CLARIFIES UNRULY PASSENGER CONVENTION
A rare diplomatic conference featuring over 400 participants from 100 ICAO member states as well as nine international organizations and institutions officially adopted a protocol to amend the 1963 Tokyo Convention, addressing 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.
On 4 April, an International Civil Aviation Organization (ICAO) Diplomatic Conference adopted the Montréal Protocol 2014 to amend the Convention on Offenses and Certain Other Acts Committed On Board Aircraft 1963, otherwise known as the Tokyo Convention. The Protocol will come into force the first day of the second month after 22 member states ratify the instrument.
The Diplomatic Conference was assembled to address a rising tide of “unruly passenger” incidents – more than 28,000 reported incidents between 2007 and 2013, according to the Safety Trend Evaluation, Analysis & Data Exchange System (STEADES) database maintained by the International Air Transport Association (IATA). These incidents included violence against crew and other passengers, harassment, and failure to follow safety instructions.
ICAO Council President, Dr. Olumuyiwa Benard Aliu, stated, “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.”
According to Jeifang Huang, Senior Legal Officer in ICAO’s Legal Affairs and External Relations Bureau, the new Protocol provides the legal framework for dealing with passengers whose behavior can or does lead to physical assault or otherwise poses a threat to the safety of a flight. “Unruly people are a very, very small percentage of passengers,” Huang noted. “There’s an incident every 1,200 flights. But those are only the ones that get reported, and the problem has been growing. Unruly behavior does not always amount to a criminal act, but it can have serious consequences, endangering the safety of the flight and everyone on board.”
Michael Gill, IATA Director, Aviation Environment, said, “Unruly behavior reflects a broader societal problem where anti-social behavior is becoming more and more prevalent.” The most common disruptive behaviors are physical confrontation with other passengers or crew members, refusal to obey safety instructions of the crew (e.g. fastening of seat belts or disrupting a safety announcement), sexual abuse or harassment, illegal consumption of narcotics and cigarettes, and making threats that could affect the safety of the flight.
“ICAO appreciates the significant challenges undertaken by this conference and we are grateful for the diligent work of its participants and executive leadership,” noted ICAO Secretary General, Raymond Benjamin. “This new Protocol to the Tokyo Convention will make an important contribution to ensuring the security of passengers and crew worldwide.”
ICAO has driven the process through from initial proposal to a new treaty in five years, a relatively short length of time for a new protocol to be agreed. Tony Tyler, IATA’s Director General and CEO, said, “Governments must now follow-up on the success of the diplomatic conference and ratify the new protocol. With some 300 incidents of unruly behavior being reported each week, we urge governments to move quickly.”
Montréal Protocol 2014
- Clarifies the definition of unruly passenger behavior.
- Extends the jurisdiction over offenses and acts committed on board aircraft from the State of Registration of the aircraft to the State of the Operator and the State of Landing.
- Extends legal recognition and protections to in-flight security officers.
- Enables recovery of costs stemming from unruly passenger behavior.
The new Montréal Protocol contains four main categories of provisions: definition of offenses, jurisdiction over alleged offenders, the role of in-flight security officers, and the ability of an airline to recover damages stemming from the incident.
All that is required under the Protocol is reasonable grounds to believe a “serious offense” has been committed. Serious offenses could range from terrorist threats, to violent or threatening behavior against other passengers or crew, to tampering with a smoke detector.
The new Protocol expands the jurisdiction over offenses and acts committed on board aircraft from the State of Registration of the aircraft to the State of the Operator and the State of Landing (where the aircraft has its last point of takeoff or next point of intended landing within its territory and the aircraft subsequently lands in its territory with the alleged offender still on board). Extending the jurisdiction “closes a loophole which allowed many serious offenses to escape legal action,” Huang said. The State to which the alleged offender is delivered upon landing is obliged to make a preliminary investigation into the alleged offense and then inform the other States, as well as the State of Nationality of the detained person, about whether it intends to exercise jurisdiction.
In-Flight Security Officers
States may establish in-flight security officers (IFSOs), often referred to as “air marshals,” who are deployed pursuant to bilateral or multilateral agreements between States, to take reasonable preventive measures where those officers have reasonable grounds to believe such action is immediately necessary to protect the safety of the aircraft or the persons or property in the aircraft. The legal protection currently given to the aircraft commander, members of the crew, any passenger, and the owner or operator of the aircraft in respect of any action taken against the alleged offender is extended to the in-flight security officer.
Recovery of Damages
Nothing in the Convention precludes any right to seek recovery of damages from a person disembarked or delivered pursuant to the Convention.
Article Reference: International Civil Aviation Organization Journal 2014 Vol. 69 – No.2