Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
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- Annex 17 : (p.477 vol II)
- Unruly Passengers
Mtl. (1991) Plastic ExplosivesSemtex (a.k.a. C4) is very dangerous – it is commonly used in the armies, landscaping & industry but in the hands of criminals it is extremely dangerous b/c it cannot be easily detected. Plastic explosives cannot be found by dogs, are low density items & do not show up on an X-Ray. They are malleable (playdo-like) & it is easily hidden b/c it has low vapor pressure, as the particles don’t give a sent. It is waterproof. ICAO had to deal w/ the universal subject of marking of explosives b/c the UN thought it would be less contentious for this body than another. ICAO’s convention was not limited just to a technical solution as technology will always continue to advance & today’s solutions are potentially tomorrow’s problems. For example, the definitions were not put into the convention itself rather it was put into the annex, which is easier to update as technology changed. Moreover, the annex is very technical so it was unlikely that States would politically object. – i.e. changes can be made without a diplomatic conference for if a state disagrees within 90 days then a conference must be called. The convention held a plastic explosive had to have a particular additive as stated in the annex when manufactured making the G4 detectable, hence explosives had to be marked – art 4. Effectively, all new G4 would be made noticeable; but to deal w/ the existing supplies one couldn’t alter its compound nor destroy all that existed – although, it was held that all old G4 had to be used or destroyed within 3 years that were unmarked by commercial enterprises. Armies, however, were not dealt w/, as this convention was not about disarming nations. In short, Mtl. (1991): UN mandate is testimony to the law making abilities of ICAO w.r.t. speed and efficiency States accept an int’l undertaking to prohibit and prevent the manufacture of unmarked plastic explosives. Prohibit movement without proper markings. In principles existing stock of unmarked explosives must in due course be destroyed or consumed or marked or rendered permanently ineffective, (3 years for private & 15 years for military or police function. Convention exempts military devices. Definition in annex as technology changes quickly & this allows for quicker amendment. No need to convent a conference to amend, if a proposed amendment prepared by Council is not objected to by 5 or more States, it shall be deemed to have been adopted and shall enter into force for States not having expressly objected thereto. If 5 or more States object ICAO shall refer it for further consideration or may convene a conference. This is an innovative method of amendment of int’l instrument an may establish a new practice of multilateral instruments. Convention only meaningful if ALL airports are equipped w/ adequate tech for the detection marked explosives - the tech is needed is rather expensive Still need widespread ratification – help should be given to less developed State to implement and share costs. Annex 17 : (p.477 vol II)-After Sept. 11th there was pressure on ICAO to ensure Annex 17 applies to domestic as well as int’l operations. -Annex 17 was slow and timid in developing effective stnds. -Chapter 3 of Annex 17 states that there should be a national program of security, airlines should have security & airports should have a security program. -Chapter 4 of Annex 17 is the basic security measure by checking of cargo, luggage & persons. This physical prevention of course has legal ramifications. Be careful though as it does not apply just to what a passenger brings to the aircraft, but also w.r.t. what the passenger forgets in the aircraft. There also needs to be an alignment of passengers & cargo – ie, whoever checks in cargo is also onboard. -ICAO Security Manual also exists b/c it is confidential w/drawn from general distribution b/c it would show those would be criminals know on how to breach the system – ie identifies ID procedures, invisible security etc. States elaborate on it as well. Unruly PassengersUnruly or disruptive passengers refers to passengers who fail to respect the rules of conduct on aboard aircraft or to follow the instructions of crew members and thereby disturb the good order and discipline on board aircraft. Due to the lack of a uniform reporting system, it is not possible to provide complete and comprehensive data. Analysis of the causes of air rage is essential for any solution for the prevention and suppression of such acts. Flying can be a stressful situation. Alcohol adds to the situation. To deal w/ such passengers Tokyo will have to be expanded & improved, as treaty action may have to be taken for a long-term solution. A danger is created on board not only by acts of violence agst other passengers or members of the crew but also by non-observance of instructions given by the crew for safety reasons. (Model Legislation): List of Offences - A uniform list of offences is considered desirable for two reasons: (1) in order to provide a common denominator for offences as a basis for nat’l prosecution and (2) in order to offer uniform criteria for Sates to extend their respective jurisdiction. Such a uniform list will be instrumental for the purpose of incorporating the relevant offences into States’ respective national laws or regulations allowing prosecution and application of sanctions. The model legislation should be incorporated into nat’l law verbatim as much as possible, so that a desirable degree of uniformity will be achieve int’ly. Such a list will in determining its basis for jurisdiction. Assault and Other Acts of Interference agst a Crew member on board a Civil Aircraft (a) Assault, intimidation or threat (physical or verbal) (b) Refusal to follow a lawful instruction given by the aircraft commander or member of the crew on behalf of the commander. Assault & Other Acts Endangering Safety or Jeopardizing Good Order & discipline on Board a Civil Aircraft sexual assault or child molestation acts likely to endanger the safety of the aircraft or any person on board or if such acts jeopardizes the good order and discipline on board the aircraft. assault, intimidation or threat (physical or verbal agst ano/ person) intentionally causing damage to or destruction of property intoxication Other Offences Committed on Board a Civil Aircraft smoking tampering with safety-related device on board operating a portable electronic device that is prohibited Jurisdiction where aircraft is registered principal place of business or where permanent residence over ones territory outside one’s territory IF: next landing is in territory aircraft commander delivered offended to authorities with the request that the authorities prosecute (e) In flight means from the moment power is applied for the purpose of take-off Penalties- Model legislation does not address the issue of penalties of this matters should be left to the discretion of sovereign States Jurisdiction – generally a State will have jurisdiction over an offence when it is committed in its territory (law of the place) or on board an aircraft on its registry (law of the thing), and jurisdiction over ones nationals committed by them or agst them (law of the person). The jurisdiction of Sate may also extend to certain offences committed outside its territory but having effects on the gov’t function of such State (protective principle). Presently there is not a clear rule under public int’l law as to what extend and condition States may exercise jurisdiction over an offence committed on board foreign aircraft outside of its territory. The absence of an int’l convention on this matter or until the practice of extending jurisdiction becomes a customary rule, a cautious attitudes should be maintained regard the extraterritorial element of such jurisdiction – although Canada and US so legislated such jurisdiction (see below). Int’l Conventions: Tokyo, Hague and Mtl should be applied with a view of making the fullest possible use of these instruments in order to deal with unruly passenger. Mtl (1971) if an act of assault on an aircraft in flight is likely to endanger the safety of aircraft (i.e. the commander had to leave his post) then the Mtl (1971) via art. 1, para. 1 (a) may be applied. However, Mtl. will not apply if acts committed by unruly passenger jeopardize the good order and discipline on board, without being likely to endanger the safety of the aircraft, which is a rather large limitation in dealing with unruly passengers. Tokyo (1963) ratified by 175 thus is part of int’l customary law. It applies not only to offences agst penal law but also to acts which, whether or not they are offences, may or do jeopardize the safety of consequences. (see Tokyo above). Int’l convention is one way to deal w/ aviation security but national measures should not be undervalued. Law of the person, territoriality, hence can prosecute if Canadian commits act in Japan & a Japanese person who commits act in Canada. Universal criminality exists as well, i.e. genocide, piracy can be given jurisdiction anywhere in the world. (discussed above) Under 9 & 13 Tokyo, however, authorities of the State where the aircraft makes a landing are obliged to accept only the delivery of person who, in the opinion of the commander, has committed a serious offence under the penal law of the Sates o registry of the aircraft. Fore persons who have committed less serious offences or their reprehensible act, the commander may disembark them under art. 8 but the State where the aircraft has landed is under no ob to take custody or other measures (13 para 2). In order to assist commander in exercising their powers under 9 Tokyo it may be desirable to arrive at a common understanding s to what constitutes a serious offenses. I.e. via the model legislation, namely assault and damage to property. 9 Tokyo also distinguishes “delivery” from “disembarkation” of person in 8 Tokyo and specifies that such delivery must be accompanied by ev and info lawfully in the possession of the commander. These provisions appear to permit the conclusion that the State of landing has an ob to do more than just accept the delivery of the person as they should also investigate and if sufficient ev is given to consider prosecution. Note: Under Tokyo, offenders cannot be held in restraint beyond the first stopover, by the time the aircraft has returned to the Sate of registry the offenders as well as the witnesses will be gone. Note: 1992 ICAO passed a non-binding resolution encouraging member States to progressively ban smoking on all passenger flights (such is the case in Can. and US). National Legislative Actions: -What is required is strong national legislation that would make the acts of air rage punishable under the domestic law and giving the jurisdiction to the local Courts, regardless of where an on board act took place (universal jurisdiction). Aviation security and safety is a common global inters and concern thus no safe haven should be open and no act should go unpunished. Such national legislation would create a commonality among nations of which a Protocol to the Tokyo may be later implemented to ensure uniformity to make such acts punishable by appropriate penalties and provide for compulsory jurisdiction of any State where the alleged offender may be found or for extradition to the state of registry. The national int’l leg should also specify the alleged offender apart from criminal shall also face civil liability for the damage to the airline or other person(s). -Cell phones & laser-based electronics can interfere w/ airline equipment (communications & navigation), which endangers the lives of the passengers. A protocol should be added but why wait years to do so, why not urge states to take unilateral actions. Canada does have such national legislation. -US has universal jurisdiction over any acts that are aimed agst US citizens (i.e. acts of terror). -Bilateral/multilateral agreements have not been commonly used for dealing w/ unruly passengers, however, if such issues become serious on particular routs such a solution could be considered. Airline Actions: Education of passengers that disruptive conduct on boards is not tolerated and may lead to serious legal consequences. Some airlines have even stared a blacklist to deny boarding of a passenger for future flights – although this is yet to be legally tested. Liability: Chicago does not discuss the subject of liability for damage caused to passengers due to the act of unlawful interference. In practice air carriers are being unduly penalized by excessive liability for damage and the risk allocation is not evenly distributed. Airlines are also victims of criminal, terrorist or insane acts and they are frequently placed in the position of an insurer of unforeseen and unforeseeable damage not connected with the performance of transport by air, rather often it is a particular gov’t that is the target. Others should share liability joint and severally, such as w.r.t. detection methods, when government does not heed warnings by its intelligence to pass on to X airline. 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