Will the new ICAO-Beijing instruments build a Chinese wall for international aviation security?

• Author: Piera, Alejandro
• Position: International Civil Aviation Organization - Abstract through III. The New Regime D. Ancillary Offenses, p. 145-182

ABSTRACT

The last 6 years have seen an unprecedented level of activity in the field of international aviation law, with the adoption of three new conventions and one new protocol. This is a testament to ICAO's leadership role and its ongoing relevance, particularly in the field of aviation security.

The tragic events of 9/11 highlighted some weaknesses in the international law regime and were the impetus behind the nine-year process that led to the adoption of the 2010 Beijing Convention and Protocol. This Article reviews the historical background to the new treaties, including the journey taken through the ICAO process. It also analyzes in detail the provisions of the new treaties, assesses the views expressed in support as well as in opposition of their adoption, and considers the important perspective of the airline industry. Finally, the key question of whether or not the Beijing instruments will lead to improvements in aviation security is addressed.

TABLE OF CONTENTS I. INTRODUCTION II. THE LONG ROAD TO BEIJING: A NINE-YEAR PROCESS III. THE NEW REGIME A. Temporal Scope B. Physical Scope of Application C. The New Principal Offenses 1. Use of an Aircraft as a Weapon 2. Release or Discharge of BCN Weapons 3. Hijacking by Coercion or Technological Means 4. Transport Offense 5. From the Transport of Fugitives to Concealment D. Ancillary Offenses 1. Making a Credible Threat to Commit an Offense or Unlawfully and Intentionally Causing Any Person to Receive Such a Threat 2. Organizes or Directs Others to Commit an Offense 3. Agreeing with One or More Other Persons to Commit an Offense E. Military Exclusion Clause 1. Objectives 2. Rationale 3. Scope 4. The Positions of Different States 5. A Redundant Clause? 6. Previous International Incidents 7. Assessment F. Liability of Legal Entities G. Severe Penalties H. Political Offense Exclusion Clause I. Fair Treatment Clause J. Contracting States or States Party? K. To Extradite or to Prosecute: That Is the Question! L. Jurisdiction M. Format: The Chinese Proposal N. Official Languages O. Settlement of Disputes P. Relationship Between Instruments Q. Cooperation Amongst States R. Signature and Entry into Force S. Depositary T. What Drove the Adoption of the Beijing Instruments? U. ICAO Assembly Declaration IV. THE VIEWS OF THE AIRLINE INDUSTRY A. Carriage of Dangerous Goods--End Use B. Transport of BCN Weapons C. The Air Carrier's Dilemma When Transporting Military Equipment V. IS THE SUA PROTOCOL THE CURE OF ALL EVILS? VI. ARE THE BEIJING INSTRUMENTS THE SOLUTION TO SAFER CIVIL AVIATION SECURITY? VII. CONCLUSION I. INTRODUCTION

Aviation security enjoys a unique position in international aviation law. The International Civil Aviation Organization (ICAO) has now developed seven international conventions in the field--five of which enjoy almost universal acceptance and "have served as valuable precedents for other conventions in the [UN] family." (1) In fact, ICAO was the first UN specialized agency to adopt three international instruments related to the prevention and suppression of acts of international terrorism. (2)

The first international treaty on aviation security was the Tokyo Convention. (3) This focused primarily on jurisdictional issues of offenses against penal law that are committed on board aircraft, as well as those acts that may jeopardize the safety, good order, and discipline of an aircraft or of persons therein. (4) In addition to establishing the powers of the aircraft commander and the duties of states involved, the Tokyo Convention also adopted the expression "unlawful seizure of aircraft" to denote "aircraft hijacking" or the "wrongful exercise of control of an aircraft." (5) The Tokyo Convention did not, however, expressly make the "unlawful seizure of an aircraft" an offense. (6) In fact, as one commentator noted, the Tokyo Convention "was never intended" to be an aviation security convention. (7)

This explains why 7 years later ICAO adopted the Hague Convention to try to address this type of criminal behavior. (8) Given that the Hague Convention did not tackle acts of sabotage against civil aviation, (9) ICAO adopted the Montreal Convention just eleven months later. (10) In 1988, this instrument was further expanded to cover unlawful acts of violence at international airports. (11)

The destruction of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988, where it is alleged that the plastic explosive Semtex was detonated, (12) prompted another stand-alone international instrument on the marking of plastic explosives. (13)

ICAO and the aviation community can rightly be proud to have been at the forefront of international lawmaking for the prevention and suppression of acts of international terrorism. (14)

Yet, more recently, acts of unlawful interference against civil aviation "[have] taken unexpected forms." (15) None more unexpected, one might say, than the events of September 11, 2001. (16)

In the words of a political leader at the time, the implications of 9/11 were vast:

If the terrorists could have killed more, they would have. If instead of 3,000 it had been 30,000, they would have rejoiced. For world leaders wondering and worrying where the next hostility would come from, the contemplation not only of what had happened but what might happen was continuous, urgent and nerve-racking. (17) Reports of incidents of unlawful interference have not gone away since 9/11. ICAO notes a yearly average of twenty incidents from 2007 to 2010. (18) Although incidents dropped below that level to only five in 2011 and nine in 2012, the problem still persists. (19)

In the immediate aftermath of 9/11, the ICAO Assembly (Assembly) directed the ICAO Council (Council) to review the adequacy of the existing aviation security conventions to deal with new and emerging threats to civil aviation. (20) This was conducted in parallel with the initiative to reform the 1952 Rome Convention, (21) a process that led to the adoption of the two Montreal Conventions in 2009. (22)

The review of the aviation security conventions culminated at the Beijing Diplomatic Conference with the adoption on September 10, 2010, of two new international treaties: the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing Convention) 23 and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (Beijing Protocol). (24)

Thus, the last 4 years or so have seen unprecedented activity in the field of international aviation law, with the adoption of three new conventions and one new protocol within less than eighteen months. (25) Interestingly, that process was preceded by a similarly unusual amount of domestic legislation in this field in a number of countries. (26)

In addition to consolidating certain provisions, the Beijing Convention expands on both the Montreal Convention and the Airport Protocol. (27) But, with the creation of a number of new criminal offenses, the Beijing Convention seeks to address new types of behavior that pose threats to international civil aviation. In the same way, the Beijing Protocol supplements the Hague Convention.

Whilst each of these new treaties is a stand-alone international instrument and although most controversial issues apply to both, the majority of new criminal offenses were introduced in the Beijing Convention. (28) Where the term Beijing instruments is used in this Article, any comments should be taken to refer to both the Beijing Convention and the Beijing Protocol.

This Article has four objectives. First, it will seek to trace the process that finally led to the adoption of the Beijing instruments. This should allow a better understanding of the predominant influence of the models on which the instruments were based and the main drivers behind this laudable initiative. Second, the Article will seek to analyze the main features of the new instruments and their most controversial provisions. (29) In particular, it digs into some old diplomatic incidents brought to the consideration of ICAO in order to examine whether they could somehow explain the unwavering position of states on some of the most controversial clauses during the instruments' negotiation process. Third, the authors will consider whether or not the controversial issues discussed and the fact that a vote was required by the Diplomatic Conference to adopt these instruments may have weakened their prospects of ratifiability. Finally, this Article examines whether more international lawmaking will, in fact, provide for improved aviation security or whether ICAO and the international community should better employ their respective energies elsewhere.

2. THE LONG ROAD TO BEIJING: A NINE-YEAR PROCESS

   Going as far back as June 3, 1996, the Council decided to include the issue of acts or offenses of concern to the international aviation community not covered by the existing law instruments in the Legal Committee's work program. (30) However, that item referred to the legal aspects of unruly and disruptive passengers, which was ICAO's main concern at the time. (31) As a result of circumstances unforeseen and, in many people's eyes, unforeseeable at that time, the focus shifted after 9/11.

   In October 2001, less than a month after the 9/11 incidents, the Thirty-third Session of the Assembly responded with a comprehensive resolution on aviation security. (32) This resolution directed the Council and the secretary-general to "act urgently to address the new and emerging threats to civil aviation, in particular to review the adequacy of the existing aviation security conventions; to review the ICAO aviation security programme, including a review of Annex 17 and other related Annexes to the Convention." (33) It has been suggested that the direction was "symptomatic of the frantic search for any conceivable prevention that would protect aviation against the repetition of a similar tragedy." (34)...