Tuesday, 8 April 2014

ICAO Diplomatic Conference adopts amendments to Tokyo Convention to cover unruly passengers

The International Civil Aviation Organization announced that a Diplomatic Conference adopted on 4 April 2014 a Protocol to amend the 1963 Tokyo Convention. The new Protocol addresses the problem of the so called “disruptive” or “unruly” passengers. It contains three main categories of provisions: on jurisdiction, list of offences and in-flight security officers.

The said problem regards passenger behavior on board the aircraft, which causes problem to the good order and discipline on board. Such behavior does not always amount to a criminal act, but may endanger the safety of the flight. An IATA study has shown that following disruptive behaviors are the most common: physical confrontation with other passengers or crewmembers, refusal to obey to safety instructions of the crew (e.g. fastening of seatbelts or disrupting a safety announcement), sexual abuse or harassment, illegal consumption of narcotics and cigarettes, making threats that could affect the safety of the flight.  

The problem was first addressed by ICAO in 1997 through the establishment of Secretariat Study Group, which led to the adoption of ICAO GA Resolution A33-4 in 2001. The Resolution laid down a Model Law for national legislation. In 2002 ICAO published Guidance Material on the Unruly/Disruptive Passengers in ICAO Circular 288. However, the problem continued to exacerbate, so ICAO took anew action. The result is the 2014 Montreal Protocol to the 1963 Tokyo Convention.

As mentioned before, the new Protocol contains three main categories of provisions: jurisdiction on the alleged offenders, list of offences and the role of in-flight security officers.

As to jurisdiction on the alleged offenders, the jurisdiction of the State of the aircraft operator as well as of the State of landing is established. Jurisdiction of the State of registry and jurisdiction according to national legislation are not affected. The establishment of the jurisdiction of the State of the aircraft operator addresses the trend of airlines to use leased aircraft, which means that the State of the aircraft registry (State of the aircraft owner) may not have factual control over the aircraft. Currently, around 40% of the airlines use aircraft that they do not own and this percentage will increase in the coming years. Concerning jurisdiction of the State of landing, its establishment aims at filling potential jurisdiction gaps, when an aircraft with an alleged offender on board lands within the territory of a State and this State has no jurisdiction according to traditional principles of jurisdiction, i.e. the offence was committed in foreign territory, on board a foreign aircraft, by and against persons who are not nationals of the State of landing. It is also noteworthy that proposals to link these two jurisdictions, of the State of the operator and the State of landing, with the nationality of the offender or the victim were finally rejected.

Concerning the list of offences, the majority of States favored the inclusion of only two indicative offences in the new Protocol, i.e. physical assault or threat thereof against a crewmember and refusal to follow a lawful safety instruction of the crew. Although IATA had suggested enlisting a series of specific offences for the sake of clarity, such list will only be included to the updated ICAO Circular on the Protocol’s implementation.

The role of In-Flight Security Officers (IFSO), commonly known as air marshals, was also clarified. Such officers have been quite common on board flights, especially after the attacks of the 11.September. The new Protocol set clear that the pilot-in-command may ask, but not require, the assistance of an IFSO to restrain a disruptive passenger. ISFOs may also take preventive action against passengers, when they have reasonable reasons to believe that an offence is about to be committed. To the rest, deployment of IFSOs is regulated by special agreements between the States concerned.

The 2014 Montreal Protocol will enter into force the first day of the second month after the 22nd ratification.

You can find a list of documents submitted at the Diplomatic Conference here, including the text of the new Protocol (DCTC Doc No 34), and the consolidated text of the 1963 Tokyo Convention as amended by the Protocol (DCTC Doc No 33).

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