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Beijing Convention Also: Cyber Security Control Mechanisms & Protocol: ICAO Conventions responding to future threats Unruly Passenger Restraint

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OCTOBER 2010 Volume 16 Issue 5 rior to 1960, most of the collective the resolution of jurisdictional conflicts. the crew and passengers with the sole action to combat international Over the years, several drafts of the aim to constitute international unified Pterrorism was undertaken by the Convention were revised with a final text rules which would give the commander United Nations or its predecessor, the being presented by the Legal Committee of every aircraft in the world the power League of Nations. Although the League of ICAO to the ICAO Council for to preserve good order and discipline of Nations made cohesive efforts to create submission to a diplomatic conference, on board the aircraft and to take all an international criminal court to deal with convened in Tokyo from 20 August to preventive measures or measures of acts of international terrorism by drafting 14 September 1963, for the purpose restraint necessary to that end. a Convention to Combat International of further consideration, finalisation, This power can be considered as a Terrorism in 1937, this Convention never adoption and opening for signature of means to secure the maintenance of came into force as it was signed by only the final draft of the Convention. 61 law and order on board the aircraft: the 13 states and ratified by only one. states and five international organisations power to arrest, disembark and deliver Shocked by the rising trend of aircraft were represented at the conference. to competent authorities of contracting hijacking in the early 1960s and the The emerged in its “...the contracting state in failure of the 1958 Geneva Convention present form on 14th September 1963, Subscription Card on the High Seas to offer rules applicable thus consolidating the efforts of ICAO whose territory the alleged to the offence of hijacking of aircraft, since 1950 on the subject of crimes on offender is found shall, if it www.asi-mag.com the international community considered board aircraft. The Convention came into does not extradite him, be ASI is published every 2 months and from Sept 2010 will incorporate a new publication Counter Terror adopting, under the aegis of the force six years later, on 4 December 1969. obliged to submit the case to its Gazette – two publications for ONE registration. See www.asi-mag.com/subscribe for more. International Civil Organisation It is claimed that the rationale behind this competent authorities, for the n Yes, I want to receive/continue to receive a FREE subscription to ASI/CTG (current editions ONLY) – complete below and return. n Print and/or n Digital n Database Management Systems n Passenger Screening (ICAO), the 1963 Tokyo Convention slow ratification process was the fact that n Emergency Response Equipment n Hand/Checked Screening on offences and certain other acts the Convention was drafted prior to the purpose of prosecution...” Please PRINT n Explosive Detection n Cargo Security n n Name ������������������������������������������������Title ���������������������������������������������� E.O.D / R.O.V CCTV/Surveillance committed on board aircraft, followed series of hijackings in the late 1960s and n Information Management and Security Systems n System Integration Company ����������������������������������������������������������������������������������������������� n Logistical Support Equipment n In-Flight Security Systems by the 1970 Hague Convention for the that it was not implemented with due states, any person committing or n Location and Tracking Systems n Training & Consultancy Services Address ������������������������������������������������������������������������������������������������ n Perimeter Security and Intrusion Detection n Training Ads suppression of unlawful seizure of aircraft haste by most states. The complicated attempting to commit an offence or any n RFID / Tracking n Blast Containment City �������������������������������������������������State/Province ���������������������������������������� and the 1971 for legal and political issues facing many act which jeopardises the safety of aircraft, n Screening and Scanning Equipment n Identity Management Zip/PC ������������������������������������������������Country �������������������������������������������� n Seals / Tamper Evident Solutions n Safety the suppression of unlawful acts against states at the time of the adoption of persons or goods on board, or threatens n Special Vehicles and Transportation n Other �������������������������� n I want to upgrade my subscription to a Priority Paid version so I can also access the 4/5 years worth of digital back copies as well as the print edition n Self Protection Products the safety of . the Convention was another reason for to create disorder on board. As a corollary, – please select subscription length and add credit card details; n 1 year $265 n 2 Year $400 n 3 year $535 n Sighting and Image Recording and Processing F. What publications do you read? the late implementation. Although states the Convention grants a limited measure n Technical Clothing and Protection (Check ALL that apply) Please charge to Visa n , Visa Electron n, Mastercard n, Maestro n, Amex n n Training Services n Jane’s Airport Review The 1963 Tokyo Convention were slow in ratifying or in acceding to of immunity to the persons acting Card Number��������������������������������������������Expiry Date����������������������/ ������������������� n Weapons and Ammunition n Review n Cargo Security International The first action taken by the international the Convention, it is worth mentioning under the circumstances and conditions Start Date����������������������/ �����������������������CVC ��������������������������������(last 3 digits on reverse) C. Do you have purchasing authority within n Passenger Terminal World your organisation? (Check only ONE) n Detektor community to combat unlawful that, within one year (1969-1970), 80 described in the Convention. The drafters Name on Card �������������������������������������������������������������������������������������������� n No n Safety & Security International acts on board aircraft was the Tokyo states ratified the Convention, probably of the Convention thought that “it would Card Holders Address ���������������������������������������������������������������������������������������� n Yes n CAT (Civil Aviation Training) n Influence Convention of 1963. The studies leading in response to the spate of hijackings that be difficult to impose upon an aircraft Postcode ����������������������������������������������Country �������������������������������������������� n Rather Not Say G. In what trade shows do you participate? (Check ALL that apply) to the adoption of the 1963 Convention occurred during that period. commander responsibility for maintenance Signature ����������������������������������������������������������������������������������������������� D. How much do you intend to spend within n AVSEC World involved a detailed examination of The Convention aims to provide of law and order on board his aircraft, the next year? (Check only ONE) n Transport Security Expo & Conf (UK) A. What is your principal activity? n Consultancy/Training B. With which of the following are you n 0 - 10K Euros n CTX (UK) all the matters relating to the legal safety to aircraft, protection of life and without at the same time giving him (Check only ONE) n Manufacturer involved? (Check ALL that apply) n 10K - 100K Euros n IFSEC (UK) n Airport/ n Integrator/Installer n Access Control n 100K - 1 Million Euros n Asia status of aircraft and in particular to property on board aircraft and generally protection from possible criminal liability n Airline n Ship/Ferry/Cruise Operator n Biometric Solutions n Over 1 Million Euros n SCSI (USA) to which he might be subjected in the n Port/Port Authority n Media n Blast Containment n AAAE/IAAE (NZ - 2010) important aspects like crimes and to promote the security of civil aviation. n Cargo Operator/Handler/Agent n Military n CBRN Detection and Protection E. What are your main areas of interest/ n Airport Security Middle East offences committed on board aircraft, A wide range of powers are granted event he should impose restraint upon n /Customs/Immigration n Academic n CCTV / Covert Surveillance Systems involvement? (Check only ONE) n Other �������������������������� n Law Enforcement Agency n Other �������������������������� n Communication Systems n Biometrics/Access Control jurisdiction relating to such crimes and to the aircraft commander, members of an individual who had committed a crime Please complete and either scan/email to [email protected] or fax to +44 (0) 208 090 6211 October 2010 Aviationsecurityinternational www.asi-mag.com 11 on his aircraft”. Therefore, this protection alleged offender upon his disembarkation The Convention obliges states to was given in order to encourage the crew or delivery. Actually, the state of landing include hijacking in extradition treaties of an aircraft to fight the unlawful acts and must set him free and let him proceed to to be concluded between them; those offences considered by the Convention. the destination of his choice as soon as who do not have such treaties, but make Through the various stages of the practicable if it does not wish to extradite extradition conditional on a treaty, can drafting history of the Tokyo Convention, or prosecute him. Contracting states may regard this Convention as the legal the participants had been aware of its extradite the offenders, if at all, only under basis for extradition. At the diplomatic intended purpose to create a uniform law the provisions of other treaties between conference which discussed the draft of applicable to offences on board aircraft. the affected states. The failure to provide the Convention, the drafters rejected This purpose could not possibly be machinery for mandatory extradition, the proposal to apply compulsory achieved if the state of the victim, the state if prosecution was not pursued in the prosecution or extradition. Automatic of the offender, the state of first landing landing state, is considered a major extradition, though probably the best and so forth, were not also recognised as deficiency of the Tokyo Convention. deterrent, was considered too severe a being competent to exercise jurisdiction commitment by most of the negotiating in addition to the state of registration of The 1970 Hague Convention states. However, they accepted that the the aircraft. Hence, it is submitted that The inadequacy of the Tokyo Convention contracting state in whose territory the the Convention recognises the jurisdiction and the increase in the number of alleged offender is found shall, if it does of the state of registration of the aircraft hijackings resulted in the need to define not extradite him, be obliged to submit to the exclusion of all others, except the the act of hijacking and recognise it as the case to its competent authorities, for territorial state, under certain conditions an international offence, led the ICAO the purpose of prosecution. This provision where jurisdiction may be concurrent, Assembly adopting a resolution on the together with certain other requirements although this is not expressly stated in subject matter and to seek an appropriate was designed to ensure that states either legal framework to deal with the offence. prosecute or extradite offenders in their “...any hijacking initiated or As result, the ICAO Council by its territory. There was extensive debate attempted before the closing resolution of December 1968, referred over these provisions, particularly over of the doors of the aircraft after legal aspects of the problem of unlawful the issue of hijacking for political motive embarkation, or after the opening seizure of aircraft to the Legal Committee. and the discretion of states to prosecute On 1 December 1970 a draft Convention in those circumstances with the intention of the doors for disembarkation, was submitted to an ICAO conference at to preclude political motive as a reason is not covered...” The Hague, attended by 77 States, and for not extraditing where prosecution of was adopted on 16 December 1970. an offender does not occur. the Convention. The Convention does not This Convention made significant Notwithstanding its efficiency in prescribe specific offences but rather relies contributions to the effort of the some areas, the Convention has a series upon offences as codified under national international community to curb the of weaknesses. The offence must be law and it applies to acts which, whether unlawful seizure of aircraft and to remove committed by a person on board an offences or not, affect the in-flight safety the threat caused to international civil aircraft “in-flight” and thereby it excludes of persons or property or jeopardise the aviation. It covers both international offences committed by persons not on discipline on board a civil aircraft. and domestic flights; it gives a specific board such as saboteurs who remain on Although the Convention does attempt definition of hijacking of aircraft and it the ground. The Convention provides to cover unlawful seizure of aircraft includes as well the threat to undertake that the aircraft is deemed to be specifically in Article 11, not all forms of such an act as an offence, although this in-flight at any time from the moment unlawful seizure of aircraft are covered, is limited to a threat made on board an when all its external doors are closed nor does it provide for a specific response aircraft in-flight. following embarkation until the moment other than an obligation on states to “take Another important development was when any such doors are opened for all appropriate measures to restore control that the number of states competent disembarkation. Therefore, any hijacking of the aircraft to its lawful commander or to exercise jurisdiction over a hijacker initiated or attempted before the to preserve his control of the aircraft.” was enlarged and a new basis for the closing of the doors of the aircraft after Even though there is a requirement for exercise of jurisdiction by the state where embarkation, or after the opening of the states parties to take delivery of a person the charterer of an aircraft has his/her doors for disembarkation, is not covered. whom the aircraft commander delivers principal place of business or permanent Whilst the Convention includes an because he has reason to believe the residence was introduced. Moreover, accomplice offence, an accomplice only person has committed a serious offence the Convention grants every contracting falls within the ambit of the Convention if according to the penal law of the state of state the power to exercise jurisdiction the assistance is provided whilst on board registration of the aircraft, the Convention over a hijacker if such states are affected the aircraft in-flight. Furthermore, it does lacks proper extradition arrangements by an offence committed under the not cover the unlawful interference with enabling effective prosecution of Convention, thus making it impossible for air navigation facilities and services such hijackers. The Convention does not the hijacker to escape the normal process as , and radio oblige a contracting state to punish an of the law. communications.

12 Get your FREE ASI "iPad/iPhone APP" from Nov 2010 October 2010 Aviationsecurityinternational The 1971 Montreal Convention What has been done after drafted by its special sub-committee. Since both the Tokyo and The Hague the entry into force of The main concerns of states attending Conventions dealt only with unlawful these Conventions? were that the proposed changes could seizure and offences committed on board As a direct effect of the failure of the hamper trade and development, wrongly aircraft, due to the increased number international community to provide criminalise the actions of citizens, or of acts of violence committed on board effective legal machinery for combating require expensive monitoring equipment. aircraft and on airport ground facilities, acts of unlawful interference of air The committee was not able to finalise the drafters of the Montreal Convention transport, threats to civil aviation have wording for the amendments. decided to remedy these lapses and to constantly become more alarming and From 30 August to 10 September this criminalise such acts. serious. Under the auspices of ICAO, year (2010) a diplomatic conference held The Convention repeats some of the action has attempted to address the new in Beijing, comprising of representatives provisions of The Hague Convention and emerging threats to civil aviation, in from 77 States, adopted two new air but it was considered a breakthrough in particular to review the adequacy of the law instruments: the Convention on combating terrorism against air transport existing aviation security conventions. the Suppression of Unlawful Acts as it pioneered a new series of offences At the beginning of 1970s, ICAO Relating to International Civil Aviation which can be committed without the published the Security Manual and the Protocol Supplementary to offender being on board the aircraft by designed to assist states in taking the Convention for the Suppression of defining them broadly in order to cover measures to prevent acts of unlawful Unlawful Seizure of Aircraft. all possible acts that might occur. interference against civil aviation or to These new legal instruments The definition of an aircraft “in service” minimise their effects and established “criminalise the act of using civil aircraft is introduced, a term used in the offence standards for screening of passengers as a weapon, and of using dangerous concerning placement of a device or and carry-on luggage as Annex 17 of materials to attack aircraft or other substance on an aircraft in service which is the Chicago Convention. targets on the ground. The unlawful likely to destroy that aircraft. This offence transport of biological, chemical and “...the Beijing Convention and the definition of ‘in service’ ensure nuclear weapons and their related that a device or substance placed on the 2010 will prevail over The material becomes now punishable; aircraft prior to an aircraft being considered Montreal Convention 1971...” directors and organisers of attacks in-flight is covered by the Convention. against aircraft and airports will have The Montreal Convention is limited In February 2002 member states of no safe haven. Making a threat against to offences which affect the safety of ICAO endorsed a global strategy for civil aviation may also trigger criminal the aircraft ‘in service’ or ‘in-flight’. This strengthening aviation security worldwide. liability”. After entry into force, the limitation was addressed to some extent A central element of the strategy is an Beijing Convention 2010 will prevail by the Protocol for the Suppression of ICAO Aviation Security Plan of Action, over The Montreal Convention 1971 and Unlawful Acts of Violence at Airports which included among other elements, its Protocol signed in Montreal 1988. Serving International Civil Aviation 1988, the review of existing legal instruments Until then, despite their shortcomings, which specifically provided for offences in aviation security so as to identify gaps these other Conventions have been against a person at an airport as well as and inadequacies as to their coverage in widely accepted as the legal instruments the destruction or damage of facilities relation to new and emerging threats. for combating unlawful interference of of an airport or an aircraft not in service During 2005-2008 ICAO conducted civil aviation. Today, 185 states have where such acts endanger or are likely to a survey of its member States which ratified the 1963 Tokyo Convention, 185 endanger safety at that airport. Another revealed that certain threats, such as the the 1970 Hague Convention and 188 the limitation of the Montreal Convention use of aircraft as weapons, suicide attacks, 1971 Montreal Convention. Nonetheless, is that it does not make it an offence electronic and computer-based attacks, the international community must to threaten to commit the offences chemical, biological and radioactive acknowledge the fact that the existing in the Convention, unlike The Hague attacks, were not adequately covered air law instruments reflect the focus of Convention which specifically criminalises by the existing air law instruments. states at the time of their adoption and a threat to unlawfully seize an aircraft, Furthermore, these legal instruments that now there is a need to update them although this is limited to persons on focus on the persons actually committing to respond to new and emerging threats, board the aircraft in-flight. the punishable acts, mainly on board an either in the form of a new international Despite the efforts of some delegations aircraft or at an airport, without specific instrument or as an amendment. during the diplomatic conference for its provisions addressing the issue of persons adoption, the Convention failed to provide organising, directing and financing the a mandatory system of prosecution in commission of the unlawful interference Diana M. Stancu is case of denial of extradition requests. against civil aviation. the Director of Safe Notwithstanding its value in some areas, At its 34th session in 2009, the ICAO and Secure Skies the Convention remains, like the 1963 Legal Committee addressed the initiative and a member of Tokyo Convention and the 1970 Hague, to amend the 1971 Montreal Convention the ASI Editorial weak and short of real effect. and debated and revised the amendments Advisory Board.

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