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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 McGill 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 "Universal 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.

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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 providing 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.

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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

iv

31

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

v

(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

Selected Bibliography

vi

74

77

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

air navigation. As the rising n umber 0 fi ncidents and i nability to

the s afety of flight and

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 outside 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.

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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 Program and new emerging aviation security technologies.

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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, 2 nd 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/leagon15&size=2&rot=0& collection=journalsid= 1689> (date accessed: 25 August 2004) at 1758-1760.

5 "Record of the 17 th Assembly of the League of Nations, Plenary Meetings, at 135" in EI-Muner EI-Harudi, supra note 2 at 7.

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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.

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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 Principle 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 principles 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 principles 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, 1nternational Law and Human Rights (London: Stevens & Sons, 1950) at 149.

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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 aircraft. Il

against the unauthorized over flying

unarrned civil

Therefore, the U.N. Charter imposes a legal obligation on member states to protect

human 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.

12 ICAO, "Status of Certain International Air Law Instruments" (1999) 54:6 ICAO J. 33. 13 Convention 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

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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 distress 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. 15According 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 "Foreword" 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.

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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 duty 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 Seas 23 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

obliges contracting

States to "cooperate to the full est possible extent in the repression of piracy on the high seas"

and be brought to justice anywhere. 25 Article 14 of the Convention

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 attributable 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

Western Europe and U.S.A. etc. The number ofworld wide aircraft hijackings, from January

s afe h aven, h ij acked a ircrafts en route f rom their c ountries t 0

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 desire 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 manner 34 :

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 punished 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 14 1h 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 7 th year, 1st and 2 nd 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 1963 41

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 person 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 1ntemational 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 even 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 punished 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 the1963 Tokyo Convention provides 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

extradition

represents a legal basis t 0 cover those situations in countries that do not have 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 done to achieve subsequent ratification by a large number of States with important aviation interests. 62 First of aIl, Article 3 does not impose any duty 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

terms oflease. 64

operated in another

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

State bound by the "lessor-Iessee" relationship under the

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

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.

68.

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

limited, US-Cuban, inter American or Caribbean, problem 67 to a

expanded from a regionally

65 See Sami Shubber, "Aireraft 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, "Aireraft 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 6 th ICAO Assembly, h eld in

Buenos Aires on September

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 1970 73 which occurred immediately before the Conference, the Conference reached a speedy conclusion of the Hague Convention on December 16, 1970. 74

this matter. 7 ! This

3-28, 1968, adopted

Resolution A16-37 on

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 offences 75 ; and only applies

68

See Edward McWhinney, 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 whether 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 person 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 jurisdiction. 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 principle of "universal jurisdiction" into the Hague Convention, even though it is not the same thing as "universal 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 obliged, 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 offender 89 ; 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 legal 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 principle 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 McWhinney, 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

a ircraft in flight a nd a t a irportS. 104

community

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 expIode 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 :

experienced a wave 0 fa cts 0 f sabotage t 0

< 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, heId

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 ofthe 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 person 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 person 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 person 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 gravity 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

whether a weapon is used or not. 112 In the

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 :

case of attacks upon cabin crew and passengers

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 Article 28 (Air navigation facilities and standard systems) of the Chicago Convention. 117 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 International, 1997) at 216.

A ir Law, 6 th revised e d. (The N etherlands: Kluwer Law

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

domestic facilities may be found in another State. 123

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

"when 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 universal 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 jurisdiction. 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

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

128 See 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 Convention.

same weaknesses as the Hague

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 legal 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 alone, 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;

Runwantissa I.R. Abeyratne, supra note 9 at 109.

37

EI-Muner EI-Harudi, supra note

2

at p.Il5;

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

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.

133

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 Protocol].

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 Protocol 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 2i h 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 protect 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: