Aviation Security Treaties and Unruly Passengers: The Beijing Instruments and the Montreal Protocol 2014

Introduction

The Maldives is a party to the three conventions which formed the international aviation security regime: the Tokyo Convention 1963 on offences committed on board aircraft, the Hague Convention 1970 on unlawful seizure of aircraft and the Montreal Convention 1971 on unlawful acts against the safety of civil aviation, together with the 1988 protocol on violence at airports. The Maldives ratified the Tokyo Convention on 28 September 1987, the Hague and Montreal Conventions on 1 September 1987 and the Airports Protocol on 22 March 1999.

Since 2010, three further instruments adopted under the auspices of the International Civil Aviation Organization (ICAO) have modernised that regime. According to the ICAO lists of parties, the Maldives has not signed or acceded to any of them. This article explains what the instruments add and why accession matters for the Maldives.

The Beijing Convention 2010

The Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (the Beijing Convention 2010) entered into force on 1 July 2018. As between its parties, it replaces the Montreal Convention 1971 and the 1988 Protocol. It retains the existing offences of violence on board, destruction of or damage to aircraft and air navigation facilities, and the placing of devices on aircraft, and adds the following:

• using a civil aircraft in service for the purpose of causing death, serious bodily injury or serious damage;
• releasing or discharging from an aircraft any biological, chemical or nuclear weapon or explosive or radioactive material to cause death, injury or damage;
• using such weapons or materials against or on board an aircraft;
• transporting such weapons or materials, or their components, by air for an unlawful purpose; and
• attacks on air navigation facilities, which the convention defines to include the signals, data, information and systems necessary for the navigation of aircraft, so that interference by electronic means is covered.

The convention also makes it an offence to threaten to commit these acts, to organise or direct others to commit them, or to assist an offender to evade investigation. It requires each party to establish jurisdiction where the offence is committed in its territory, on board an aircraft registered in it, on board an aircraft which lands in its territory with the offender on board, or by one of its nationals, and permits jurisdiction where the victim is a national. A party may also provide for the liability of companies and other legal entities.

The Beijing Protocol 2010

The Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (the Beijing Protocol 2010) entered into force on 1 January 2018. It amends the Hague Convention 1970 in the same way. The offence of unlawful seizure is extended to seizure by any technological means, and to aircraft in service rather than only in flight, so that an aircraft seized on the ground before departure is covered. Threats, organisers and accessories are brought within the offence, and the grounds of jurisdiction are widened as under the Beijing Convention.

The Montreal Protocol 2014

The Protocol to Amend the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Montreal Protocol 2014) entered into force on 1 January 2020. It addresses a different problem, unruly and disruptive passengers.

Under the Tokyo Convention 1963, jurisdiction over offences committed on board rests principally with the state of registration of the aircraft. A state in which the aircraft lands may interfere with a flight to exercise its criminal jurisdiction only in limited cases, for example where the offence has an effect on its territory or was committed by or against one of its nationals or residents. The practical result is that a passenger who assaults a crew member on a foreign aircraft is frequently released on landing because the state of landing has no jurisdiction and the state of registration has no interest in prosecuting.

The protocol responds by requiring each party to establish jurisdiction as the state of landing, where the aircraft lands in its territory with the offender on board, and as the state of the operator, where the aircraft is operated by a lessee whose principal place of business is in that state. It expressly recognises in-flight security officers deployed under bilateral or multilateral arrangements, encourages parties to take proceedings in respect of physical assault on crew members and refusal to comply with the aircraft commander's lawful instructions, and preserves the operator's right to recover from an unruly passenger the costs caused by the disruption.

Position under Maldivian law

Section 17 of the Civil Aviation Act (Law No: 2/2001) requires the regulator to establish civil aviation security procedures and provides that the standards adopted must not be lower than those of the international conventions to which the Maldives is a party. The Aviation Security Command, established on 1 January 2013 under the Ministry of Defence, is responsible for aviation security policy and screening at airports.

Acts of unlawful seizure and attacks on aircraft would in most cases fall within the offences under the Prevention of Terrorism Act (Law No: 32/2015) and the Penal Code (Law No: 9/2014). Neither statute, however, contains the specific offences or the extended grounds of jurisdiction of the Beijing instruments, and there is no published Maldivian regulation which deals with offences and disruptive conduct on board aircraft. Whether a Maldivian court has jurisdiction over an assault committed on board a foreign registered aircraft before it landed in the Maldives depends on the general rules of jurisdiction in the Penal Code. This is precisely the uncertainty which the Montreal Protocol 2014 was designed to remove.

Accession to the three instruments would require the approval of Parliament under Article 93(a) of the Constitution, and the offences and jurisdictional rules would need to be enacted as national law before they could be applied by the Maldivian courts.

Comment

The Maldives receives a very large number of inbound flights operated by foreign registered aircraft. An unruly passenger incident on those flights lands in the Maldives on an aircraft over which, under the Tokyo Convention as it stands, the Maldives has limited criminal jurisdiction. The Montreal Protocol 2014 is the instrument which closes that gap, and is of immediate practical value to the Maldives.

The Beijing Convention and Protocol address threats which are less frequent but more serious, including the use of aircraft as weapons and interference with navigation systems.

For more information, please contact:

Mr. Ahmed Murad, Senior Partner

Email: [email protected]