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Will the new ICAO-Beijing instruments build a Chinese wall for international aviation security?

IV. THE VIEWS OF THE AIRLINE INDUSTRY

The airline industry supported "the thrust of the initiative to further extend" criminal liability for certain acts that may unlawfully and intentionally interfere with international civil aviation. (512) Clearly, the use of an aircraft as a weapon of mass destruction (WMD) or to disperse WMDs poses a serious threat to international civil aviation, and the possibility that aircraft may again be used to create a mass-casualty event persists. (513) However, the industry was concerned with the practical implications and operational repercussions that the new regime might present. (514) Industry representatives warned against the law of unintended consequences placing unnecessary burdens on an already weakened airline industry. (515) In particular, the airline industry felt that the broad scope of the requirement of unlawful and intentional conduct to trigger the application of the offense would give significant discretion to state prosecutors over the categories of parties against whom they may decide to open criminal investigations. Thus, "innocent airlines and their employees will almost certainly find themselves embroiled in costly and time consuming defences to criminal investigations for matters that arise out of the normal course of their operations." (516)

But the industry received some comfort. At LC/34 discussions, France noted that "[air] carrier[s] must act unlawfully, intentionally and with certain knowledge before its liability can be incurred under the [Beijing instruments]." (517) Similarly, the delegate from Australia noted that the transport offense would not capture "recklessness as to the contents of air cargo or the status of a passenger and would not apply to a carrier who unintentionally transports an item or person in a prohibited manner." (518)

A. Carriage of Dangerous Goods--End Use

Airlines already transport certain categories of dangerous goods (519) on a daily basis. "Most explosives ... are restricted to cargo aircraft, although some may be shipped on passenger aircraft as well. In this context, the transport of these commodities is not at all uncommon." (520)

Although airlines were "sympathetic to the intent of the proposed changes to the existing conventions," there was concern that "in trying to stop criminal activities, the legitimate and lawful transport of these items [would be] negatively impaired." (521)

Of particular importance was the carriage of radioactive materials in the medical industry, "where there are already problems with 'denial of shipments.'" (522) This occurs "when shipments of radioactive materials, that are in complete compliance with the applicable transport regulations are [either] i) denied entry to a country or port" or ii) prevented from being transported on a timely basis "due to additional layers of non-transport regulations that delay their movement." (523) "'Denial of shipment' is a particular problem that the International Atomic Energy Agency (IAEA), the IATA, ICAO, manufacturers, and transporters of radioactive materials have been working to address for a number of years." (524) "These regulated radioactive materials are a perishable commodity widely used in medicine for the diagnosis and treatment of diseases and any additional regulatory requirements imposed on the transport of these materials will only further aggravate the problems in achieving their transport by air." (525)

There is already a requirement for a mandatory acceptance check of almost all dangerous goods. (526) The airline verifies that the document and the exterior appearance of the package comply with the regulatory requirements. (527) But the airline has no way of determining the so-called end use. This aspect is--thus far--not covered by the safety regulations. (528)

Airlines are required to follow the provisions set out in the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air when transporting such materials. (529) For the most part, airlines also use the IATA's Dangerous Goods Regulations (DGR), which are recognized as the "field guide" for the transport of dangerous goods by air. (530) The provisions in these regulations require that the shipper of such goods "classify, pack, mark, label, and document" such goods as set out in the regulations. (531) Airlines then have an obligation to complete an acceptance checklist, with some small exceptions, for all dangerous goods consignments. (532)

"[W]hen accepting dangerous goods for transport, airlines do not know, and are never provided with, the intended end use for the materials," and "indeed, the end use is not a condition of transport." (533) "Provided that the goods are presented in a condition that complies with domestic and international [dangerous-goods] regulations, they meet the safety conditions for transport." (534)

For example, an airline could transport goods that are intended to be used for hostile purposes, but it would have no knowledge of that intended use. (535) Should this be the case, it would make sense that the person who prepared and shipped such goods be held criminally liable but certainly not the airline or its employees acting within the context of their employment activities. If the requirements set out in the DGR are satisfied, airlines and their employees should not be held criminally liable for having accepted the transport of such goods. The industry argued strongly that the new international regime should affirm this concept.

At the Beijing Diplomatic Conference, the IATA proposed language whereby the operator would have been conclusively deemed not to have committed one of the transport offenses, when such operator has complied with the requirements of the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air in force at the time of the alleged offense. (536) The conference was not persuaded by this proposal, and despite a number of statements from states giving a certain degree of comfort, the issue remains one of concern for the industry. (537)

B. Transport of BCN Weapons

At the present time, there is no reasonable, cost-effective method to ensure that air carriers do not transport BCN weapons. (538) Most of the screening technologies available at airports throughout the world--be they x-ray machines or Explosive Detection Systems (EDS)--are able to detect explosive devices that might be associated with BCN weapons but not necessarily stand-alone BCN weapons themselves. (539) Although there is already technology available that can detect a stand-alone BCN weapon, it is extremely expensive. (540) By making the transport of BCN weapons a criminal offense, the industry argued that the new legal regime should not create additional regulatory requirements for airports and aviation security authorities to deploy devices with technological capabilities to screen and detect them. (541) Such requirements would be exorbitantly costly for the aviation industry. That concern had previously been noted at LC/34 when one delegation underscored "that there should be no requirement [in place] to detect biological, chemical or nuclear material in baggage," (542) and the point was repeated at the Diplomatic Conference. (543)

In addition, a situation may arise where a state that was not involved in the approved transport of BCN weapons, or components thereof, considers such transport as an offense under its national legislation, since the BCN weapons or components thereof were later used to cause death or serious damage in its territory. This may arise, for instance, in the context of countries involved in a conflict where a party used BCN weapons to inflict damage. (544)

For these specific situations, the IATA had argued that language should be included to avoid the air carrier being held responsible for an approved, declared transportation of BCN weapons or components thereof. (545) Airlines should be blameless for WMD attacks using their assets, provided they have observed state security programs. Although seconded by two states, LC/34 decided not to adopt this recommendation, (546) and this was also the outcome of the Beijing Diplomatic Conference. (547)

C. The Air Carrier's Dilemma When Transporting Military Equipment

In certain cases, governments lease, wholly or partly, an aircraft to transport weapons (including BCN weapons) for military purposes. (548) Typically, these transactions involve a wet-lease arrangement where the airline provides the aircraft and the crew. (549) "The airline may be an all-cargo carrier, a consolidator, or a passenger airliner with cargo operations." (550) Since the carriage of such weapons is for military purposes, the airline in question "knows" that the materials being transported may be used to inflict "serious injury or damage for the purpose of intimidating a population." (551) This also poses the question of whether an aircraft completely leased by a government agency is considered to be in use for "military services." All previous ICAO international instruments exclude state aircraft--that is "aircraft used in military, customs, or police services." (552)

This raises a number of questions:

1. Would the application of both Beijing instruments be excluded in these types of situations?

2. If the aircraft were a commercial airliner transporting passengers and cargo and only part of its cargo capacity was leased by a government agency to transport explosive materials or weapons for military purposes, Would that aircraft be considered in use for military services as well?

These situations are not uncommon at all. (553) As clearly noted in an ICAO Secretariat comprehensive study on "Civil/State Aircraft" back in 1994, whether an aircraft is considered as civil or military aircraft, either within or outside the scope of international civil aviation, will depend on "all the circumstances surrounding the flight, and taking into account a number of factors." (554) Such factors include:

i) nature of the cargo carried;

ii) ownership of the aircraft;

iii) type of operation;

iv) passengers or personnel carried;

v) aircraft registration and national markings;

vi) potential secrecy of the flight;

vii) customs clearances;

viii) documentation; and

ix) type of crew. (555)

With these background factors in mind, one may argue that if an aircraft is dry leased to a military entity to transport military equipment, it should be considered a military aircraft. Here, the degree of military control over the aircraft's operation would appear to be high. Arguably, therefore, the Beijing instruments would not apply.

The issue is more complex in those cases where the aircraft wet leases civilian crew. If the aircraft is solely devoted to military operations, there would certainly be more chances to categorize that aircraft as being used for military services. Yet this may not be the case where, as mentioned above, the aircraft is a scheduled commercial airliner whose cargo compartments are only partially devoted to transport military arsenal. In any case, the issue may be subject to conflicting interpretations and applications.

One alternative to address this problem would have been to include language so that the transport of explosives, radioactive materials, and BCN weapons were excluded from the scope of the Beijing instruments in cases where a government agency intervenes in its capacity as a shipper, consignee, or both.

At the Beijing Diplomatic Conference, the IATA proposed that the military aircraft clause be amended to also exclude those commercial aircraft being used for military activities when the lessee of the aircraft or the consignor or consignee of cargo is a state entity. (556)

Although at LC/34, some delegations, including Canada and the United States, acknowledged "that this matter merited further consideration." (557) By completely ignoring it, the Beijing Diplomatic Conference missed a clear opportunity to shed some light on a rather obscure operational and legal issue.

V. IS THE SUA PROTOCOL THE CURE OF ALL EVILS?

Much--if not all--of the effort undertaken to amend the existing international conventions on aviation security to deal effectively with new and emerging threats was based on the SUA Protocol. (558) In fact, at the time of writing only twenty-three states had ratified or acceded to the SUA Protocol. (559) This may indicate the reluctance of the international community to codify these proposed offenses in international law.

Surprisingly, many if not all of those countries that were enthusiastic about the proposed amendments in the aviation security field and that drew inspiration from its wording have yet to ratify the SUA Protocol. (560) As it is widely known, the United States has strongly pushed for the development of this instrument. (561) Although the U.S. Senate already gave consent for ratification, at the time of writing, Congress has yet to pass the necessary implementing legislation. (562) Will the Beijing instruments experience the same result?

Critics of the SUA Protocol indicate that, although it may foster international maritime security, it does not "create a strong-enough defense against maritime terrorism." (563) The instrument is a reactive response to what should otherwise be a mechanism to encourage preventive measures. (564) Others have said that, "there is no guarantee that [it] will impact enough nations to be truly effective." (565)

Throughout the history of the negotiation of the Beijing instruments, the SUA Protocol was often cited as the role model to follow. (566) Where states struggled with any new concepts, the SUA Protocol was used as the precedent that had already been accepted by the international community. (567) This is particularly true with regard to the inclusion of the transport offense and the military exclusion clause.

But that reliance on the SUA Protocol forgets that the drafting history of that instrument was extremely controversial. (568) Even the IMO, as well as commentators, has recognized that the Diplomatic Conference that led to the adoption of the SUA Protocol was one of the "most politically charged conferences in [the organization's] history." (569) One delegation remarked that a number of states have filed reservations with regard to the SUA transport offenses, reflecting a clear lack of "international endorsement." (570) Others noted that the instrument "[does] not focus on safety of transport in the strict sense, but rather [it is] aimed at serving many [other] objectives [way beyond the restricted confines of international maritime activities], such as the non-proliferation of nuclear weapons." (571) Strict and, to an extent, blind faithfulness to the SUA Protocol may not necessarily be the cure of all evils.

VI. ARE THE BEIJING INSTRUMENTS THE SOLUTION TO SAFER CIVIL AVIATION SECURITY?

Most in the international community have wholeheartedly praised the adoption of the Beijing instruments. (572) ICAO's secretary-general called them a "landmark achievement in the areas of civil aviation law and security." (573) Some commentators have also labeled these instruments as "landmark against new and emerging threats to civil aviation," (574) "a quantum leap for global civil aviation security," (575) and "a step forward in the right direction." (576) The chairman of LC/34 has written that the Beijing instruments "will shape the aviation security framework for the rest of the century." (577)

ICAO itself recently said that the Beijing instruments "will strengthen the capacity of States to prevent the commission of these offences, and to prosecute and punish those who commit such offences." (578)

One wonders if that optimism is misplaced. The idea that the Beijing instruments will facilitate prosecution and the punishment of offenses is conditional upon widespread ratification, adoption into domestic legislation, and the will of states in complying with new international obligations. However, some doubt must remain as to the extent to which the new regime will make any contribution to the prevention side of the equation. Can one seriously contend that the existence and entry into force of such instruments serves as a strong deterrent against the commission of terrorist acts? Is it really likely that terrorists scattered around the world carry the United Nations' corpus juris International Instruments Related to the Prevention and Suppression of International Terrorism to establish how, when, and where to launch their next awful attacks? (579)

The Beijing instruments demand that states criminalize a number of new criminal offenses. (580) Unlike human rights conventions, international criminal instruments are not self-executing--regardless of whether the state in question adheres to the monist or dualism theories of international law. (581) That is to say that states will inevitably have to pass domestic legislation to internalize the treaty obligations. To ensure its effectiveness, states will need to enact national-implementing legislation, incorporating "severe" punishments for persons committing such offenses. (582)

Furthermore, none of the UN instruments on the prevention and suppression of international terrorism sets penalties. (583) Within certain guidelines set out in the international instruments, these are obligations left to the discretion of the state. If states fail to adopt adequate penalties, the international instrument's effectiveness, to a great extent, is moot. So notwithstanding the ratification of the treaty, a local judge will not be able to sentence a terrorist, unless there is domestic legislation internalizing the implementation of obligations set forth in the international legal instrument. It should come as no surprise then that each Assembly urges Member States to internalize into their national legislation severe punishments for the commission of offenses against civil aviation. (584)

One could even go so far as to question the real effectiveness of ICAO's current aviation security conventions, all of which have enjoyed widespread acceptance from the international community.

A 1999 ICAO progress report on the implementation of Assembly Resolution A32-22 indicated that forty-five Member States had national legislation in place implementing the organization's aviation security instruments. (585) In 2000, the same report noted that the number of states rose to fifty, (586) but a year later when providing another report, this time on the implementation of Assembly Resolution A33-22, the number had dropped to forty-six states. (587) In the best-case scenario, the numbers correspond to roughly 26 percent of ICAO's membership. (588) Leaving inaccuracies aside, these numbers may be indicative of the level of Member States' implementation of ICAO's aviation security conventions. Although no data more recent than 2001 is available, nothing would suggest that a significant improvement has recently taken place in this respect. It is unlikely that the Beijing instruments will escape the same fate. It will just not be enough to ratify them. The adoption of national implementing legislation is essential. (589)

It is clear that in the post-9/11 landscape, acts of unlawful interference against civil aviation are a major threat to the orderly development of international air transport. (590) The Beijing instruments are the result of a predominant belief that there is "an urgent need to strengthen the legal framework [in pursuit of a significant improvement in] international cooperation." (591) Arguably, international law may play a (limited) role in shaping certain elements in enhancing aviation security. (592) In a way, the Beijing instruments, just like the SUA Protocol, demonstrate the "perception that terrorism is an international crime that can only be tackled successfully by concerted international action." (593) The new treaties would seem to be the logical response to best achieve this objective. Yet codification of international law is far from being the Holy Grail to resolve the pressing day-to-day challenges in aviation security.

The Beijing instruments are also the response of the international community (or a part thereof) to those who argue that terrorism is not a global problem but rather an issue that only affects a handful of states whose foreign affairs policies are deplored in some corners of the world. In other words, terrorism is the consequence of tit-for-tat strategies adopted by some governments, and those outside the boundaries of international controversy should not bear the cost. However, the 2011 Norwegian attacks reminded us that terrorists may strike when least expected. (594) One could hardly say that these attacks are the direct result of Norway's foreign affairs policies. The engagement and participation of the international community in the sharing of information becomes paramount in the prevention of these acts. This cannot be done without interaction.

A number of terrorist incidents suggest that aviation security should focus elsewhere than on the adoption of international legal instruments. For instance, on August 24, 2004, terrorist suicide bombers detonated explosive devices on board two Russian aircraft killing ninety people. (595) The incident of December 25, 2009, when a Nigerian passenger on board Northwest Flight 253 attempted to detonate an explosive device containing pentaerythritol tetranitrate while the aircraft was in flight from Amsterdam to Detroit reminds us of the fragility of screening controls. (596) The alleged terrorist successfully passed through two different screening checkpoints in two different states. (597) Furthermore, the bomb attack at Moscow Domodedovo International Airport on January 24, 2011, is another unforgettable example of the "vulnerabilities [that] airport installations and facilities" around the world are subject to every day. (598) More recently, on June 23, 2011, a U.S.-naturalized stowaway successfully cleared security control checkpoints at John F. Kennedy International Airport in New York and managed to board a Virgin American flight to Los Angeles. (599)

More treaty law would not necessarily have prevented these incidents. Rather than being the result of gaps in the existing international regime, it could be argued that most, if not all, unlawful interference events are due to the lack of effective implementation of the provisions of Annex 17. (600) The dreadful attacks of 9/11 are the perfect example. As one experienced commentator has put it, "[I]nternational civil aviation requires a high level of physical protection by searching and screening passengers and baggage to prevent the introduction of potential weapons on board." (601) And even 25 years ago, it was noted that "none of the written provisions [of the aviation security international conventions] will be effective unless the necessary trained personnel and equipment are in place." (602) The Beijing instruments represent an ex post facto (603) response to what it should otherwise be an ex ante approach to aviation security. (604)

Arguably, ICAO's activities should be geared toward ensuring that Member States fully comply with standards related to aviation security. Member States ought to rapidly improve their ability to oversee and manage aviation security issues. A much higher level of implementation of Annex 17 standards and recommended practices--as well as stringent observance of guidance material, such as the ICAO Security Manual--is needed. The Thirty-seventh Session of the Assembly echoed that sentiment. (606)

Recent results of ICAO's Universal Security Audit Programme (USAP) (607) would seem to confirm that the road to improved aviation security does not necessarily require more international law. In fact, the roughly 129 audits conducted under USAP's second cycle revealed a global 32.28 percent lack of effective implementation of the eight critical elements (608) of a state's aviation security oversight program. (609) Previous reports indicated that the global average compliance with Annex 17 "Aviation Security" standards was only 59 percent. (610) Although 93 percent of states have established a single organization in charge of aviation security, audits have evidenced that in 43 percent of states, the authority in question does not have sufficient resources to implement its assigned duties. (611)

The level of noncompliance in Member States is stunning if one considers that the lack of effective implementation of the security aspects of facilitation is 45.65 percent; (612) quality control functions, 49.60 percent; (613) response to acts of unlawful interference, 26.69 percent; (614) cargo, catering, mail, and security, 34.35 percent; (615) passenger and baggage security, 35 percent; (616) and training of aviation security persons, 39.34 percent. (617)

Moreover, more than half of the audited states do not possess a mechanism to oversee the training needs of personnel. (618) Deficiencies in the procedures for certification of security screeners were also detected in 56 percent of the audited states. (619) The audits also show that almost half of the states do not have procedures in place for the screening of persons other than the passenger. (620) This is quite worrisome. One can certainly expect that terrorists would opt for ways other than the standard passenger x-ray screening process to break through the aviation security chain. They will exploit the weakest points. The international community may witness more creative forms of terrorism.

Furthermore, 46 percent of audited states struggled with implementing technical guidance, tools, and security-critical information. (621) USAP also shows the tremendous difficulties that Member States routinely face with respect to a myriad of different aviation security issues, such as not developing guidance material for:

i) passengers and cabin baggage screening (62 percent of audited states); (622)

ii) originating hold baggage screening (54 percent of audited states); (623)

iii) hold baggage reconciliation (41 percent of audited states); (624)

iv) cargo and mail security controls (47 percent of audited

states); and

v) perimeter protection (56 percent of audited states). (625)

In addition, it is worrisome that 46 percent of the audited states do not ensure that airport security programs are reviewed and approved. (626) It is also noteworthy that "a number of [member] States have not participated fully in, or responded appropriately to, ICAO's aviation security audit processes." (627) As ICAO's Secretariat has already recognized, USAP "results [undisputedly] indicate that, despite the overall progress states have made in addressing deficiencies identified through the first [and second] cycle[s] of audits, a number of states continue to experience difficulties, particularly relating to meeting their aviation security oversight obligations and to increasing their level of compliance with the relevant ICAO Standards and security-related provisions." (628) Yet, one of the more enlightening results of ICAO's USAP is that only 15.92 percent of the audited states reported deficiencies with aviation security legislation. (629) In fact, this is one critical element of the audits that states do better at. (630) Clearly, the problem is not insufficient legislation, but rather implementation, compliance, and oversight. Although ICAO's USAP has been extremely successful, if one takes into account where the program started from, there is still significant room for improvement. (631)

One cannot help but wonder at the convenience of embarking on a nine-year international law codification process instead of focusing on what could be seen as a more pressing need. That political question is relevant for a UN-specialized agency such as ICAO with very limited financial and human resources and an annual budget of just $100 million. (632) Although the Beijing instruments are a laudable response--reflecting Member States unquestionable moral obligation to combat acts of terrorism against civil aviation--ICAO's USAP results might suggest where the organization's focus on aviation security should truly lie if we are ultimately seeking practical, meaningful, and lasting results to prevent the occurrence of such atrocious terrorist acts. (633) However, this can only be achieved with strong political will. This does not fall only to ICAO or its Secretariat but is rather the collective responsibility of Member States.

VII. CONCLUSION

Acts of unlawful interference present a daunting and serious challenge for international civil aviation. ICAO has warned that "[t]he threat to civil aviation continues to evolve and has become more challenging to predict. All facets of civil aviation, including, but not limited to, passenger aircraft, airport terminals and cargo facilities are at risk." (634)

In this context, the adoption of the Beijing instruments represents a notable effort on the part of the international community to address terrorism involving civil aviation. The instruments are of paramount importance to engage the international community in a more cooperative mode. International cooperation and cooperation between government and industry is the only way forward. The Beijing instruments may contribute to achieve that end. They also remove ambiguity in a number of key areas and contribute to removing any sense of lawlessness in this field. (635) In addition, they constitute a valuable contribution of the international legal community to the area of aviation security. (636)

It has also been apparent that throughout 9 years of tough negotiations, the Beijing instruments managed to generate discomfort with some states. Almost 30 percent of states participating in the Beijing Diplomatic Conference voted against the adoption of the texts. (637) The wording of the final act hardly does justice to the agonizing lobbying behind the scenes that led to the final adoption of the texts:
   The Commission of the Whole approved the text of the Convention on
   the Suppression of Unlawful Acts Relating to International Civil
   Aviation with 55 votes in favour, 14 votes not in favour. It
   approved the text of the Protocol Supplementary to the Convention
   for the Suppression of Unlawful Seizure of Aircraft with 57 votes
   in favour, 13 votes not in favor. (638)


Indeed, during discussions that led to the Council convening the Diplomatic Conference, Russia and Venezuela had already voiced their concerns that efforts should be made to avoid the situation whereby this process of revisiting the existing legal regime on aviation security instruments attracted such a low number of signatory states. (639) This is also a concern regarding both the General Risks Convention (640) and the Unlawful Interference Convention, (641) which, at the time of writing, have only received one ratification each and are some way off from entering into force.

In light of the uneasiness of some states with the proposed reforms pursued by the initiative, one may certainly question whether the Beijing instruments will ever achieve the same degree of widespread ratifications enjoyed by their predecessor treaties. The discontent of a large number of states would suggest the contrary. However, given U.S. impetus, one may anticipate that the Beijing instruments will--some day--enter into force. But, this may take a number of years.

Yet, even if these instruments achieve widespread ratifications, the question mark remains over implementation at the national level. Will the majority of states that eventually decide to ratify the Beijing instruments adopt implementing legislation? Only time will tell. Once the instruments enter into force and once states adopt implementing legislation, a high level of commitment to comply with the international obligations will also be necessary. (642) In any event, aside from encouraging ratification, there is a clear need for ICAO to go one step further and develop guidance material to educate states on the need to adopt implementing legislation.

The military exclusion clause was by far the most controversial and tough-fought issue throughout the negotiating history of these instruments. At this stage, it is hard to assess whether its inclusion was appropriate or not. By thoroughly analyzing previous ICAO pronouncements, both of the Assembly and the Council, this Article has tried to understand why this clause was a sine qua non requisite for some states and why it was so strongly opposed by others. After all, in most cases states behave like rational actors. (643) The Gaza International Airport incident clearly explains the conflicting positions of states.

As Milde points out, "Further proliferation of the legal instruments [may] not appear to offer an effective safeguard of aviation security and the energy of States within ICAO should be rather geared to prevention of the criminal acts." (644) In other words, more international law may not necessarily be the right deterrent for the execution of acts of terrorism involving and against international civil aviation. (645)

ICAO should continue to place an emphasis on the prevention of unlawful interference with international civil aviation. Strengthening and expanding ICAO's USAP is crucial in this regard, as is facilitating compliance with Annex 17 standards. An incremental and comprehensive approach is required to ensure that the horrors of 9/11 are never repeated. But in order to achieve this, ICAO needs the political commitment of its Member States. ICAO is often, and incorrectly, blamed for its inability to quickly react and adopt the changes required to respond to civil aviation's pressing needs, aviation security being one notable example. But such a criticism forgets that ICAO is nothing but the unequivocal reflection of the "will" of its Member States. In the absence of that will, there is not much that ICAO can do.

Last, but certainly not least, aviation security's primary goal should not only be to "close the gaps and inadequacies" (646) in the international legal regime but to prevent acts from happening. The legal regime is one, arguably minor, component of the equation. Perhaps the most effective approach to the problem of countering international terrorism is to adopt a systemic, multidisciplinary stance, including a basket of measures such as those listed in UN Resolution A/RES/60/288, calling for the creation of a global counterterrorism strategy. (647) Despite its significant achievement in international lawmaking, the Beijing instruments by themselves will not build a Chinese wall for aviation security. That will always be the collective responsibility of all states.

(1.) See Int'l Civil Aviation Org., Draft Report on the Work of the Legal Committee During Its 34th Session [paragraph] 2.1, (ICAO, LC/34-WP/4, Sept. 10, 2009) [hereinafter ICAO, LC/34-WP/4] (Opening Address of Mr. Roberto Kobeh Gonzalez, President of the ICAO Council).

(2.) These instruments are the Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 704 U.N.T.S. 10106 (entered into force Dec. 4, 1969) [hereinafter Tokyo Convention]; the Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860 U.N.T.S. 12325 (entered into force Oct. 14, 1971) [hereinafter Hague Convention]; and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, concluded on Sept. 23, 1971, 974 U.N.T.S. 14118 (entered into force Jan. 26, 1973) [hereinafter Montreal Convention], For the full list of the UN-sponsored international conventions on this field, see United Nations, International Instruments Related to the Prevention and Suppression of International Terrorism (2008). As of April l, 2013, 185 states were party to the Tokyo Convention and the Hague Convention, and 188 states were party to the Montreal Convention. See Current List of Parties to Multilateral Air Law Treaties, INT'L CIVIL AVIATION ORG. [ICAO], http://www.icao.int/secretariat/legal/Lists/Current%201ists%20of%20parties/AHItems.aspx (last visited Dec. 26, 2013).

(3.) Tokyo Convention, supra note 2.

(4.) See id. at art. 1 (Scope of the Convention).

(5.) See id., at art. 11 (Unlawful Seizure of Aircraft); see also Michael Milde, Law and Aviation Security, in Air AND SPACE LAW: De LEGE FERENDA 93, 95 (Tanja L. Masson-Zwaan & Pablo M.J. Mendes de Leon eds., 1992) [hereinafter Milde, Law and Aviation Security] ("[The Tokyo Convention] coined, in the English version, the term 'unlawful seizure of aircraft'....").

(6.) The preparatory work that led to the adoption of the Tokyo Convention mainly focused on issues relating to the legal status of aircraft. It was only in 1962 that the United States and Venezuela jointly tabled a proposal to make specific reference to aircraft hijacking. Under that proposal, the state of first landing should facilitate the restoring of the aircraft and should also permit the aircraft, crew, and passengers to continue on their journey. See Edward MCWHINNEY, AERIAL PIRACY AND International Terrorism: The Illegal Diversion of Aircraft and International LAW 36 (2d rev. ed. 1987).

(7.) See Michael Milde, The International Fight Against Terrorism in the Air, in The Use of Airspace and Outer Space for All Mankind in the 21st Century 141, 146 (Chia-Jui Cheng ed., 1995) [hereinafter Milde, International Fight Against Terrorism] (discussing the original purposes of the Tokyo Convention and stating that the mention of "unlawful seizure of aircraft" was an "afterthought" dealing only with the duties of states to restore possession of the aircraft and release passengers).

(8.) See Hague Convention, supra note 2, at art. 1 (defining the following as offenses, unlawfully seizing or exercising control of an aircraft by force, threat of force, or intimidation; attempting to perform such an act; and being an accomplice to a person who performs or attempts to perform any such act).

(9.) See Paul Stephen Dempsey, Public International Air Law 243 (2008) ("One inadequacy of the Hague Convention was its failure to address the issue of aircraft sabotage.").

(10.) See Montreal Convention, supra note 2, at art. 1 (defining the following as offenses, unlawful and intentional acts of sabotage likely to damage, destroy, or endanger the safety of an aircraft; attempting to perform such acts; or being an accomplice to a person performing or attempting to perform such acts).

(11.) See Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, concluded on Feb. 24, 1988, 1589 U.N.T.S. 14118 (entered into force Aug. 6, 1989) [hereinafter Airport Protocol]. As of April 1, 2013, 172 states are party to the Airport Protocol. See Current List of Parties to Multilateral Air Law Treaties, supra note 2. The Airport Protocol was negotiated and adopted over a process of less than fifteen months. See Philippe Kirsch, The 1988 ICAO and IMO Conferences: An International Consensus Against Terrorism, 12 DALHOUSIE L.J. 5, 8 n.16 (1990) (outlining the timeline of the proposal, preparation, review, revision, submission, and adoption of the Airport Protocol between September 1986 and December 1987).

(12.) See R.I.R. Abeyratne, The Effects of Unlawful Interference with Civil Aviation on World Peace and the Social Order, 22 TRANSP. L.J. 449, 480 (1995) (discussing the Pan Am 103 explosion and the reaction of ICAO).

(13.) See Convention on the Marking of Plastic Explosives for the Purpose of Detection, Mar. 1, 1991, 2122 U.N.T.S. 36984 [hereinafter Plastic Explosives Convention). As of March 10, 2013, 147 states are party to the Plastic Explosives Convention. See Current List of Parties to Multilateral Air Law Treaties, supra note 2.

(14.) See McWHINNEY, supra note 6, at 36 (discussing the specific suggestions made in 1962 to incorporate aircraft hijacking into "the proposed new Convention on the Legal Status of Aircraft"); NANCY DOUGLAS JOYNER, AERIAL HIJACKING AS AN INTERNATIONAL Crime 122-24 (1974) (discussing the study, proposal, and adoption of the Tokyo Convention by ICAO as the first international action on aircraft hijacking).

(15.) Shawcross & BEAUMONT: AIR Law, at ch. 33 (J.D. McClean et al. eds., LexisNexis Butterworths Issue 132, 2012).

(16.) See generally Brian R. Johnson, Christine A. Yalda & Christopher A. Kierkus, Property Crime at O'Hare International Airport: An Examination of the Routine Activities Approach, 5 J. APPLIED SEC. Res. 42, 43 (2011).

(17.) Tony Blair, A Journey: My Political Life 356 (2010).

(18.) Int'l Civil Aviation Org., Aviation Security Panel, Acts of Unlawful Interference in 2008 app. C at 7, 8 (ICAO, Working Paper No. AVSECP/20-WP/9, Mar. 5, 2009) [hereinafter ICAO, AVESELP/20-WP/9] (identifying twenty-three acts of unlawful interference in 2007); Int'l Civil Aviation Org., Report on Acts of Unlawful Interference for 2008 [paragraph] 2.1 (ICAO, Working Paper No. C-WP/13269, Jan. 13, 2009), in ICAO, AVSECP/20-WP/9, supra, at app. A (identifying twenty-four acts of unlawful interference in 2008); Int'l Civil Aviation Org., Report on Acts of Unlawful Interference for 2010 (ICAO, Working Paper No. C-WP/13683, Dec. 21, 2010) (noting twenty-three acts of unlawful interference in 2009 and fourteen acts in 2010).

(19.) See Int'l Civil Aviation Org., Acts of Unlawful Interference in 2011 (Oral Report presented by the Director of the Air Transport Bureau, 195th Council Session) (2012). These five incidents of unlawful interference included two attempted seizures, one sabotage, an attempted sabotage, and an in-flight attack. Id.; Acts of Unlawful Interference Database, INT'L CIVIL AVIATION ORG. (Apr. 1, 2013), https://portal3.icao.int/auid/pages/AUIOfPastl2Months.aspx.

(20.) See Int'l Civil Aviation Org., Declaration on Misuse of Civil Aircraft As Weapons of Destruction and Other Terrorist Acts Involving Civil Aviation, Assemb. Res. A33-1 (2001), compiled in Assembly Resolutions in Force [paragraph][paragraph] 7-8 (ICAO Doc. 9958, Oct. 8, 2010) [hereinafter ICAO, Resolution A33-1]; see also Int'l Civil Aviation Org., Consolidated Statement on the Continuing ICAO Policies Related to the Safeguarding of International Civil Aviation Against Acts of Unlawful Interference, Assemb. Res. A3620 (2007), compiled in Resolutions Adopted by the Assembly--36th Session [paragraph] 2 (provisional ed. Sept. 2007). ICAO defines new threats as "acts that make use of methods, actions or objects not previously considered to pose a serious threat to civil aviation," whereas emerging threat relates to "those existing methods, actions or objects that could conceivably be used in an act of unlawful interference which have not yet been employed or documented for use against civil aviation." Int'l Civil Aviation Org., Study on Legal Measures to Cover the New and Emerging Threats to Civil Aviation [paragraph] 2.1 (ICAO, Working Paper No. A35-WP/88, 2004) [hereinafter ICAO, Study],

(21.) See Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, opened on Oct. 7, 1952, 310 U.N.T.S. 4493 (entered into force Feb. 4, 1958) [hereinafter 1952 Rome Convention] (promulgating a multilateral convention to "ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft, while limiting in a reasonable manner the extent of the liabilities incurred for such damage in order not to hinder the development of international civil air transport").

(22.) See Convention on Compensation for Damage Caused by Aircraft to Third Parties, adopted May 2, 2009, ICAO Doc. 9919 [hereinafter General Risks Convention] (modernizing] the 1952 Rome Convention); Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft, adopted May 2, 2009, ICAO Doc. 9920 [hereinafter Unlawful Interference Convention] (outlining compensation principles for third parties for damage by aircraft due to unlawful interference).

(23.) See Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened on Sept. 10, 2010, ICAO Doc. 9960 [hereinafter Beijing Convention] ("Strengthen [ing] the legal framework for international cooperation in preventing and suppressing unlawful acts against civil aviation."). At the time of writing, thirty states are signatories to the Beijing Convention and there have been five ratifications and three accessions. The instrument is not yet in force. See List of Parties to Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, Done at Beijing on 10 September 2010, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/Beijing_Conv_EN.pdf (last visited Dec. 21, 2013).

(24.) See Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, opened on Sept. 10, 2010, ICAO Doc. 9959 [hereinafter Beijing Protocol] (supplementing the Hague Convention, supra note 2). At the time of writing, thirty-two states are signatories to the Beijing Protocol and there have been five ratifications and two accessions. The instrument is not yet in force. See List of Parties to Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft Done at Beijing on 10 September 2010, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/Beijing_Prot_EN.pdf (last visited Dec. 21, 2013).

(25.) General Risks Convention, supra note 22; Unlawful Interference Convention, supra note 22; Beijing Convention, supra note 23; Beijing Protocol, supra note 24.

(26.) After 9/11, various countries passed legislation to empower their armed forces to use force against civil aircraft that are presumed to have been hijacked. This also includes the authorization to shoot down such aircraft. See, e.g., Norberto E. Luongo, "Shooting-Down Laws": A Quest for Their Validity (unpublished LL.M thesis, McGill University, Montreal, Dec. 2008), available at https://www.mcgill.ca/iasl/alumni/thesisllm#Ll.

(27.) Beijing Convention, supra note 23.

(28.) See id. at art. 1 (defining the following as offenses: performing acts that endanger the safety of aircraft; using a device, substance, or weapon to endanger to safety of an airport; making a threat of any of the former; or attempting, organizing, being an accomplice to, or otherwise aiding any of the former).

(29.) This Article does not purport to give a comprehensive overview of the Hague Convention and Montreal Convention regimes on aviation security.

(30.) Int'l Civil Aviation Org., General Work Programme of the Legal Committee [paragraph] 3.2 (ICAO, Working Paper No. C-WP/11655, Oct. 22, 2001).

(31.) Before the 9/11 events, ICAO's Legal Committee work program covered the following issues:

i) Consideration on establishing a legal framework for CNS/ATM;

ii) "Acts or offences of concern to the international aviation community" not covered by the existing international air law regime;

iii) International interests in mobile equipment (what later came to be known as the Cape Town Convention);

iv) Modernization of the Rome Convention 1952 (which later culminated with the adoption of the General Risks and Unlawful Interference Conventions);

v) "Review of the question of the ratification of international air law instruments; and"

vi) Implications of the application of the United Nations Convention on the Law of the Sea for the Chicago Convention.

Id. [paragraph] 2.1.

(32.) See ICAO, Resolution A33-1, supra note 20.

(33.) Id. [paragraph] 7.

(34.) Michael Milde, International Air Law and ICAO 256 (2008) [hereinafter MILDE, INTERNATIONAL Air LAW], More recently, Milde has also noted that "[n]obody claims that the tragedy of 9/11 was contributed to by a void in international law or by any inadequacy or shortcomings in codified international instruments. It was a single event targeting the territory, airlines and airports of one single State." Michael Milde, The Beijing Convention and Beijing Protocol Adopted at the International Conference on Air Law Held under the Auspices of the International Civil Aviation Organization at Beijing, 30 August to 10 September 2010, 60 GERMAN J. ZEITSCHRIFT FUR LUFT- UND WELTRAUMRECHT 1, 60 (2011) [hereinafter Milde, Beijing Convention],

(35.) The term new and emerging threats may include "improvised explosive devices, unconventional terrorist attacks on airports and aircraft facilities, cyber attacks on aviation systems, including air traffic management systems, and threats concerning general and other forms of aviation." Int'l Civil Aviation Org., Review of the Report of the Twentieth Meeting of the Aviation Security Panel, at app., [paragraph] 1.2, (ICAO, Working Paper No. C-WP/13338, Mar. 27, 2009) [hereinafter ICAO, Working Paper No. CWP/13338],

(36.) Int'l Civil Aviation Org., Outcome of the High-Level, Ministerial Conference on Aviation Security, at A-3 (ICAO, Working Paper No. C-WP/11786, Feb. 27, 2002).

(37.) Id. at A-4.

(38.) Id. at A-11.

(39.) Int'l Civil Aviation Org., State Letter from the ICAO Secretariat to ICAO Contracting States 1 (State Letter No. LE 4/65-05/45, Mar. 25, 2005) [hereinafter State Letter No. LE 4/65-05/45] (accompanying a questionnaire circulated to members states to ascertain the need and possibility of amending the then-existing aviation security conventions).

(40.) See ICAO, Study, supra note 20. The ICAO Study was presented to the Thirty-fifth Session of the Assembly as an information paper. This means that the Assembly was not required to take any decision on the matter but simply to "note" the content of the paper.

(41.) Id. at A-9, [paragraph] 6.1.

(42.) Id. at A-l, A-10.

(43.) Hague Convention, supra note 2; Montreal Convention, supra note 2; Airport Protocol, supra note 11; Beijing Convention, supra note 23; Beijing Protocol, supra note 24.

(44.) See Hague Convention, supra note 2, at art. 1 (defining the following as offenses, unlawfully seizing or exercising control of an aircraft by force, threat of force, or intimidation; attempting to perform such an act; and being an accomplice to a person who performs or attempts to perform any such act); Montreal Convention, supra note 2, at art. 1 (defining the following as offenses, unlawful and intentional acts of sabotage likely to damage, destroy, or endanger the safety of an aircraft; attempting to perform such acts; or being an accomplice to a person performing or attempting to perform such acts); Airport Protocol, supra note 11, at art. 2 (defining the following as an offense, unlawfully and intentionally using a device or weapon to perform acts endangering or likely to endanger safety at an airport); Beijing Convention, supra note 23, at art. 1 (defining the following as offenses, performing acts that endanger the safety of aircraft; using a device, substance, or weapon to endanger to safety of an airport; making a threat of any of the former; or attempting, organizing, being an accomplice to, or otherwise aiding any of the former); Beijing Protocol, supra note 24, at art. 2 (defining the following as offenses, unlawfully and intentionally seizing or exercising control of an aircraft by force or coercion or by credible threat; or attempting, organizing, being an accomplice to, or otherwise aiding in any of the former).

(45.) Convention on International Civil Aviation, Annex 17, Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference 1-1 (9th ed. Mar. 2011) [hereinafter Annex 17].

(46.) Cf. ICAO, Study, supra note 20, at A-3 (noting that "some of these instruments are also applicable to attempted offences and accomplices" but "the existing aviation security conventions focus on the penal aspects relating to unlawful interference"). As I. H. Ph. Diederiks-Verschoor notes, the existing legal regime did not cover, for instance, a false bomb alert. See I. H. PH. DIEDERIKS-VERSCHOOR, An Introduction to Air Law 304 (8th rev. ed. 2006).

(47.) See ICAO, Study, supra note 20, at A-3 ("[The conventions] do not, however, expressly and specifically refer to persons organizing or directing others to commit the offences.").

(48.) See Int'l Civil Aviation Org., International Convention for the Suppression of Terrorist Bombings (ICAO, Working Paper No. C-WP/11065, Mar. 10, 1999).

(49.) See Int'l Civil Aviation Org., Draft Protocol to the Montreal Convention--Conspiracy or Association de Malfaiteurs' Offence 1 (ICAO, Legal Comm. Working Paper No. LC/34-WP/2-1, July 31, 2009) [hereinafter ICAO, Legal Comm. Working Paper No. LC/34-WP/2-1] (proposing the addition of a conspiracy offense to the Montreal Convention to "ensure that acts which do not constitute the primary offence but which include planning, facilitating or contributing to the primary offence are recognized as international crimes and are subject to the mutual assistance and international cooperation provisions of the Convention").

(50.) It is noteworthy that both the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism not only criminalize the conduct of those persons who participate as accomplices in the commission of the offense, but also that of those who organize or direct others to commit the offense and contribute in any other way to the commission of one or more offenses by a group of persons acting with a common purpose. This would cover the actions of the mastermind behind the offense. See International Convention for the Suppression of Terrorist Bombings art. 2, Dec. 15, 1997, 2149 U.N.T.S. 37517 [hereinafter Terrorist Bombings Convention] (defining the following as offenses, the act of placing or detonating of an explosive, the attempt to so act, being an accomplice to the act, organizing or directing others to so act, or contributing to the commission of such an act); International Convention for the Suppression of the Financing of Terrorism art. 2, [section] 5, Dec. 9, 1999, 2178 U.N.T.S. 38349 [hereinafter Financing of Terrorism Convention] (stating that any person commits an offense who participates as an accomplice, organizes or directs others to carry out, or intentionally contributes to the commission of an offense).

(51.) See Hague Convention, supra note 2, at art. 1 (defining the following as offenses, unlawfully seizing or exercising control of an aircraft by force, threat of force, or intimidation; attempting to perform such an act; and being an accomplice to a person who performs or attempts to perform any such act); Montreal Convention, supra note 2, at art. 1 (defining the following as offenses, unlawful and intentional acts of sabotage likely to damage, destroy, or endanger the safety of an aircraft; attempting to perform such acts; or being an accomplice to a person performing or attempting to perform such acts).

(52.) The misuse of aircraft encompasses various concomitant offenses, such as "the unlawful seizure of the aircraft in flight and the intentional destruction of an aircraft in service, as well as misusing aircraft as weapons to cause death, injury and damage on the ground." ICAO, Study, supra note 20, at A-3, [paragraph] 4.1.2. The ICAO study recommended further examination on whether the misuse of aircraft as a weapon should be criminalized as a separate offense under international law. Id. at A-4, [paragraph] 4.1.4.

(53.) Int'l Civil Aviation Org., General Work Programme of the Legal Committee [paragraph] 3.3.2 (ICAO, Working Paper No. C-WP/12326, Feb. 12, 2004).

(54.) State Letter No. LE 4/65-05/45, supra note 39.

(55.) Id.

(56.) ICAO, Working Paper No. C-WP/12326, supra note 53, [paragraph] 3.3.2.

(57.) Int'l Civil Aviation Org., Summary Minutes of the Twelfth Meeting [paragraph] 19 (ICAO, C-MIN 176/12, Jan. 24, 2006).

(58.) See Int'l Civil Aviation Org., Report on the Survey Concerning the Need to Amend Existing International Air Law Instruments on Aviation Security 3, f 2.8 (ICAO, Council Working Paper No. C-WP/12531, Nov. 4, 2005) ("Based on this understanding, it may be concluded that fifty States, representing 92.5 percent of the total replies, have been supportive of a new international legal instrument, either in the form of an amendment or a separate convention.").

(59.) State Letter No. LE 4/65-05/45, supra note 39.

(60.) See Int'l Civil Aviation Org., Acts or Offences of Concern to the International Aviation Community and Not Covered by Existing Air Law Instruments 2, [paragraph] 1.1 (ICAO, Working Paper No. A36-WP/12, Aug. 14, 2007) ("Eighty-four out of 189 Member States replied [to the questionnaire], with an overwhelming majority affirming the need to review and amend the Conventions.").

(61.) See ICAO, Council Working Paper No. C-WP/12531, supra note 58, at 3, [paragraph] 3.2(c) (proposing future work "to convene a meeting of a Legal Sub-Committee to prepare a text of an international legal instrument to cover the new and emerging threats to civil aviation").

(62.) ICAO, C-MIN 176/12, supra note 57, [paragraph] 20.

(63.) Id. [paragraph] 22.

(64.) Id. [paragraph] 32.

(65.) Id. [paragraph] 41.

(66.) The final report suggested that the following acts, regardless of motive, should be criminalized in an international treaty:

i) use of civil aircraft as a weapon;

ii) use of civil aircraft to unlawfully spread biological, chemical and nuclear substances; attacks against civil aviation using biological, chemical, and nuclear substances;

iii) acts of organizing or directing offenses;

iv) wilful contribution to an offense even in those cases where the actual commission thereof might have not taken place; and

v) credible threat to commit an offense.

Int'l Civil Aviation Org., Final Report Relating to the Secretariat Study Group on Aviation Security Conventions 2-3 (ICAO, Working Paper No. C-WP/12851, Dec. 20, 2007); ICAO, Working Paper No. A36-WP/12, supra note 60, at 2-3, [paragraph] 2.1.2.1 (highlighting acts identified by the study group for criminalization through treaty provisions, independent of motive).

(67.) ICAO, Working Paper No. C-WP/12851, supra note 66.

(68.) The majority view within the Council was that legal issues involving unruly and disruptive passengers were "of a somewhat different nature." Int'l Civil Aviation Org., Summary Minutes of the Ninth Meeting [paragraph] 53 (ICAO, C-MIN 180/9, Mar. 5, 2008). Criticism that the Beijing instruments do not address air rage ignores the fact that the new and emerging threats initiative post 9/11 was never really intended to introduce amendments into the international regime in that area. See Ruwantissa Abeyratne, The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security, 36 AIR & SPACE L. 243, 254 (2011) (identifying the noninclusion of air rage as one of the instrument' shortcomings). Incidentally, in 2011, ICAO reestablished its special study groups on unruly and disruptive passengers. This group was tasked with examining whether the international regime--namely, the Tokyo Convention--merits further amendments. The group recommended that the organization should embark in a holistic modernization of the instrument and on November 9, 2011, the ICAO Council decided to convene a SSCLC. That SSCLC met on May 22-25 and December 3-7, 2012. See Int'l Civil Aviation Org., Special Sub-Committee of the Legal Committee for the Modernization of the Tokyo Convention Including the Issue of Unruly Passengers (ICAO, Report No. LC/SC-MOT, May 2012). Further regarding the work of the SSCLC, the Council recommended that the Thirty-fifth Session of the Legal Committee be convened. See Int'l Civil Aviation Org., Report of the Second Meeting of the Special Sub-Committee of the Legal Committee to Review the Tokyo Convention [paragraph] 4.1 (ICAO, Working Paper No. C-WP/SC-13931, Feb. 2, 2013). That meeting took place place May 6-17, 2013.

(69.) Gilles Lauzon QC (Canada).

(70.) Int'l Civil Aviation Org., Summary of Decisions of the Tenth Meeting [paragraph] 4 (ICAO, C-DEC 180/10, Mar. 9, 2007); Int'l Civil Aviation Org., Special Sub-Committee of the Legal Committee for the Preparation of One or More Instruments Addressing New and Emerging Threats (ICAO, Working Paper No. C-WP/13032, Nov. 13, 2007) [hereinafter ICAO, Working Paper No. C-WP/13032],

(71.) Terry Olson (France) chaired the meetings of the SSCLC.

(72.) ICAO, LC/34-WP/4, supra note 1, [paragraph] 2.3; Int'l Civil Aviation Org., Summary Minutes of the Eighth Meeting [paragraph] 13 (ICAO, C-MIN 182/8, Nov. 28, 2007) [hereinafter ICAO, C-MIN 182/8].

(73.) Under the Hague Convention, the criminal offense has three basic elements. First, it involves an act that is unlawful. Second, there is a degree of force or threat of force that has been used. Third, the offense consists of a seizure of aircraft, exercise of unlawful control, or an attempt against such aircraft. DIEDERIKS-VERSCHOOR, supra note 46, at 299.

(74.) See Int'l Civil Aviation Org., Special Sub-Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats [paragraph] 74 (ICAO, Working Paper No. LC/SC-NET-WP/2, July 6, 2007) ("The development of the two Protocols, one to the Hague Convention and one to the Montreal Convention, will update those Conventions by criminalising acts which affect not only the safety of the aircraft but also of persons and property on board and outside of the aircraft.").

(75.) See Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, concluded Mar. 10, 1988, 1-29004 U.N.T.S. 1678 (entered into force Mar. 1, 1992) [hereinafter SUA Convention] ("[A]dopting effective and practical measures for the prevention of all unlawful acts against the safety of maritime navigation."). As of December 2, 2013, 161 states were party to the SUA Convention. See Int'l Maritime Org., Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-General Performs Depositary or Other Functions, 421 (Dec. 2, 2013), available at http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20-%202013.pdf.

(76.) See Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Oct. 14, 2005 [hereinafter SUA Protocol], As of December 2, 2013, only twenty-four states were party to the SUA Protocol. See Int'l Maritime Org., Status of Multilateral Conventions, supra note 75, at 446.

(77.) See Int'l Civil Aviation Org., Report of the Special Sub-Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats (ICAO, Report No. LC/SC-NET-2, Feb. 2008) [hereinafter ICAO, Legal Sub-Committee Second Report] ("[R]efin[ing] certain provisions of the two draft texts developed at its first meeting.").

(78.) Int'l Civil Aviation Org., Summary Minutes of the Sixth Meeting [paragraph] [paragraph] 30-40 (ICAO, C-MIN 184/6, June 23, 2008).

(79.) Int'l Civil Aviation Org., State Letter from Secretary-General to Member States, LM 2/19.1-09/27, at 1 (Apr. 9, 2009).

(80.) Airports Council International (ACI), Latin American Air & Space Law Association (ALADA), International Air Transport Association (IATA), European Union (EU), EUROCONTROL, and the United Nations Office on Drugs and Crime (UNODC). See generally Int'l Civil Aviation Org., List of Delegates No. 2 to the Thirty-fourth Session of the Legal Committee (ICAO, Doc. No. 9926-LC/194, Sept. 2009) [hereinafter ICAO, List of Delegates No. 2] (listing delegates); Int'l Civil Aviation Org., Report of the 34th Session of the Legal Committee [paragraph] 5.1 (ICAO, Doc. No. 9926-LC/194, 2009) [hereinafter ICAO, Report, Doc. No. 9926-LC/194] (providing attendance information).

(81.) In the absence of Henrik Kjellin (Sweden), Michael Jennison (United States) chaired LC/34.

(82.) ICAO, List of Delegates No. 2, supra note 80, at 1.

(83.) See ICAO, LC/34-WP/4, supra note 1, [paragraph] 2.4 (providing the opening address of the acting chairman of the legal committee in which he "emphasized the urgent need to amend the existing conventions to cover the new and emerging threats to civil aviation").

(84.) See Int'l Civil Aviation Org., Draft Report on the Work of the Legal Committee During Its 34th Session, Report [paragraph] [paragraph] 2:125-36 (ICAO, LC/34-WP/5-2, Sept. 16, 2009) [hereinafter ICAO, LC/34-WP/5-2] (reporting on the Council's discussion concerning the "military exclusion" language); see also id. [paragraph] 2:1158 (highlighting that "[s]ome delegations reiterated ... opposition to the inclusion of the transport offence").

(85.) See Int'l Civil Aviation Org., State Letter from Secretary General Raymond Benjamin to Member States, LM 1/16.1-10/10, at 1 (Feb. 5, 2010) [hereinafter ICAO, State Letter LM 1/16.1-10/10] (announcing the Diplomatic Conference and inviting participation).

(86.) Int'l Civil Aviation Org., Report on the Diplomatic Conference on Aviation Security (Beijing, 30 August to 10 September 2010) and the Related Action of the 37th Session of the Assembly [paragraph] 1.1 (ICAO, Working Paper No. C-WP/13660, Oct. 29, 2010).

(87.) Id.

(88.) See Int'l Conference on Air Law (Diplomatic Conference on Aviation Security) Held Under the Auspices of the International Civil Aviation Organization, Final Act (Beijing, Aug. 30, 2010-Sept. 30, 2010) [hereinafter Int'l Conference on Air Law, Final Act]. The Conference also elected the following officers: Terry Olson (France), First Vice-President; Hisham El-Zimity (Egypt), Second Vice-President; Levers Mabaso (South Africa), Third Vice-President; David Sproule (Canada), Fourth Vice-President; Cesar Fernando Mayoral (Argentina), Fifth Vice-President. Siew Huay Tan (Singapore) was elected chairperson of both the Drafting and Preambular and Final Clauses Committees. See ICAO, Working Paper No. C-WP/13660, supra note 86.

(89.) Int'l Civil Aviation Org., International Conference on Air Law [paragraph] 2, 3 (ICAO, Doc. 9775-DC/2, May 1999).

(90.) Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, 2242 U.N.T.S. 39917 [hereinafter Montreal Convention 1999].

(91.) Int'l Civil Aviation Org., Report on the Outcome of the Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft Protocol [paragraph] 1.1 (ICAO, Working Paper No. C-WP/11654, Nov. 27, 2001).

(92.) See Convention on International Interest in Mobile Equipment, Nov. 16, 2001, 2307 U.N.T.S. 41143 [hereinafter Cape Town Convention],

(93.) See Protocol to the Convention on International Interest in Mobile Equipment on Matters Specific to Aircraft Equipment, Nov. 16, 2011 [hereinafter Cape Town Protocol].

(94.) Int'l Civil Aviation Org., Report on the International Conference on Air Law (20 April--2 May 2009) [paragraph] 1.1 (ICAO, Working Paper No. C-WP/13341, May 25, 2009).

(95.) Milde, Beijing Convention, supra note 34.

(96.) See Hague Convention, supra note 2, at art. 1 (defining as an offense, unlawfully seizing or exercising control of an aircraft by force, threat of force, or intimidation).

(97.) See id. at art. 1 (defining the following as offenses, when "any person who on board an aircraft in flight" seizes or exercises control of that aircraft by force, threat, or intimidation; attempts to perform such an act; or is an accomplice to a person who performs or attempts to perform such an act).

(98.) See id. at art. 3, [section] 1 (defining when an aircraft is considered to be "in flight" for purposes of the convention).

(99.) Robert P. Boyle & Roy Pulsifer, The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 30 J. AIR. L. & COM. 305, 331 (1964).

(100.) Tokyo Convention, supra note 2, at art. 1(b), [section] 3; see also Rome Convention, supra note 21, at art. 1, [section] 2. The drafters of the Hague Convention were doubtless of the view that it did not make much sense to follow the Tokyo Convention's approach with regard to the temporal scope, given the fact that there might be cases where the unlawful seizure of an aircraft may be committed after the boarding process but before the pilot applies power to the aircraft's engines.

(101.) Montreal Convention, supra note 2, at art. 1, [section] 1(a).

(102.) Id. [section] 1(d).

(103.) Id. [section] 1(e).

(104.) See id. [section][section] 1(a), (d), (e) (referring to acts that "endanger the safety of aircraft in flight").

(105.) Id. at art. 1, [section] 1(h).

(106.) Id.

(107.) Id. at art. 2(b).

(108.) See Beijing Protocol, supra note 24, at art. 5, [section] 1 (replacing Hague Convention Article 3(1)-"aircraft in flight"-with the following language: "an aircraft is considered to be in service from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing....").

(109.) See Beijing Convention, supra note 23, at art. 1, [section] 1(f) (defining the following as an offense, "us[ing] an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment").

(110.) See id. [section] 1(g) (defining the following as an offense, "releas[ing] or discharging] from an aircraft in service any BCN weapon or explosive, radioactive, or similar substances in a manner that causes or is likely to cause death, serious bodily injury or serious damage to property or the environment").

(111.) See id. [section] 1(h) (defining the following as an offense, "us[ing] against or on board an aircraft in service any BCN weapon or explosive, radioactive, or similar substances in a manner that causes or is likely to cause death, serious bodily injury or serious damage to property or the environment").

(112.) The Beijing Convention's definition of the term aircraft in service remains unaltered from that adopted by the Montreal Convention. Id. at art. 2(b).

(113.) Specifically, Article 1, [section] 2 states:
   Any person commits an offence if that person unlawfully and
   intentionally, using any device, substance or weapon: (a) performs
   an act of violence against a person at an airport serving
   international civil aviation which causes or is likely to cause
   serious injury or death; or (b) destroys or seriously damages the
   facilities of an airport serving international civil aviation or
   aircraft not in service located thereon or disrupts the services of
   the airport, if such an act endangers or is likely to endanger
   safety at that airport.


Id. at art. 1, [section] 2.

(114.) Id.

(115.) See id. ("Any person commits an offence if that person unlawfully and intentionally, using any device, substance or weapon [performs certain acts] ... if such an act endangers or is likely to endanger safety at that airport.").

(116.) See id. at art. 1 (including offenses involving aircraft, as well as interfering with aircraft operation by destroying or damaging navigation facilities); id. [section] 2 (including offenses endangering the safety of an airport).

(117.) See id. at art. 5 (outlining when the Convention applies).

(118.) Id. at art. 5, [section] 2(a); Beijing Protocol, supra note 24, at art. 7.

(119.) Beijing Protocol, supra note 24, at art. 5, [section] 5; Beijing Convention, supra note 23, at art. 5, [section] 2(a).

(120.) Beijing Convention, supra note 23, at art. 5, [section] 2(a).

(121.) Id. at art. 5, [section] 2(b).

(122.) See id. at art. 5, [section] 2.

(123.) Jacques de Watteville, La Piraterie Aerienne [Aircraft Piracy] 83 (1978).

(124.) See Int'l Civil Aviation Org., Options Paper for Amendment of Article 4 of the Montreal Convention 3, [paragraph] 4.1 (ICAO, DCAS Doc No. 5, July 15, 2010) ("It was considered that where aircraft are hijacked it is impossible to determine where they might land and that the Convention should apply where the aircraft lands in another State even though the flight was scheduled as a domestic flight at the point of takeoff").

(125.) See Beijing Convention, supra note 23, at art. 8, [section] 1(d) (requiring parties to take measures to establish jurisdiction over Article 1 offenses "when the offence is committed against or on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence is in that State").

(126.) A dry lease involves a leasing arrangement where the lessor provides the aircraft and the lessee is in charge of securing the crew to operate it. The lessee is responsible for making the necessary arrangement to secure the crew. See ICAO, DCAS Doc. No. 5, supra note 124, at 5-6, n.9 (defining dry-lease aircrafts).

(127.) During the Beijing Diplomatic Conference, an unsuccessful attempt was made to carve out from the application of the instrument entirely domestic flights when the aircraft is subject to a dry lease. Id. at 5, [paragraph] 5.8.

(128.) Beijing Convention, supra note 23, at art. 5, [section] 3.

(129.) Id. at art. 5.

(130.) Id. at art. 5, [section] 5.

(131.) Id.

(132.) See id. (referencing Article l(l)(d), which makes it an offense to destroy air navigation facilities but does not include an explanation of what this might entail).

(133.) Id. at art. 1, [section] 2(a).

(134.) Int'l Civil Aviation Org., Legal Opinion on Application of AVSEC-CONF/2 Recommendation 4.1 (Locking of Flight Deck Doors) to Domestic Flights [paragraph] 3.3.3 (ICAO, Working Paper No. C-WP/11795, May 14, 2002); Kirsch, supra note 11, at 10-11 ("In the end the Legal Committee decided to dispense with both the definition and the designation of airports serving international civil aviation....").

(135.) The offense reads:
   Any person commits an offence if that person unlawfully and
   intentionally, using any device, substance or weapon: (a) performs
   an act of violence against a person at an airport serving
   international civil aviation which causes or is likely to cause
   serious injury or death; or (b) destroys or seriously damages the
   facilities of an airport serving international civil aviation or
   aircraft not in service located thereon or disrupts the services of
   the airport.


Beijing Convention, supra note 23, at art. 1, [section][section] 2(a)--(b).

(136.) Alexei Anishchuk, Suicide Bomber Kills 35 at Russia's Biggest Airport, REUTERS (Jan. 24, 2011, 6:40 PM), http://www.reuters.com/article/2011/01/24/us-russiablast-airport- idUSTRE70N2TQ20110124.

(137.) Beijing Convention, supra note 23, at art. 5, [section] 6; Beijing Protocol, supra note 24, at art. 4.

(138.) Beijing Convention, supra note 23, at art. 5, [section] 1; Beijing Protocol, supra note 24, at art. 6, [section] 2.

(139.) Beijing Protocol, supra note 24, at art. 2.

(140.) See id. at art. 2 (referencing generally that there are ways other than affirmative means to commit the offense of hijacking).

(141.) Beijing Convention, supra note 23, at art. 1, [section] 1(f).

(142.) ICAO rapidly condemned these events as "terrorist acts contrary to elementary considerations of humanity, norms of conduct of society and as violations of international law." ICAO, Resolution A33-1, supra note 20, at VII-1.

(143.) Convention on International Civil Aviation arts. 3-4, Dec. 7, 1944, 15 U.N.T.S. 295 [hereinafter Chicago Convention]; see ICAO, Resolution A33-1, supra note 20, at VII-I, [paragraph] 3 ("Urges all Contracting States to ensure, in accordance with Article 4 of the Convention, that civil aviation is not used for any purpose inconsistent with the aims of the Convention on International Civil Aviation ....").

(144.) See Int'l Civil Aviation Org., Draft Report on the Work of the Legal Committee During Its 34th Session, Report 2-2, [paragraph] 2:9 (ICAO, LC/34-WP/4-1, Sept. 15, 2009) [hereinafter ICAO, LC/34-WP/4-1] (providing an overview of the discussion regarding intentionality).

(145.) At the Beijing Diplomatic Conference, Germany tabled this proposal from the floor, and this was supported, at least initially, by Canada and Sweden, (authors own notes).

(146.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, at 2-2.

(147.) Id.

(148.) This was raised by South Africa, Singapore, Uganda, and New Zealand, (authors' own notes).

(149.) See ICAO, LC/34-WP/4-1, supra note 144, at 2-2, [paragraph] 2:9 (highlighting one delegate's belief that environmental damages should not be a focus of the Convention).

(150.) Id.

(151.) Id. at 2-2, [paragraph] 2:10.

(152.) Drawing inspiration from the 2005 SUA Protocol, Article 2(h) of the Beijing Convention defines a BCN weapon as follows:

(a) biological weapons, which are:

(i) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; or

(ii) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

(b) chemical weapons, which are, together or separately:

(i) toxic chemicals and their precursors, except where intended for:

a. industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; or

b. protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; or

c. military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or

d. law enforcement including domestic riot control purposes, as long as the types and quantities are consistent with such purposes;

(ii) munitions and devices specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (b) (i), which would be released as a result of the employment of such munitions and devices;

(iii) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b) (ii)

(c) nuclear weapons and other nuclear explosive devices.

Beijing Convention, supra note 23, at art. 2(h).

(153.) Beijing Convention, supra note 23, at art. 1(g).

(154.) Id. at art. 1(h).

(155.) See International Conference on Air Law, Aug. 30-Sept. 10, 2010, Transport of Certain Materials Offence and the Use of Civil Aircraft for Proliferation Purposes 1 (ICAO, DCAS Doc. No. 10, May 8, 2010) [hereinafter ICAO, DCAS Doc. No. 10] ("To ensure that international civil aviation is not used for any purpose inconsistent with the Convention on International Civil Aviation (Chicago Convention), we must address the use of civil aircraft for proliferation purposes.").

(156.) See ICAO, LC/34-WP/4-1, supra note 144, at 2-2 (documenting various state concerns regarding BCN weapons).

(157.) See id. at 2-2, [paragraph] 2:11 ("At the end, it was decided to retain the reference to BCN weapon without square brackets and refer these provisions to the Drafting Committee.").

(158.) Hague Convention, supra note 2, at art. 1(a).

(159.) Or, strictly speaking, expands the scope of the existing offense under the Hague Convention.

(160.) Beijing Convention, supra note 23, at art. 2, [section] 1.

(161.) Int'l Civil Aviation Org., Draft Report on the Work of the Legal Committee During its 34th Session, 2-14, [paragraph] 2.99 (ICAO, LC/34-WP/5-2, Sept. 16, 2009).

(162.) Shining laser pointers at aircraft is a rising phenomenon. In the United States, this type of behavior is subject not only to fines up to $250,000 but also up to 5 years of federal imprisonment. Tom Fontaine, Feds Get Tough on Laser Pointer Aircraft Attacks, TRIB Live (Feb. 28, 2012), http://www.pittsburghlive.eom/x/pittsburghtrib/news/s_783830.html.

(163.) See Beijing Convention, supra note 23, at art. 1 (placing emphasis on the term intentionally).

(164.) Id. at art. 1(i)(l).

(165.) Id. at art. 1(i)(2).

(166.) Id. at art. 1(i)(3). The text that came out of the SSCLC's second meeting criminalized the unlawful and intentional transport of "source material" and "special fissionable material," but did not provide for a definition of these terms. ICAO, Legal Sub-Committee Second Report, supra note 77, at A4-2. The Russian Federation argued that these terms require definitions and that such definitions should follow those found in Article XX of the Statue of the International Atomic Energy Agency. See ICAO, LC/34-WP/2-6, supra note 49, at 2, [paragraph] 2.2 (affirming the IAEA's definitions of source material and special fissionable matter). The Diplomatic Conference retained that suggestion in square brackets and the Diplomatic Conference finally adopted those definitions. Beijing Convention, supra note 23, at art. 2(j) (providing the definitions of source material and special fissionable matter).

(167.) Beijing Convention, supra note 23, at art. 1(i)(4).

(168.) ICAO, LC/34-WP/4-1, supra note 144, at 2-2, [paragraph] 2:10.

(169.) See id. at 2-2 (referencing comments that favored the SUA Protocol inclusion of "transport offense").

(170.) ICAO, DCAS Doc. No. 10, supra note 155, at 4, [paragraph] 4.5.

(171.) See infra Section 4.

(172.) ICAO, LC/34-WP/4-1, supra note 144, at 2-3 to 2-4 (noting that "the definition of the transport offences itself was a cause for concern").

(173.) Id.

(174.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, [paragraph] 2:160.

(175.) See ICAO LC/34-WP/5-2, supra note 161, at 2-12 (noting that if delegations did not have a consensus, they were not adopted).

(176.) Legal Committee, Int'l Civil Aviation Org., Rules of Procedure 16 (ICAO, Doc. No. 7669-LC/139/5, 1998).

(177.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, [paragraph] 2:160.

(178.) Id. [paragraph] 2:25.

(179.) Id. at D-l; Int'l Civil Aviation Org., Draft Consolidated Text of the Montreal Convention of 1971 as Amended by the Airports Protocol of 1988 with Amendments Proposed by the Legal Committee 2, (ICAO, DCAS Doc. No. 3, Feb. 2, 2010).

(180.) ICAO, DCAS Doc. No. 10, supra note 155, at 1.

(181.) See International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, Proposals, (ICAO, DCAS Doc. No. 12, Aug. 11, 2010) [hereinafter ICAO, DCAS Doc. No. 12] (identifying Azerbaijan as a presenter of a working paper submitted to the Beijing Diplomatic Conference).

(182.) See International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, Essential Corrections and Additions to the Draft Texts Prepared by the Legal Committee, (ICAO, DCAS Doc. No. 11, Aug. 16, 2010) [hereinafter ICAO, DCAS Doc. No. 11] (identifying Saudi Arabia as a presenter of a working paper submitted to the Beijing Diplomatic Conference).

(183.) See International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, Comments on the Draft Protocols to the 1971 Montreal Convention and the 1970 Hague Convention, (ICAO, DCAS Doc. No. 15, Aug. 27, 2010) [hereinafter ICAO, DCAS Doc. No. 15] (identifying China as a presenter of a working paper submitted to the Beijing Diplomatic Conference).

(184.) See International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, Proposal for Deletion of Article 4 Ter of the Montreal Convention of 1971 as Amended by the Airports Protocol of 1988, with Amendments Proposed by the Legal Committee, (ICAO, DCAS Doc. No. 14, Aug. 30, 2010) [hereinafter ICAO, DCAS Doc. No. 14] (identifying India as a presenter of a working paper submitted to the Beijing Diplomatic Conference).

(185.) See International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, The Views of the International Air Transport Association (IATA) on the Proposed Instruments to Address New and Emerging Threats to Civil Aviation, (ICAO, DCAS Doc. No. 13, Aug. 19, 2010) [hereinafter ICAO, DCAS Doc. No. 13] (identifying IATA as a presenter of a working paper submitted to the Beijing Diplomatic Conference).

(186.) See ICAO, DCAS Doc. No. 10, supra note 155, at 1 ("This paper sets out exactly why a prohibition on the use of the civil aircraft to intentionally and unlawfully transport biological, chemical and nuclear (BCN) weapons ... is ... entirely consistent with ICAO's objectives.").

(187.) See id. at 2 (discussing the UN Security Council's statement of affirmation regarding the existence of a link between terrorism and the proliferation of dangerous substances).

(188.) ICAO, LC/34-WP/4, supra note 1, at 2-3 to 2-4, 2-11 (highlighting the issue's divisiveness).

(189.) International Conference on Air Law, Beijing, Aug. 30-Sept. 10, 2010, Informal Group on Transport Offences, (ICAO, DCAS Flimsy No. 3, Sept. 7, 2010) [hereinafter ICAO, DCAS Flimsy No. 3].

(190.) See ICAO, Legal Committee Working Paper No. LC/34-WP/2-1, supra note 49, [paragraph] 4.1 ("The term 'transport' is not defined in the Draft Protocol"); Beijing Convention, supra note 23, at art. 1(i) (outlining the types of transport that would be criminalized, but not exclusively defining the word transport).

(191.) ICAO, Legal Committee Working Paper No. LC/34-WP/2-1, supra note 49, ([paragraph] 4.1; see Beijing Convention, supra note 23, at art. 1(i) (describing the conduct that would constitute the offense); Beijing Protocol, supra note 24, at art. 2 (noting not only that the term transport is not defined but also that it is not used).

(192.) See, e.g., Beijing Convention, supra note 23, at art. 1(i) (outlining a range of items and materials that are prohibited from being transported on board an aircraft); ICAO, Legal Committee Working Paper No. LC/34-WP/2-1, supra note 49, [paragraph] 4.1.

(193.) International Conference on Air Law, Montreal, Can., May 10-28, 1999, Minutes and Documents, (Doc. 9773-DC/l) [hereinafter ICAO, Doc. 9773].

(194.) Id.

(195.) See Montreal Convention 1999, supra note 90, at arts. 1, 18 (highlighting examples in which the term transport has been redefined as "carriage by air").

(196.) See ICAO, LC/34-WP/4-1, supra note 144, at 2-4, [paragraph] 2:24 ("A few delegations supported the idea of exploring the merits of an opt-in/opt-out approach in relation to the transport offences.").

(197.) See id. at 2-4, [paragraph] 2:31 (explaining that the "preponderance of views" was not to accept this proposal).

(198.) Beijing Convention, supra note 24, at art. 1, [section] 1; Beijing Protocol, supra note 24, at art. 2, [section] 1.

(199.) ICAO, LC/34-WP/4-1, supra note 144, at 2-6, [section][section] 2:46, 2:47.

(200.) Id.

(201.) See Hague Convention, supra note 2, at art. 1(a) ("Any person who on board an aircraft in flight: (a) unlawfully ... seized, or exercises control of that aircraft ....").

(202.) See, e.g., Montreal Convention, supra note 2, at art. 1 ("Any person commits an offence if he unlawfully and intentionally ...."); Airport Protocol, supra note 11, at art. 2 ("1 bis. Any person commits an offence if he unlawfully and intentionally, using any device, substance or weapon ....").

(203.) The Financing of Terrorism Convention requires the conduct to be carried out "unlawfully and wilfully." E.g., Financing of Terrorism Convention, supra note 50, at art. 2, [section] 1. Likewise, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, and the Convention on the Physical Protection of Nuclear Material opted for the word intentional only. See Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents art. 2, Dec. 14, 1973, 1035 U.N.T.S. 15410; Convention on the Physical Protection of Nuclear Material art. 7, Oct. 26, 1979, 1456 U.N.T.S. 24631.

(204.) See, e.g., SUA Convention, supra note 75, at art. 3 (exemplifying an international treaty that uses both the terms unlawfully and intentionally); International Convention for the Suppression of Acts of Nuclear Terrorism art. 2, Apr. 13, 2005, 2445 U.N.T.S. 44004 ("Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally;"); Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf art. 2, Mar. 10, 1988, 1678 U.N.T.S. 29004 ("Any person commits an offence if that person unlawfully and intentionally;"); Terrorist Bombings Convention, supra note 50, at art. 2 ("Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers ...."); SUA Protocol, supra note 75, at art. 4 ("Any person also commits an offence within the meaning of this Protocol if that person: (a) unlawfully and intentionally ...."); Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf art. 4, Oct. 14, 2005 ("Any person commits an offence within the meaning of this Protocol if that person unlawfully and intentionally ....").

(205.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, [paragraph] 2:62.

(206.) Milde, International Air Law, supra note 34, at 231.

(207.) Id. at 223.

(208.) Id.

(209.) See Int'l Civil Aviation Org., Report of the Special Sub-Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats 2-2 to 2-12 (ICAO, Report No. LC/SC-NET, 2007) (explaining that the rapporteur of the Legal Committee, Ms. J. Atwell (Australia), had submitted a proposal to criminalize the unlawful and intentional transport of fugitives).

(210.) See id. at 2-3 (discussing the "intent" aspect of the offense).

(211.) See Int'l Civil Aviation Org., Annex 18 to the Convention on International Civil Aviation-The Safe Transport of Dangerous Goods By Air (3d ed. 2001) [hereinafter ANNEX 18] (providing a description of the Annex 18 standards).

(212.) ICAO, Working Paper No. C-WP/13032, supra note 70.

(213.) See ICAO, LC/SC-NET, supra note 72, at 2-12, [section] 10.12.4 ("A number of members expressed serious reservations and/or declined to take a premature position on the mere transport issue given its technical, legal and political complexity and need for further research and discussion.").

(214.) Id.

(215.) Id.

(216.) ICAO, Working Paper No. C-WP/12851, supra note 66.

(217.) ICAO, C-MIN 182/8, supra note 72, [paragraph] 18. The original wording of the offense reads:
   Any person commits an offence if that person unlawfully and
   intentionally ... (j) transports, causes to be transported, or
   facilitates the transport of another person on board an aircraft
   knowing that the person has committed an act that constitutes an
   offence set forth in the treaties listed in the Annex, and
   intending to assist that person to evade criminal prosecution.


Id. See ICAO, LC/SC-NET, supra note 209, at A4-2 (showing the amendments to Article 1 proposed by the SSCLC). The Annex would have included reference to the following international instruments: i) Hague Convention 1970; ii) Montreal Convention 1971; iii) Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Adopted by the General Assembly of the United Nations on 14 December 1971; iv) International Convention Against the Taking of Hostages, Adopted by the General Assembly of the United Nations on 17 December 1979; v) Convention on the Physical Protection of Nuclear Material, done at Vienna on 26 October 1979; vi) Protocol for the Suppression of 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, done at Montreal on 24 February 1988; vii) Protocol for the Suppression of Unlawful Acts Against the Safety of Fixes Platforms Located on the Continental Shelf, done at Rome on 10 March 1988; viii) International Convention for the Suppression of Terrorist Bombings, Adopted by the General Assembly of the United Nations on 15 December 1997; and ix) International Convention for the Suppression of the Financing of Terrorism, Adopted by the General Assembly of the United Nations on 9 December 1999. See id. at A4-2, n.2.

(218.) ICAO, Working Paper No. C-WP/13032, supra note 70.

(219.) Id.

(220.) ICAO, C-MIN 182/8, supra note 72, at 70.

(221.) Id.

(222.) S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

(223.) See id. (noting that the term terrorists, rather than fugitives, is used).

(224.) See ICAO, WP/12851, supra note 66, at 4, [paragraph] 2.2.1 (highlighting concerns that existed regarding air transportation and maritime law).

(225.) Id.

(226.) Id.

(227.) Id.

(228.) Id.

(229.) ICAO, C-MIN 182/8, supra note 72, at 77-78.

(230.) Id.

(231.) See ICAO, Legal Sub-Committee Second Report, supra note 77, [paragraph] 2.14 (opting not to delete the offense but noting "that a large majority at the meeting did not favour the inclusion of the transport of fugitives offence").

(232.) ICAO, LC/34-WP/4-1, supra note 144, [paragraph] 2:36.

(233.) Id. [paragraph] 2:37.

(234.) Id. [paragraph] 2:40.

(235.) Id.

(236.) Id.

(237.) See Int'l Civil Aviation Org., The Views of the International Air Transport Association (LATA) on the Preparation of One of More International Instruments Addressing New and Emerging Threats 6, [paragraph] 2.4.8, (Working Paper No. LC/34-WP/2-3, Sept. 9, 2009) [hereinafter ICAO, Working Paper No. LC/34-WP/2-3] ("In light of the foregoing arguments, IATA would respectfully suggest the complete deletion of any language that would attempt to criminalize the transport of fugitives.").

(238.) ICAO, LC/34-WP/4-1, supra note 144, [paragraph] 2:42

(239.) This small working group was composed of Argentina, Australia, Canada, China, Egypt, Germany, India, Japan, Lebanon, the Russian Federation, South Africa, and the United States. Id. [paragraph] 2:43.

(240.) Id.

(241.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, at D4.

(242.) Id.

(243.) Id.

(244.) Id.

(245.) A "flimsy" is a term used in ICAO to refer to a paper that is of a rather descriptive nature.

(246.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, at E-l.

(247.) See ICAO, DCAS Doc No. 3, supra note 179, at art. 1 ter ("Any person also commits an offence if that person makes a credible threat or unlawfully and intentionally causes any person to receive a credible threat to commit any of the offences in subparagraphs (a), (b), (c), (d), (f), (g), and (h) of paragraph 1 or an offence in paragraph 1 bis.").

(248.) See International Conference on Air Law, Aug. 30-Sept. 10, 2010, Introduction of the Offense of "Concealment" [Encubrimento] to Replace the Offense of "Transporting Fugitives" [paragraph] 5 (DCAS Doc. No. 7, July 15, 2010) [hereinafter ICAO, DCAS Doc. No. 7] (explaining the details of Argentina's alternative proposal).

(249.) See ICAO, DCAS Doc. No. 13, supra note 185, [paragraph][paragraph] 2-2.1.3 ("For this reason, the potential criminal liability of an airline and its employees should be excluded in certain limited circumstances as discussed below.").

(250.) See International Conference on Air Law, Aug. 30-Sept. 10, 2010, Proposed Amendment Regarding Article 1, Paragraph 2(D) ("Concealment Provision") [paragraph] 2.1 (DCAS Flimsy No. 2, Sept. 7, 2010) [hereinafter ICAO, DCAS Flimsy No. 2] (proposing three major changes to the "concealment" provision).

(251.) See id. [paragraph] 4.1 (suggesting including the language unlawfully and intentionally in order to avoid unintended criminal liability).

(252.)
   The final text of the offense now reads: "Any person also commits
   an offence if that person: ... (d) unlawfully and intentionally
   assists another person to evade investigation, prosecution or
   punishment, knowing that the person has committed an act that
   constitutes an offence set forth [in the convention], or that the
   person is wanted for criminal prosecution by law enforcement
   authorities for such an offence or has been sentenced for such an
   offence."


Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 1, [section] 3(d).

(253.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(254.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(255.) See Int'l Civil Aviation Org., Draft Protocol to the Montreal Convention--Transport Offences 3, [paragraph] 2.8.2 (ICAO, Working Paper No. LC/34-WP/2-2, July 31, 2009) [hereinafter ICAO, Working Paper No. LC 34-WP/2-2] ("This act of assistance is a criminal act of itself.").

(256.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(257.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(258.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(259.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(260.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(261.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(262.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(263.) Beijing Convention, supra note 23, at art. 1, [section] 4(d); Beijing Protocol, supra note 24, at art. 2.

(264.) Montreal Convention, supra note 2, at art. 1, [section][section] 2(a)--(b); Hague Convention, supra note 2, at art. 1 [section][section] (a)-(b).

(265.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)-(b); Beijing Protocol, supra note 24, at art. 1, [section][section] 2(a)--(b).

(266.) Hague Convention, supra note 2, at art. 1.

(267.) Montreal Convention, supra note 2, at art. 1(e).

(268.) Airport Protocol, supra note 11, at art. 2(b).

(269.) See ICAO, DCAS Doc. No. 15, supra note 183, *[ 5.1 (suggesting "that a definition or a clarification provision for 'credible threat' be introduced into the draft Protocol").

(270.) Beijing Convention, supra note 23, at art. 1, [section] 4(b); Beijing Protocol, supra note 24, at art. 1, [section][section] 2(a)-(b). This offense has also been incorporated in the Terrorist Bombings Convention. See Terrorist Bombings Convention, supra note 50, at art. 2, [section] (3)(b).

(271.) ICAO, LC/34-WP/2-1, supra note 49.

(272.) ICAO, LC/34-WP/4-1, supra note 144, H 2:55.

(273.) Id.

(274.) Id. 1 2:57.

(275.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)--(b); Beijing Protocol, supra note 24, at art. 1, [section][section] 2 (a)-(b).

(276.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)--(b); Beijing Protocol, supra note 24, at art. 1, [section][section] 2 (a)-(b).

(277.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)--(b); Beijing Protocol, supra note 24, at art. 1, [section][section] 2 (a)-(b).

(278.) See ICAO, LC/34-WP/2-1, supra note 49 ("The proposed text incorporates two alternative provisions, one to address the crime of conspiracy in common law jurisdictions .... [A]nd one to encapsulate the concept of 'association de malfaiteurs' in civil law jurisdictions . ...").

(279.) Id. at 2.

(280.) Id.

(281.) Beijing Convention, supra note 23, at art. 6, [section] 2; Beijing Protocol, supra note 24, at art. 3 bis.

(282.) See generally M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. CRIM. L. & CRIMINOLOGY 711 (2008) ("The United Nations has established a number of commissions to investigate or assess violations of international humanitarian law in different conflicts.").

(283.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)-(b); Beijing Protocol, supra note 24, at art. 3 bis, [section] 1.

(284.) Beijing Convention, supra note 23, at art. 1, [section][section] 3(a)--(b); Beijing Protocol, supra note 24, at art. 3 bis, [section] 2.

(285.) See ICAO, LC/34-WP/4-1, supra note 144, [paragraph][paragraph] 2:74-2:78 (highlighting various delegations' perspectives on the proper scope of the military exclusion provision).

(286.) See Int'l Civil Aviation Org., Report of the Legal Commission for the General Section of Its Report and on Agenda Items 7, 8, 45, 46, 47 & 48 [paragraph][paragraph] 46.2-46.3 (ICAO, Report A36-WP/341, Sept. 25, 2007) (believing that such "an exemption would constitute a violation of the principles set out in the preambles of The Hague and Montreal Conventions").

(287.) ICAO, C-MIN 182/8, supra note 72, [paragraph] 21.

(288.) ICAO, DCAS Doc No. 11, supra note 182, at 3.

(289.) Id. (discussing the military exception clause).

(290.) See ICAO, LC/SC-NET, supra note 209, at 2-9 (discussing action by other ICAO bodies).

(291.) Beijing Convention, supra note 23, at art. 6, [section] 3; Beijing Protocol, supra note 24, at art. 3 bis, [section] 3.

(292.) See ICAO, LC/34-WP/4, supra note 1, at 2 (reporting on the work done by the legal committee during the session); see also Terrorist Bombings Convention, supra note 50, at art. 19 (discussing which aspects of international law the Convention governed).

(293.) See Int'l Civil Aviation Org., Summary Minutes of the Sixth Meeting 10 (ICAO, MIN-188/6, Nov. 19, 2009) ("[I]n time of war, military activities were covered by international public law, namely, the UN Charter, which addressed ... the issues of the prohibition of force and a State's right to self-defense, and international humanitarian law, which addressed ... the issues of jus ad bellum (when it is right to resort to armed force) and jus in bello (what is acceptable in using such force), etc.").

(294.) ICAO, LC/34-WP/4-1, supra note 144, f 2:74.

(295.) See Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 760 (2004) ("The law of armed conflict as it currently exists is the product of decades of evolution and substantial international consensus...."); Louise Arimatsu, Territory, Boundaries and the Law of Armed Conflict, 12 Y.B INT'L HUMANITARIAN L. 157 (2009) (explaining that "the primary intent is to examine how contemporary law of armed conflict (LOAC) is framed by pre-conceptions of our spatial environment and the consequences that this territorialised viewpoint evokes"); Allan Rosas & Par Stenback, The Frontiers of International Humanitarian Law, 24 J. PEACE RES. 219 (1987); Alex J. Bellamy, When Is It Right to Fight? International Law and Jus ad Bellum, 8 J. MILITARY Ethics 231 (2009) (discussing "a renewed interest in the normative issues prompted by contemporary forms of armed conflict, in particular questions related to pre-emptive and preventive self-defence and humanitarian intervention"); Olivier Durr, Humanitarian Law of Armed Conflict: Problems of Applicability, 24 J. PEACE RES. 263, 263 (1987) ("As there is no supranational jurisdiction, respect for these fundamental rules protecting the human being must be implemented through a stronger sense of responsibility on the part of the international community."); K.J. Riordan, Shelling, Sniping and Starvation: The Law of Armed Conflict and the Lessons of the Siege of Sarajevo, 41 VICTORIA U. WELLINGTON L. REV. 149, 156 (2010) ("Siege warfare is not per se an unlawful method of combat. It is not proscribed in any convention, nor is it prohibited by customary international law.").

(296.) See Michael Jennison, The Beijing Treaties of 2010: Building a ".Modern Great Wall" Against Aviation Related Terrorism, 23 AIR & SPACE L. 9, 11 (2011) ("[Some delegations] wanted to apply the criminal provisions of counterterrorism instruments to what they called 'state terrorism'.").

(297.) Id. (noting that deleting the provision "would have been a radical departure from established practice").

(298.) Id. at 12 (pointing out that "although no such provision appears in the 40-year-old underlying conventions, those conventions have never been applied to military forces").

(299.) See ICAO, A36-WP/12, supra note 60, at 3 ("Comparable UN counterterrorism conventions concluded after 1997 contain a military exclusion clause, which expressly specifies that the conventions do not govern the activities of armed forces during an armed conflict, and the activities undertaken by military forces of a State in the exercise of their official duties.").

(300.) During the Diplomatic Conference, for instance, Azerbaijan proposed to include a reference to human rights. ICAO, DCAS Doc No. 12, supra note 181.

(301.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, at G-3.

(302.) See generally KIMBERLEY N. TRAPP, STATE RESPONSIBILITY FOR International Terrorism: Problems and Prospects (2011) (defining terrorism and examining regimes of state responsibility).

(303.) As part of its bombing operations in Libya, in July 2011, NATO forces bombed Tripoli's international airport. See Libya: NATO Continues to Bomb Civilian Targets, GLOBAL RESEARCH (Oct. 14, 2013, 7:00 AM), http://www.globalresearch.ca/libya-nato-continues-to-bomb-civilian-targets/25841.

(304.) See Int'l Civil Aviation Org., A37-17, Consolidated Statement on the Continuing ICAO Policies Related to the Safeguarding of International Civil Aviation Against Acts of Unlawful Interference, app. A, General Policy [paragraph] 1, at 29 (2010) [hereinafter ICAO, Resolution A37-17] (endorsing "the ICAO Comprehensive Aviation Security Strategy and its seven strategic focus areas, as adopted by the Council on 17 February 2010").

(305.) See TRAPP, supra note 302, at 148 (noting the coordinators "approach to regime interaction").

(306.) See id. at 119 (discussing obligations to prevent and punish acts of international terrorism).

(307.) See id. at 118 ("Bombings that are excluded from the scope of the Terrorist Bombing Convention will not be subject to a prosecute or hand over obligation under the Geneva Conventions or API ... .").

(308.) See id. at 151 (explaining that the second basis of exclusion "requires only that the conduct of a state's armed forces be in exercise of their official duties and governed by other rules of international law").

(309.) See id. at 24 (recognizing the possibility of state-sponsored terrorism).

(310.) Id. at 121.

(311.) See id. at 172 ("The TSCs with express military exclusion clauses very clearly do not apply to military operations--even when those operations meet the material elements of the terrorist offences defined therein.").

(312.) Beijing Convention, supra note 23, at art. 6, [section] 2; Beijing Protocol, supra note 24, at art. 3 bis, [section] 3.

(313.) See generally MALCOLM N. SHAW, INTERNATIONAL LAW 488 (3d ed. 1991).

(314.) Beijing Convention, supra note 23, at art. 6, [section] 3; Beijing Protocol, supra note 24, at art. 3 bis, [section] 3.

(315.) This Article does not seek to comprehensively address the issue of state responsibility for sponsoring acts of terrorism. For an excellent analysis of the issue of state responsibility involving acts of terrorism, see Vincent-Joel Proulx, Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?, 23 Berkeley J. int'l l. 615 (2005).

(316.) TRAPP, supra note 302, at 173.

(317.) See ICAO. C-MIN 182/8, supra note 72, 38 ("The Representative of the United States averred that ... ICAO would be derelict if it did not update the said conventions by incorporating the standard provisions on military exclusion.").

(318.) See Annex to Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2295, 205 Consul. T.S. 277; Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 215; Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 (agreeing upon the listed provisions as a result of the damage done to cultural property as a result of armed conflict); Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflicts, Mar. 26, 1999, 38 I.L.M. 769, 2253 U.N.T.S.172 (listing the terms agreed upon by the high contracting parties).

(319.) See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85; Additional Protocol I to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977; Additional Protocol II to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977; Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, 1864, 22 Stat. 940.

(320.) ICAO, C-MIN 182/8, supra note 72, 1 38.

(321.) Id.

(322.) Id. HI 19-20.

(323.) Id.

(324.) Id.

(325.) Id. 1 42.

(326.) Id. 1 21.

(327.) Id. 1 47.

(328.) See Trapp, supra note 302, at 171 ("The Hague Convention defines the relevant offences as acts committed inside the aircraft.... ").

(329.) Beijing Protocol, supra note 24, at art. 1, [section] 1.

(330.) ICAO, Working Paper No. C-WP/13338, supra note 35.

(331.) Id.

(332.) See Int'l Civil Aviation Org., A19-1, Shooting Down of a Libyan Aircraft by Israeli Fighters on 21 February 1973 [hereinafter ICAO, Resolution A19-1] (directing "the Council to instruct the Secretary General to institute an investigation in order to undertake fact findings and to report to the Council at the earliest date"); see also United Nations, Juridical Yearbook 37, 59 (1973) (reviewing ICAO's settlement of disputes between contracting states).

(333.) ICAO, Resolution A19-1, supra note 332.

(334.) Id. ("Condemning the Israeli action which resulted in the loss of 106 innocent lives.").

(335.) See UNITED NATIONS, JURIDICAL BOOK, supra note 332, at 37, 59 ("On 20 August, the Council, meeting in Extraordinary Session, condemned Israel for violating Lebanon's sovereignty and for the diversion and seizure of a Lebanese civil aircraft on 10 August....").

(336.) See id. at 60 ("On 30 August, ... the Assembly strongly condemned Israel for violating Lebanon's sovereignty, for the forcible diversion and seizure of a Lebanese civil aircraft and for violating the Chicago Convention on International Civil Aviation.... "); Int'l Civil Aviation Org.. A20-1, Diversion and Seizure by Israeli Military Aircraft of a Lebanese Civil Aircraft HU 1-3 [hereinafter ICAO, Resolution A20-1], It is noteworthy that the UN Security Council also condemned Israel's actions involving the diversion and seizure of this aircraft. See S.C. Res. 337, U.N. Doc. S/RES/337 (Aug. 15, 1973). Similarly, in 1968, before the adoption of both the Hague and Montreal Conventions, the UN Security Council had condemned Israel's attacks on the Beirut International Airport, which resulted in the destruction of thirteen commercial aircraft that were on the tarmac. See S.C. Res. 262, U.N. Doc. S/RES/262 (Dec. 31, 1968).

(337.) Int'l Civil Aviation Org. Council, 117th Session, Resolution Adopted 28 February 1986, ICAO Doc. 9485-C/1094 (1986); see Press Release PIO 1/86, Int'l Civil Aviation Org., Council Condemns the Act of Israel for Its Interception of Libyan Arab Airlines Aircraft (Feb. 28, 1986) (condemning Israel for its interception and diversion of a Libyan-Arab aircraft within international airspace).

(338.) See Press Release PIO 1/86, supra note 337 (considering that Israel "committed an act against international civil aviation in violation of the principles of the Chicago Convention").

(339.) Int'l Civil Aviation Org., A22-5, Sabotage and Destruction of a Cuban Civil Aircraft on Scheduled Service in the Caribbean with the Loss of 73 Passengers and Crew (1977).

(340.) Int'l Civil Aviation Org., A28-7, Aeronautical Consequences of the Iraqi Invasion of Kuwait (1990); see Michael Milde, Aeronautical Consequences of the Iraqi Invasion of Kuwait XVI, 16 AIR L. 63 (1991) [hereinafter Milde, Iraqi Invasion] (noting that "international civil aviation has become one of the first victims of this act of aggression").

(341.) The shoot down of civil aircraft off Cuba is another interesting case where ICAO was required to deal with armed forces taking action against civil aviation. On February 24, 1996, whilst within the Havana "flight information region," a Cuban MiG29 military aircraft shot down two U.S.-registered private civil aircraft that had deviated from their original "visual flight rule" plans. See Press Release PIO 6/96, Int'l Civil Aviation Org., ICAO Council Concludes Consideration of the Report on the 24 February 1996 Shootdown of Civil Aircraft of Cuba (June 28, 1996). ICAO instituted a formal investigation, whose final results were brought to the attention of the Council. What is most interesting about this case is the fact that, although the Council ultimately decided to adopt a resolution, it refrained from condemning Cuba's actions as contrary to international law. The resolution nonetheless restated general principles, such as "the condemnation of the use of weapons against civil aircraft in flight." See Int'l Civil Aviation Org. Council, 148th Session, Resolution Adopted 27 June 1996, ICAO Doc. PIO 6/96 app. A (1996) [hereinafter ICAO, Resolution Adopted 27 June 1996].

(342.) ICAO, Resolution Adopted 27 June 1996, supra note 341.

(343.) See ICAO, A36-WP/12, supra note 60, at 3 (discussing the integration of specific provisions that are common in some recent UN counterterrorism conventions).

(344.) See Trapp, supra note 302, at 163 ("While the use of military force against merchant ships ... is very unusual, incidents involving such uses of force are dealt with as a matter of general maritime law and the jus ad bellum.").

(345.) ICAO, C-MIN 182/8, supra note 72, [paragraph] [paragraph] 37-38.

(346.) Id.

(347.) Id.

(348.) Press Release, PIO 03/99, Int'l Civil Aviation Org., ICAO Adopts Declaration on Unlawful Acts Against Civilian Aircraft (Mar. 12. 1999).

(349.) Id.

(350.) Int'l Civil Aviation Org. Council, 156th Session, Declaration Adopted at the Ninth Meeting on 10 March 1999, ICAO Doc. PIO 03/99, app. A (1999) [hereinafter ICAO, Declaration Adopted 10 March 1999]; Int'l Civil Aviation Org., Summary Decisions of the Tenth Meeting (ICAO, C-DEC 156/10, Mar. 3, 1999) [hereinafter ICAO, C-DEC 156/10],

(351.) See ICAO, Declaration Adopted 10 March 1999, supra note 350 ("States must refrain from the use of weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity."); ICAO, C-DEC 156/10, supra note 350.

(352.) See generally ICAO, Declaration 10 March 1999, supra note 350 ("A specialized agency of the United Nations, [ICAO] sets international standards and regulations necessary for the safety, security, efficiency and regularity of air transport and serves as the medium for cooperation in all fields of civil aviation among its 185 Contracting States.").

(353.) See Historical Background, GAZA INT'L AIRPORT, http://www.gazaairport.com/ history.html ("The airline ... was forced to move to El Arish International Airport in December 2001, after destruction by Israeli military forces of the runway at it's previous base.... ") (last visited Jan. 3, 2014).

(354.) Id.

(355.) See id. ("On January 10th 2002, the 60 million USD runway was completely destroyed by the Israeli army, shattering hopes for the resumption of flights to the airport in the foreseeable future.").

(356.) Int'l Civil Aviation Org., Destruction of Gaza International Airport (ICAO, Information Paper No. AVSEC-Conf/02-IP/29, Feb. 18, 2002).

(357.) Id. at 2.

(358.) Id.

(359.) Id. at 3.

(360.) At AVSEC-Conf/02, ACAC states petitioned that the conference i) strongly condemn Israel for the attack on Gaza International Airport; ii) reaffirm the aviation community's condemnation of all acts of unlawful interference; iii) call on Israel to respect international law; and iv) call upon the Council to strive to develop measures to prevent further acts of unlawful interference against airports and air navigation infrastructure. Id. at 3-4.

(361.) See Int'l Civil Aviation Org., Destruction of Gaza International Airport (ICAO, Working Paper No. C-WP/11790, Mar. 5, 2002) (presented by the president of the Council).

(362.) See Chicago Convention, supra note 143, at art. 54(n) (outlining the mandatory functions of the Council).

(363.) Int'l Civil Aviation Org. Council, 165th Session, Summary Minutes of the Ninth Meeting (ICAO, C-MIN 165/9, Mar. 22, 2002) [hereinafter ICAO, C-MIN 165/9]; Int'l Civil Aviation Org. Council, 165th Session, Summary Minutes of the Tenth Meeting (ICAO, C-MIN 165/10, Mar. 13, 2002) [hereinafter ICAO, C-MIN 165/10],

(364.) ICAO, C-MIN 165/9, supra note 363; ICAO, C-MIN 165/10, supra note 363.

(365.) ICAO, C-MIN 165/9, supra note 363, at 6.

(366.) Palestine's political complaint against Israel before the ICAO Council poses some intriguing legal questions from the perspective of public international law. For instance, does the respondent state (Israel) owe the applicant (Palestine) a duty to fulfill international obligations under the Chicago, Hague, and Montreal Conventions, given that the applicant is not a party to any of these instruments but the respondent is? If adhesion to these instruments was not an issue, one may infer that parties assumed that these obligations form part of customary international law--at least in the case of the Chicago Convention.

(367.) ICAO, C-MIN 165/9, supra note 363 at 3.

(368.) Id. at 8, 15.

(369.) Id.

(370.) Algeria, Egypt, Lebanon, and Saudi Arabia.

(371.) See Int'l Civil Aviation Org., Destruction of Gaza International Airport 2, U 3.1 (ICAO, Working Paper No. C-WP/11791, Mar. 8, 2002) (presented by Algeria, Egypt. Lebanon, and Saudi Arabia).

(372.) ICAO, C-MIN 165/9, supra note 363, at 8.

(373.) Id.

(374.) See ICAO, C-WP/11791, supra note 371. At the time, Mr. Assad Kotaite (Lebanon) was president of the Council.

(375.) Int'l Civil Aviation Org. Council, 165th Session, Summary of Decisions of the Tenth Meeting U 8 (ICAO, C-DEC 165/10, Mar. 13, 2002). At the time, the ICAO Council was composed of thirty-three members. With the adoption of the Chicago Convention's Article 50 (a) amendment of October 26, 1990, which entered into force on November 28, 2002, membership was extended to thirty-six states. See Protocol Relating to an Amendment to the Convention on International Civil Aviation art. 50 (a), May 10, 1984 (entered into force Oct. 1, 1998), available at http://www.icao.int/secretariat/legal/List%20of%20Parties/3bis_EN.pdf [hereinafter Article 3 bis].

(376.) ICAO, C-MIN 165/10, supra note 363, at 11, 1 38.

(377.) Id.

(378.) Id.

(379.) See Int'l Civil Aviation Org., Resolution Strongly Condemning the Destruction of the Gaza International Airport and Its Air Navigation Facilities, pmbl., [paragraph] 4 (Mar. 13, 2002), available at http://unispal.un.Org/UNISPAL.NSF/0/4C7354F26BB24F1685256B8000612610 [hereinafter ICAO, Gaza Resolution] (stating that "acts of violence jeopardizing the safety of airports" violate the Montreal Convention and the Montreal Protocol); see also ICAO, C-MIN 165/10, supra note 363.

(380.) See ICAO, Gaza Resolution, supra note 379, H 4 ("Urg[ing] Israel to fully comply with the aims and objectives of the Chicago Convention."); see also ICAO, CMIN 165/10, supra note 363, at 15.

(381.) ICAO, Gaza Resolution, supra note 379, f 4.

(382.) ICAO, C-MIN 165/9, supra note 363, at 10-11; ICAO, C-MIN 165/10, supra note 363, at 2-14 (highlighting the lengthy debate).

(383.) Id.

(384.) See TRAPP, supra note 302, at 165 (explaining that "states have invoked the ICAO TSCs as a source of legal obligation (and ICJ jurisdiction) in [international] disputes regarding state responsibility for military activities").

(385.) Id. at 169 ("The DRC equally invoked the Montreal Convention (alongside the Chicago Convention) in its suits against Uganda, Rwanda and Burundi before the ICJ....").

(386.) See Memorial of Iran, Aerial Incident of 3 July 1988 (Iran v. U.S.), 1990 I.C.J. Pleadings 1, 112-29 (July 24) (discussing the ICJ's jurisdiction under the Montreal and Chicago Conventions).

(387.) See id. at 172-77 (explaining the applicability of the Montreal Convention to military actors).

(388.) See Trapp, supra note 302, at 165 (explaining that, though states typically rely on the Chicago Convention instead of the Montreal Convention, states that have applied the Montreal Convention have used it to condemn "Israeli uses of force against civil aircraft and airports").

(389.) Memorial of Iran, 1990 I.C.J. Pleadings at 123.

(390.) Id.

(391.) See id. at 174 (explaining that when the International Law Association debated State Terrorism, "[i]t acknowledged ... that the kind of acts which are prohibited by the Montreal Convention are performed by people; and even government officials might become liable by virtue of authorizing or ratifying such acts").

(392.) See id. at 197-205 (discussing international law and precedent regarding military actions and the doctrine of self-defense).

(393.) Int'l Civil Aviation Org., Aug. 30-Sept. 10, 2010, Diplomatic Conference on Aviation Security, Proposed Amendments to Deal with the Notion of "Person" Under the Montreal Convention, (ICAO DCAS Flimsy No. 1, Sept. 1, 2010) [hereinafter ICAO, DCAS Flimsy No. 1] (proposing that legal entities within a state be held liable for violations of the Convention).

(394.) See Financing of Terrorism Convention, supra note 43, at art. 5 (stating the liability of legal entities under the International Convention for the Suppression of the Financing of Terrorism); SUA Protocol, supra note 76, at art. 5 (providing that states shall "establish ... jurisdiction over the offences ... by a national of that State").

(395.) See Montreal Convention, supra note 2, at art. 1 (establishing liability for persons); Hague Convention, supra note 2, at art. 2 (specifying that the liability applies to "any person" under the Hague Convention).

(396.) See Beijing Protocol, supra note 24, at arts. 4, 2 bis (indicating that a legal entity can "be held liable when a person responsible for management or control of that legal entity has, in that capacity, committed an offence" and that "[s]uch liability may be criminal, civil or administrative"); Beijing Convention, supra note 23, at art. 4 (stating that liability for a legal entity "may be criminal, civil or administrative" and that "(s]uch liability is incurred without prejudice to ... criminal liability").

(397.) See Beijing Protocol, supra note 24, at arts. 4, 2 bis (establishing that a legal entity can be held civilly, criminally, or administratively liable for violations of the Protocol); Beijing Convention, supra note 23, at art. 4 (discussing the availability of criminal, civil, and administrative liability for legal entities).

(398.) See Beijing Protocol, supra note 24, at art. 4 (indicating that "[e]ach State Party ... may take the necessary measures" to hold a legal entity liable under criminal, civil, or administrative laws); Beijing Convention, supra note 23, at art. 4, [section] 3 (indicating that "sanctions may include monetary sanctions").

(399.) See Beijing Protocol, supra note 24, at art. 4 (providing that a state will establish liability for "a legal entity located in its territory or organized under its laws"); Beijing Convention, supra note 23, at art. 4, [section] 1 ("Each State Party, in accordance with its national legal principles, may take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable....").

(400.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1(e) (providing that "[e]ach State Party shall take such measures as may be necessary to establish its jurisdiction ... when the offence is committed by a national of that State"); Beijing Convention, supra note 23, at art. 8, [section] 1(e) (stating that States Party shall establish jurisdiction "when the offence is committed by a national of that state").

(401.) Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1(e); Beijing Convention, supra note 23, at art. 8, [section] 1(e).

(402.) See Beijing Protocol, supra note 23, at arts. 4, 2 bis (indicating that states "may take the necessary measures to enable a legal entity ... to be held liable"); Beijing Convention, supra note 23, at art. 4, [section][section] 1, 3 (stating that "[e]ach State Party ... may take the necessary measures to enable a legal entity ... to be held liable"); SUA Protocol, supra note 76, at art. 5 (providing that states shall "establish ... jurisdiction over the offences ... by a national of that State"); Financing of Terrorism Convention, supra note 43, at art. 5 (stating that signatory states "shall take the necessary measures" to hold "legal entities located in [their] territory[ies] or organized under [their] laws" liable for violations of the Convention).

(403.) See ICAO, DCAS Flimsy No. 1, supra note 393, [paragraph][paragraph] 2-3 (recommending that the Convention "make the extension of liability to legal persons optional").

(404.) See Paul Stephen Dempsey, Aerial Piracy and Terrorism: Unilateral and Multilateral Responses to Aircraft Hijacking, 2 CONN. J. INT'L L. 427, 437 (1986) (explaining that "[u]nder each Convention, Contracting Parties are obligated to punish the described offenses by 'severe penalties "'); George B. Zotiades, The International Criminal Prosecution of Persons Charged with an Unlawful Seizure of Aircraft, 23 REVUE Hellenique DE Droit INT'L 12, 22 (1970) (commenting that this requirement imposes an obligation "upon States not only to provide for the penal prosecution of the offenders and their accomplices but also to carry severe penalties commensurate with the gravity of such offences"). Other international instruments, such as the Terrorist Bombings Convention, only require that states adopt measures "to make ... offences punishable by appropriate penalties which take into account the grave nature" thereof. Terrorist Bombings Convention, supra note 50, at art. 4(b).

(405.) See Abeyratne, The Beijing Convention of 2010, supra note 59, at 253-54 (comparing the ordinary meanings of "shall" and "undertake" to conclude that undertake is less obligatory than shall).

(406.) See SUA Protocol, supra note 76; International Convention for the Suppression of Acts of Nuclear Terrorism, supra note 204, at art. 5(b) (indicating that states will make violations of the Convention "punishable by appropriate penalties which take into account the grave nature of these offences"); Financing of Terrorism Convention, supra note 43, at art. 4(b) (providing that Member States shall "make offenses punishable by appropriate penalties"); Terrorist Bombings Convention, supra note 50, at art. 4(b) (indicating that "[e]ach State Party shall adopt such measures as may be necessary ... [t]o make those offences punishable by appropriate penalties which take into account the grave nature of those offences"); Convention of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation art. 5, Mar. 10, 1988, 1678 U.N.T.S. 221 [hereinafter Maritime Navigation Convention] (indicating that states "shall make the offences set forth in article 3 punishable by appropriate penalties which take into account the grave nature of those offences"); SUA Convention, supra note 75, at art. 5 ("Each State Party shall make the offences set forth in article 3 punishable by appropriate penalties which take into account the grave nature of those offenses."); Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, supra note 204; Convention on the Physical Protection of Nuclear Material, supra note 203, at art. 7, [section] 2 (indicating that the offenses established under the Convention shall be made "punishable by appropriate penalties which take into account their grave nature"); International Convention Against the Taking of Hostages art. 2, Dec. 17, 1979, 1316 U.N.T.S. 205 [hereinafter Hostages Convention] (stating that signatories "shall make the offences ... punishable by appropriate penalties which take into account the grave nature of those offences"); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, supra note 203, at art. 2, [section] 2 ("Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.").

(407.) Int'l Civil Aviation Org., Comments on the Proposed Amendments to the Montreal Convention, 1971 as Amended by the Airports Protocol of 1988, at art. 3 (DCAS Doc. No. 9, July 15, 2010).

(408.) See John P. McMahon, Air Hijacking: Extradition as a Deterrent, 58 Geo. L.J. 1135, 1138 (1969) (explaining that "the political offence exception ... excludes offenses that are primarily political in nature").

(409.) See id. ("The greatest obstacle against the use of the present system of bilateral extradition treaties to effectively deter hijacking through certain extradition, however, is the political offense exception....").

(410.) Montreal Convention, supra note 2, at 5.

(411.) See Hague Convention, supra note 2, at art. 7 (providing the United Kingdom and Italy's statements that the Venezuelan reservation was not valid).

(412.) Id.

(413.) See Beijing Protocol, supra note 24, at arts. 12, 8 bis (stating that "[n]one of the offences ... shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence"); Beijing Convention, supra note 23, at art. 13 ("None of the offences set forth in Article 1 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence....").

(414.) See Int'l Civil Aviation Org., International Convention for the Suppression of Terrorist Bombings 3 (ICAO Working Paper No. C-WP/11065, Mar. 10, 1999).

(415.) See SUA Protocol, supra note 76, at art. 9; International Convention for the Suppression of Acts of Nuclear Terrorism, supra note 204, at art. 12 (guaranteeing "fair treatment" for "[a]ny person who is taken into custody" for violating this Convention); Financing of Terrorism Convention, supra note 43, at art. 17 (stating that "[a]ny person who is taken into custody" in relation "to this Convention shall be guaranteed fair treatment"); Terrorist Bombings Convention, supra note 50, at art. 14 (stating that "[a]ny person who is taken into custody ... shall be guaranteed fair treatment"); SUA Convention, supra note 75, at art. 10, [section] 2 (stating that "[a]ny person regarding whom proceedings are being carried out in connection with any of the offences set forth in article 3 shall be guaranteed fair treatment"); Convention on the Physical Protection of Nuclear Material, supra note 203, at art. 12 ("Any person regarding whom proceedings are being carried out in connection with any of the offenses set forth in article 7 shall be guaranteed fair treatment at all stages of the proceedings."); Hostages Convention, supra note 406, at art. 8, [section] 2 ("Any person regarding whom proceedings are being carried out in connexion with any of the offences set forth in article 1 shall be guaranteed fair treatment at all stages of the proceedings...."); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, supra note 203, at art. 9 (stating that anyone subjected to proceedings under the Convention "shall be guaranteed fair treatment at all stages of the proceedings").

(416.) Beijing Protocol, supra note 24, at arts. 10, 7 bis; Beijing Convention, supra note 23, at art. 11; Financing of Terrorism Convention, supra note 43, at art. 17.

(417.) See ICAO, Report No. LC/SC-NET, supra note 209, at 2-11, f 10.9.1 (explaining that "Article 6 ... reflects the comparable clauses in the more recent UN conventions for the purpose of ensuring respect for human rights and for the rule of law").

(418.) Beijing Protocol, supra note 24, at arts. 10, 7 bis; Beijing Convention, supra note 23, at art. 11.

(419.) See Montreal Convention, supra note 2, at art. 3 (referring to participating states as "Contracting State[s]"); Hague Convention, supra note 2, at art. 2 ("Each Contracting State undertakes to make the offence punishable by severe penalties.").

(420.) See Beijing Protocol, supra note 24 (referring to signatories as "State Parties"); Beijing Convention, supra note 23 (referring to signatories as "State Parties").

(421.) See Vienna Convention on the Laws of the Treaties art. 2 (f)-(g), May 22, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention] (defining a "contracting state" as "a state which has consented to be bound by the treaty, whether or not the treaty had entered into force" and "party" as "a State which has consented to be bound by the treaty and for which the treaty is in force").

(422.) Id.

(423.) See Beijing Protocol, supra note 24, at arts. 11, 8, 12, 8 bis, 13, 8 ter, 15, 10 (indicating the Beijing Protocol's procedures for extradition and prosecution); Beijing Convention, supra note 23, at arts. 10, 12-14, 17 (describing extradition and prosecution procedures under the Beijing Convention); Montreal Convention, supra note 2, at arts. 6-8, 11 (explaining the procedures for extradition and prosecution of offenders); Hague Convention, supra note 2, at arts. 7-8, 10 (discussing the extradition and prosecution of offenders).

(424.) Montreal Convention, supra note 2, at art. 7.

(425.) Following the precedent set by the Hague and the Montreal Conventions, the 1988 International Convention of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, as well as other instruments that later followed, incorporated this principle. See David Freestone, The 1988 International Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 3 INT'L J. ESTAURINE & COASTAL L. 305, 311 (1998) (explaining that "[l]ike the ICAO Conventions the principle of aut dedere aut judicare (extradite or try) underpins the philosophy of the 1988 Convention").

(426.) Milde, International Air Law, supra note 29, at 226.

(427.) Id. at 224.

(428.) Id.

(429.) Id.

(430.) Id.

(431.) Id.

(432.) See NICOLAS MATEESCO MATTE, TREATISE ON AIR-AERONAUTICAL LAW 372 (1981) ("It is to be noted that despite the confirmed willingness to fight against hijacking, Western countries tend to refuse extradition of fugitives from Eastern Europe.").

(433.) Milde, International Air Law, supra note 29, at 227.

(434.) See Jonathan A. Frank, A Return to Lockerbie and the Montreal Convention in the Wake of the September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action, 30 DENY. J. Int'L L. & POL'Y 535 (2002) ("The Montreal Convention simply does not address situation in which a state is complicitous in a terrorist action.").

(435.) See DIEDERIKS-VERSCHOOR, supra note 46, at 306 (describing the numerous laws applicable to the extradition, transfer, and trial of the defendants in the Pan Am 103 case and the "solution to the problems raised by the 'aut dedere, aut judicare' principle of the Montreal Convention [that] was quite unprecedented").

(436.) See Donna E. Arzt, The Lockerbie Extradition by Analogy Agreement: Exceptional Measure or Template for Transnational Criminal Justice, 18 Am. U. INT'L L. REV. 163, 175 (2002) (explaining that Libya "contended that it was not required to extradite and stated that, in accordance with the customary international law principle of aut dedere aut judicare ('extradite or prosecute'), it would conduct its own prosecution").

(437.) See id. (noting that Libya offered to "conduct its own prosecution of its two accused nationals pursuant to the Montreal Convention").

(438.) See id. at 176, n.47 (explaining that "the Montreal Convention was the only instrument applicable to the destruction of the Pan Am aircraft over Lockerbie").

(439.) See id. at 172-73 ("Under international law, the duty to extradite depends on the existence of a bilateral or multilateral treaty....").

(440.) See S.C. Res. 731, [paragraph][paragraph] 3-5, U.N. DOC. S/RES/731 (Jan. 21, 1992) ("Urg[ing] the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism.").

(441.) See S.C. Res. 748, [paragraph][paragraph] 4-10, U.N. DOC. S/RES/748 (Mar. 31, 1992) (listing and explaining the sanctions imposed on Libya).

(442.) See Frank, supra note 434, at 536-38 (describing the process through which Libya "eventually capitulated to a long-debated plan to have the alleged terrorists extradited" in lieu of paying sanctions).

(443.) See Beijing Protocol, supra note 24, at arts. 13, 8 ter (indicating that "[njothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance"); Beijing Convention, supra note 23, at arts. 10, 12 (setting forth the Convention's extradition procedures).

(444.) See Beijing Convention, supra note 23, at arts. 10. 12 (demonstrating that States Party agreed to keep the aut dedere aut judicare principle).

(445.) Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1; Beijing Convention, supra note 23, at art. 8, [section] 1.

(446.) See Dionigi M. Fiorita, Aviation Security: Have All the Questions Been Answered, XXII ANNALS Air & SPACE L. 69, 71-75 (1995) (comparing the jurisdictional requirements of the Hague, Montreal, and Tokyo Conventions).

(447.) See NARINDER AGGARWALA, MICHAEL J. FENELLO & GERALD F. FITZGERALD, AIR HIJACKING: AN INTERNATIONAL PERSPECTIVE (1971), reprinted in INTERNATIONAL CONCILIATION No. 585, 73-74 (1971) ("Initially, as provided by Article 5(1), there is an undertaking of each contracting state to take necessary measures to establish its jurisdiction over offenses....").

(448.) See contra S.K. GHOSH, AIRCRAFT HIJACKING AND THE DEVELOPING LAW 32 (1985) (arguing that the Hague Convention "obligates contracting parties to prosecute the offender").

(449.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1(a) (providing that states will establish jurisdiction "when the offence is committed in the territory of that State"); Beijing Convention, supra note 23, at art. 8, [section] 1(a) (encouraging states to establish jurisdiction "when the offence is committed in the territory of the State").

(450.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1(b) (establishing that a state has jurisdiction "when the offence is committed onboard an aircraft registered in that State"); Beijing Convention, supra note 23, at art. 8, [section] 1(b) (indicating that a state will establish jurisdiction "when the offence is committed against or on board an aircraft registered in that State").

(451.) Following the precedents set by the Hague and Montreal Conventions, the Beijing instruments incorporate the "State of Landing" jurisdiction. This is of utmost importance when the alleged offender that commits an offense aboard, arrives in a state other than the aircraft's state of registry. This is precisely one of the major shortcomings of the Tokyo Convention. See Alejandro Piera & Michael Gill, Unruly & Disruptive Passengers: Do We Need to Revisit the International Legal Regime, XXXV pt. I ANNALS Air & SPACE L. 355, 358--62 (2010) (discussing the various shortcomings of the Tokyo Convention in relation to onboard offenses); Alejandro Piera, ICAO's Latest Efforts to Tackle Legal Issues Arising from Unruly/Disruptive Passengers: The Modernization of the Tokyo Convention 1963, 37 Air & SPACE L. 231 (2012).

(452.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 1(d) (indicating that a state has jurisdiction "when the offence is committed against or on board an aircraft leased without crew to a lessee whose principal place of business or ... permanent residence is in that State"); Beijing Convention, supra note 23, at art. 8, [section] 1(d) (providing that a state will establish jurisdiction "when the offence is committed against or on board an aircraft leased without crew to a lessee whose principal place of business or ... permanent residence is in that state").

(453.) Some delegations cautioned that establishing jurisdiction (solely) on the basis of the nationality of the offender may be quite problematic, in particular for those states that adhere to a territorial approach. See Int'l Civil Aviation Org., Drafting Proposal for the Establishment of Jurisdiction Based on Nationality of the Offender U 2, (DCAS Doc No. 8, July 15, 2010).

(454.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 2 (indicating that a state "may also establish its jurisdiction ... when the offence is committed against a national of that state," "when the offence is committed by a stateless person whose habitual residence is in the territory of that State," or both); Beijing Convention, supra note 23, at art. 8, [section] 2(b) (explaining that a state can establish jurisdiction "when the offence is committed by a stateless person whose habitual residence is in the territory of that state").

(455.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 3 (providing that a state shall also establish jurisdiction when "the alleged offender is present in its territory and it does not extradite that person"); Beijing Convention, supra note 23, at art. 8, [section] 3 (explaining that a state will also "take such measures as may be necessary to establish its jurisdiction ... in the case where the alleged offender is present in its territory and it does not extradite that person").

(456.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 3 (indicating that a state will "take such measures as may be necessary to establish its jurisdiction ... in the case where the alleged offender is present in its territory and it does not extradite that person"); Beijing Convention, supra note 23, at art. 10 ("The State Party in the territory of which the alleged offender is found shall, if it does not extradite that person, be obliged ... to submit the case to its competent authorities for the purpose of prosecution.").

(457.) See Beijing Protocol, supra note 24, at art. 7, art. 4, [section] 4 ("This Convention does not exclude any criminal jurisdiction exercised in accordance with national law."); Beijing Convention, supra note 23, at art. 8, [section] 4 (explaining that "[t]his Convention does not exclude any criminal jurisdiction exercised in accordance with national law").

(458.) ICAO, Report, Doc. No. 9926-LC/194, supra note 80, [paragraph] 2.2.

(459.) See Int'l Civil Aviation Org., Possible Forms of Instruments to be Adopted at the Diplomatic Conference on Aviation Security [paragraph] 3.1 (DCAS Doc No. 16, Aug. 31, 2010) [hereinafter ICAO, DCAS Doc. No. 16] (explaining that "[t]he Hague Convention ... has never been amended, and would therefore not have the complications of multiple protocols ... and ... the proposed amendments to The Hague Convention, while important updates, are less in scope than those proposed for the Montreal Convention and would seem to be more appropriate for a protocol").

(460.) See id. [paragraph] 2.2 (proposing the creation of the Beijing Convention to consolidate existing conventions, existing protocols, and new amendments).

(461.) Id. [paragraph] 1.1.

(462.) See Montreal Convention, supra note 2, at art. 16, [section] 2 (indicating that the three original copies of the Convention would be "drawn up in four authentic texts in the English, French, Russian and Spanish languages"); Hague Convention, supra note 2, at art. 14, [section] 2 (stating that the text would be "drawn up in four authentic texts in the English, French, Russian and Spanish languages").

(463.) These are English, French, Russian, Spanish, Arabic, and Chinese. See ICAO, DCAS Doc. No. 16,supra note 459, [paragraph][paragraph] 2.1-.2, 3.1, 6.1.

(464.) See Beijing Protocol, supra note 24, at art. 18 ("The tests of the Convention in Arabic and Chinese languages annexed to this Protocol shall, together with the texts of the Convention in English, French. Russian and Spanish languages, constitute texts equally authentic in the six languages."); Beijing Convention, supra note 23, at art. 25 (indicating that the Convention would be published "in the English. Arabic, Chinese, French, Russian and Spanish languages").

(465.) For instance, Saudi Arabia's comments on the Arabic text. See Int'l Civil Aviation Org., Essential Corrections and Additions to the Draft Texts Prepared by the Legal Committee [paragraph][paragraph] 1.2-2.1.6 (ICAO, DCAS Doc No. 11, Oct. 16, 2010).

(466.) See ICAO, DCAS Doc No. 16, supra note 459, [paragraph] 6,1 (discussing ICAO's language verification practice).

(467.) Milde, Beijing Convention, supra note 29, at 13.

(468.) See Int'l Conference on Air Law, Final Act, supra note 88, at 6 ("The texts of the said Convention and Protocol are subject to verification by the Secretariat of the Conference under the authority of the President of the Conference within a period of ninety days from the date hereof as to the linguistic changes required to bring the texts in the different languages into conformity with one another.").

(469.) See Beijing Protocol, supra note 24, at art. 25 (stating that "all texts [in the English, Arabic, Chinese, French, Russian and Spanish languages are] equally authentic"); Beijing Convention, supra note 23, at art. 25 (stating that the Convention would be published "in the English, Arabic, Chinese, French, Russian and Spanish languages").

(470.) See Convention for the Unification of Certain Rules Relating to International Carriage by Air art. 36, Oct. 12, 1929, 137 L.O.N. 11 (indicating that "[t]he Convention is drawn up in French in a single copy").

(471.) Beijing Protocol, supra note 24, at arts. 18, 25; Beijing Convention, supra note 23, at art. 20, [section] 1.

(472.) See Beijing Convention, supra note 23, at art. 20, [section] 1 (explaining that "[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration"); Beijing Protocol, supra note 24.

(473.) See Beijing Convention, supra note 23, at art. 20, [section] 1 (stating that "[i]f within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of thos Parties may refer the dispute to the International Court of Justice"); Beijing Protocol, supra note 24.

(474.) See Beijing Convention, supra note 23, at art. 20, [section] 1 (explaining that if parties are not able to "agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice"); Beijing Protocol, supra note 24.

(475.) For instance, in Sanchez-Llamas v. Oregon, the Supreme Court of the United States underscored that while decisions from the ICJ must be given "respectful consideration" they are certainly not binding on U.S. courts. See 548 U.S. 331, 331, 353 (2006) ("Although the ICJ's interpretation deserves 'respectful consideration,' we conclude that it does not compel the Court" and that "[n]othing in the ICJ's structure or purpose suggests that its interpretations were intended to be binding on U.S. courts").

(476.) See Beijing Convention, supra note 23, at art. 20, [section] 2 (stating that "[e]ach State may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph"); Beijing Protocol, supra note 24.

(477.) The following countries filed a reservation under the Hague Convention's compromissory clause: Algeria, Bahrain, Belarus, Brazil, China, Cuba, Egypt, Guatemala, India, Indonesia. Malawi, Mozambique, Oman, Papua New Guinea, Peru, Qatar, Romania, the Russian Federation, Saudi Arabia, South Africa, the Syrian Arab Republic, Tunisia, Ukraine, and Vietnam. See Convention for the Suppression of Unlawful Seizure of Aircraft Signed at the Hague on 16 December 1970, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/Hague_EN.pdf (last updated Sept. 30, 2009) (listing reservations made to the Hague Convention).

(478.) The following countries filed reservations with regard to paragraph 1 of Article 14 of the Montreal Convention: Afghanistan, Bahrain, Belarus, Brazil, China, Cuba, Egypt, Ethiopia, France, Guatemala, Indonesia, Malawi, Mongolia, Mozambique, Oman, Papua New Guinea, Peru, Poland, Qatar, Romania, the Russian Federation, Saudi Arabia, South Africa, Syrian Arab Republic, Tunisia, and Ukraine. See Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation Signed at Montreal on 23 September 1971, INT'L CIVIL AVIATION ORG., http://www.icao.int/ secretariat/legal/List%20of%20Parties/Mtl71_EN.pdf (last updated Sept. 30, 2009) (listing reservations made to the Montreal Convention).

(479.) Right after the fall of the Berlin wall, Poland, Bulgaria, and Hungry withdrew their original reservations. See id. at 1-6 (indicating that Poland withdrew its reservations on June 23, 1997, Bulgaria withdrew its reservations on May 9, 1994, and Hungary withdrew its reservations on January 10, 1990).

(480.) Uruguay suggested that the dispute settlement provision should mirror Article 33 of the Charter of the United Nations. See Int'l Civil Aviation Org., Draft Consolidated Text of the Montreal Convention of 1971 as Amended by the Airports Protocol of 1988, with Amendments Proposed by the Legal Committee art. 14, U 2 (ICAO, DCAS Doc. No. 6, Aug. 16, 2010). Regrettably, the Beijing Diplomatic Conference did not give much thought to this very interesting proposal.

(481.) See Beijing Protocol, supra note 24, at art. 19 (indicating that "the Convention and this Protocol shall be read and interpreted together as one single instrument and shall be known as The Hague Convention as amended by the Beijing Protocol, 2010").

(482.) Id.

(483.) Id. at arts. 19, 22.

(484.) Id. at art. 21, [section] 2.

(485.) See, e.g., Hague Protocol to the Warsaw Convention art. 21, [section] 2, Sept. 28, 1955, 478 U.N.T.S. 371 (indicating that "[Ratification of this Protocol by any State which is not a Party to the Convention shall have the effect of adherence to the Convention as amended by this Protocol").

(486.) See Montreal Convention, supra note 2, at art. 11 (stating that "Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings"); Hague Convention, supra note 2, at art. 10 (explaining that "Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings"). The Hague Convention only required that states grant assistance, whereas the Montreal Convention went a step further by addressing the sharing of relevant information to the extent possible under national laws.

(487.) See Beijing Protocol, supra note 24, at arts. 15-16 (providing that "States Parties shall afford one another the greatest measure of assistance" and "shall ... furnish any relevant information in its possession"); Beijing Convention, supra note 23, at arts. 17-18 (explaining that "States Parties shall afford one another the greatest measure of assistance" and "furnish any relevant information in its possession").

(488.) See ICAO, State Letter LM 1/16.1-10/10, supra note 85, at app. A (outlining the procedures for submitting credentials and full powers required by Rule 2 of the Provisional Rules of Procedure).

(489.) Id.

(490.) Id.

(491.) Id.

(492.) The following states signed both instruments at the Beijing Diplomatic Conference: Brazil, China, Costa Rica, Cyprus, the Dominican Republic, Gambia, Indonesia, Mali, Mexico, Nepal, Nigeria, Paraguay, the Republic of Korea, Senegal, Spain, Uganda, the United Kingdom, and the United States. Most notably, India and Zambia signed the Beijing Protocol but not the Beijing Convention. See Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation Done at Beijing on 10 September 2010, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/ List%20of%20Parties/Beijing_Conv_EN.pdf (last visited Jan. 4, 2014) [hereinafter Parties to the Beijing Convention] (listing parties to the Beijing Convention); Protocol Supplementary to the Suppression of Unlawful Seizure of Aircraft Done at Beijing on 10 September 2010, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/ legaPList%20of%20Parties/Beijing_Prot_EN.pdf (last visited Jan. 4, 2014) [hereinafter Parties to the Beijing Protocol] (listing parties to the Beijing Protocol).

(493.) Montreal Convention, supra note 2, at art. 15, [section] 3; Hague Convention, supra note 2, at art. 13, [section] 3.

(494.) Beijing Protocol, supra note 24, at art. 23; Beijing Convention, supra note 23, at art. 22, [section] 1.

(495.) See Parties to Beijing Convention, supra note 492, at 1 (noting that, as of 2013, the Convention had "30 signatures, 5 ratifications, [and] 3 accessions").

(496.) See Parties to Beijing Protocol, supra note 492, at 1 (indicating that, as of 2013, the Protocol had "32 signatures, 5 ratifications, [and] 2 accessions").

(497.) Angola, Cuba, the Czech Republic, the Dominican Republic, Guyana, Mali, Myanmar, and Saint Lucia in the case of the Convention; Cuba, the Czech Republic, the Dominican Republic, Guyana, Mali, Myanmar, and Saint Lucia in the case of the Protocol. Parties to Beijing Convention, supra note 492; Parties to Beijing Protocol, supra note 492, at 1-2.

(498.) At the time of writing, only thirteen states have signed the General Risks Convention and eleven states have signed the Unlawful Interference Convention. See Convention on Compensation for Damage Cause by Aircraft to Third Parties Done at Montreal on 2 May 2009, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/2009_GRC_EN.pdf (last visited Jan. 4, 2014); Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft Done at Montreal 2 May 2009, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/2009_UICC_EN.pdf (last visited Jan. 4, 2014). Only Montenegro has acceded to both of those Conventions.

(499.) A contrario, 104 states are parties to the Montreal Convention 1999. See Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on 28 May 1999, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf (last updated June 25, 2013) [hereinafter Parties to the Montreal Convention].

(500.) At present, 191 states are parties to the Chicago Convention. See Convention on International Civil Aviation Signed at Chicago on 7 December 1944, INT'L CIVIL AVIATION ORG., http://www.icao.int/secretariat/legal/List%20of%20Parties/Chicago_EN.pdf (last updated Oct. 11, 2011).

(501.) See Parties to Montreal Convention, supra note 499, at 1 (indicating that "[t]he Convention entered into force on November 2003").

(502.) See Beijing Convention, supra note 23, at art. 21, [section] 2 ("The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the International Civil Aviation Organization, who is hereby designated as the Depositary."); Beijing Protocol, supra note 24, at art. 21, [section] 1.

(503.) Hague Convention, supra note 2, at art. 13, [section] 2; Montreal Convention, supra note 2, at art. 15, [section] 2. R.H. Mankiewicz argues that a three-depositary system was established "[i]n order that states not parties to the Chicago Convention may easily ratify and adhere to the [Hague and Montreal Conventions]." R.H. Mankiewicz, The 1970 Hague Convention, 37 J. AIR L. & COM. 195, 209 (1971).

(504.) See ICAO, DCAS Doc. No. 16, supra note 459, [paragraph] 5.1 ("The Hague and the Montreal Conventions respectively have three depositaries, which may not be necessary today.").

(505.) These states included Argentina, Australia, Canada, China, the Czech Republic, France, Mexico, Nigeria, South Africa, Uganda, and the United Kingdom. Assembly--37th Session: List of Delegates, INT'L CIVIL AVIATION ORG., http://legacy.icao.int/Assembly37/docs/DOCS_List_of_Delegates.html (last visited Jan. 4, 2014).

(506.) Int'l Civil Aviation Org., Agenda Item 59, at app. A (ICAO, Working Paper No. 290).

(507.) Int'l Civil Aviation Org. Assembly, 37th Session, Resolution A37-23, Promotion of the Beijing Convention and Beijing Protocol of 2010 (2010).

(508.) Id.

(509.) Int'l Civil Aviation Org., Agenda Item 46, at app. A (ICAO, Working Paper No. 109, Oct. 15, 2013).

(510.) See Frank E. Loy, Some International Approaches to Dealing with Hijacking of Aircraft, 4 INT'L L. 444, 449 (1970) (commenting that, at the Sixteenth Assembly, the United States tabled a stand-alone resolution recommending states to ratify the Tokyo Convention).

(511.) See Int'l Civil Aviation Org. Assembly, 37th Session, Resolution A37-22, Consolidated Statement of Continuing ICAO Policies in the Legal Field, at app. C (2010) (commenting on the ratification process of ICAO international instruments).

(512.) See ICAO, DCAS Doc No. 13, supra note 185, f 1.2 ("The airline industry naturally supports the thrust of the initiative to further extend the scope of the criminal law to certain categories of acts that unlawfully interfere with international civil aviation.").

(513.) Id.

(514.) Id. ("LATA is concerned with the practical implications and operational repercussions that may arise from the proposed amendments.").

(515.) Id. [paragraph] 1.4 ("IATA would urge the diplomatic conference to guard against the unintended consequences of the proposed amendments that would place unnecessary and undesirable financial operational burdens on the airline industry.").

(516.) Id. [paragraph] 2.1.2.

(517.) ICAO, LC/34-WP/4-1, supra note 144, [paragraph] 2:41.

(518.) ICAO, Working Paper No. LC 34-WP/2-2, supra note 255, [paragraph] 2.2.

(519.) Amongst others, these include infectious pathogens, microbial and biological agents, "toxic materials, explosives, and radioactive materials (including fissile material)." See ICAO, LC/34-WP/2-3, supra note 237, [paragraph] 2.2.1.

(520.) Id.

(521.) Id. [paragraph] 2.2.2.

(522.) Id. [paragraph] 2.2.3.

(523.) Id.

(524.) Id.

(525.) Id

(526.) ICAO defines the term dangerous goods as "[a]rticles or substances which are capable of posing a risk to health, safety, property or the environment and which are shown in the list of dangerous goods in the Technical Instructions or which are classified according to those Instructions." See Int'l Civil Aviation Org, Annex 18: The Safe Transport of Dangerous Goods by Air, in THE CONVENTION ON INTERNATIONAL CIVIL AVIATION, at ch. 1, 1 (3d ed. July 2001).

(527.) See ICAO, DCAS Doc. No. 13, supra note 185, [paragraph] 2.2.4 (describing regulation requirements concerning the shipping details of packages containing dangerous goods).

(528.) Id. [paragraph] 2.2.5 ("[A]irlines do not know, and are never provided with, the intended end use for the materials.").

(529.) See Int'l Civil Aviation Org., Technical Instructions for the Safe Transport of Dangerous Goods by Air, (ICAO, Doc. 9284-AN/905, 2010) (providing the text of the regulation).

(530.) ICAO, DCAS Doc. No. 13, supra note 185, [paragraph] 2.2.4.

(531.) Id.

(532.) Id.

(533.) Id. [paragraph] 2.2.5.

(534.) Id.

(535.) Id. [paragraph] 2.2.6.

(536.) Id.

(537.) See id. at A-2 (setting out the "specific revisions to the proposed amendments to the Conventions").

(538.) See id. [paragraph] 2.3.4 ("Not only are such screening operations outside the competency of the airline industry but they would, in any event, give rise to exorbitant costs for the industry as a whole.").

(539.) See id. [paragraph] 2.3.3 ("[T]he detection of BCN materials is extremely complex, requires advanced technology and is extremely expensive to implement.").

(540.) Id.

(541.) Id.

(542.) ICAO, LC/34-WP/4-1, supra note 144, at 2-3. Another delegation went even further by saying that these matters should not be criminalized at all. Id.

(543.) ICAO, DCAS Doc. No. 13, supra note 185, [paragraph] 2.3.3.

(544.) See id. [paragraph] 2.4.1 (explaining how an airline could be guilty of an offense as a result of transporting military components later used to inflict damage during an armed conflict).

(545.) Id. [paragraph] 2.4.3.

(546.) ICAO, LC/34-WP/4-1, supra note 144, [paragraph] 2:12.

(547.) Id.

(548.) ICAO, DCAS Doc. No. 13, supra note 185, [paragraph] 2.4.1.

(549.) Id.

(550.) Id.

(551.) Id.

(552.) See Beijing Protocol, supra note 23, at art. 3, [section] 2; Beijing Convention, supra note 22, at art. 5, [section] 1; Chicago Convention, supra note 143, at art. 3 (a)-(b).

(553.) See Int'l Civil Aviation Org., Agenda Item 2: Report of the Secretariat: Secretariat Study on "Civil/State Aircraft" 11 (ICAO, Report No. LC/29-WP/2-1, 1994) (describing observations and doubts regarding aircraft status under the Chicago Convention).

(554.) Id. at 14.

(555.) Id.

(556.) See ICAO, DCAS Doc. No. 13, supra note 185, [paragraph] 2.4.3 (proposing to "include drafting so that the transport of ... BCN weapons is excluded from the application of both protocols where a government agency intervenes in its capacity as a shipper, consignee or both").

(557.) ICAO, LC/34-WP/4-1, supra note 144, [paragraph] 2:25.

(558.) International Maritime Organization Status of Conventions by Country, INT'L MARITIME ORG., http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx (last visited Dec. 27, 2013). The SUA Protocol entered into force on July 28, 2010. Id.

(559.) Id.

(560.) Id.

(561.) See Caitlin A. Harrington, Heightened Security: The Need to Incorporate Articles 3BIS (1) (A) and 8Bis (5) (E) of the 2005 Draft SUA Protocol into Part VII of the United Nations Convention on the Law of the Sea, 16 PAC. RIM L. & POL'Y J. 107, 120 ("The United States strongly pushed for the development of the 2005 Draft Protocol.").

(562.) Michael A. Becker, International Law of the Sea, 43 INT'L L. 915, 924 (2009).

(563.) Harrington, supra note 561, at 109.

(564.) See Helmut Tuerk, Combating Terrorism at Sea: The Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 15 U. MIAMI INT'L & COMP. L. REV. 337, 365 (2007) (commenting on criticism of the instrument as reactive rather than preventive).

(565.) Harrington, supra note 561, at 129.

(566.) See ICAO, LC/SC-NET-2, supra note 72, [paragraph] 2.3 ("Consequently, the majority of members preferred to follow the precedent of the SUA Convention.").

(567.) Id.

(568.) Id.

(569.) See Int'l Maritime Org., International Conference on the Revision of the SUA Treaties: Closing Statement by Mr. E. E. Mitropoulos, Secretary-General 2 (IMO, LEG/CONF.15/INF.5, Oct. 21, 2005) ("This Conference will go down in the annals of IMO History as possibly the one most politically charged."); see also Ticy V. Thomas, The Proliferation Security Initiative: Towards Relegation of Navigational Freedoms in UNCLOS? An Indian Perspective, 8 CHINESE J. OF INT'L L. 657, 666 (2009) (describing the SUA Protocol as "widely regarded as the most politically charged conference in the history of the IMO"); Tuerk, supra note 564, at 357 (noting that the conference resulting in the SUA Protocol was "one of the most politically charged conferences in the history of the Organization").

(570.) See ICAO, DCAS Doc No. 11, supra note 182, at 2 ("Many states made reservations on criminalization of the transport of these materials, consequently the text lacks the international endorsement and support required to insert it into the texts of the Montreal Convention.").

(571.) ICAO, LC/34-WP/5-2, supra note 161, [paragraph] 2:147.

(572.) See Abeyratne, The Beijing Convention of 2010, supra note 68, at 246 (describing the Beijing Convention as a "landmark to new and emerging threats to civil aviation").

(573.) Raymond Benjamin, Establishing a New Era of Consensus and Action on Global Aviation Security Priorities, 66 ICAO J. 1, 3 (2011).

(574.) Abeyratne, The Beijing Convention of 2010, supra note 68, at 246.

(575.) Jennison, supra note 296, at 11.

(576.) Ruwantissa Abeyratne, Cyber Terrorism and Aviation--National and International Responses, 4 J. TRANSP. SEC. 337, 343 (2011).

(577.) Jennison, supra note 296, at 12.

(578.) Int'l Civil Aviation Org., Administrative Package for Ratification of or Accession to the Convention on the Suppression of Unlawful Acts Relation to International Civil Aviation (Beijing Convention, 2010), at 1 (ICAO, State Letter LE 3/44, LE 3/45-1153, June 30, 2011).

(579.) See, e.g., Lisa M. McCartan et al., The Logic of Terrorist Target Choice: An Examination of Chechen Rebel Bombings from 1997-2003, 31 STUD. CONFLICT & TERRORISM 60, 62 (2008) (noting that "terrorists choose very specific targets that will demonstrate a regime's inability to protect its people").

(580.) See ICAO, A37-WP/290, supra note 506, at 2 ("The Beijing Convention and Beijing Protocol of 2010 will require parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing and financing acts of terrorism.").

(581.) See Giovanni Marchiafava, La Convenzione di Pechino del 10 Settembre 2010 sulla Repressioni di Atti Illeciti Relativi All'Aviazione Civile Internazionale (Sept. 14, 2011) (unpublished paper, on file with the authors).

(582.) See Abeyratne, The Beijing Convention of 2010, supra note 68, at 253 ("Article 3 of the said Convention ... states that each State party undertakes to make the offences discussed above punishable by severe penalties.").

(583.) See International Convention for the Suppression of Acts of Nuclear Terrorism, supra note 204, at art. 5(b) (emphasizing that Member States bear the obligation to make crimes stipulated in the international instrument "punishable by appropriate penalties which take into account their grave nature"); see, e.g., Terrorist Bombings Convention, supra note 50, at art. 4(b); Financing of Terrorism Convention, supra note 50, at art. 4(b); Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, supra note 204, at art. 1 (making cross reference to the SUA Convention's obligation to make offenses punishable); Convention on the Physical Protection of Nuclear Material, supra note 203, at art. 2; International Convention Against the Taking of Hostages, supra note 406, at art. 2; SUA Convention, supra note 75, at art. 5(1); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, supra note 203, at art. 2, [section] 2.

(584.) See ICAO, A37-17, supra note 304, at 29 (calling upon contracting states to con'm their support by enacting appropriate punishments).

(585.) See Int'l Civil Aviation Org., Progress Report on the Implementation of Assembly Resolution A32-22, at app. A, (ICAO, C-WP/11103, 1999); see, e.g., Int'l Civil Aviation Org., Report of the Rapporteur of the Special Sub-Committee on the Preparation of an Instrument to Modernize the Convention on Offenses and Certain Other Acts Committed Onboard Aircraft of 1963, at 19 (ICAO, LC/SC-MOT-WP/1, May 25, 2012) (commenting on the little progress made among Member States toward enacting appropriate supportive national legislation).

(586.) See Int'l Civil Aviation Org., Progress Report on the Implementation of Assembly Resolution A32-22: Consolidated, Statement of Continuing ICAO Policies Related to the Safeguarding of International Civil Aviation Against Act of Unlawful Interference, at app. A, (ICAO, C-WP/11445, Oct. 10, 2000).

(587.) Id.

(588.) Id.; see Member States, INT'L CIVIL AVIATION ORG., http://www.icao.int/MemberStates/Member%20States.English.pdf (last updated Oct. 10, 2013) (showing that, at present, 191 states are members to ICAO).

(589.) See Gerald F. Fitzgerald, Aviation Terrorism and the International Civil Aviation Organization, 25 CAN. Y.B. INT'L L. 219, 240 (1987) ("ICAO has constantly pointed out the need for full implementation of these conventions through the adoption of appropriate national legislation, the application of that legislation and the willingness of all states to discharge effectively their obligations under the Conventions.").

(590.) See Abeyratne, The Beijing Convention of 2010, supra note 68, at 245 (describing the connection between the development of the Beijing instruments and the events of 9/11).

(591.) Beijing Convention, supra note 23, at pmb1.

(592.) See generally Abeyratne, The Beijing Convention of 2010, supra note 68, at 245 (praising the role of American law in its "war on terror").

(593.) Tuerk, supra note 564, at 366. See Rosalie Balkin, The International Maritime Organization and Maritime Security, 30 TUL. MAR. L.J. 1, 24 (2006) (highlighting the recognition of terrorism as an international problem requiring "international will" to effectively combat).

(594.) Norway Attacks: Breivik Charged with Terror Attacks, BBC EUROPE (Mar. 7, 2012), http://www.bbc.co.uk/news/world-europe-17286154.

(595.) See Int'l Civil Aviation Org., A35-1 Acts of Terrorism and Destruction of Russian Civil Aircraft Resulting in the Deaths of 90 People Passengers and Crew Members 1 (ICAO, A35-1, provisional ed. 2004) (describing the event and the reactions of ICAO).

(596.) Unsuccessful Attempt to Detonate a Bomb on Northwest Flight 253 near Detroit, AIR SAFE.COM News (Apr. 1, 2013), http://www.airsafenews.com/2009/12/unsuccessful-attempt-to-detonate-bomb.html.

(597.) E.g., Pierre Thomas & Huma Khan, Nigeria Was Being Prepared for Terror Plot, ABC (Dec. 30, 2009), http://abcnews.go.com/GMA/Politics/security-failure-usaware-nigerian-prepared-terror-obama/story?id=9447061. According to ICAO's security audits, Africa scores the lowest compliance rate with international aviation security standards. This will he analyzed further below. It should not be then a surprise that alleged terrorists sought to exploit the weakness of the aviation security system in that region.

(598.) Int'l Civil Aviation Org., Review of the Report of the Twenty-Second Meeting of the Aviation Security Panel [paragraph] 1.1.1.1 (ICAO, Working Paper No. C-WP/13724, Apr. 7, 2011).

(599.) Suspected Flight Stowaway in Los Angeles Pleads Not Guilty, CNN TRAVEL (Apr. 1, 2013), http://www.cnn.com/2011/TRAVEL/07/18/flight.stowaway.plea/.

(600.) See Int'l Civil Aviation Org., Council 186th Session: Report on Acts of Unlawful Interference for 2008 [paragraph][paragraph] 1.1, 1.2, (AVSECP/20-WP/9, Jan. 13, 2009) (citing Int'l Civil Aviation Org., Report on Acts of Unlawful Interference for 2007 (ICAO, Working Paper No. C-WP/13103, Feb. 11, 2008)).

(601.) Milde, International Air Law, supra note 34, at 228.

(602.) Fitzgerald, supra note 589, at 241.

(603.) Abeyratne, The Beijing Convention of 2010, supra note 68, at 255.

(604.) See Fiorita, supra note 446, at 89 ("[T]he development of legal deterrents resulted from a reactive process rather than a pro-active one.").

(605.) See Int'l Civil Aviation Org., Report on the Implementation of the Universal Security Audit Programme (USAP) [paragraph] 2.4 (ICAO Working Paper No. C-WP/13725, Apr. 1 2011) (explaining that while the USAP indicated progress, "a number of States continue to experience difficulties").

(606.) See Int'l Civil Aviation Org., Assembly, 37th Session, Executive Committee Declaration on Aviation Security, at app. A, (ICAO A37-WP/75, Aug. 16, 2010) (urging Member States to "strengthen and promote the effective application of ICAO Standards and Recommended Practices, with particular focus on Annex 17").

(607.) Before the occurrence of the 9/11 attacks, ICAO did not have an audit program for aviation security. ICAO's USAP stems from the High Level Ministerial Conference on Aviation Security's recommendation to Council when it was suggested that the organization establish an audit program to foster compliance with aviation security standards.

(608.) See Int'l Civil Aviation Org., Universal Security Audit Program: Analysis of Audit Results, Reporting Period: January 2008 to December 2011, at 13 (4th ed. 2012) [hereinafter ICAO, USAP Results 2012] (presenting critical elements that touch upon the following key areas: i) aviation security legislation; ii) aviation security programs and regulations; iii) state appropriate authority for aviation security and its responsibilities; iv) personnel qualifications and training; v) provision of technical guidance, tools, and security-critical information; vi) certification and approval obligations; vii) quality control obligations; and viii) resolution of security concerns).

(609.) Id. at 15.

(610.) Int'l Civil Aviation Org., Universal Security Audit Program: Analysis of Audit Results, Reporting Period: January 2008 to December 2010, at 5 (3d ed. 2011) [hereinafter ICAO, USAP Results 2011],

(611.) ICAO, USAP Results 2012, supra note 608, at 29.

(612.) Id. at 41.

(613.) Id. at 38.

(614.) Id. at 40.

(615.) Id.

(616.) Id. at 39.

(617.) Id. at 37.

(618.) Id. at 35.

(619.) Id. at 33.

(620.) Id. at 34.

(621.) Id. at 31.

(622.) Id.

(623.) Id.

(624.) "Hold baggage reconciliation" refers to the match that aviation security inspectors make before flight departure to make sure that the baggage is that of the passenger on board the aircraft. Hold baggage reconciliation became mandatory in the mid-1990's, as one of the lessons learned from Pan Am flight 103. See Barry James, Airlines Lack Common Security Rules, N.Y. TIMES (July 25, 1996), http://www.nytimes.com/1996/07/25/news/25iht-secure.t_3.html.

(625.) ICAO, USAP Results 2012, supra note 608, at 32.

(626.) Id. at 35.

(627.) Int'l Civil Aviation Org., Assistance Strategy for Working with States Regarding Shortcomings with Aviation Security-Related SARPs K 3.5 (ICAO, Working Paper No. C-WP/12907, Apr. 5, 2007).

(628.) ICAO, C-WP/13725, supra note 605.

(629.) The level of compliance with aviation security legislation requirements is the highest amongst the eight critical elements of ICAO's USAP. In fact, 78 percent of audited states have promulgated primary aviation security legislation, and 81 percent have addressed the unrestricted access of aviation security inspectors to aircraft and airport and aviation facilities. See ICAO, USAP Results 2012, supra note 608, at 27.

(630.) See Ludwig Webber, Enhancement of the Legal Framework for Aviation Security with Specific Reference to the Asia-Pacific Region (May 24, 2010) (unpublished paper, on file with the authors) (noting that "further significant efforts are required to ensure that the aviation security framework will be rendered adequate").

(631.) See LUDWIG WEBER, INTERNATIONAL CIVIL AVIATION ORGANIZATION: AN INTRODUCTION 92-93 (2007) (providing the terms of the audit program and its use from 2004 to 2007).

(632.) See ICAO, Budgets for 2011, 2012 and 2013, at 88 (ICAO A37-26, 2010) (providing annual budget and spending reports for 2011, 2012, and 2013) (explaining how ICAO has developed a database on findings from yearly audits that "will assist in addressing deficiencies").

(633.) See Dempsey, supra note 404, at 458 (emphasizing airport security screening as one of the ways to prevent the occurrence of acts of unlawful interference).

(634.) ICAO, USAP Results 2012, supra note 608, at 45.

(635.) See R.L. Smith McKeithen, Prospects for the Prevention of Aircraft Hijacking Through Law, 9 COLUM. J. TRANSNAT'L L. 60, 80 (1970) (commenting on the contribution of the Tokyo Convention and the 1970 Montreal Draft Convention).

(636.) Gerald F. Fitzgerald, Development of International Legal Rules for the Repression of the Unlawful Seizure of Aircraft, 7 CAN. Y.B. INT'L L. 269, 296-97 (1969) (highlighting the important role of lawyers in formulating an international multidisciplinary response to terrorism).

(637.) Int'l Conference on Air Law, Final Act, supra note 88. Although states clearly prefer reaching some degree of consensus, voting was not at all uncommon in the adoption of all the international aviation security instruments. A number of issues in the Tokyo, the Hague, and the Montreal Conventions, as well as the Airport Protocol, were voted upon. Fitzgerald, supra note 636, at 287 (describing how "many of the decisions embodied in the draft [of the Tokyo Convention] were taken by majority vote"); Philippe Kirsch, The 1988 ICAO and IMO Conferences: An International Consensus Against Terrorism, 12 DALHOUSIE L. J. 5, 29 (1990) (noting that the adoption of these three international instruments was subject to a vote).

(638.) Int'l Conference on Air Law, Final Act, supra note 88.

(639.) See ICAO, C-MIN 188/6, supra note 293, 20 (noting the shared concern of Venezuela and Russia "regarding the low number of signatures of the two Conventions adopted at the recent Diplomatic Conference on Compensation for Damage").

(640.) General Risks Convention, supra note 22.

(641.) Unlawful Interference Convention, supra note 22.

(642.) See Peter Martin, Aviation Security in International and UK Law, in Nicolas MAteesco Matte, Liber Amicorum 204 (1989) ("The efficacy of international legislation against crimes depends not only upon the extent of the application of the conventions in the Contracting States' municipal law but also on the will of states to meet their obligations.").

(643.) See Oona A. Hatahaway, Why Do Human Rights Treaties Make a Difference? 111 YALE L.J. 1935, 1944 (2002) (noting that states "calculate the costs and benefits of alternative courses of action in the international realm and act accordingly").

(644.) MILDE, INTERNATIONAL AIR Law, supra note 34, at 258.

(645.) As Michael Milde noted more than 20 years ago, "The present and future challenge is to implement preventive security measures. Implementation requires sound professional management, and law is only one of the tools of management." Milde, Law and Aviation Security, supra note 5, at 97; Sakeus Akweenda, Prevention of Unlawful Interference with Aircraft: A Study of Standards and Recommended Practices, 35 INT'L & COMP. L.Q. 413, 444 (1986) (arguing that "emphasis must also be laid on the effective implementation of existing programs").

(646.) ICAO, Working Paper No. C-WP/11786, supra note 36, at A-3.

(647.) See Luongo, supra note 26, at 115-18 (describing how UN resolutions can be, and have been, used to pressure states into conforming to an international strategy).

Alejandro Piera *

Michael Gill **

* Alejandro Piera serves as Permanent Advisor of the United Arab Emirates Diplomatic Mission on the ICAO Council. He is based in Montreal where he focuses on international policy and regulations. Mr. Piera is a graduate of McGill's Institute of Air & Space Law and the Faculty of Law of the National University of Asuncion--Paraguay. He is also a Doctoral of Civil Law (DCL) candidate at McGill University's Faculty of Law.

** Michael Gill serves as a Senior Legal Counsel of the International Air Transport Association (IATA) based in Geneva. He is qualified as a solicitor (England & Wales) and a French avocat. Mr. Gill graduated LL.B from King's College, London, and Maitrise en droit from the Sorbonne in Paris and also obtained an LL.M from the University of Edinburgh. He was a member of the IATA delegation to the ICAO Diplomatic Conference that adopted the Beijing Convention and Protocol in 2010. The authors have written this Article in their personal capacities.
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Title Annotation:International Civil Aviation Organization, p. 218-237; IV The Views of the Airline Industry through VII. Conclusion, with footnotes, p. 218-237
Author:Piera, Alejandro; Gill, Michael
Publication:Vanderbilt Journal of Transnational Law
Date:Jan 1, 2014
Words:28450
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