Emerging Threats in a Changing World: Beijing Convention on Aviation
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JUNE 2018 AEROSPACE EMERGING THREATS IN Following the recent ratification by the Turkish government, the International A CHANGING WORLD: Civil Aviation Organisation ("ICAO") has BEIJING CONVENTION announced that the Convention on the Suppression of Unlawful Acts Relating to ON AVIATION SECURITY International Civil Aviation (the "Beijing TO ENTER INTO FORCE Convention") will enter into force on 1 July 2018. ON 1 JULY 2018 In this briefing we identify the key aspects of the Beijing Convention, its ramifications for the airline industry, and preparatory steps airlines should consider to ensure their observance. The Beijing Convention in brief noted that "On the eve of the Both the Convention and The Beijing Convention creates a anniversary of the 9/11 terrorist Supplementary Protocol also new international legal framework attacks, the United States can think specifically cover the criminal by requiring States to criminalise of no more fitting and hopeful way liability of directors and organisers a number of emerging threats to to mark that occasion than with the of an offence. Making a threat to the safety of civil aviation. These adoption of these two new major commit an offence may also be include using an aircraft as a weapon counterterrorism instruments." criminally accountable when the and the organising, directing and circumstances indicate that the financing of acts of terrorism. What are the key points of the threat is credible. Beijing Convention? The Beijing Convention also expands Major trading nations that have The Beijing Convention and signed the treaty include the United the grounds of jurisdiction under the Supplementary Protocol modernises earlier instruments by requiring each States, United Kingdom, People's the Convention for the Suppression Republic of China and South Korea. State Party to establish jurisdiction of Unlawful Acts against the Safety when the offence is committed by However, none of these countries of Civil Aviation of 1971 and its have, to date, formally deposited its national, and by enabling each Supplementary Protocol of 1988 State Party to establish jurisdiction their instruments of ratification (both signed in Montréal). with ICAO. A link to the list of States when the victim of the offence is its national. that are parties to the Beijing Parties that ratify the Beijing Convention can be found on the Convention agree to criminalise: Of important note is that a legal 1 ICAO website . entity (i.e. a company or other body • The use of civil aircraft as weapons corporate, such as an airline) may be Why was a new security • The use of dangerous materials to held criminally liable if the applicable convention required? attack aircraft or other targets on national law so provides. The tragic events of 11 September the ground 2001 highlighted several weaknesses What does the Beijing Convention in the international legal regime • The illegal transport of Biological, mean for the airline industry? Chemical, and Nuclear ("BCN") relating to aviation security which While the airline industry has been weapons and related material the international community generally supportive of any efforts was struggling to address. This • Hijacking and attacks on air by the international community to created the impetus for a nine-year navigation facilities by coercion or enhance aviation safety and security, process that led to the adoption of technological means. For example, the Beijing Convention has created the 2010 Beijing Convention and ICAO has stated that cyber attacks a number of concerns, namely: Supplementary Protocol. on air navigation facilities are likely • Inadvertent transportation At the conclusion of the Beijing to constitute an offence under the of dangerous goods and BCN Diplomatic Conference on Beijing Convention materials: airlines legally transport 10 September 2011, the US delegate 1. https://www.icao.int/secretariat/legal/List%20of%20Parties/Beijing_Conv_EN.pdf. “The tragic events of 11 September 2001 highlighted several weaknesses in the international legal regime relating to aviation security which the international community was struggling to address. This created the impetus for a nine-year process that led to the adoption of the 2010 Beijing Convention and Supplementary Protocol.” certain categories of dangerous The Beijing Convention may create are unlikely to be contractually goods on a regular basis. There criminal exposures for carriers if recoverable) from business is a concern that in trying to stop processes and procedures are partners such as freight forwarders/ criminal activities, the legitimate not properly managed. There is, shippers/consignees, whose and lawful transport of these items therefore, a genuine concern in the operations may inadvertently may be negatively impaired industry that innocent carriers and expose the carrier their employees may find themselves • Transportation of military assets embroiled in costly and time- • Check whether criminal defence and weapons: governments consuming defences to criminal costs for Beijing Convention frequently lease, wholly or partly, investigations for matters that arise (or connected) offences aircraft to transport equipment out of the normal course of their may be covered under their (including BCN) for military operations. insurance policies purposes. While the Beijing Convention contains a military • Liaise with national government(s) How should airlines prepare for exclusion clause, it appears that to seek assurances in relation to the Beijing Convention coming this does not apply to military particular areas of concern and/or into force? assets onboard civil aircraft interpretations of relevant terms Questions still remain as to When considering the transport implementation on a national offences – which are likely to be of level, and how widespread global For further information on how greatest concern to most carriers ratification will actually be, but the the Beijing Convention may – the International Air Transport coming into force of the Beijing impact your business or any Association ("IATA") proposed Convention may now be an connected issues, please contact language at the Beijing Diplomatic opportune time for carriers to: your usual contact at HFW or the Conference, whereby a carrier author of this briefing: would have been conclusively • Audit supply chain and cargo deemed not to have committed processes to ensure strict one of these offences, if the carrier compliance with dangerous could demonstrate compliance goods regulations with the requirements of the ICAO • Review contracts with Technical Instructions for the Safe government/military entities Transport of Dangerous Goods by Air. (including lease agreements where Unfortunately, the Conference was the lessee is a military entity) JAMES JORDAN not persuaded by IATA's proposal Senior Associate, Singapore and the issue remains one of Consider seeking additional • T +65 6411 5374 uncertainty for the industry. contractual indemnities to cover E [email protected] criminal defence costs (fines HFW has over 500 lawyers working in offices across Australia, Asia, the Middle East, Europe and the Americas. For further information about our aerospace capabilities, please visit hfw.com/aerospace hfw.com © 2018 Holman Fenwick Willan LLP. All rights reserved. Ref: 00299 Whilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not be considered as legal advice. Holman Fenwick Willan LLP is the Data Controller for any data that it holds about you. 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