Legal Instruments related to Aviation Security
Safety (i.e. the absence of danger for human life) and security (i.e. the protection from criminal acts) of international civil aviation have always been the goals of the International Civil Aviation Organization (ICAO). Although there were no major incidents by individuals in the early days of aviation, the vulnerability of civil aviation became apparent with the advent of the Cold War, the Cuban Revolution and the Palestinian problems. The Delegates at the Chicago Conference in 1944 could hardly have foreseen that, one day, hijackers and terrorists could turn the operational vulnerability and the fundamental openness of aviation into their dark opportunity.
So, from the late 1950s, aviation security took on a new meaning with the rise of an extremely violent terrorism against aviation and the unlawful seizure of aircraft, and became a key element of ICAO’s role in the world. On this issue, ICAO worked side-side with the International Air Transport Association (IATA). In addition to several national and regional bodies, other organizations made important contributions to the security: the International Federation of Airline Pilots’ Association (IFALPA) and the Airports Council International (ACI); moreover, some decisions taken by powerful national or regional aviation organizations (such as the Federal Aviation Administration – FAA, or the European Civil Aviation Conference - ECAC) are often followed by others around the word.
Concerns over terrorism and aviation security predated ICAO; the Comité International Technique d'Experts Juridiques Aériens (CITEJA) had already discussed these issues as early as 1926.
During its 9th Session from 25 August to 12 September 1953, the ICAO Legal Committee had officially established a subcommittee on The Legal Status of Aircraft to study the problems associated with crimes on aircraft. A first ICAO draft Convention on the Legal Status of the Aircraft was developed in 1958; the scope was expanded in 1959 to become a draft Convention on Offences and Other Acts Occurring on Board Aircraft. A final draft Convention on Offences and Certain Other Acts Committed on Board Aircraft was prepared in 1962 for consideration, finalization, and adoption by the Diplomatic Conference convened at Tokyo by the ICAO Council from 20 August to 14 September 1963. The Tokyo Convention (Convention on Offences and Certain Other Acts Committed on Board Aircraft) entered into force on 4 December 1969 bringing closure to ICAO’s efforts on the subject since the 1950s.
The Tokyo Convention was ICAO’s first step in what would become a major international effort to combat the spread of aviation terrorism. The 16th Session of the ICAO Assembly held in Buenos Aires from 3 to 26 September 1968 adopted Resolutions A16-36 on the Participation of States in International Conventions on Air Law and A16-37 on the Unlawful Seizure of Aircraft which called on the ICAO Council and the Member States to cope, at the earliest possible date, with the problem of unlawful seizure.
Further to that, the Council directed the Air Transport Committee and the Air Navigation Commission to initiate their own studies on the technical aspects related to the problems of airports and aircraft security; a new Committee on Unlawful Interference of Aircraft was created on 10 April 1969. The other major area for the Council’s action was, through the Legal Committee, which created a new Sub-Committee to either refine the Tokyo Convention or create a wholly new convention.
As the number of hijackings rose through 1969 and 1970, an Extraordinary Assembly (17th) was held in Montreal from 16 to 30 June 1970, specifically on the subject of aviation security; it produced a series of resolutions dealing with a wide range of security measures, eventually leading to the adoption of a completely new Annex 17 - Security. The primary objective of each Contracting State is safeguarding its passengers, ground personnel, crew as well as the general public against any acts of unlawful interference.
In the atmosphere of crisis and on legal side, two new Conventions were prepared. From 1 to 16 December 1970, 77 States met in The Hague for a Diplomatic Conference ending with the signing of The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, which came into force on 14 October 1971; it took the Tokyo Convention and built on it incorporating several articles of the earlier Convention.
From 8 to 23 September 1971, a full Diplomatic Conference (attended by 61 States) was held in Montréal and the Montréal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation was opened for signature; it came into force on 26 January 1973. The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation was signed at Montreal on 23 September 1971 (adopted on 24 February 1988).
However, even with these two new Conventions, the issue on sanctions was not sufficiently addressed and a few terrorist actions early in 1972 gave rise to grave concern and threat to the safety of civil aviation; it was felt that perpetrators of such acts were not or not appropriately brought to justice. Because governments had failed to deal adequately with such hijacking, the International Federation of Airline Pilots' Associations (IFALPA) called for a world-wide 24-hour shutdown of services by pilots on 19 June 1972. The United States pressed in the ICAO Council for rapid action to complete the work on a convention which would provide for sanctions against states that did not punish hijackers. The ICAO Council adopted on 19 June 1972 a Resolution which directed the Legal Committee to convene immediately a special Subcommittee to work on the preparation of an international convention to look at this issue of sanctions.
The American Government invited this Subcommittee to meet in Washington from 4 to 15 September 1972 and held 21 meetings; however, no agreement was reached at this meeting and more work was done over the following year. To consider various proposals for multilateral agreements relating to the suppression of acts of unlawful seizure of aircraft and relating also to other unlawful interference with international civil aviation, a full Diplomatic Conference was held simultaneously with the 20th (extraordinary) Session of the ICAO Assembly held in Rome from 28 August to 21 September 1973, but it did not provide any effective outcome. As a result States had to take steps on their own through tougher regulations for airports and bilateral negotiations to drop significantly the number of hijackings.
The Lockerbie disaster on 21 December 1988 drew urgent attention to the danger of plastic explosives for aviation. On 30 January 1989, the ICAO Council established an Ad hoc Group of Experts on the Detection of Explosives. At the 27th Session of the ICAO Assembly held in 1989, a proposal was made to draft an international instrument on the marking of plastic explosives. A special Sub-Committee of the Legal Committee prepared a preliminary draft in 1990 and a Diplomatic Conference met at Montréal from 11 February to 1 March 1991 to adopt the Convention for the Marking of Plastic Explosives for the Purpose of Detection. It entered into force on 26 June 1998.
The Diplomatic Conference on Aviation Security held from 30 August to 10 September 2010 at Beijing adopted two international air law instruments for the suppression of unlawful acts relating to civil aviation: the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (prevailing over the above-mentioned Montréal Convention of 23 September 1971 and the Protocol done at Montréal on 23 September 1971 and signed on 24 February 1988) and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (supplementing the above-mentioned Convention signed at The Hague on 16 December 1970), both done on 10 September 2010.
From 26 March to 4 April 2014, under the auspices of ICAO, an International Conference on Air Law was held in Montréal to consider amending the 1963 Tokyo Convention. This Conference was attended by a total of 422 participants from 100 ICAO Member States and nine international organizations and institutions. It was the culmination of a four-year effort to modernize the Tokyo instrument, the new Protocol (Protocol to amend the Convention on Offenses and Certain Other Acts Committed on Board Aircraft) addresses what had become recognized in recent years as a troubling escalation in the frequency of incidents involving disruptive and unruly passengers on scheduled commercial flights. ICAO Council President, Dr. Olumuyiwa Benard Aliu, made the following comments: ”This new Protocol to the Tokyo Convention significantly improves the ability of ICAO Member States to expand jurisdiction over related offenses to the State of the Operator and the State of Landing. It will also serve to enhance global aviation security provisions by expressly extending legal recognition and protections to in-flight security officers (IFSOs) from this point forward.”
The rise of aviation security gave ICAO a new relevance and importance at the international level. Moreover, some endless political debates quickly dissipated with the advent of hijacking and sabotage. The legal instruments on aviation security, complemented by International Standards and Recommended Practices on the subject (Annex 17), and the implementation of decisions by Members States and other international organizations, have proved to be an effective safeguard of aviation security.
Meeting of the Legal Subcommittee in Washington from 4 to 15 September 1972.
Delegates (from left to right: Charles Brower, Arnold W.G. Kean, and G.E. Vilkov, from USA, Great Britain and USSR respectively) listen to speeches.
Montreal, CANADA – 12 February to 1 March 1991
Commemorative cover - Diplomatic Conference on International Air Law which adopted
the Convention on the Marking of Plastic Explosives for the Purpose of Detection.