Aviation Security: The Role Of International Law
Aviation Security:The Role of InternationalLawProfessor Dr. Paul Stephen DempseyCopyright 2008 by the author.
Terrorism Terrorism is ideologically or politicallymotivated violence directed against civiliantargets. Terrorism is unconventional warfare, andpsychological warfare, designed to instillfear. Terrorism is a symptom of a morepernicious disease found among themilitarily weak, the politically frustrated, andthe religiously fanatic.
The Vulnerability of AirTransportation“The nation’s vast air, land, and maritimetransportation systems are marvels of innovation andproductivity, but they are designated to be accessible,and their very function is to concentrate passengerand freight flows in ways that can create manyvulnerabilities for terrorists to exploit. . . .“Designed and organized for the efficient, convenient,and expeditious movement of large volumes of peopleand goods, transportation systems must have a highdegree of user access.” Transportation Research Board
Acts of Unlawful InterferenceHijackings account for thelargest percentage of allattacks against civilaviation. Other criminalacts include: airport attacks; bombings, attemptedbombings; shootings on board civilaviation aircraft; general and charteraviation aircraft incidents; off-airport facility attacks;and shootings at in-flightaircraft.
Early Acts ofUnlawfulInterference The first recordedhijacking occurred in1931 when Peruvianrevolutionariescommandeered a FordTri-motor. In 1937, terrorists mayhave planted a bomb onthe HindenburgZeppelin, exploding it atLakehurst, New Jersey. The first hijacking of acommercial aircraft wasin 1948, resulting in thecrash of a CathayPacific aircraft in theocean near Macao.
Hijackings During the first dozen years of modern commercialair travel (1948-1960), there were twenty-ninesuccessful hijackings. In the following six years (1961-1967), there were atotal of sixteen hijackings. Then, in 1968 alone, there were thirty successfulhijackings of aircraft—seventeen having UnitedStates registration. The following year, the number of hijackings wasmore than double the number of the preceding twodecades combined. After the late 1960s, as the Cuban hijackingsde creased in frequency, the total number of aircrafthijackings began to decline.
Examples of Aerial Terrorism In the 1970s, airports in Tel Aviv and Athens wereattacked; in the 1980s, airports in Rome, Munich andVienna were attacked. The 1985 bombing of Air India flight 182 over the IrishSea by Sikh separatists, killing all 329 aboard. North Korea is widely believed responsible for a 1987explosion of a Korean Airlines flight 858 over theAndaman Sea near Burma that killed all 115 passengersand crew aboard. The 1988 bombing of Pan Am flight 103 over Lockerbie,Scotland, by operatives of the Libyan government,killing all 259 aboard. In 2002, missiles were fired at an Israeli charter aircraftover Nigeria.
MotivesThe earliest incidents usually involved political refugeesseeking a safe haven.People rebelling against their political environmenthijacked aircraft en route from Cuba to the United States,while others hijacked aircraft from the United Statesseeking to join relatives or political comrades in Cuba.People in eastern Europe hijacked aircraft to flee thecommunist regimes.During the early 1970s, a series of hijackings occurred inwhich the dominant motive was to obtain money byholding passengers hostage for ransom.The hijackings of the late 1970s and the first half of the1980s were made in an attempt to promote politicalobjectives relating to existing international and territorialconflicts. During these decades, politically motivatedhijackings accounted for more than two-thirds of allhijackings worldwide.Political frustration and/or religious fanaticism can inspireterrorism.
But, war is theterrorism of the rich and terrorism is thewar of the poor.
Aviation Security Conventions Chicago Convention of 1944 – 190 StatesTokyo Convention of 1963 – 182 StatesThe Hague Convention 1970 for the unlawful seizureof aircraft – 182 StatesThe Montreal Convention 1971 for the suppression ofunlawful acts against the safety of aviation – 185StatesThe Montreal Protocol for the suppression of acts ofviolence at airports – 161 StatesThe MEX Convention 1991 on the marking ofexplosives – 132 States
OTHER INTERNATIONAL AGREEMENTS US-Cuba Memorandum of Understanding (1973) The European Convention of 1977 provides thathijacking is not deemed to be a political offenseexception that avoids extradition. The Bonn Declaration of 1978, an agreement of G-7leaders, provides that all flights would be ceasedimmediately to or from any nation that refused either toreturn the hijacked aircraft or to prosecute or extradite ahijacker.
The Chicago Convention of 1944 Article 4 of the Chicago Conventionof 1944 prohibits the “use of CivilAviation for any purpose inconsistentwith the aims” of the Convention. Among those aims and objectives ofthe Convention are to “insure the safeand orderly growth of internationalcivil aviation throughout the world”and to “meet the needs of thepeoples of the world for safe . . . airtransport.” The preamble to the Conventionprovides that “the future developmentof international civil aviation cangreatly help to create and preservefriendship and understanding amongnations and peoples of the world, yetits abuse can become a threat togeneral security.”
The Tokyo Convention of 1963The delegates who met in Tokyo in 1963 were concerned withdrafting legal rules governing offenses occurring on board theaircraft. The issue of unlawful seizure of aircraft was added asan afterthought in Article 11.Under the Convention, the contracting State in which a hijackedaircraft lands is obligated to "take all appropriate measures torestore control of the aircraft to its lawful commander" and to"permit its passengers and crew to continue their journey assoon as practicable. . . .”The Convention has been criticized for its failure to create adefinitive obligation on behalf of its signatories to prosecute orextradite the individual committing acts of unlawful interference.
The Hague Convention of 1970 Provides that one who, during flight,“unlawfully, by force or threatthereof, or by any other form ofintimidation, seizes, or exercisescontrol of, that aircraft, or attemptsto perform such act” or is anaccomplice of such person,commits an “offense,” for whichextradition or prosecution and theimposition of “severe penalties” isrequired. Contracting States must rendertheir decision in the same manneras it would in an offense of aserious nature under their domesticlaw.
The Montreal Convention of 1971The Montreal Convention addresses the issues ofdamage to air navigation facilities and aircraftsabotage, and extends its scope to certainactivities preceding embarkation and departure,and subsequent to landing and disembarkation.It declares the following to be “offense[s]:”(a) acts of violence likely to endanger the safety ofan aircraft,(b) destruction of or serious damage to an aircraftor air navigation facilities, and(c) communication of false information thatendangers the safety of an aircraft.
The Montreal Protocol of 1988Extended the principalprovisions of theMontreal Conventionto airports, prohibitingacts of violence atairports and thedestruction or damageof airport facilities.
PROHIBITED ACTSThe four international conventional Air Law instruments collectively prohibit the following: offences against penal law; performing an act which jeopardizes the safety of the aircraft or of persons orproperty therein, or good order and discipline on board (Tokyo Art. 1(1)); unlawfully, by force or threat or intimidation, seizing or controlling an aircraft, orattempting to; or being an accomplice of a person who performs or attempts to perform any suchact; (Hague Art. 1); performing an act of violence against a person on board an aircraft in flight likely toendanger the safety of that aircraft; or destroying or damaging an aircraft so as to render it incapable of flight orendangering its safety in flight; or placing or causing to be placed a device or substance likely to destroy an aircraftin service, or to cause damage to it which renders it incapable of flight, or is likelyto endanger its safety in flight; or destroying, damaging or interfering with air navigation in a way likely to endangerthe safety of aircraft in flight; or communicating knowingly false information endangering the safety of an aircraft inflight; attempting to commit the above offences or acting as an accomplice to one whocommits or attempts to commit any such offence (Montreal 1971 Art. 1); performing an act of violence against a person at an international airport likely tocause serious injury or death; or destroying, seriously damaging or disrupting international airport facilities or outof-service aircraft located thereon, if such an act is likely to endanger safety at thatairport (Montreal Protocol Art. 2).
New Offenses?Among the additional offensesICAO is considering adding in anew international instrumentare: using civil aircraft as a weapon; using civil aircraft to spreadbiological or nuclear weaponsor substances; using biological or chemicalweapons or substances tocause damage; and threats to cause such offenses.
RIGHTS OF STATES The State of Registration may exercisejurisdiction over offenses committed on board anaircraft (Tokyo, Art. 3(1).A State that is not the State of Registration mayexercise its jurisdiction over an offensecommitted on board if the offense:affects its territory,was committed against its national or permanentresident,infringes its security, orbreaches flight or maneuver rules andregulations there in force. (Tokyo, Art. 4).If it refuses to accept a disembarked passengerthat it not its national or permanent resident, aState may return such passenger to his State ofnationality or permanent residence, or theterritory in which he began his journey (Tokyo,Art. 14(1)).
DUTIES OF STATESContracting States must: restore control of an aircraft unlawfullyseized or interfered with to the aircraftcommander, or preserve his controlthereof (Tokyo, Art. 11(1) ; Hague Art.9(1)); permit the passengers and crew tocontinue on to their destination as soonas practicable, and return the aircraft andits cargo to those entitled to lawfulpossession thereof (Tokyo, Art. 11(2),(Hague Art. 9(2)), (Montreal Art. 10(2). avoid unnecessary delay of the aircraft,crew or passengers (Tokyo, Art. 17).
DUTIES OF STATESStates must allow a passenger to disembark if delivered toit by the commander of the aircraft on grounds he hascommitted, or is about to commit, an offense againstpenal law, or “may or do jeopardize the safety of theaircraft or of persons or property therein or whichjeopardize good order and discipline on board.” (Tokyo,Art. 12).Once it takes delivery, if the State must: take him into custody for such time as necessary tolaunch criminal or extradition proceedings (Tokyo, Art.13(2)); allow him to communicate with the State of which he isa national (Tokyo, Art. 13(3)); immediately make a preliminary enquiry into the facts(Tokyo, Art. 13(4)); notify the State of registration, the State of which theperson is a national, and any other interested State thatthe person has been taken into custody and thecircumstances that warrant his detention, and whether itintends to exercise jurisdiction (Tokyo, Art. 13(5),Montreal 1971 Art. 5(2));and accord to a person in its custody treatment no lessfavorable than that accorded its own nationals (Tokyo,Art. 15(2)).
DUTIES OF STATESContracting States must make the unlawful seizure orattempted seizure of an aircraft punishable by severepenalties (Hague Art. 2). Further, it must make thefollowing offenses punishable by severe penalties(Montreal 1971 Art. 3): (a) performs an act of violence against a person onboard an aircraft in flight if that act is likely to endangerthe safety of that aircraft; or (b) destroys an aircraft in service or causes damage tosuch an aircraft which renders it incapable of flight orwhich is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft inservice, by any means whatsoever, a device orsubstance which is likely to destroy that aircraft, or tocause damage to it which renders it incapable of flight,or to cause damage to it which is likely to endanger itssafety in flight; or (d) destroys or damages air navigation facilities orinterferes with their operation, if any such act is likely toendanger the safety of aircraft in flight; or (e) communicates information which he knows to befalse, thereby endangering the safety of an aircraft inflight. (Montreal 1971 Art. 1).
DUTIES OF STATES If the offense took place aboard its registered aircraft,or in its territory, or aboard an aircraft dry leased to aperson who has its principal place of business or itspermanent resident within the State, that State mustexercise its jurisdiction over the offense of unlawfullyseizing an aircraft or any other act of violence againstthe crew or passengers (Hague Art. 4) (Montreal 1971Art. 5(1)).If the alleged wrongdoer is in its territory, that Statemay take him into custody for purposes of promptlymaking an enquiry into the facts to determine whethercriminal proceedings or extradition should be instituted(Hague Art. 6) , (Montreal Art. 6(1).If the alleged wrongdoer is found in the State, it musteither extradite him, or submit the case to competentauthorities for prosecution in the same manner as anyordinary offense of a serious nature would be handled(Hague Art. 7) (Montreal 1971 Art. 7).Other States must assist the prosecuting State in itscriminal proceedings (Hague Art. 10(1), Montreal 1971Art. 11).
Annex 17 to the Chicago Convention (1974) Reaffirms many of the requirements of the Tokyo, Hague andMontreal Conventions. Requires that each member State “have as its primaryobjective the safety of passengers, crew, ground personneland the general public in all matters related to safeguardingagainst acts of unlawful interference with civil aviation.” Requires States to establish a national civil aviation securityprogram and to create a governmental institution, dedicated toaviation security, that would develop and implementregulations to safeguard aviation. Requires States to develop a security training program, shareaviation threat information, and otherwise cooperate with otherStates on their national security programs.
Recent Amendments to Annex 17 Amendment 10 to Annex 17, adopted lessthan three months after the tragic eventsof September 11th, extends its reach todomestic air transportation. Specifically,the relevant provision provides: “EachContracting State shall ensure thatprinciples governing measures designedto safeguard against acts of unlawfulinterference with international civil aviationare applied to domestic operations to theextent practicable.” Coupled with ICAO’s new security auditprocedures, states that fail to comply withtheir international legal obligations in thisarena are likely to have industrializednations prohibit commercial aviationservices to or from their territories.
“The heads of State and government, concerned about terrorism and the taking ofhostages, declare that their governments will intensify their joint efforts to combatinternational terrorism.“To this end, in cases where a country refuses extradition or prosecution of thosewho have hijacked an aircraft and/or do not return such aircraft, the heads ofState and gov-ernment are jointly resolved that their governments should takeimmediate action to cease all flights to that country.“At the same time, their governments will initiate action to halt all incoming flightsfrom that country or from any country by the airlines of the country concerned.The heads of State and government urge other governments to join them in thiscommitment.”Pursuant to the Bonn Declaration of 1978, Afghanistan and Libya were cut offfrom service to all the G-7 nations.Service cuts were threatened against South Africa in 1981 after a failed coupattempt against the Seychelles.The Bonn Declaration of 1978
Article 3 bis (1984) After Korean Airlines flight 007was shot down by Sovietmilitary aircraft over the SovietUnion in 1983, ICAO Counciladopted a resolution providingthat the use of armed forcesagainst commercial aviation wasincompatible with customaryinternational law and theChicago Convention. In 1984 ICAO adopted Article 3bis, which prohibits the use ofweapons against aircraft inflight. It entered into force in1998. As of March 2007, 136 Stateshad ratified Article 3 bis.
The Montreal Convention of 1991 In response to SecurityCouncil Resolution 635,ICAO drafted theConvention on the Markingof Plastic Explosives forthe Purpose of Detection of1991. It calls upon memberStates to take “necessaryand effective measures” toprevent the manufacture,and exert control over thepossession and movementof, unmarked explosives,as well as destroy existingstockpiles. This is not, technically, anaviation convention.
Several UN Security Counciland General AssemblyResolutions Condemn AerialTerrorism
U.S. Security Audits In 1985, Congress required the FAA to assessthe security procedures of foreign airports andforeign air carriers that serve the United States.It required the FAA to conduct a security auditof foreign airports, and if it found that an airportfailed to comply with Annex 17, it notified theappropriate authorities of its decision andrecommended steps to achieve compliance.If the airport failed to correct the deficiency, theFAA published a notice that the airport hasfailed its security audit in the Federal Register,posted its identity prominently at major U.S.airports, and notified the news media.The FAA could also “withhold, revoke, orprescribe conditions on the operating authority”of an airline that flies to that airport, and thePresident may prohibit an airline from flying toor from said airport from or to a point in theUnited States.
The U.S. announce all service would besuspended between the United Statesand: Beirut in 1985, Lagos in 1992 Manila and Bogotá in 1995 Athens in 1996 and Port-au-Prince in 1998.The DOT also has denied code-sharingapproval to destinations in nations onthe Department of State’s list ofgovernments that support terrorism.
THE ICAO SECURITY AUDITSFollowing September 11, 2001, the 33rd ICAO GeneralAssembly passed several resolutions strongly condemningthe use of aircraft as weapons of mass destruction. Onesuch resolution called upon ICAO to establish a securityaudit program modeled on USOAP, launched in 1999. Asa result, ICAO inaugurated the Universal Security AuditProgramme [USAP] to assess state compliance withAnnex 17 (security).
States tend to bereactive ratherthan proactive. They also tend to“fight the lastwar.”
U.S. Domestic LawThe Antihijacking Act of 1974 implements the Hague Convention of 1970. Itimposes penalties for carrying weapons or explosives aboard aircraft and apenalty of twenty years of imprisonment or death if a passenger is killed duringa hijacking. It also authorizes the President to suspend the landing rights of anynation that harbors hijackers.The Air Transportation Security Act of 1974 authorized the screening ofpassengers and baggage for weapons.The Aircraft Sabotage Act of 1984 implements the Montreal Convention of 1971.It imposes penalties of up to 100,000 or twenty years of imprisonment, or both,for hijacking, damaging, destroying, or disabling an aircraft or air navigationfacility.The International Security and Development Act of 1985 authorizesexpenditures for enhancing security at foreign airports.The Foreign Airport Security Act of 1985 requires the Secretary of the U.S.Department of Transportation (DOT) to assess security at foreign airports and tonotify the public or suspend service if a foreign airport fails to correct a securitybreach. It also requires foreign airlines serving the United States to adopt andimplement security procedures prescribed by the U.S. government.
Recent U.S. Domestic Law The Aviation Security Improvement Act of 1990 mandates background checks for airlineand airport employees, and imposes additional training, educational, and employmentstandards upon them. It also requires deployment of bomb-detection technology forbaggage.The Federal Aviation Administration Reauthorization Act of 1996 requires passengerprofiling, explosive detection technology, procedures for passenger/bag matching, andcertification for screening companies.The Omnibus Consolidated Appropriations Act of 1997 authorizes the purchase ofadvanced screening equipment for baggage.The Aviation Security Improvement Act of 2000 requires fingerprinting and backgroundchecks of airport and airline security personnel at Category X airports.The Aviation and Transportation Security Act of 2001 federalizes the airport screeningfunction, establishing the new Transportation Security Administration (TSA) under theDOT to regulate security in all modes of transportation. It also enhances baggagescreening procedures and imposes more stringent personnel qualifications on securityemployees.The Homeland Security Act of 2002 consolidates twenty-two agencies, including theTSA, into a new cabinet-level Department of Homeland Security. The agency is givenjurisdiction, inter alia, over transportation security, customs, immigration, and agriculturalinspections.
On September 11, 2001, four aircraft werehijacked. Two were flown into the WorldTrade Center, one was flown into thePentagon, and one crashed inPennsylvania. More than 3,000 people were killed. This event launches America’s “War onTerrorism.”
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Suicide Hijacking:It was not the first time. In 1974, Samuel Byck attempted to hijack aplane at Baltimore/Washington InternationalAirport and fly it into the White House, in anattempt to assassinate President Nixon. In 1994, four terrorists hijacked an AirFrance aircraft at Algiers in an apparentattempt to fly it into the Eifel Tower orexplode it over Paris.
Post 9/11 LegislationEQUIPMENT & TECHNOLOGY.The U.S. Congress mandated fortified cockpit doors on U.S. airliners.Congress also required the installation of video monitors so that cockpit crewcan see what is going on in the cabin, and a switch, so that cabin crew cannotify the cockpit of disturbances. Enhanced security also is required for airportperimeter access. All U.S. airports were required to be equipped with explosivedetection system (EDS) to scan all bags by the end of 2002. EDT machines areproduced by only two certified manufacturers— InVision Technologies and L3Communications.
Technology isimportant. But even the besttechnology cannot do it all.
PROCEDURES.Airport security personnel screen 1.3 billion bags in theUnited States annually. Within sixty days, airports had toscreen luggage by either: (1) bomb detection machines; (2)manual searches; (3) dog sniffing; or (4) matching bags withpassengers. As soon as practicable, all personnel, goods,property, and vehicles that enter the secured area of anairport must be screened or inspected. TSA also mustdevelop procedures for screening and inspecting allindividuals, goods, vehicles, and other equipment beforethey are allowed to enter the secured area of an airport. AllU.S. and foreign airlines bringing passengers to the UnitedStates from abroad must make their passenger manifests(with passport and visa numbers) available to Customs priorto arrival.
PERSONNELNational guardsmen were quickly added to airports after September 11th.Criminal background checks were required to be imposed on 750,000airport employees and the nation’s 28,000 screeners became federalemployees. However, 25% of then-existing screeners were not U.S.citizens and had to be dismissed. The law requires that they be U.S.citizens, pass a criminal background check, be tested for drugs, beproficient in the English language, and be adequately trained. Federalsecurity managers are to be posted at each U.S. commercial airport tooversee and supervise the passenger, baggage, and cargo screeningfunctions. Armed air marshals are to be added to domestic flights.Individuals seeking to enter flight school must undergo a forty-five-daypre-clearance procedure conducted by the Department of Justice.Airline flight crews are to undergo training on how to deal with aterrorist incident aboard the aircraft, and the opportunity for them tocarry weapons in the cockpit was added by the Arming Pilots AgainstTerrorism Act of 2002.
The Need for Layered Security SystemsTransportation security can best be achieved through coherentsecurity systems that are well integrated with transportationoperations and are deliberately designed to deter terrorists evenas they selectively guard against and prepare for terrorist attacks.In particular, layered security systems, characterized by aninterleaved and concentric set of security features, have thegreatest potential to deter and protect. Layered systems cannotbe breached by the defeat of a single security feature—such as agate or guard—as each layer provides backup for the others, sothat the impermeability of individual layers is not required.Moreover, the interleaved layers can confound the would-beterrorist. Calculating the odds of breaching a multi-tiered systemof defense is far more difficult than calculating the odds ofdefeating a single, perimeter protection.
Law is only onemechanism toachieve safe andsecure skies.
WHAT AREWE UPAGAINST?
And what happens if we fail?
We must succeed.
Aviation Security:The Role of International LawProfessor Dr. Paul Stephen DempseyDirector, Institute of Air & Space LawMcGill University
www.iasl.mcgill.cawww.iasl.mcgill.ca
performing an act of violence against a person on board an aircraft in flight likely to endanger the safety of that aircraft; or destroying or damaging an aircraft so as to render it incapable of flight or endangering its safety in flight; or placing or causing to be placed a device or substance likely to destroy an aircraft
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