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

• Author: Piera, Alejandro
• Position: International Civil Aviation Organization, p. 218-237 - IV. The Views of the Airline Industry through VII. Conclusion, with footnotes, p. 218-237

4. THE VIEWS OF THE AIRLINE INDUSTRY

   The airline industry supported "the thrust of the initiative to further extend" criminal liability for certain acts that may unlawfully and intentionally interfere with international civil aviation. (512) Clearly, the use of an aircraft as a weapon of mass destruction (WMD) or to disperse WMDs poses a serious threat to international civil aviation, and the possibility that aircraft may again be used to create a mass-casualty event persists. (513) However, the industry was concerned with the practical implications and operational repercussions that the new regime might present. (514) Industry representatives warned against the law of unintended consequences placing unnecessary burdens on an already weakened airline industry. (515) In particular, the airline industry felt that the broad scope of the requirement of unlawful and intentional conduct to trigger the application of the offense would give significant discretion to state prosecutors over the categories of parties against whom they may decide to open criminal investigations. Thus, "innocent airlines and their employees will almost certainly find themselves embroiled in costly and time consuming defences to criminal investigations for matters that arise out of the normal course of their operations." (516)

   But the industry received some comfort. At LC/34 discussions, France noted that "[air] carrier[s] must act unlawfully, intentionally and with certain knowledge before its liability can be incurred under the [Beijing instruments]." (517) Similarly, the delegate from Australia noted that the transport offense would not capture "recklessness as to the contents of air cargo or the status of a passenger and would not apply to a carrier who unintentionally transports an item or person in a prohibited manner." (518)

   1. Carriage of Dangerous Goods--End Use

      Airlines already transport certain categories of dangerous goods (519) on a daily basis. "Most explosives ... are restricted to cargo aircraft, although some may be shipped on passenger aircraft as well. In this context, the transport of these commodities is not at all uncommon." (520)

      Although airlines were "sympathetic to the intent of the proposed changes to the existing conventions," there was concern that "in trying to stop criminal activities, the legitimate and lawful transport of these items [would be] negatively impaired." (521)

      Of particular importance was the carriage of radioactive materials in the medical industry, "where there are already problems with 'denial of shipments.'" (522) This occurs "when shipments of radioactive materials, that are in complete compliance with the applicable transport regulations are [either] i) denied entry to a country or port" or ii) prevented from being transported on a timely basis "due to additional layers of non-transport regulations that delay their movement." (523) "'Denial of shipment' is a particular problem that the International Atomic Energy Agency (IAEA), the IATA, ICAO, manufacturers, and transporters of radioactive materials have been working to address for a number of years." (524) "These regulated radioactive materials are a perishable commodity widely used in medicine for the diagnosis and treatment of diseases and any additional regulatory requirements imposed on the transport of these materials will only further aggravate the problems in achieving their transport by air." (525)

      There is already a requirement for a mandatory acceptance check of almost all dangerous goods. (526) The airline verifies that the document and the exterior appearance of the package comply with the regulatory requirements. (527) But the airline has no way of determining the so-called end use. This aspect is--thus far--not covered by the safety regulations. (528)

      Airlines are required to follow the provisions set out in the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air when transporting such materials. (529) For the most part, airlines also use the IATA's Dangerous Goods Regulations (DGR), which are recognized as the "field guide" for the transport of dangerous goods by air. (530) The provisions in these regulations require that the shipper of such goods "classify, pack, mark, label, and document" such goods as set out in the regulations. (531) Airlines then have an obligation to complete an acceptance checklist, with some small exceptions, for all dangerous goods consignments. (532)

      "[W]hen accepting dangerous goods for transport, airlines do not know, and are never provided with, the intended end use for the materials," and "indeed, the end use is not a condition of transport." (533) "Provided that the goods are presented in a condition that complies with domestic and international [dangerous-goods] regulations, they meet the safety conditions for transport." (534)

      For example, an airline could transport goods that are intended to be used for hostile purposes, but it would have no knowledge of that intended use. (535) Should this be the case, it would make sense that the person who prepared and shipped such goods be held criminally liable but certainly not the airline or its employees acting within the context of their employment activities. If the requirements set out in the DGR are satisfied, airlines and their employees should not be held criminally liable for having accepted the transport of such goods. The industry argued strongly that the new international regime should affirm this concept.

      At the Beijing Diplomatic Conference, the IATA proposed language whereby the operator would have been conclusively deemed not to have committed one of the transport offenses, when such operator has complied with the requirements of the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air in force at the time of the alleged offense. (536) The conference was not persuaded by this proposal, and despite a number of statements from states giving a certain degree of comfort, the issue remains one of concern for the industry. (537)

   2. Transport of BCN Weapons

      At the present time, there is no reasonable, cost-effective method to ensure that air carriers do not transport BCN weapons. (538) Most of the screening technologies available at airports throughout the world--be they x-ray machines or Explosive Detection Systems (EDS)--are able to detect explosive devices that might be associated with BCN weapons but not necessarily stand-alone BCN weapons themselves. (539) Although there is already technology available that can detect a stand-alone BCN weapon, it is extremely expensive. (540) By making the transport of BCN weapons a criminal offense, the industry argued that the new legal regime should not create additional regulatory requirements for airports and aviation security authorities to deploy devices with technological capabilities to screen and detect them. (541) Such requirements would be exorbitantly costly for the aviation industry. That concern had previously been noted at LC/34 when one delegation underscored "that there should be no requirement [in place] to detect biological, chemical or nuclear material in baggage," (542) and the point was repeated at the Diplomatic Conference. (543)

      In addition, a situation may arise where a state that was not involved in the approved transport of BCN weapons, or components thereof, considers such transport as an offense under its national legislation, since the BCN weapons or components thereof were later used to cause death or serious damage in its territory. This may arise, for instance, in the context of countries involved in a conflict where a party used BCN weapons to inflict damage. (544)

      For these specific situations, the IATA had argued that language should be included to avoid the air carrier being held responsible for an approved, declared transportation of BCN weapons or components thereof. (545) Airlines should be blameless for WMD attacks using their assets, provided they have observed state security programs. Although seconded by two states, LC/34 decided not to adopt this recommendation, (546) and this was also the outcome of the Beijing Diplomatic Conference. (547)

   3. The Air Carrier's Dilemma When Transporting Military Equipment

      In certain cases, governments lease, wholly or partly, an aircraft to transport weapons (including BCN weapons) for military purposes. (548) Typically, these transactions involve a wet-lease arrangement where the airline provides the aircraft and the crew. (549) "The airline may be an all-cargo carrier, a consolidator, or a passenger airliner with cargo operations." (550) Since the carriage of such weapons is for military purposes, the airline in question "knows" that the materials being transported may be used to inflict "serious injury or damage for the purpose of intimidating a population." (551) This also poses the question of whether an aircraft completely leased by a government agency is considered to be in use for "military services." All previous ICAO international instruments exclude state aircraft--that is "aircraft used in military, customs, or police services." (552)

      This raises a number of questions:

      1. Would the application of both Beijing instruments be excluded in these types of situations?

      2. If the aircraft were a commercial airliner transporting passengers and cargo and only part of its cargo capacity was leased by a government agency to transport explosive materials or weapons for military purposes, Would that aircraft be considered in use for military services as well?

      These situations are not uncommon at all. (553) As clearly noted in an ICAO Secretariat comprehensive study on "Civil/State Aircraft" back in 1994, whether an aircraft is considered as civil or military aircraft, either within or outside the scope of international civil aviation, will depend on "all the circumstances surrounding the flight, and taking into account a number of factors." (554) Such factors...