts or
offences committed on board an aircraft in flight, the Montreal Convention defines a variety
of acts as "offences" and adopts a new term "in service" to challenge a new wave of

127See Abraham Abramovsky, supra note 83 at 292-293.

128See C.S.Thomas and M.J.Kirby, supra note 121 at 169; See also Nicolas Mateeso Matte, supra note 31 at
370.

36
sabotage that can be committed without an offender being on board an aircraft. Even though
there were sorne concerns during the deliberations at the Montreal Diplomatie Conference
that "sorne of the acts defined do not necessarily contain a "foreign element", justifying
unification of law and establishing universal jurisdiction, and that such acts (e.g. destruction
of air navigation facilities) are fully rooted in the territory of one single State and do not
require international regulation,,,129 the Montreal Convention extends the applicable scope
of international Convention to the domestic fields, such as air navigation facilities.
However, beyond several new provisions, the Montreal Convention reproduces the
structure and the main principles of the Hague Convention to avoid prolonged discussions of
points already made at the Hague Diplomatie Conference, c onsidering the urgency of the
moment. 130 Thus, the Montreal Convention has almost the same weaknesses as the Hague
Convention.

5. The Montreal Supplementary Protocol of 1988

A. Introduction

The Tokyo, Hague and Montreal Conventions mainly focus on the offences against
a person on board an aircraft in flight or in service, though the Montreal Convention
introduced the air navigation facilities into the scope of the international le gal regime. In the
case of attacks against persons and airport facilities at international airports, it has been
believed that the unlawful acts are localized in the jurisdiction of the State and do not
contain any foreign element to make the subject suitable for an international unification of
law. l3l Thus, the unlawful acts are covered not by the previous Conventions, but by the
criminallaw of the State of the airport.
But, such attacks which endanger the safety ofpersons at airports or jeopardize the
safe operation of airports, have been a serious problem to the international community for
many years. From 1973 to 1985, more than 35 attacks occurred at international airports and
caused more than 117 deaths. 132 Especially, within the 1985 period al one, several various
attacks occurred at international airports. For example, an armed attack against aircraft at
Buffalo airport in New York in May, three bomb explosions in a departure lounge at

129 Michael Milde, supra note 26 at 148-149.

130 See Nicolas Mateeso Matte, supra note 31 at 370.
131 Michael Milde, supra note 26 at 150-151.
132 ICAO Doc. LC/SC-VIA-Report, Appendix C at p.25; EI-Muner EI-Harudi, supra note 2 at p.Il5;
Runwantissa I.R. Abeyratne, supra note 9 at 109.

37
Frankfurt Airport in June, in a baggage sorting area at Narita Airport in June and in a parking
lot at the Jorge Chavez Airport in Lima in December, and two armed attacks against
boarding passengers and the general public at Rome and Vienna airports in December. 133
Thus, these attacks gave a new impetus for the international community to
recognize the need to provide protection to international airports and prompted an initiative
at the 1986 ICAO Assembly to adopt a new instrument dealing with unlawful acts of
violence at airports serving international civil aviationY4 At last, on February 24, 1988, a
Diplomatie Conference held in Montreal adopted "The Montreal Protocol of 1988" 135 by
consensus as a supplementary document to "the Montreal Convention of 1971".

B. Scope of Application and Jurisdiction

Article Il (1) of the Protocol extends the definition of "offence" in Article 1 of the

Montreal Convention as follows:

(a) performs an act 0 fv iolence against a p erson a t an a irport s erving international civil aviation
which causes or is like1y to cause serious injury or death; or
(b) destroys or seriously damages the facilities of an airport serving international civil aviation or
aircraft not in service located thereon or disrupts the services of the airport, if such an act endangers or is likely
to endanger safety at that airport.

Also, even though the unlawful acts in the Protocol do not contain any foreign

element, A rticle III a dopts "the 1imited u niversal j urisdiction" in 0 rder t 0 assure effective

control of the unlawful acts against civil aviation and to prevent each contracting State from
being an available safe heaven for any offender.
But, even though the safety at an airport serving international aviation is one of the

133 FAA, "Aircraft Hijackings and other Criminal Acts against Civil Aviation: Statistical and Narrative
Reports" (Washington D .C.: U.S. D epartment 0 fTransportation(FAA), 1986) a t D 112: EI-Muner E I-Harudi,
supra note 2 at 115-119; Peter St. John, supra note 1 at 32-37 and 207-213.
134 EI-Muner El-Harudi, ibid. at 71-73; Michael Milde, supra note 26 at 150-151.
\35 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation,
Supplementary to the Convention for the Suppression of Unlawful A cts against the Safety of Civil Aviation,
Done at Montreal on 23 September 1971,24 February 1988(Montreal), ICAO Doc. 9518 (entered into force on
6 August 1989 and ratified by 148 States as at October, 2004) : See "ICAO List and Status ofInternational Air
Law Multilateral Treaties" on line: ICAO <www.icao.int/cgi/gotom.pl?/icao/en/leb/treaty.htm> (date
accessed on Oct 5,2004) [hereinafter cited as the 1988 Montreal Proto col].

38
important elements justifying the existence of this Protocol, the Montreal Protocol does not

define the terrn "safety at that airport" in Article 11(1) (b), 136 nor provides certain guidelines

to decide whether the safety of airport is endangered or not. As a result, "the level of
endangerrnent against the safety of an airport", especially when the unlawful act disrupts the
services of an airport, is apt to differ from one State to another. Furtherrnore, in sorne States,
whatever unlawful acts taking place in an international airport may have the possibility to be
placed under the scope of this P rotocol obliging contracting States to either extradite the
alleged offender or take mandatory legal proceedings for prosecution.

C. Conclusion

Though, in practice, the application ofthis Protocol will be limited to rare situations
when the offender escapes after the commission of the act and is eventually apprehended in
another country,137 this Protocol deserves to be properly evaluated as a significant step in
the development of internationallaw on the grounds that it effectively extends the principal
provisions of the Montreal Convention to domestic fields such as airport and airport
facilities, etc., and reflects international efforts to take aIl necessary measures to protect the
civil aviation.
But, the absence of a "foreign element" and the deficiencies of definition and
guidelines for "safety at that airport" may cause States to hesitate to ratify this Proto col
under the fear that this Protocol may limit their sovereignty for criminal jurisdiction. This
seems to result in the low rate of ratification. 138

6. The Montreal Convention of 1991

A. Introduction

The technical security measures, adopted by 1CAO and implemented in domestic

legislation and practice of States, can identify firearrns and other dangerous devices, and
prevent their introduction onto aircraft. But, with respect to security measures for detection,

136 Michael Milde, supra note 26 at 150-151.

137 Ibid.
138 Only 148 States among the 188 member States ofICAO have ratified this Protocol until October 5, 2004:
See "ICAO List and Status of International Air Law Multilateral Treaties" on line: ICAO
<www.icao.int/cgi/goto m.pl?/icao/enlleb/treaty.htm> (date accessed on Oct 5, 2004).

39
most explosives pose a difficult problem. Because, most explosive substances have a low
density mass and cannot be easily identified by X-rays; they can be concealed in innocuous
containers (e.g., portable radios, laptop computers, toys, etc.), and the metallic parts of an
explosive device (detonator and batteries) can be so miniaturized that they may avoid
detection. 139 Moreover, "plastic explosives" are malleable and flexible and can be shaped
into any form and have an extremely low vapor pressure which renders them virtually
undetectable by traditional vapor detection systems. Furthermore, for years, the plastic
explosives have been used legitimately in industry and military. 140 Under these
circumstances, it was just a time problem for terrorists to use "plastic explosives".
The first reported incident of the use of plastic explosives occurred on April 2, 1986,
when a TWA 727 aircraft exploded prior to landing in Athens and 4 people on board were
killed. 141 On April 17, 1986, there was another plastic explosive sabotage attempt against an
EL Al B747 with 392 people on board at Heathrow airport in London. 142 After the two
preludes, the disasters of the Korean Airlines 858(115 people were killed) over the Andaman
Sea off the coast of Burma on November 29, 1987,143 the Pan-Am flight 103 (259 people
were killed) over Lockerbie, Scotland on December 21, 1988,144 and the UTA DC-10 (171
people were killed) over Niger on September 19, 1989 highlighted the enormous danger
posed by criminal misuse of plastic explosives. 145
On June 14, 1989, the UN. Security Council adopted Resolution 635 which urged
JCAO to "work on devising an international regime for the marking of plastic or sheet
explosives of the purpose of detection.,,146 The U.N. General Assembly subsequently
affirmed this request. 147 In response to the Resolutions, JCAO drafted the Convention at the
2ih session of the Legal Committee (March 27 - April 12, 1990) and the JCAO-sponsored
Diplomatie Conference adopted it by consensus on March 1, 1991. 148

139 Michael Milde, "Draft Convention on the Marking of Explosives" (1990) 15 Ann. Air & Sp. L. 155 at 157-
159.
140 Ibid.

141 Ibid.; See also "Security-Sabotage" online: Aviation Security Network <http://aviation-safetY,!lt:.!!.
events/SEB. shtml> (date accessed: 21 August 2004).
142 See Peter, St. John, supra note 1 at 35.
143 ICAO Doc. C-WP/8540 (22/1/88), Appendix C at 32.
144 See "Report of the Presidents Commission on Aviation Security and Terrorism" (Washington, DC: U.S.
Government Printing Office, May 15, 1990), Chapter 2, Pan Am Flight 103 at 3-26.
145 See Michael Milde, supra note 26 at 151.
146 U.N. Doc. SC/RES/635 (14 June 1989) "Marking of Plastic or Sheet Explosives for the Purpose of
Detection" online: U .N. <http://daccessdds. un.org/docIRESOLUTION/GENINRO/557 /72/IMG/
NR055772.pdf?openele ment> (date accessed: 25 August 2004).
147 U.N. Doc. A/RES/44129 (4 December 1989) "Measures to prevent international terrorism and Study of the
underlying causes of those forms of terrorism and acts of violence" online: U.N.
<http://un.org/documents/ga/res/44/a44r029.htm > (date accessed: 25 August 2004).
148 Convention on the Marking of Plastic Explosives for the purpose of Detection, 1 March 1991(Montreal),

40
 B. Obligations of States

Articles Il and III of the Convention request each contracting State to "take the

necessary and effective measures" to prohibit and prevent "the manufacture in its territory of
unmarked explosives" and "the movement into or out of its territory of unmarked
explosives." However, the Convention does not specify what "the necessary and effective
measures" are to be. Thus, it is left to the individual States and their national legislations to
formulate regulations and appropriate sanctions. 149

The expression "manufacture" under Article Il means any process, including

reprocessing, that produces explosives (defiried in Article 1). But, according to "Technical

Annex" Part 1 (II), Article Il excludes the explosives which are produced in limited quantities

solely for use in duly authorized research, development or testing of new or modified
explosives or training in explosives detection or forensic science purposes.

Article III seems to prohibit the export and import of unmarked explosives, but,

excludes the movements by authorities of a State Party performing military or police

functions (para. 2).
In the case of existing stock of plastic explosives, there is no effective way of
marking explosives after their manufacture. Actually, vast amount ofunmarked explosives is
not only in the possession of private industry (e.g. in activities like mining, building, etc.),
but also in the possession of the armed forces in which such explosives are physically
incorporated as an integral part of military weapons (e.g. bombs, shells, mines, rockets,
shaped charges, etc.).150 In practice, it is not realistic to require those unmarked explosives
to be destroyed, because it would cause considerable economic losses and ecological side
effects, and there is no effective international measure to check the illegal use for military or

ICAO Doc. 9571 (entered i nto force 0 n 2 1 Ju ne 1 998 and r atified b y 111 States a s a t 0 ctober, 2004): S ee
"ICAO List and Status of International Air Law Multilateral Treaties" on line: ICAO
<www.icao.int/cgi/gotom.pl?/icao/en/leb/treaty.htm> (date accessed on Oct 5, 2004) [hereinafter cited as the
1991 Montreal Convention].
149 See Michael Milde, supra note 139 at 171.
150 Ibid; See also Runwantissa I.R. Abeyratne, supra note 9 at 186-187.

41
police functions. As a result, Article IV adopts a special regime for the existing unmarked

explosives in order to prevent a possible loophole and to reflect the practical situations.

Under Article IV, each contracting State is obliged to "take the necessary measures"

to "exercise strict and effective control" over the possession and transfer of the unmarked
explosives in order to: prevent their diversion or use for purposes inconsistent with the
objectives of this Convention; "consume or destroy or mark or render permanently
ineffective" their military or commercial stocks of unrnarked explosives within fifteen or

three years respectively (para.2 and 3). Also, Article IV provides the exemption from this

provision for the stock incorporated as an integral part of duly authorized military devices,
and requires contracting States to take strict and effective control over these materials to
prevent their diversion (para.3 and 4).151

C. Legal Status of the Technical Annex

In order to reflect the rapidly changing technical characteristics of the development

of detection techniques, chemical additives and marking methods, this Convention adopts an
"annex system" which is subject to a separate and distinct amendment procedure enabling an
amendment to be adopted promptly by consensus without the need to convene a conference

and without the formalities of ratification (Article VI and VII).152

Compared to the Annexes in the Chicago Convention which are not the integral
parts of the Convention and designed by the Council as Annexes only for convenience, the
Technical Annex to the Montreal Convention of 1991 forms an integral part of this

Convention (Article X). The Annex consists of two parts (Part 1: Description of Explosives

and Part 2: Detection Agents), and specifically, contains the definition of plastic explosives,
the technology of their marking, and the chemical and molecular formulas of four different
detection agents.

D. Conclusion

\5\ See Michael Milde, supra note 26 at 151-152.

152 Ibid.

42
 The Montreal Convention of 1991 reflects international efforts to take all necessary
measures to prote ct civil aviation. By introducing an innovative method of amendment of
international legal instruments, this Convention may establish a new practice in the
amendment of multilateral instruments, at least in the field of technical specifications. 153
But, plastic explosives are generally open to misuse and have been used in
numerous criminal and terrorist acts against embassies and other public buildings, though
aviation is most vulnerable among the potential targets. Thus, the scope of the 1991
Montreal Convention exceeds the field of aviation security.154 Furthermore, the Convention
will only be meaningful from the practical point of view, if all airports are equipped with
adequate security equipments for the detection of marked explosives. These reasons may
lead States to hesitate to ratify this Convention under the fear that this Convention may
interfere in the domestic affairs of their military or police functions as weIl as those of the
private industry, and seem to result in the low rate ofratification. 155

153 Ibid.
154 Ibid.
155 Until October 5, 2004, only 111 States among the 188 member States of ICAO have ratified this
Convention: See "ICAO List and Status of International Air Law Multilateral Treaties" on line: ICAO
<www.icao.int/cgi/gotom.pl?/icao/en!leb/treaty.htm> (date accessed on Oct 5,2004).

43
CHAPTER III. Aviation Security System under Multilateral Actions

1. The 1977 European Convention on the Suppression of Terrorism

A. Introduction and Definition of the Offences

In November 1976, the Committee of Ministers of the Council of Europe adopted

the European Convention 156 to ensure that the perpetrators of terrorism could not escape
prosecution and punishment by encouraging extradition between member States 157 and by
limiting the political offense justification for refusing extradition.
Article 1 of the Convention lists several offenses that shall not be considered as
political offenses for the purposes of extradition, as follows:

a. an offence within the scope of the 1970 Hague Convention;

b. an offence within the scope of the 1971 Montreal Convention;
c. a serious offence involving an attack against the life, physical integrity or liberty of
intemationally protected persons, including diplomatic agents;
d. an offence involving kidnapping, the taking of a hostage or serious unlawful detection;
e. an 0 ffence i nvolving the use 0 f a b omb, grenade, rocket, a utomatic firearm 0 r 1etter 0 r parcel
bomb ifthis use endangers persons;
f. an attempt to commit any of the foregoing offences or participation as an accomplice of a pers on
who commits or attempts to commit such an offence.

AIso, Article 2 requests member States not to consider a senous offence which
involves an act of violence against the life, physical integrity or liberty of a person or against
property, other than the offences covered by Article 1, as a political offence.
By depoliticizing certain acts of terrorism or violence, including offenses within the
scope of the Hague and Montreal Conventions, for the purpose of extradition, the European
Convention provides that aerial hijackings and other terrorist acts or violence, regardless of
the motive of such acts, are extraditable offences between member States which are entitled
to establish the jurisdiction over the offences. 158

156 European Convention on the Suppression of Terrorism, 27 January 1977 (Strasbourg), 15 I.L.M. 1272
(1976) (entered into force on 14 August 1978).
157 See "The Preamble of the European Convention".
158 See El-Muner El-Harudi, supra note 2 at 78-79.

44
 B. Extradition

To provide effective extradition procedures between member States, Articles 3 and

4 stipulate the modification of all extradition treaties and arrangements between member
States. Specifically, Article 3 provides that "all extradition treaties and arrangements
between Contracting States are modified to the extent that they are incompatible with this
Convention." If those treaties do not contain any offence mentioned in Article 1 and 2 as an
extraditable offence, Article 4 authorizes the automatic inclusion of such an offence as an
extraditable offence into the existing treaties.
However, Article 5 pennits the requested State to refuse extradition, if the State has
"substantial grounds for believing" that the extradition request has been made in order to
punish a person on account of his race, religion, nationality or political opinions. Also,
Article 13 authorizes any State to reserve the right to refuse extradition in respect of any
offence mentioned in Article 1, if States decide any offence as a political offence, even
though contracting States are under the obligation to take into due consideration, when
evaluating the character of the offence.

C. Jurisdiction

To maXlmlze the possibility of prosecution by preventing exoneration of the

offender who invokes political reasons for hislher act, Articles 6 and 7 repeat the basic
obligations of each contracting State set forth in the Hague and Montreal Conventions.
Specifically, Article 6 requires each contracting State to establish its jurisdiction over an
offence mentioned in Article 1 when the alleged offender is present within its territory and it
does not extradite him/her after receiving a request for extradition from a contracting State.
Furthennore, Article 7 obliges each contracting State to take "mandatory legal proceedings"
"without exception whatsoever and without undue delay" as long as the offender is present
in its territory. Once the case is submitted to the legal authorities, the last sentence of Article
7 requires the legal authorities to deal with the case in the same manner as in the case of any
offence of a serious nature under the law of that State.
Thus, if the requested State refuses to extradite the alleged offender under Articles 5
and 13, the requested State is only obliged to submit the case to its competent authorities for
the purpose of prosecution without undue delay, according to Article 7.

45
 D. Conclusion

The European Convention of 1977 is regarded as the first major step taken to ensure
the enforcement of ICAO Conventions for civil aviation security by pro vi ding effective
extradition procedures between member States resulted from depoliticizing certain acts of
terrorism or violence.
But, by authorizing the requested State to refuse the extradition request according to
Articles 5 and 13, the strong stance against political offences stipulated in Article 1 is
weakened. Furtherrnore, even though Articles 6 and 7 require each contracting State to take
"mandatory legal proceedings" "without exception whatsoever", the imposed obligation is
limited only to present the case to its authorities who decide, at their discretion, whether the
prosecution is appropriate. 159 Thus, there is no enforcement mechanism beyond the
submission of disputes to arbitration. Consequently, even though the European Convention
tries to ensure the enforcement of existing ICAO Conventions against unlawful acts, it does
not overcome the previous Conventions' limitations, mainly resulted from the exclusive
sovereignty, either.

2. The 1978 Bonn Declaration on Hijackings

A. Introduction

The continued recognition of political refugees' rights has limited the effectiveness
of international Conventions to deter the unlawful acts against civil aviation. Often, the
offenders receive political asylum and reward rather than punishment for their criminal acts.
To intensify the joint effort of States to combat international terrorism by preventing
each State from being an available safe haven for any offender and by deterring each State
from encouraging the commission of the offence,160 on July 17, 1978, the leaders of the G-7
(Canada, France, the Federal Republic of Gerrnany, Italy, Japan, the United Kingdom,
U.S.A.) participating in the Bonn Economic Summit, issued a joint declaration161 which
declared the parties' intention to take "sanctions" against any State that fai1s to fu1fill its
international obligations under the Tokyo, Hague, and Montreal Conventions. The

159 See R.I.R. Abeyratne, "The effects ofUnlawful Interference with Civil Aviation on World Peace and Social
Order" (1995) 22 Trans. L. J.449 at 487-489; See also Paul Stephen Dempsey, supra note 63 at 672.
160 See Mark E. Fingerman, "Skyjacking and the Bonn Declaration of 1978: Sanctions applicable to
Recalcitrant Nations" (1980) 10 Cal. W. Int'l L. J.123 at 142-143.
161 See Paul Stephen Dempsey, supra note 63 at 682-683.

46
Declaration became known as the Bonn Declaration on Hijackings. 162 The text of the
Declaration is as follows:

The heads of States and governments concerned about terrorism and the taking of hostages, de clare
that their governments will intensify their joint efforts to combat international terrorism.
To this end, in cases where a country refuses extradition or prosecution of those who have hijacked an
aircraft and/or do not return such aircraft, the heads of States and governments should take immediate action to
cease an flights to that country.
At the same time, their government will initiate action to halt an incoming flights from that country or
from any country by the airlines of the country concerned. The heads of States and governments urge other
governments to join in this commitment.

By providing certain obligations on a third State and a definite sanction as a sort of

punishment if such State failed to follow the obligations, the Declaration raises severallegal
lssues.

B. The Scope of the Declaration

While the first paragraph of the Declaration expresses the concem of terrorism and
the taking of hostages, the operative sections deal only with "hijacking". Though the
definition of hijacking is unclear under the Declaration, it can be reasonably assumed that
the leaders of the G-7 States refer to the definition of hijacking in Article 1 of the Hague
Convention of 1970. 163 Thus, the sabotage of aircraft and aviation facilities would not be
subject to this Declaration. Furthermore, by providing simply "hijackers", the Declaration
covers all hijackers, not restricted to "terrorist hijackers", regardless of the reasons of
hijackings. 164
The Declaration is directed at aState which finds a hijacker or hijacked aircraft
within its territory and refuses to extradite or prosecute the hijackers and/or to retum the
hijacked aircraft. But, once aState was able to take appropriate action but did not act and the
hijackers have disappeared, it should be regarded as defaulting, 165because the omission
seems to be regarded as the indirect intention to aid and abet the perpetration ofhijacking.

162 Joint Statement on International Terrorism (Bonn, 1978), 17 I.L.M.1285.

163 Walter Schwenk, "The Bonn Declaration on Hijacking" (1979) 4 Ann. Air & Sp. 1.307 at 308-309; James J.
Busttil, "The Bonn Declaration on International Terrorism: A non-binding International Agreement on Aircraft
Hijacking" (1982) 31 I.c.L.Q. 4'74 at 475-476.
164 James J. Busttil, ibid.

165 Walter Schwenk, supra note 163 at 308-310.

47
 When any State fails to fulfill its international obligations following a hijacking, the
Declaration expresses the parties' intention: to cease aU flights to that country; and to haIt aH
incoming flights from that country or from any country by the airlines of the country
concerned. While the Declaration only refers to "cease aIl flights to or from", no distinction
is made between aircraft of the defaulting State and that of uninvolved, non-defauIting, non-
signatory States, so ca11ed "third States", as we11 as that of the member States. Taking into
account the founding intention of the Declaration, regardless of the nationality of aircraft and
the distinction between commercial and non-commercial flights, the Declaration appears to
require that aU flights to or from the defaulting State not be allowed to even transit the
airspace of the member States. 166

C. The Legal Status and the Enforceability of the Declaration

(a) Against the G-7 States

The Declaration r equires the G -7 States t 0 t ake i mmediate actions toc ease a 11
flights to the offending State and to initiate suspension aU incoming flights which arrive
from the offending State or are operated by airlines of the defaulting State.
If the offending State itself were one of the G-7 States, a problem that is mainly
relevant with the legal status of the Declaration would arise. Because, according to
customary international law, an unsigned declaration has a moral but not legal effect.
Though "the Vienna Convention on the Law of Treaties" implies that such agreements do
have legal force, this fails to elaborate on the point. 167 Thus, even though the G-7 States
intended to create legal rights and obligations,168 the legal force of the Declaration becomes
uncertain betwéen the parties.
Considering the fo11owing fact that: the lack of precision in the terms of an
international agreement is often cited as the main factor to decide that an agreement is
nonbinding; there is no record of the Bonn Declaration having been submitted to the United
Nations for registration according to Article 102 of the U.N. Charter;169 and also, the
Declaration has not been published in the official or unofficial United States treaty series, the

166 Ibid.
167 Vienna Convention on the Law of Treaties,23 May 1969(Vienna), 1155 U.N.T.S. 331 (No.18232); Mark E.
Fingerman, supra note 160 at 143-144.
168 See James J. Busttil, supra note 163 at 484.
169 Article 102 ofU.N. Charter states as follows: 1. Every treaty and every international agreement entered into
by any Member of the United Nations after the present Charter cornes into force shaH as soon as possible be
registered with the Secretariat and published by it.

48
Declaration is not a treaty, but a political commitment. 170 Thus, the Declaration cannot
create any legal right or obligation among the G-7 States. It is at best a political promise to
enact the contents in a legaUy enforceable form. 171

(b) Against the Offending State

The Declaration caUs for the imposition of collective sanctions upon any State
that violates its provisions, regardless of whether or not the State in question is a party to the
Declaration or any other civil aviation security convention. The terms of the Declaration
seem to assume that the obligations, set forth in the Tokyo, Hague and Montreal Conventions
to return hijacked aircraft and to extradite or prosecute hijackers, form p art of customary
international law binding on all States. l72 But, the imposition of sanctions against the
offending State raises several sensitive legal problems.

CD The incompatibility with the V.N. Charter l73

According to Articles 39 and 41 of the U.N. Charter,174 the imposition of

sanctions against the offending State falls exclusively within the do main of the Security
Council of the United Nations. Thus, it is usuaUy accepted that States cannot take joint
sanctions against another State, unless such action was authorized by the Security Council of
the United Nations. Also, Article 2 (3) requires all members of U.N. to "settle their
international disputes by peaceful means in such manner that international peace and security,
and justice, are not endangered," and Article 33 enumerates various procedures for the
settlement of such disputes.
Considering the above factors and the following fact that the collective

170 See O. Schacher, "The Twilight Existence of International Non-Binding Agreements" ( 1977) 71 A.J.I.L.
296; See also James J. Busttil, supra note 163 at 485.
\7\ See Mark E. Fingerman, supra note 160 at 143-144; See also Paul Stephen Dempsey, supra note 63 at 682-
683.
172 See Paul Stephen Dempsey, ibid.
173 Charter of the United Nations, 26 June 1945, Can.T.S.1945 No. 7.
174 Article 390 fU .N. Charter states as foIlows: The S ecurity Council shaIl determine the existence 0 f a ny
threat to peace, breach of peace, or act of aggression and shaIl make recommendations, or decide what
measures shaIl be taken in accordance with Article 41 and 42 to maintain or restore international peace and
security.
Article 41 states as foIlows: The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may calI upon the members of the United
Nations to apply such measures. These may include complete or partial interruption of economic relations and
of rail, se a, air, ....

49
sanctions are III essence an economic boycott or a reprisaI in international law and the
economic boycott is not a peaceful mean for the solution of disputes, the sanctions adopted
by the Bonn Declaration are not permissible in the D.N. Charter. 175

<ID The incompatibility with the Vienna Convention of 1969

There are several legal theories on the basis of sorne princip les of
internationallaw to justi:fy the sanctions against the offending State. First of aU, a treaty may
become binding upon a third State as a customary rule of international law. 176 Article 38 of
the Vienna Convention expressly states that "Nothing in Article 34 to 37 precludes a mIe set
forth in a treaty from becoming binding upon a third State as a customary rule of
internationallaw, recognized as such."
The other princip les are "jus cogens" 177 which is a set of fundamental
"guiding principles reflecting the basic values of the international society in its actual stage
of development,,,178 and the "protective principle" which justifies a nation taking protective,
extraterritorial action, if acts or omissions have a "potentiaUy dangerous effect" upon its
security or govemment functions. 179 The 'jus cogens" provides a legal basis for considering
non-party, harboring States, to be in violation of international law and the "protective
principle" provides a legal basis for imposing sanctions. Therefore, because the hijacking is
an aggressive act violating "jus cogens", any State providing sanctuary for the hijackers can
also v iolate "jus c ogens" i rrespective 0 fwhether or n ot they are party t 0 an international
agreement. The "protective princip le" justifies the imposition of the sanctions prescribed by
the Bonn Declaration against any State pro vi ding sanctuary for hijackers. 180
However, as a matter of customary international law, aState may not be
bound to the terms of an agreement to which it is not a party. 181 AIso, Articles 34 and 35 of
"the Vienna Convention on the Law of Treaties" clearly state that a treaty does not create
either obligations or rights for a third State unless the third State expressly accepts that

175 See Runwantissa I.R. Abeyratne, supra note 9 at 176-178.

176 Mark E. Fingerman, supra note 160 at 144 -145.
177 Article 53 of the Vienna Convention defines "jus cogens" as "a peremptory norm of general international
law" which is "accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
internationallaw having the same character."
178 Marjorie M. Whiteman, "Jus Cogens in International Law, With a Projected List" (1977) 7 Ga. J. Int'l &
Comp. L.609 at 625; Mark E. Fingerman, supra note 160 at 146.
179 Mark E. Fingerman, ibid. at 146-147.
180 Ibid.

181 Ibid. at 144.

50
obligations in writing. Furthennore, even though the tenns of the Declaration assume that
the obligation to extradite or prosecute hijackers fonns part of customary internationallaw
binding on aU States, the Declaration ignores that the Hague and Montreal Conventions only
require contracting States to submit the case to their own legal authorities to detennine
whether the offence is acceptable or not to take legal proceedings for the prosecution. Even
if there is an extradition treaty between nations, politically motivated offences traditionally
have been excluded from these treaties. 182 Thus, the new obligation established by the
Declaration cannot be customary international law, and any attempt to bind States to
extradite or prosecute the offenders in the absence of a treaty to that effect, would definitely
be an encroachment on State sovereignty, making such an act a violation· of customary
international law. 183 There fore , the Declaration will be ineffective as far as it intended to
impose an obligation upon non-signatory States to prosecute or extradite the offender. 184

<ID The incompatibility with the Chicago Convention and the Transit

Agreement of 1944 185

Since the principle of aviation safety is an essential element for the Chicago
Convention and covers aU aspects of safety including the prevention of unlawful acts, any
State disregarding this princip le violates obligations under the Chicago Convention. Thus,
the violation provides other parties with the right to suspend the operation of the Convention
in whole or in part with respect to the defaulting State. 186
But, this opinion cannot justify sanctions against the defaulting State adopted
by the Declaration. Because, Article 5 of the Chicago Convention and the Transit Agreement
confer certain rights upon contracting States to fly over or land on a territory belong to States

parties to the Chicago Convention. Aiso Chapter XVIII of the Chicago Convention provides

"disputes settlement procedures". Thus, those rights cannot be derogated by a contrary

182 See Abraham Abramovsky, "Multilateral Conventions for the Suppression of Unlawful Seizure and
Interference with Aircraft Part III: The Legality and Political Feasibility of a Multilateral Air Security
Enforcement Convention" (1975) 14 Colum. J. Transnat'l L.451 at 468-469.
183 See Walter Schwenk, supra note 163 at 312-313; See Mark E. Fingerman, supra note 160 at 151; See also
Runwantissa I.R. Abeyratne, supra note 9 at 182.
184 See Runwantissa I.R. Abeyratne, supra note 9 at 179.

185 International Air Services Transit Agreement, 7 December 1944(Chicago), 84 U.N.T.S. 390 (No.252),

ICAO Doc. 7500 (entered into force on 30 January 1945).

186 Walter Schwenk, supra note 163, at p.313-316; Runwantissa I.R. Abeyratne, ibid. at 180-181.

51
provision in a nother t reaty, s uch as the Bonn Declaration, w ithout a mending the Chicago
Convention.

(c) Against Third States

By requiring the parties to initiate action to haIt aIl incoming flights which arrive
from the offending State regardless of the nationality of the aircraft, the Declaration covers
aircraft of third States which operate flights between a member State and the defaulting State.
The problem is that third States, non-signatories of the Declaration, are conducting business
as usual according to bilateral agreements which grant traffic rights on that flight route, and
do not violate any obligation under the Chicago Convention and the Tokyo, Hague, Montreal
Conventions. 187
There are several legal theories on the basis of "the principle of fair and equal
opportunity" and "self-preservation" to justify the suspension of air traffic rights against
third States. 188 The legal argument seems to base on the fact that if the third States do not
stop air services with the defaulting State, the third States encourage the defauIting State and
give indirect support to the offenders. Thus the third States could be treated in the same way
as the defaulting State, even though they were not in a position to take action against the
offenders. 189
However, considering the above mentioned theories in the section "(b) Against
the Offending State", such a far reaching obligation under the legal theories of "the principle
of fair and equal opportunity" and "self-preservation" cannot be upheld in consistency with
the rules of internationallaw, unless there are obligations under general international law or
bilateral agreements for third States to cooperate in the imposition of sanctions on the
defauIting State. Consequently, the Bonn Declaration cannot be legally enforced against non-
signatory, non-involved third States. 190

D. Conclusion

Besides the above problems surfacing from the Bonn Declaration and the lack of
respectable representation by the international community, there are certain practical gaps
with respect to the application. For example: How would the decision to suspend air services

187 See Walter Schwenk, ibid. at 319-321; See James J. Busttil, supra note 163 at 481-482.
188 See Walter Schwenk, Ibid.
189 Ibid.
190 Ibid.

52
be taken by the members of the Declaration, who will judge that aState is no longer in
default, and how long the sanctions will last, etc. 191 Those problems mainly resulted from
the hasty adoption of the Declaration during the period of the G-7 economic summit on J uly
16-17, 1978 without the appropriately scheduled preparation procedures and the experts on
aviation. 192
Considering all the problems set out above, it is evident that the Bonn Declaration is
a non-binding international agreement which impose no legal obligations on its signatories,
needless to say non-signatory States, 1 93 and is in conflict with former international
agreements and procedures. 194 Those are the main reasons why other States refused to join
in the Declaration, even though the G-7 States made attempts to get other States to sign the
Declaration. 195
However, this does not mean that the Declaration is without significance, because
the Bonn Declaration was the first international agreement calling for the use of aircraft
boycotts against any State granting safe havens to hijackers in order to force States to deal
fiimly with highjackers. 196 In actuality, the Declaration was invoked in the cases of "the
hij acking of a Pakistan Airlines aircraft landed in A fghanistan in March, 1981" and "the
hijacking of a Seychelles aircraft by forty-five white mercenaries landed in South Africa in
December, 1981.,,197 Thus, the Declaration serves a worthwhile purpose: by sending a signal
to the rest of the world that the G-7 States which collectively account for about 70% of
world aviation traffic 198 are serious about curbing and reacting to hijackings; and by
requesting other States to take further measures to ensure more effective responses to
·· k·mgs. 199
hIJac

191 See James J. Busttil, supra note 163 at 485; See also Runwantissa I.R. Abeyratne, supra note 9 at 182.
192 See Otto von der Gablentz, "Prevention of Aviation Terrorism: The Govemment's Point of View" in
Conference Proceedings: Aviation Security (The Netherlands: International Institute of Air and Space Law,
University of Leyden, 1987) at 117-118.
193 See James J. Busttil, supra note 163 at 487; See also Paul Stephen Dempsey, supra note 63 at 682-683.
194 See Abraham Abramovsky, supra note 182 at 467.
195 See Otto von der Gablentz, supra note 192 at 117.
196 See Mark E. Fingerman, supra note 160 at 151.
197 James J. Busttil, supra note 163 at 474-475; Otto von der Gablentz, supra note 192 at 117.
198 Paul Stephen Dempsey, supra note 63 at 682-683.
199 See James J. Busttil, supra note 163 at 487.

53
CHAPTER IV. Preventive Security Measures under the International Legal Regime

1. Background

The Conventions for the prevention and suppression of unlawful interference with civil
aviation offer only general prevention which is only one of the tools for the management of
overall security, so they are not sufficient for aviation security. Since the international
conventions will not prevent a criminal or insane act leading to a disaster, only efficient
technology and highly qualified security personnel will have a better chance. 200 As a result,
the most effective method of controlling the unlawful interference with civil aviation to date
has been "Preventive Measures".
Since ICAO established a Committee on Unlawful Interference according to a
resolution of the I CAO C ouncil at its 66 th session in April 1969,201 ICAO has developed
certain minimum security measures and procedures to raise the level of security operations
with an emphasis on prevention and deterrence. According to Resolution A17 -10 adopted by
ICAO Assembly during an extraordinary session on June 16-30, 1970, ICAO has published a
"security manual,,202 which has been expanded and updated several times since its first
edition, to assist member States in the execution of security measures set out in the
appendices to that resolution for the security of civil aviation. ICAO has also distributed the
manu al as a restricted document since November 1971. 203
After a series of terrorist attacks on international aircraft and airports in 1972 and
1973,204 according to Assembly Resolution A17-10, A18_10 205 and Council Resolution of
June 19, 1972, the ICAO Council, exercising its quasi-Iegislative powers under Article 37 of
the Chicago Convention, adopted Annex 17 on March 22, 1974 which incorporates several
of the obligations set forth in the Tokyo, Hague, and Montreal Conventions. 206 Annex 17
with the title "Standards and Recommended Practices -Security- Safeguarding International
Civil Aviation against Acts of Unlawful Interference" contains provisions addressing

200 See Michael Milde (1995), supra note 26 at 144-154.

201 IeAO Doc.8869 A18-P/2 (June, 1970), Annual Report of the Council ta the Assembly for 1969 at 135-139.
202 IeAO Doc. 8973, Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference
(unti12002, the 6th edition was pub1ished).
203 IeAO Doc.8982 A 19-P/l, Annual Report of the Council-1971 at 51-52 and 86; IeAO Doc. 8918 A 18-
P/3(March, 1971), Annual Report of the Council ta the Assembly for 1970 at 93.
204 According to IeAO Doc. 9506, ICA 0 Annual Report of the Council-1986 at 104-105, during the period of
1972 and 1973, there were 60 acts ofun1awfu1 seizure, 25 sabotages and 407 deaths.
205 IeAO Doc.8982, supra note 203 at 51; Annex 17 Foreword (Sixth Edition-March 1997).
206 See Paul Stephen Dempsey, supra note 63 at 675-677.

54
preventive security measures for aircraft, airport, passengers, baggage, cargo, and mail, as
well as standards and qualifications for security personnel and responsive measures to acts of
unlawful interference. Furthermore, Amendment lOto Annex 17 adopted on December 7,
2001, extends its scope to domestic air transportation.
AIso, to reinforce cooperation of States through the bilateral agreements on air services
which represent the main legal basis for international air transportation, the ICAO Council
adopted a Resolution at its 118th session on June 25, 1986 which urged all contracting States
to insert a clause on aviation security07 into their bilateral agreements on air transportation,
and for guidance, drafted a "model clause" on aviation security attached to the Resolution.
th
The model clause was approved by the 26 session of the Assembly in September-October
1986. Thus, ICAO made security concerns and international cooperation an integral part of
the mutual exchange of commercial rights in international air transportation. This model
clause was later complemented by a "model agreement" for regional or plural-Iateral use on
June 30, 1989. 208
rd
Furthermore, in the aftermath of the tragic events ofSeptember 11,2001, the 33 ICAO
Assembly in October 2001 and the High Level Ministerial Conference held in Montreal on
February 19-20, 2002, recommended ICAO to establish "Univers al Security Oversight Audit
Programme,,209 with the aim of determining the degree of a State's compliance with the
standards contained in Annex 17, and the extent to which a State's implementation of its
security system may be sustained through the establishment of appropriate legislation,
national policies, and a s ecurity authority with inspection and enforcement capabilities. 210
As a result of these recommendations, the ICAO Council developed an "Aviation Security
Plan of Action" as one of the top priorities to address the new and emerging threats to civil
aviation. 211
The recent empowerment of ICAO as the worldwide auditor of safety and security
standards for international civil aviation without a formaI amendment of the Chicago
Convention highlights the apparent emergence of a new princip le in internationallaw and of

207 ICAO Doc.9506, ICA 0 Annual Report of the Council-1986 at 106.

208 ICAO Doc.9790, Assembly Resolutions in Force (as of 5 October 2001) at VII-7, on line: ICAO
<www.icao.intlicao/en/res/9790 en.pdt> (date accessed in 5 October 2004); See Michael Milde (1995), supra
note 26 at 153-154.
209 ICAO Doc.9790, Resolution A33-1 at VII-I-VII-2; ICAO News Release (PlO 02/02, 20 February 2002), on
line ICAO <www.icao.intlicao/en/nr/2002/pi0200202_e.pdt> (date accessed in 5 October 2004).
210 Catherine Zuzak (ICAO Secretariat), "Audits promote consistent implementation of aviation security
measures worldwide" (2003) 58:7 ICAO J. at 4-5.
2ll Ibid.; See also the Declaration of the High-Level Ministerial Conference on Aviation Security held at
Montreal on February 19-20, 2002, on line ICAO <www.icao.intlicao/en/nr/2002/pio200202_e.pdt> (date
accessed in 5 October 2004).

55
new quasi-supranational functions of international organizations?12 To trace the roots of
these new approaches, this chapter will focus on the legal nature and status of Annex 17 and
analyze the legal status and the procedures and objectives of the aviation security audit
program.

2. Annex 17 of the Chicago Convention

A. Historical Background of Annexes

From the infancy of international civil aviation, the international community

understood that the international aviation industry could not operate in a safe and orderly
manner, unless different national aviation safety standards, procedures or practices were
appropriatel y coordinated. The first attempt to estab lish the worldwide u niform standards
and procedures as weIl as to respond to the fast changing technical and operational
requirements for civil aviation was made in the 1919 Paris Convention on International Air
Navigation. 213 The Paris Convention grouped the technical and operational standards into
Annexes and designated these Annexes as "an integral part of the Convention", even though
these Annexes were subjected to amendment and update by the international commission for
air navigation, without the amendments going back to States for formaI ratification, to make
the amendment process easier, faster and more flexible than an amendment of the
Convention. 214 However, the problem was that most States had strict constitutional and
legislative provisions applicable to the ratification of a treaty and of any amendment to it
before the same could become effective. Thus, this aspect of the Paris Convention was the
main obstacle to broad ratifications. 215
During the Chicago Conference between November 1 - December 5, 1944, one of
the major problems was "how to provide practical international uniformity of flight
regulations without infringing on the constitutional procedures of those States which require
formaI ratification of treaty amendments.,,216 The final compromise as to ICAO's powers
and duties was that the Chicago Convention provided ICAO with strong powers in the
technical field of air navigation for the purpose of safety together with a rather vague

212 Michael Milde, "Aviation Safety Oversight: Audits and the Law" (2001) 26 Ann. Air & Sp. L.165 at 166-
167.
213 Convention Relating to the Regulation of Aerial Navigation (Paris, 1919), 11 L.N.T.S. 173.
214 Michael Milde, supra note 212 at 166-167.
215 Ibid.

216 John Cobb Cooper, "Backgrounds ofIntemational Public Air Law" (1965) YB.Air&Sp.L.3 at 24-27.

56
authority in the air transport field, applicable generaIly within the advisory and research
fields. 217 As a result, the Council of ICAO possesses a "law making function" to adopt
Standards and Recommended Practices (SARPs) in the form of Annexes and to update such
standards.

B. Law Making Process of the ICAO Council

The law making function of the ICAO Council, to adopt and amend from time to
time the Standards and Recommended Practices (SARPs) designated as Annexes, is derived
from Articles 37, 38, 54(1) and 90 of the Chicago Convention. The first procedures of
deve10ping and formulating Annexes and their amendments are begun by the various sub-
committees of: the Air Navigation Commission for the air navigation SARPs; the Air
Transport Committee for the facilitation of international air transport; and the Committee on
Un1awful Interference for the prevention and suppression of the unlawful interference with
civil aviation, etc. Each ofthese main bodies in turn coordinates the activities ofvarious sub-
committees to consider overlapping technical problems encountered in the adoption or
amendment or application of SARPs and convenes international conferences and special
expert panels to help formu1ate and review different SARPS. 218
Within the drafting process, each Contracting State can participate in the divisiona1
meetings and conferences to express its opinion and, also can provide its comment for aIl
proposaIs for the adoption or the amendments of SARPs submitted to it after the proposaIs
are reviewed by the main committees or the commission and by the Counci1. 219 When each
Contracting State provides comments, the main committees or the commission analyze the
received comments and submit the final draft to the Council.
Then, the final draft for the SARPs is adopted by the two-thirds majority vote of aIl
ICAO Council members 220 and is submitted to an contracting States. The SARPs or any
amendment of SARPs come into force un1ess disapproved by a majority of the contracting
States within three months after its submission to an contracting States or at the end of time
as the Counci1 may prescribe. 221

217 Ibid.
218 Thomas Buergenthal, Law-Making in the International Civil Aviation Organization, 1st ed. (New York:
Syracuse University, 1969) at 62-65.
219 Ibid.; ICAO Doc.8143(AN/873), "Rules of Procedure for the Conduct of Air Navigation Meetings and

Directives to Divisional-Type Air Navigation Meetings" at 6.

220 See Michael Milde, supra note 212 at 167-168; See also Thomas Buergenthal, supra note 218 at 63.
221 See Article 90 (a) of the Chicago Convention.

57
 C. Legal status of Annex 17

(a) Theory

Article 54 (1) of the Chicago Convention stipulates that the SARPs 222 are
designated as Annexes to the Chicago Convention "for convenience". Thus, it is clear from
the concept traditionally understood that the Annexes are not an integral part of the
Convention, do not have the same legal effect as the Convention itself, and the adoption and
legal force of the Annexes are not subject to "the 1969 Vienna Convention on the Law of
Treaties".223 Amendment 10 to Annex 17 which was adopted by the ICAO Council on
December 7, 2001, extends its scope to domestic air transportation (Chapter 2, 2.1.3) with
the consideration to address the new and emerging threats to civil aviation after the tragic
events ofSeptember 11, 2001.
Therefore, the following legal issues arise: whether it is within the jurisdiction of
ICAO to recommend the application of the security SARPs to domestic operations; and
whether the Annexes have legal significance and binding force.
The obligation that each contracting State has assumed in Article 37 of the
Convention consists of an undertaking "to collaborate in securing the highest practicable
degree 0 f u niformity in regulations, standards, procedures, and 0 rganization in relation t 0
aircraft, personnel, airways and auxiliary services in aIl matters in which such uniformity
will facilitate and improve air navigation." However, the phrases "find it impracticable" and
"deems it necessary" in Article 38 and "the extent practicable" in Chapter 2, paragraph 2.1.3
of Amendment lOto Annex 17 indicate that each contracting State has the right to make the
decision regarding the practicability or necessity of compliance or non-compliance. 224 Thus,
even though it is true that contracting States have an obligation to act in good faith in
determining what for them is "practicable" under Article 37, the States may depart from the
provisions of Annexes, except some SARPs relating to Articles 12(Rules of the air),
33(Recognition of certificates and licenses) and 34(Joumey log books) of the Convention,225
at any time when they decide to do so, provided only that they give immediate notification to
ICAO of the differences between their own practices and those established by SARPs under

222 The definition was adopted by the first Assembly of ICAO in 1947 in Resolution A1-31 and the current
definition is in Resolution A33-14, Appendix A; ICAO has adopted 18 sets of Annexes: 15 sets of Annexes
dealing technical issues of air navigation and Annex 9(Facilitation), Annex 17(Security), Annex 18(Carriage of
Dangerous Goods).
223 See Michael Milde, supra note 212 at 167-169; See also Thomas Buergenthal, supra note 218 at 76-77.
224 See Michael Milde, ibid.; See also Thomas Buergenthal, ibid.
225 See Michael Milde, ibid.; See also Thomas Buergenthal, ibid. at 79-86

58
Article 38.
AIso, considering the following facts that the overall meaning of "Preamble" of
the Chicago Convention only covers international civil aviation, that Article 44 provide that
the aims and objectives of ICAO are "to develop the international air navigation and
transport", and that Article 96 (b) de fines "international air service" as "an air service which
passes through the air space over the territory of more than one State," the ICAO Council is
not authorized to adopt rules for domestic civil aviation operation.
Consequently, the legal status of Annex 17 and its binding force appear "weak" in
theory, and the extension of Annex 17's applicable scope to domestic operation seems to go
beyond ICAO's authority.

(b) Reality

In the case of the Annexes relating to technical issues of air navigation which are
essential to aviation safety, there is a powerful motivation for aIl States wishing to participate
in international air transportation to comply with such SARPs as closely as possible.
Because non-compliance with the SARPs may prevent: any aircraft and personnel of the
State concerned from operating over or into the territory of ICAO member States; and
aviation products manufactured by non-compliant States from being sold abroad. Thus, it is
clear that the SARPs are not devoid oflegal significance. 226
With respect to Annex 17, there is no directly relevant provision for the
implementation of Annex 17 in the Chicago Convention and ICAO does not have the fonnal
authority to extend Annex 17's applicable scope to domestic aviation operations. However,
the wording of the SARPs pennits sorne flexibility in its implementation,227 and the
distinction between a domestic and an international flight has become meaningless with
respect to aviation safety and security SARPs because certain critical elements of domestic
and international aviation operations cannot be separated, mainly due to the practice of
airlines known as hub-and-spoke operations, and alliances and code-share arrangements. 228
In practice, each State applies its domestic legislations, regulations and instructions for
aviation safety and security to aIl aircrafts registered in the State, regardless of domestic or
international flights.

226 See Michael Milde, "Enforcement of Aviation Safety Standards-Problems of Safety Oversight" (1996) 45
Z.L.w. 3 at 5-7; See also Michael Milde, supra note 212 at 169.
227 See Dominique Antonini, "Annex 17 standards will be prirnary focus of forthcoming security system
audits" (2002) 57:5 ICAO J.12.
228 See Aisatou Jallow-Sey, [CAO's Aviation Security Program Post 9/11: A legal Analysis (LL.M. Thesis,
Montreal, McGill University, 2003) [unpublished] at 25-26.

59
 AIso, taking into account the following fact that ICAO Resolution A33-1,
adopted in October 2001, and the Declaration of the High-level Ministerial Conference on
aviation security in February 2002, and that contracting States supported the formulation and
adoption of Amendment lOto Annex 17, the international community seems to recognize
that: security breaches on domestic flights may undermine the security of global civil
aviation; the extension of Annex 17's applicable scope is urgently necessary to address the
new and emerging threats to civil aviation; and the provisions newly contained in Annex 17
can promo te the objectives of the Chicago Convention provided in Article 44.
Furthermore, if contracting States do not file a difference, they are bound by the
SARPs and are deemed to have accepted a legal obligation to implement the SARPs under
Article 37. 229 According to a recommendation in Annex 17 and "model clause on aviation
security" adopted by the ICAO Council in 1986, aIl Contracting States used to insert a
provision on aviation security into their bilateral agreements on air transportation. As a result,
the failure to comply with the aviation security obligation or the SARPs in the bilateral
agreements may have the other States prohibit commercial aviation services of the
concerned State to or from their territories. Thus, the compliance with the aviation security
SARPs is unavoidable in the realities of current internationallife.

D. Security SARPs in Amendment 10 to Annex 17

(a) Objectives and Organization of Annex 17

Annex 17 is designed to safeguard international civil aviation operations against

acts of unlawful interference for the protection of the safety of passengers, crew, ground
personnel and the general public (Chapter 2, 2.1.1). To achieve this aim, Annex 17 is
primarily concerned with: international cooperation (Chapter 2, 2.3); administrative and
coordinative actions (Chapter 3); preventive security measures for aircraft, airport,
passengers, baggage, cargo, and mail (Chapter 4); standards and qualifications for security

229 While it is the legal duty of each member State to notify its compliance or differences to the 18 Annexes
and their amendments, an ICAO document(C-WP/9779, 7 June 1993) indicated that an average of only 25% of
contracting States had responded to amendments of the Annexes and many member States had filed no reports
at aU. Therefore, there was no reliable information to ascertain whether and to what degree the international
safety and security standards and recommendations had been implemented in member States. This is why
ICAO has established aviation safety and security auditing programmes to ensure compliance with its SARPs
by member States: See Michael Milde, "The Chicago Convention are major Amendments Necessary or
Desirable 50years Later?"(1994) 19(1) Ann. Air & Sp.L.401 at 425-428; See Thomas Buergenthal, supra note
218 at 98-100; See also Jacques Ducrest, "Legislative and Quasi-Iegislative Function of ICAO: Towards
Improved Efficiency" (1995) 20(1) Ann. Air & Sp.L.343 at 354-358.

60
personnel (Chapter 3, 3.4); and responSlve measures to acts of unlawful interference
(Chapter 5).

(b) International Cooperation

To deny potential perpetrators the opportunity to commit an act of unlawful

interference against civil aviation by furthering international cooperation, Chapter 2: requires
each member State to meet special security requests from other States (para. 2.3.1) and to
cooperate and collaborate in the exchange of information concerning national security
programs and security training programs (para. 2.3.2 and 2.3.3); and recommends that each
State include a clause related to aviation security in its bilateral agreements on air transport
(para. 2.3.7). AIso, Amendment 10 newly urges each member State to share threat
information with other States (para. 2.3.4).

(c) Administrative and Coordinative Actions

Annex 17 requires each member State to create a govemmental organization

(para.2.1.2 and 3.1.3) to develop, implement and maintain the national civil aviation security
programme (para. 3.1.1) as weIl as to ensure airport security program (para. 3.2.1), aircraft
operator security program (para. 3.3.1) and training programme (para.3.1.7). Also, to
coordinate the activities of those involved in aviation security programme, each member
State must establish a national aviation security committee (para. 3.1.6) and require the
appropriate authority to define and allocate tasks and coordinate activities between various
govemmental institutions and other concerned entities (para. 3.1.5).

(d) Quality Control

In endeavoring to reflect human factor principles in aviation security system,

Amendment 10 newly adopts "Quality Control" in the Annex. The provisions of "Quality
Control" require each member State to develop "a national civil aviation security quality
control programme" to ensure the effectiveness of its national aviation security programme
(para. 3.4.4). In addition, Amendment 10 urges contracting States to establish: "security
personnel selection procedure including background checks" to prevent insider threats (para.
3.4.1); "training and performance review standards" for aIl persons implementing security
controls (para. 3.4.2); and "certification of screeners" (para. 3.4.3) to ensure the staffs
competency in operating aviation security equipment.

61
 (e) Preventive Security Measures

Chapter 4 of Annex 17 requires each contracting State to take security measures

to prevent weapons or any dangerous devices which may be used to commit an act of
unlawful i nterference f rom b eing i ntroduced 0 n board a n a ircraft (para. 4 .1.1). T 0 f urther
clarify the standards dealing with preventive security measures, Amendment 10 divides the
measures into six steps.

- First of aIl, with respect to aircraft, Annex 17 requires each contracting State
to perform aircraft security check for an originating aircraft (para. 4.2.1) and to control over
items left behind on the aircraft by disembarking passenger at transit stops on its airport
(para. 4.2.2). In addition, it obliges each member State to take adequate actions to prevent
unauthorized persons from entering the flight crew compartment during flight (para. 4.2.3).
The last provision has prompted Annex 6 to include a new requirement for lockable cockpit
do or.

- Second, relating to passengers and their cabin baggage, in order to prevent

unauthorized articles from being taken on board, each State must take measures to perform
security screen all passengers and cabin baggage prior to boarding (para. 4.3.1), to control
over transfer and transit passengers and their cabin baggage (para. 4.3.2), and also, to
prevent the mixing or contact between screened passengers and unscreened persons (para.
4.3.3).

- Third, relating to hold baggage, Annex 17 obliges each contracting State to

establish measures to perform security control over hold baggage prior to being loaded into
an aircraft (para.4.4.1) and to protect the checked baggage from interference until it is placed
on board (para. 4.4.2). Furthermore, each State must screen the consignment checked-in
baggage for commercial courier services (para. 4.4.5) and take actions not to transport the
baggage ofpassengers who are not on board the aircraft (para. 4.4.3).

- Fourth, relating to cargo, mail and other goods, Annex 17 requires each
contracting State to take measures to check and screen cargo, courier and express parcels,
catering supplies and operators' stores and supplies intended for carriage on passenger
flights (para. 4.5.2 - 4.5.4) as well as to protect those items (para. 4.5.1).

62
 - Firth, relating to special categories of passengers, Annex 17 requires States to
approve the carriage of weapons on board by law enforcement officers and other authorized
persons under special authorization in accordance with its domestic laws (para. 4.6.4) and to
establish security procedures for the carriage of weapons (para.4.6.6). Furthermore, with
respect to the above, in order to provide chances for the aircraft operator and the pilot-in-
command to take appropriate security controls according to their previously established
security pro gram (para. 4.6.3), Annex 17 obliges States to notify them as to the passengers
obliged to travel (para. 4.6.1) and the number of armed persons and their seat location (para.
4.6.2).

- Sixth, relating to access control, Annex 17 requests each State to establish

"security restricted areas", "access procedures" for the are as and "identification system" for
persons and vehic1es granted unescorted access to security areas to prevent unauthorized
access to aircraft (para. 4.7.1 and 4.7.3). In addition, Amendment 10 to Annex 17 has
introduced new requirements as Recommendations to reinforce access control. The
Recommendations are that air crew and airport personnel should be subj ected to random
screening (para. 4.7.5) and identified by specific identity cards or badges based on the
relevant specification for machine readable travel documents and biometric technologies
(para. 4.7.4).230

(f) Responsive Measures to Acts of Unlawful Interference

Chapter 5 of Annex 17 reaffirms the requirements of the Tokyo, Hague, and

Montreal Conventions by requiring each State to carry out specific procedures to deal with
acts of unlawful interference. In detail, Annex 17 requires each State to establish the
arrangement for the notification of a well-founded suspicion (para. 5.1.1) and the
investigation and disposaI of suspected devices (para. 5.1.2 and 5.1.3) as preventive
measures. When an act of unlawful interference occurs, Annex 17 obliges each State to
provide for the safety ofpassengers and crew until their joumey can be resumed (para. 5.2.1)
and to detain the unlawfully seized aircraft that has landed in its territory, unless the
departure of the aircraft is necessitated by the dut y to proteet human 1ife (para. 5.2.4). Also,
the State in which an unlawfully seized aircraft has landed must immediately notify the State
of registry of the aircraft, the State of operator and ICAO as well as each contraeting State
whose citizens are known to be on board the aircraft (para. 5.2.5).

230 See Dominique Antonini, supra note 227 at 13.

63
 3. Security SARPs in Other Annexes

While Annex 17 is the principal Annex addressing aviation security directly, Annexes 2,
6,9, 10, 11, 13, 14 and 18 also deal with security, too.

- Annex 6 (Operation of Aircraft (8 th ed. July 2001)): It requires that the flight
crew compartment door must be capable of being locked and the door must be designed to
resist penetration by small anns fire and grenade shrapnel (para.13.2), and that security
training programmes must be established and maintained for aircraft crew members to act in
the most appropriate manner to minimize the consequences of acts of unlawful interference
(para. 13.4).

- Annex 9 (Facilitation (11 th ed. July 2002)): To balance the aviation security with
the air transport efficiency and passenger convenience, it requires Contracting States to
consider the application of aviation security, narcotic control and immigration control
measures, etc. while Contracting States adopt appropriate measures for the clearance of the
entry and departure of aircraft, persons and their baggage, cargo and other articles (para. 2.1-
2, 3 .1-2, 4.1-8). A Iso, i t r equires each m ember State top rovide s atisfactory facilities and
services for rapid handling and security clearance of passengers, baggage, etc. (para. 6.1).

- Annexes 2 (Rules of the Air (9 th ed. July 1990)) and 10 (Aeronautical

Telecommunications (3 rd ed. July 2002)): When an aircraft is subjected to unlawful
interference, these Annexes require each aircraft to set specifically designated code to notify
anATS unit of the fact (Annex 2, para 3.7 and Annex 10, para. 2.1.4).

- Annex 11 (Air Traffic Services (13 th ed. July 2001)): It requires each member
State to provide maximum consideration, assistance and priority for the aircraft in an
emergency over other aircraft (para. 2.22).

- Annex 13 (Aircraft Accident and Incident Investigation (9 th ed. July 2001)): If

an act of unlawful interference was involved or suspected in the course of an investigation,
each member State must notify the facts the aviation security authorities of the concerned
State (para. 5.11).

64
 - Annex 14 (Aerodromes (3 rd ed. July 1999)): It requires each contracting State to
designate an isolated aircraft parking position (para. 3.13) and to establish aerodrome
emergency planning for the process of preparing an aerodrome to cope with an emergency
occurring at the aerodrome or in its vicinity (para. 9.1). AIso, Annex 14 recommends that the
airport be fenced and be iUuminated (para. 8.4 and 8.5), and that security facilities have a
secondary power supply (para. 8.1.1).

- Annex 18 (The Safe Transport of Dangerous Goods by Air (3 rd ed. July 2001)):
It obliges each member State to establish "Dangerous Goods Training Programmes"
(Chapter 10) and to take measures for the compliance with "the Technical Instructions for
the Safe Transport of Dangerous by Air (lCAO Doc. 9284)" (para. 2.2).

4. Aviation Security Audit Programme

A. Legal Status of Aviation Security Audit Programme

In accordance with the decisions of the 33 rd session of the ICAO Assembly (A33-1)
in October 2001 and the High-Ievel Ministerial Conference on Aviation Security in February
2002, the 166th session of the ICAO Council adopted "the Aviation Security Plan of Action"
in June 2002. A central element of the Plan of Action (Project 3) is regular, "mandatory",
systematic and harmonized aviation security audits for the promotion of global aviation
security through evaluating security in place and correcting deficiencies in the
implementation of ICAO security-related standards in aU 188 Member States of ICAO. 231
This audit programme builds on the univers al safety oversight audit programme model
which was launched by ICAO in January 1999. 232
To this point, regardless of the expected positive functions of the security audit
pro gram, a legal issue arises as to whether ICAO has the authority to carry out "the
mandatory universal security audit pro gram" without amending the Chicago Convention
(Article 94), because the implementation ofmandatory security audits seems to be one of the
vital elements in the Convention System.
To begin with, while ICAO programmes and activities seem to differentiate between

231 ICAO Doc. 9807, "Security Audit Reference Manual" at 2-1; "ICAO Aviation Security Plan of Action" on
line: ICAO <www.icao.intlicao/enlatb/avsec/planaction.htm> (date accessed in 19 October 2004).
232 See Assad Kotaite(ICAO Council President), "Civil aviation security is an integral part of our global
security" (2002) 57:2 ICAO J. 4 at 5.

65
"safety" which focuses on prevention from unintentional harm and "security" which focuses
on intentional harm, a passenger's overall view of safety and security is one and the same or
inseparable when people often speak of having a safe flight. Also, in spite of the deficiency
of the term "security" in the Convention, mainly resulting from the fact that acts of unlawful
interference could n ot have b een f oreseen at the t ime w hen the Chicago Convention was
drafted, aviation security has been one of main tools to assure the overall safety of civil
aviation. Therefore, it would appear logical to regard that the concept of "security" is
incorporated into that of "safety" in the Chicago Convention. Hence, the ICAO Council
cornes to have aIl necessary legal grounds from the existing framework of the Chicago
Convention for the security audit without amending the Convention. 233 This is because the
ICAO Council has a mandatory function "to request, collect, examine and publish
information relating to the operation of international air services", "to report to contracting
States and the Assembly any infraction of this Convention" (Art.54 G), (k) and (1)) and a
discretionary power "to conduct research into aIl aspects of air transport and air navigation
which are of international importance" (Art.55 (c)).
However, ICAO seems to go beyond the authority granted by the Assembly and
the Convention with respect to the legal status of security audits. At first, ev en though the
33 rd Assembly Resolution A33-1 only directed the Council to consider "the establishment of
an ICAO Universal Security Oversight Audit Programme", ICAO prescribed the legal
character of security audits as "mandatory" in "Aviation Security Plan of A ction" and in
most ICAO issued statements. 234 Although the ICAO Council refers to the endorsement of
the High-level Ministerial Conference as one of the legal grounds for "mandatory security
audit" in "Aviation Security Plan of Action", the Conference cannot be a decision making
body within the ICAO constitutional structure, but only a powerful advisory body of experts
and politicians concerned with aviation security.
Second, the legal basis of the security audit is a special Memorandum of
Understanding (MOU) signed between ICAO and the State to be audited. 235 The MOU will
confirm that the security audit will be conducted in accordance with the terms in the MOU.
Therefore, without an appropriately signed MOU, ICAO has no legal instrument to
implement the security audit to contracting States. Even if a contracting State refuses to sign
the MOU with any reason, this refusaI does not constitute an infraction of the Convention
and Annex 17, because the only legal basis for the security audit is Assembly Resolution

233 See Michael Milde, supra note 212 at 176-177.

234 See ICAO News Release, supra note 209; See Assad Kotaite, supra note 232 at 4-5; See also Catherine
Zuzak, supra note 210 at 4-6.
235 ICAO Doc.9807, "Security Audit Reference Manual", Chapter 7. Audit Process, at 7-2.

66
A33-1 that is not an international law or treaty, and no provision in the Convention and
Annex 17 obliges a contracting State to sign the MOU. Thus, in spite of the efforts of ICAO
to provide "mandatory legal status" to the security audit as weIl as the initiative of ICAO to
forward the MOU to a contracting State instead of "upon request" by a contracting State, the
Universal Security Audit Programme is carried out, strictly speaking, on a voluntary basis,
not on a mandatory basis.

B. Auditing Procedures in the Security Audit Programme

In order to ensure that "every State is audited in a consistent manner and in

accordance with a systematic, objective and proven process," aIl audits are c arried out in
accordance with the standardized and transparent auditing processes and procedures set forth
in the ICAO Security Audit Reference Manua1. 236

(a) Notification and MOU 237

The audit process starts with "annual audit plan" which is prepared and
distributed bi-annually to contracting States by the aviation security audit unit in the Air
Transport Bureau. After this unofficial distribution of an annual audit plan, at least four to
six months prior to the commencement of the audit, ICAO sends a formaI notification to a
State to be audited with a State-specific MOU signed by the Secretary General of ICAO as
weIl as the pre-audit questionnaire and other pertinent information regarding the audit. The
State should decide to accept or reject the MOU which defines each party's role in the
auditing process and sets forth the means by which the audit will be conducted, at least three
months before the proposed commencement of the audit. If the State agrees to the contents
of the MOU, it should return a countersigned copy of the MOU to ICAO. When the State has
a compelling reason not to accept the agreed audit, the State is asked to notify ICAO of the
situation not less than two months prior to the scheduled audit.

(b) Duration of the Audit and the Assignment of an Audit Team238

ICAO will select auditors from the roster of ICAO-certified Universal Security
Audit Programme (USAP) auditors at least three months prior to the scheduled audit and

236 Ibid. Chapter 3. Audit Policy and Chapter 7. Audit Process.

237 Ibid. at section 7-2,3,4.
238 Ibid. at section 7.5.

67
comprise each audit team with auditors of different nationalities and with a fair geographical
representation as far as practicable.
The duration of the audit and the composition of the audit team are adjusted
depending on the size and complexity of operations and the number of airports involved and
the specific terms for those decided in the MOU. A typical audit is conducted over a period
of eight days by a team of four auditors following the standard auditing procedures and
protocols. 239

(c) Audit Procedures in the Audited State240

- National Briefing: 0 n the first day of the audit, the audit team leader will
conduct a nationallevel briefing for senior officiaIs of civil aviation and aviation security to
inform the process and scope of the audit and to confirm audit schedule arrangements.

- On-Site Audit and Audit Findings: The auditors will record all audit findings
on an interim findings worksheet with reference made to the relevant ICAO standards for
which the finding was made, and classify them as Category 1, 2, 3, NIC and N/A,241 and
provide the information on the findings to the coordinator of the audited State on a daily
basis. After audit activities are completed, the audit team will review all audit findings and
confirm an audit finding that identifies a lack of compliance with or implementation of an
ICAO Standard as non-compliance.

- Post-Audit Debriefing: At the end of the audit, the audit team will convene a
nieeting with the State's appropriate authority to discuss the audit findings and
recommendations that will be included in the audit report. The debriefing is to be conducted
in such a way as to review deficiencies, if any, regarding the lack of implementation of
Annex 17 Standards with factual evidence and to ensure that the audited State authorities
clearly understand the findings.

(d) Audit Report242

239 Catherine Zuzak, supra note 210 at 5.

240 Supra note 235 at section 7-8,9, 11, and 12.
241 The "Security Audit Reference Manual"(ICAO Doc. 9807, at 7-7) categorizes as follows: Category 1:
Meets the Annex 17 Standard, Category 2: Not meet the Standard, represents a minor need for improvement for
the compliance, Category 3: Not meet the Standard, represents a serious need for improvement for the
compliance, Not confirmed(N/C), Not applicable(N/A).
242 Ibid. at section 7.14.

68
 Within 60 days after the completion of the audit, ICAO will submit a confidential
audit report containing full details of the audit findings and recommendations to the audited
State. The audit report will be available only to the audited State and t 0 persons with an
official need to know within ICAO. However, in accordance with the MOU, to provide an
opportunity for countries to share their audit results on a bilateral or multilateral basis, ICAO
periodically issues an audit activity report disclosing the audited States and specific airports.

(e) Corrective Action Plan 243

In accordance with the terms of the MOU, within 60 days after receiving the
audit report, the audited State will submit a corrective action plan including the particular
measures which intend to resolve the findings of non-compliance and the time table for
securing the implementation. If the audited State disagrees with the findings or the
interpretation of Annex 17 Standards, the State may propose to modify its action plan with
the cooperation of ICAO.

(f) Follow-up Action and Audit Follow-up Visits 244

ICAO will monitor the status of implementation of accepted corrective action

plans. In order to determine the status of implementation of the corrective action plan or the
status of correction of findings noted during the audit, an audit follow-up visit may be
conducted.

5. New Preventive Security Measures

A. Advance Passenger Information System (APIS)

The increased risks posed by airline passengers, especially illegal activities such as
drug trafficking and threats to national security, have resulted in unacceptable delays in the
Customs and Immigration processing of arriving passengers at airports. 245 In order to

243 Ibid. at section 7.13.

244 Ibid. at section 7.15-16.
245 Article 13 of the Chicago Convention recognizes each State's customs and immigration procedures to keep
its border secure.

69
improve passenger clearance times as well as to enhance security for border control with the
conduction of preliminary screening of inbound passengers before their arrivaI, sorne ICAO
member States have begun to develop APIS. 246
The passenger identification data can be transmitted to the authorities of arrivaI
airport as follows: During the check-in process, passenger data contained in the "machine
readable travel documents" (MRTD; passport or visa) is collected by the airline staff, then
formatted by the airline's reservation and control system, and transmitted to the centralized
Customs or Immigration system in a State of destination at which the data are checked
against their databases and lookout lists. The results of these checks are distributed to the
Customs and Immigration of the arrivaI airport. 247
With the recognition of APIS 's value as a tool for rapid border clearance of low-risk
passengers as weIl as for security which provides border control officers more time to
process the passenger data and to single out high risk individuals, airlines have participated
in the U.S. APIS on a voluntary basis since 1991. AIso, sorne other States have begun to
deve10p plans to adopt their own advance passenger information systems. 248
However, strictly s peaking, APIS mainly f ocuses not on aviation security, but on
"border control" at arrivaI airport to prevent smuggling, illegal immigrants, etc. Therefore,
the possibility that APIS may select out a potential terrorist prior to on board aircraft seems
to be low.

B. Biometrie Identification

"Biometrics" are t he a utomated m eans 0 fi dentifying a 1iving p ers on t hrough the

measurement of physiological or behavioral features which are unique to an individu al. 249
The application of biometric technology to aviation transport is an attempt to offer the best
means of making passenger inspection easier, faster and more secure as weIl as to enhance
passenger convenience at airports by combining unique biological data such as finger prints,
facial features, hand geometry, signatures, eye patterns, and voice with advanced information
technologies. By linking systems, combining information and using technology in order to
automatically identify passengers and their baggage, it is generally expected that the security

246 Article 29 (f) of the Chicago Convention can be the legaljustification for APIS.
247 See Nicolas Banerjea-Brodeur, "Advance passenger information leads to better border control and faster
clearances" (2003) 58:7 ICAO J.lO at 10-11.
248 Ibid.

249 ICAO TAG MRTD/NTWG Technical Report, "Biometries Deployment of Machine Readable Travel
Documents" (May 21,2004) on hne <www.icao.int/mrtdlbiometrics/reports.cfm> (date accessed: February 23,
2005) at 8.

70
processes of airlines, airports and border control authorities can be faster and more efficient,
and that biometrics will help a passenger to enjoy an unimpeded joumey, heighten aviation
security and add protection against identity theft, toO,z50
Thus, in order to assist and ensure aU member States to implement a worldwide,
standardized system of machine assisted identity confirmation, the ICAO Technical
Advisory Group(TAG) on "Machine Readable Travel Documents" (MRTD) with the active
participation of Airports Council International (ACI), IATA and International Organization
for Standardization (ISO) has been working toward the development of new and revised
MRTD incorporating new technologies and additional features needed to me et the new
requirements, including biometrics and other additional security features among its many
different expected applications since 1999,z51 At last, on May 28, 2003, 1 CAO adopted a
global, harmonized blueprint for the integration of biometric identification information into
passports and other MRTDs 252 and, in order to provide guidelines for States in the
introduction and deployment of biometrics with respect to MRTD and their holders, border
security and border control, the ICAO TAG/MRTD endorsed a technical report "Biometrics
Deployment of Machine Readable Travel Documents" at its IS th meeting on May 21,
2004. 253
The key application processes of the biometric-enhanced MRTD consist Of54:

- The enrolment process: to capture a raw biometric sample from an applicant

for an MRTD in order to establish a new template via a capture device such as a fingerprint
scanner, photograph scanner, live-capture digital camera, or live-capture iris zooming
camera.

- The template creation process: to extract and preserve the distinct and
repeatable biometric features from the captured biometric sample via a proprietary software
algorithm.

250 ICAO, "Biometrics ICAO Recommendation" on line <www.icao.int/mrtd/biometrics

/recommendation.cfm> (date accessed: February 23,2005).
251 1CAO, "Biometrics - Introduction" on line <www.icao.int/rnrtdlbiometrics/intro.cfm> (date accessed:
February 23, 2005); See Roderick Heitmeyer, "Biometric identification promises fast and secure processing of
airline passengers" (2000) 55:9 ICAO J. 10 at 10-11; See also Nicolas Banerjea-Brodeur, Advance Passenger
Information/Passenger Name Record: Privacy Rights and Security Awareness (LL.M. Thesis, Montreal, McGill
University, 2003) [unpublished] at 23-30.
252 ICAO News Release(PIO 09/03), "Biometric Identification to provide enhanced security and speedier
border clearance for traveling public" (May 28, 2003), on line <www.icao.int/icao/enlnrI2003/pio
200309_e.pdt> (date accessed: February 23,2005).
253 ICAO TAG MRTDINTWG Technical Report, supra note 249 at 4 and 8.
254 Ibid. at 13.

71
 - The identification process(one-to-many search): to take new biometric
samples from an MRTD holder and compare the new data to a collection of templates
representing aU of the subjects who have enroUed in the biometric system in order to
determine whether the MRTD holder has been enroUed in the system before, and if so,
whether in the same identity.

- The verification process(one-to-one match): to compare the newly taken

biometric data of an MRTD holder to previously saved templates ofthat holder in the MRTD
and in a central data base at the time the MRTD was issued in order to determine whether the
traveler is presenting in the same identity, or whether the MRTD has been altered.

It is expected that these processes will ensure that an MRTD holder is the legitimate person
to whom it was issued, that the traveler is an actual ticket holder, or that the traveler is
indeed on board an aircraft. AIso, by prescreening passengers with sorne pre-determined
category, it seems to be easier to prevent individuals who are known or suspected as
terrorists from boarding an aircraft. Therefore, it may be said that aviation security will be
greatly enhanced through the use ofbiometric identification.
However, there is no doubt that employing biometric information in MRTD wiU not
solve aU aviation security problems. This is because, first of aU, the use of biometric data
does not ensure that an MRTD holder has his/her correct name, citizenship and other
information, but when biometric identity has been created, it will only help to prevent the
person from using another name in the future. Even though, in order to ensure that an MRTD
is issued to a genuine person who is entitled to an MRTD, ICAO recommends each member
State enhance the security of the biometric enrolment process for MRTD issuance via use of
breeder documents, electronic verification of document presented with the issuing authority
for that documentation, external database integrity checks, id card database checks, etc. 255
and member States earnestly adopt and implement good security measures for the MRTD
issuance process, it is almost impossible for member States to implement the security
measures perfectly in practice because currently most States have not "a citizen registration
or identification system" to verify an MRTD applicant's identity. As a result, there is always
the possibility that terrorists may provide their biometric data with others' real names which
are not on watch lists, as several previous fake passports incidents caused by sorne state's
spies who attempted to get genuine passports by masquerading as other persons in a foreign

255 Ibid. at 24-28.

72
state for clandestine operations. 256 AIso, each database for border or security control in
States can not preserve information of a potential terrorist who had not committed a crime
before. In these above cases, the biometric identification database cannot select out genuine
terrorists as well as potential terrorists prior to boarding an aircraft or even at a border
control, but may regard them as low-risk passengers.
Secondly, t aking i nto a ccount t he various causes 0 f u nlawful i nterference w ith
civil aviation 257 and the essential function of aviation security, even if the biometric
enrolment security procedures for MRTD issuance are perfect and there is no possibility for
the issuing authority to issue an MRTD to an impostor, this cannot guarantee that a genuine
MRTD holder is not secretly carrying any dangerous goods or will not cause any unlawful
interference on board an aircraft.
Consequently, because of the system's weaknesses and the key objective of
aviation security, contrary to the air industry's anticipation of minimizing the inconvenience
involved in the strengthened pre-boarding security procedures with the biometric
identification technology in MRTD, the biometric-enhanced MRTD cannot promise fast and
convenient security processing of airline passengers. But, the biometric identification in
aviation industry may work, at least, as a supplemental security tool for "access control" to
secure sections at departure airports and may enhance security for "border control" at arrivaI
airports.

256 See David Fickling, "Mossad spies jailed over New Zealand passport fraud" The Guardian (July 16, 2004),
on line <www.guardian.co.uk/israellstory/0,2763,1262362,00.html> (date accessed: October 5, 2004); See also
Claire Trevett and Bridget Carter, "Angry Prime Minister Hammers Israel" The New Zealand Herald (July 16,
2004), on line <www.nzherald.co.nz/storyprint.cfm?stroyID=3562376> (date accessed: October 5, 2004): "Two
suspected Mossad agents were jailed for six months for trying on false grounds to ob tain a New Zealand
passport in the name of a man around the same age, who had cerebral paIsy and had not spoken in years."
257 See Michael Milde, supra note 26.

73
CHAPTER V. Conclusion

The international community has undertaken a variety of security measures in an attempt

to prevent and combat criminal acts against civil aviation. The most notable success in
preventing unlawful interference against civil aviation has been the creation of international
consensus that: aviation security issues are matters of international concern, as aviation
transport itself; security deficiencies in any part of the world directly constitute a threat to
the entire global aviation security system; and unlawful acts against civil aviation and the
support for the a cts c1early c onstitute criminal conduct under c ustomary international law
and aviation security Conventions. 258 As a result, regardless of enforcement system
deficiencies in the aviation security Conventions, no country in the world dares to provide a
safe heaven for the perpetrators under current international political circumstance and most
States seem to strictly restrict the political offences exception to extradition for criminals.
AIso, according to the international security SARPs provided by ICAO, States have adopted
their own domestic aviation security regulations and all over the world, security measures in
airports and aircraft have been tightened to prevent any security deficiencies from being
manipulated by potential criminals. Furthermore, ICAO is carrying out security audits to
improve the level of security performance in all contracting States. 259
However, t here are still s everal parts t 0 b e i mproved and n ew1y e merging parts t 0 b e
solved under the CUITent international aviation security system. To begin with, although all
States have the will to identify security deficiencies and to correct them, many lack the
necessary technical or financial resources to take action. Considering the facts that
international legal instruments and technical measures will not effectively prevent aerial
unlawful acts without global cooperation, and that the weakest security link in the world will
determine the overall strength of the aviation security system, the international community
needs to develop a more active international cooperation system for the training of security
personnel and for the procurement of security equipment for the needed States with the same
passion which was shown during the period when the international community endeavored
to adopt the aviation security conventions.
Second, it is every govemment's basic responsibility to secure the safety of its air
transportation system. But until today, in practice, airlines are being penalized by liability for

258 See "The Declaration of High-Level Ministerial Conference on Aviation Security" (Montreal, February 19-
20,2002) on line: ICAO <www.icao.intlicao/enlmI2002/pio200202_e.pdt> (date accessed in 5 October 2004).
259According to ICAO Doc.9826, "Annual Report of the Council, 2003", the ICAO security audit teams audited
1 State in 2002, 19 States in 2003. In 2004,48 States have been scheduled for audits.

74
damage which is caused by unlawful interference with civil aviation, but which is not
directly associated with the performance of air transport. Even though the claimants may sue
the government or airport authority for negligence or for breach of a dut y of care, the
claimants will face many obstacles to prove the negligence or the breach of them. This is
because in the absence of international law, the applicable law will be the domestic tort law
of the concerned State. Taking into account the facts that Governments are taking over or
actually have control over aviation security operations, and that the ICAO security SARPs
and security audit may play a significant role in the determination of the dut y of care, the
liability for damage caused by unlawful interference with civil aviation deserves a profound
review to allocate risk in ajust and equitable manner. 260
Third, as ICAO security audits are implemented, there are three international security
audits programmes (ICAO, FAA, JAA261 ). The continuing existence of the individu al State
or regional regulatory body security audit programmes after the implementation ofICAO
security audit could raise a great deal of criticism within the international community for
duplication. This may jeopardize the efficiency of such audit programmes due to differences
between audit findings and recommendations. Thus, it is necessary for the international
community to coordinate the multiple security audit programmes so as to avoid unnecessary
duplication of the use of limited resources and to alleviate the burden on States and the
aviation industry.
Fourth, considering the sensitivity of security audit findings, the audit report is kept
strictly confidential. However, to prompt the government concerned to take corrective
actions with the pressure of the public opinion while the government saves its face, the audit
report should remain confidential only for a period which is enough to correct the identified
deficiencies. If the audited State fails to take corrective actions within the designated period,
the report should be made public.
Fifth, while aviation security measures are certainly necessary to restore the confidence of
people in air transport and to ensure the safety of civil aviation, the tighter security measures
actually cause sever inconvenience to passengers, such as forcing passengers to check in
many hours before a flight, rechecking carry-on baggage directly in front of the boarding
gate, etc. Considering the fact that, though the security measures are designed to protect the
air transport, they may cause severe harm to the very system it is protecting, the security
measures must be effective, internationally coordinated, and applied with the greatest
possible passenger convenience in mind.

260 See Michael Milde, supra note 26 at 155-156.

261An associated body of the European Civil Aviation Conference (ECAC) which represents the civil aviation
regulatory authorities of a number of European Countries.

75
 Has the international community taken enough action to prevent another intentional
catastrophic harm? The answer is a straightaway "NO", because there is no perfect security
measure for preventing potential criminals from approaching aviation facilities or boarding
aircraft. Thus, there is always a possibility that another catastrophic will occur, whenever the
level of security vigilance decreases or whenever the security performance does not comply
with. international security standards or whenever the national and international security
programmes are not creatively adjusted to me et ever-changing new threats. 262

262 See Assad Kotaite, "ICAO Policy and Programmes in the Field of Aviation Security" (1985) 10 Ann. Air &
Sp. L. 83 at 83-84.

76
 Selected Bibliography

1. Books

Abeyratne, Ruwantissa LR., Aviation Security: Legal and Regulatory Aspects (England:
Ashgate Pub., 1998).

Buergenthal, Thomas, Law-Making in the International Civil Aviation Organization, 1st ed.
(New York: Syracuse University, 1969).

Cheng, B., General Principles of Law as Applied by International Courts and Tribunals
(London: Stevens & Sons, 1953).

Dempsey, Paul Stephen, Law and Foreign Policy in International Aviation (New York:
Transnational Pub., 1987).

Diederiks-Verschoor, LH.Ph., An Introduction to Air Law, 6th revised ed.(The Netherlands:

Kluwer Law International, 1997).

Ghosh, S.K., Aircraft Hijacking and the Developing Law (New Delhi: Ashish Pub., 1985).

Hubbard, David G., The Skyjacker: His Flights of Fantasy (New York: Macmillan, 1971).

Lauterpacht, H, International Law and Human Rights (London: Stevens & Sons, 1950).

Matte, Nicolas Mateeso, Treatise on Air Aeronautical Law (Montreal: ICASL-McGill

University; Toronto: Carswell, 1981).

Mc Whinney, Edward, Aerial Piracy and International Terrorism, The illegal Diversion of
Aircraft and International Law, 2nd ed. (Dordrecht, the Netherlands ; Boston:
Martinu Nijhoff, 1987).

Moore, Kenneth C., Airport, Aircraft and Airline Security (LA: Security World Pub., 1976).

Park, Won-Hw a, Aviation Law (Seoul: Myung-ji Pub., 1990).

St. John, Peter, Air Piracy, Airport Security, and International Terrorism: winning the war
against hijackers (New York: Quorum Books, 1991).

Sweet, Kathleen M., Terrorism and Airport Security (Lewiston, N.Y.: Edwin Mellen Press,
Symposium Series Vo1.68, 2002).

Wallis, Rodney, How safe are our Skies?: assessing the airlines' response to terrorism,
(Wesport, Conn.; London: Praeger, 2003).

77
2. Theses

Ab eyratne , R I.R., Legal and Regulatory Aspects of Unlawful Interference with Civil
Aviation (D.C.L. Thesis, Montreal, McGill University, 1996).

Aisatou Jallow-Sey, ICA 0 's Aviation Security Program Post 9/11: A legal Analysis (LL.M.
Thesis, Montreal, McGill University, 2003) [unpublished].

Banerjea-Brodeur, Nicolas, Advance Passenger Information/Passenger Name Record:

Privacy Rights and Security Awareness (LL.M. Thesis, Montreal, McGill
University, 2003) [unpublished].

Chung, D.Y., Some Legal Aspects of Aircraft Hijacking in International Law (LL.M. Thesis,
University of Tennessee, 1976).

El-Muner El-Harudi, New Development in the law of aviation security (LL.M. Thesis,
Montreal, McGill University, 1989) [unpublished].

Mutz, William, Civil Aviation Security and the Law (LL.M. Thesis, Montreal, McGill
University, 1981)[unpublished].

Park, Won-Hw a, The Boundary of the Airspace, Its Violations and International Law (D.C.L.
Thesis, Seoul, Korea University, 1993).

3. Articles

Abeyratne, R.I.R., "The effects ofUnlawful Interference with Civil Aviation on World Peace
and Social Order" (1995) 22 Trans. L. J.449.

Abramovsky, Abraham, "Multilateral Conventions for the Suppression of Unlawful Seizure

and Interference with Aircraft, Part 1: The Hague Convention" (1974) 13
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"Multilateral Conventions for the Suppression of Unlawful Seizure and

Interference with Aircraft, Part Il: The Montreal Convention" (1975) 14
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"Multilateral Conventions for the Suppression of Unlawful Seizure and

Interference with Aircraft Part III: The Legality and Political Feasibility of a
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Prospective (New York: Carnegie Endowment for international Peace,

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 November 1971, No.585) at 7.

Antonini, Dominique, "Annex 17 standards will be primary focus of forthcoming security

system audits" (2002) 57:5 ICAO J.12.

Banerjea-Brodeur, Nicolas, "Advance passenger information leads to better border control

and faster clearances" (2003) 58:7 ICAO l10.

Boyle, Robert P., "International Action to Combat Aircraft Hijacking" in Lawyers of the
Americas (Denver, Colorado: 1969) at 463.

Boyle, Robert P., & Pulsifer, Roy, "The Tokyo Convention on Offenses and Certain Other
Acts Committed on Board Aircraft" (1964) 30 J. Air L. & Comm. 305.

Busttil, James J., "The Bonn Declaration on International Terrorism: A non-binding

International Agreement on Aircraft Hijacking" (1982) 31 LC.L.Q. 474.

Cooper, John Cobb, "Backgrounds ofInternational Public Air Law"(1965) Y.B.Air&Sp.L.3.

Dempsey, Paul Stephen, "Aviation Security: The Role of Law in the War against Terrorism"
(2003) 41 Colum. J. Transnat'l L. 649.

Ducrest, Jacques, "Legislative and Quasi-Iegislative Function of ICAO: Towards Improved

Efficiency" (1995) 20(1)Ann.Air&Sp.L.343.

Evans, Alona E., "Aircraft Hijacking: What is Being Done" (1973) 67 A.lLL. 641.

"Aircraft Hijacking: Its Causes and Cure" (1969) 63 A.J.LL. 695.

Fingerman, Mark E., "Skyjacking and the Bonn Declaration of 1978: Sanctions applicable to
Recalcitrant Nations" (1980) 10 Cal. W. !nt'l L. J.123.

Fitzgerald, Gerald F., "Toward Legal Suppression of Acts against Civil Aviation" in Air
Hijacking: An international Prospective (New York: Carnegie Endowment
for international Peace, November 1971, No.585) at 42.

"The Development of International Rules Concerning Offences and Certain

Other Acts Committed on Board Aircraft" (1963) 1 Cano y. B. Int'! L. 236.

Gablentz, Otto von der, "Prevention of Aviation Terrorism: The Government's Point of
View" in Conference Proceedings: Aviation Security (The Netherlands:
University of Leyden, 1987) at 113.

Heitmeyer, Roderick, "Biometrie identification promises fast and secure processmg of

airline passengers" (2000) 55:9 ICAO J. 10.

Kotaite, Assad, "ICAO Policy and Programmes in the Field of Aviation Security" (1985) 10

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 Ann. Air & Sp. L. 83.

"Civil aviation security is an integral part of our global security" (2002) 57:2
ICAO J. 4.

Mankiewicz, R.H., "The Hague Convention" (1971) 37 J. Air L. & Corn. 195.

McKeithen, R.L. Smith, "Prospects for the Prevention of Aircraft Hijacking through Law"
(1970) 9 Colum.J.Transnat'l L. 60.

Mendelson,A.I., "In-Flight Crime, The international and Domestic Picture under the Tokyo
Convention" (1967) 53:3 Va. L. Rev. 509.

Milde, Michael, "Status of Military Aircraft in International Law" (2000) in Milde, M. and
Khadjavi, H., ed., Public International Air Law (lAS L, FaU Term Course
material (Vol. one)) (Montreal: McGiU University, 2001) at 219.

"The International Fight against Terrorism in the Air" in C-J Cheng(ed), The
Use of Airspace and Outer Space for ail Mankind in the 21 st Century (The
Netherlands: Kluwer Law International, 1995) at 141.

"Unruly passengers and the law" in Milde, M. and Khadjavi, H., ed., Public
International Air Law (lASL, FaU Term Course material (Vol. two))
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"Aviation Safety Oversight: Audits and the Law" (2001) 26 Ann. Air & Sp.
L.165.

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(1996) 45 Z.L.W. 3.

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50years Later?"(1994) 19(1) Ann. Air & Sp.LAOl.

Schwenk, Walter, "The Bonn Declaration on Hijacking" (1979) 4 Ann. Air & Sp. L. 307.

Schacher, O., "The Twilight Existence of Internationa1 Non-Binding Agreements" (1977) 71

A.J.I.L. 296.

Shubber, Sami, "Aircraft Hijacking under the Hague Convention 1970-A new Regime?"
(1973) 22 I.C.L.Q. 687.

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against The Safety of Civil Aviation" (1973) 22 LC.L.Q. 163.

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Van Panhuys, Haro P., "Aircraft Hijacking and International Law" (1970) 9 Colum. J.
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Whiteman, Marjorie M., "Jus Cogens in International Law, With a Projected List" (1977) 7
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Zuzak, Catherine, "Audits promote consistent implementation of aviation security measures

worldwide" (2003) 58:7 ICAO J. 4.

4. Documents

A. International Conventions, Treaties and Multilateral Actions

Charter of the United Nations, 26 June 1945, Can.T.S. 1945 No. 7.

Convention relating to the Regulation ofAerial Navigation (Paris, 1919), Il L.N.T.S. 173.

Convention for the Prevention and Punishment of Terrorism (Geneva, 1937) in

"International Legislation: A Collection of the Texts of Multipartite
International Instruments of General Interest" (Vol. VII, 1935-1937) edited
by Manley O. Hudson (Washington DC: Carnegie Endowment for
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force ]. at 862.

Convention on International Civil Aviation (Chicago, 1944), 15 U.N.T.S. 295, ICAO

Doc.7300/8.

Convention on the High Seas (Geneva, 1958),450 V.N.T.S. 82 (No. 6465).

Convention on Offences and certain other acts committed on board aircraft (Tokyo, 1963),
704 V.N.T.S.219 (No.10106), ICAO Doc.8364.

Convention for the Suppression ofUnlawful Seizure ofAircraft (Hague, 1970),860 V.N.T.S.
105 (No. 12325), ICAO Doc.8920.

Convention for the Suppression of UnlawJul Acts against the SaJety oJ Civil Aviation
(Montreal, 1971),974 U.N.T.S. 177 (No.14118), ICAO Doc.8966.

Convention on the Marking of Plastic Explosives for the purpose of Detection (Montreal,
1991), ICAO Doc. 9571.

European Convention 0 n the S uppression of Terrorism, 2 7 J a nuary 1977 (Strasbourg), 1 5

I.L.M. 1272 (1976) (entered into force on 14 August 1978).

81
International Air Services Transit Agreement (Chicago, 1944), 84 U.N.T.S. 390 (No.252),
ICAO Doc. 7500.

Joint Statement on International Terrorism (Bonn, 1978), 17 I.L.M. 1285 (1978).

Protocol relating to an amendment to the Convention on International Civil Aviation [Article

3bisJ (Montreal, 1984), ICAO Doc. 9436.

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation, Supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, Done at Montreal on 23
September 1971 (Montreal, 1988), ICAO Doc. 9518.

Vienna Convention on the Law ofTreaties (Vienna, 1969), 1155 U.N.T.S. 331 (No.18232).

B. IeAO Documents

Annexes to the Chicago Convention

- Annex 2 (Rules of the Air), 9th ed. (July 1990).
- Annex 6 (Operation of Aircraft), 8th ed. (July, 2001).
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- Annex 10 (Aeronautical Telecommunications), 3rd ed. (July 2002).
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- Annex 13 (Aircraft Accident and Incident Investigation), 9th ed.(July 2001).
rd
- Annex 14 (Aerodromesl' 3 ed. (July 1999).
- Annex 17 (Security), i ed. (April 2002).
- Annex 18 (The Safe Transport ofDangerous Goods by Air), 3rd ed. (July 2001).

Declaration of the High-Level Ministerial Conference on Aviation Security (held at Montreal

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ICAO Doc.8776 (Assembly Res. A16-37, 1968).

82
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ICAO Doc.8982 A19-P/1, Annual Report of the Council-1971.

ICAO Doc.9050 LCI169-2.
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