published in separate english, arabic, french, russian and spanish editions

8/14/2019 Published in Separate English, Arabic, French, Russian and Spanish Editions

1/20


2/20

Published in separate English, Arabic, French, Russian and Spanish editions by the International Civil AviationOrganization. All correspo ndence , except orders and subscriptions, should be addresse d to the Secretary G eneral.Orders should be sent to one of the following addresses, together with the appropriate remittance (by bank draft, cheque or moneyorder) in U.S. dollars or the currency of the coun try in which the order is placed. Credit card orders (A merican Express, M astercardand Visa) are accepted at ICAO Headquarters.International Civil Aviation Or ganizatio n. Attention: Document Sales Unit

999 University Street, Montreal, Quebec, Canada H3C 5H7Telephone: +1 (514) 954-8022; Facsimile: +1 (514) 954-6769; Sitatex: YULADYA; E-mail: [email protected]. ICAO Regional Director, Middle East Office, Egyptian Civil Aviation Complex, Cairo Airport Road, Heliopolis, Cairo 11776Telephone: +20 (2) 267-4840; Facsimile: +20 (2) 267-4843; Sitatex: CAICAYAFrance. Directeur rtgional de I'OACI, Bureau Europe et Atlantique Nord, 3 bis , vi ll a f im i le -~ er~ era t ,2522 Neuilly-sur-Seine (Cedex)Ttl tphone: +33 (1) 46 41 85 85; Ttltcopieur: +33 (1) 46 41 85 00; Sitatex: PAREUY AIndia. Oxford Book and Stationery Co., Scindia House, New Delhi 110001 or 17 Park S treet, Calcutta 700016Telephone: +91 (11) 331-5896; Facsimile: +91 (1 1) 332-2639Japan. Japan Civil Aviation Promotion Foundation, 15-12, 1-chome, Toranomon, Minato-Ku, TokyoTelephone: +81 (3) 3503-2686; Facsimile: +81 (3) 3503-2689Kenya. ICAO R egional Director, Eastern and Southern African Office, United Nations Accommod ation, P.O. Box 46294, NairobiTelephone: +254 (2) 622-395; Facsimile: +254 (2) 226-706; Sitatex: NBOCAY AMexico. Director Regional de la OACI, Oficina Norteamtrica, Centroamtrica y CaribeMasaryk No. 29-3er. piso, Col. Chapu ltepec Morales, Mexico, D.F., 11570Teltfono: +52 (55) 52 50 32 11; Facsimile: +52 (55) 52 03 27 57; Sitatex: MEXCAY ANigeria. Landover Company, P.O. Box 3165, Ikeja, LagosTelephone: +234 (1) 4979780; Facsimile: +234 (1) 4979788; Sitatex: LOSLORKPeru. Director Regional de la OACI, Oficina Sudamtrica, Apartado 4127, Lima 100Teltfono: +51 (1) 302260; Facsfmile: +51 (1) 640393; Sitatex: LIMCAYARussian Federation. Aviaizdat, 48, 1. Franko Street, Moscow 121351Telephone: +7 (095) 417-0405; Facsimile: +7 (095) 417-0254Senegal. Directeur regional de I'OACI, Bureau Afrique occidentale et centrale, Boite postale 2356, DakarTtltphone: +221 8-23-54-52;Ttltcopieur: +221 8-23-69-26; Sitatex: DKRCAY ASlovakia. Air Traffic Services of the Slovak Republic, Letov t prevhdzkovt sluzby Slovenskej Republiky,State Enterprise, Letisko M.R. Ste fhi ka, 823 07 Bratislava 21, Slovak RepublicTelephone: +421 (7) 4857 11 11; Facsimile: +421 (7) 4857 2105South Africa. Avex Air Training (Pty) Ltd., Private Bag X102, Halfway House, 1685, Johannesburg, Republic of South AfricaTelephone: +27 (11) 315-000314; Facsimile: +27 (1 1) 805-3649; E-mail: avex@ iafrica.comSpain. A.E.N.A.- eropuertos EspaRoles y Navegaci6n Atrea, Calle Juan Ignacio Luca de Tena, 14,Planta T ercera, Despacho 3. 11, 28027 MadridTeltfono: +34 (91) 321-3148; Facsimile: +34 (91) 321-3157; Correo-e: [email protected]. ICAO Regional Director, Asia and Pacific Office, P.O. Box 11, Samyaek Ladprao, Bangkok 10901Telephone: +66 (2) 537-8189; Facsimile: +66 (2) 537-8199; Sitatex: BKKCAY AUnited Kingdom. Airplan F light Equipment Ltd. (AFE), la Ringway Trading Estate, Shadowmoss Road, Manchester M22 5L HTelephone: +44 161 499 0023; Facsimile: +44 161 499 0298; E-mail: [email protected];World Wide Web: http://www.afeonline.com

Catalogue of ICAO Publicationsand Audio-visual Training AidsIssued annually, the Catalogue lists all publications and audio-visual training aidscurrently available.

Monthly supplements announce new publications and audio-visual training aids,amendments, supplements, reprints, etc.Available free from the Document Sales Unit, ICAO.


3/20

TABLE OF CONTENTS

PageChapter1. Introduction ....................................................... 1Chapter 2. The list of offences .................................................. 3

2.1 The purpose of the list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.2 The content of the list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.3 Comments on the offences set out in Sections 1 to 3 of the Appendix . . . . . . . . . . 42.4 The applicability of the list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Chapter 3. Jurisdiction ....................................................... 7Chapter 4. The legal mechanisms available for combatting the problemofunrulypassengers ........................................................... 9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..1 General 94.2 Nationallaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94.3 Bilateral/multilateral agreements or arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . 94.4 Existing international conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ICAO Assembly Resolution A33-4: Adoption of national legislation on certain offencescommitted on board civil aircraft (unruly/disruptive passengers) ...................... 13APPENDIX. Model legislation on certain offences committed on board civil aircraft .... 15Section 1: Assault and Other Acts of Interference against a Crew Member. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .n Board a Civil Aircraft 15Section 2: Assault and Other Acts Endangering Safety or Jeopardizing Good Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd Discipline on Board a Civil Aircraft 15Section 3: Other Offences Committed on Board a Civil Aircraft . . . . . . . . . . . . . . . . . . . . . . . . 15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ection 4: Jurisdiction 16


4/20

Chapter 1INTRODUCTION

1.1 Th e term "unruly" or "disruptive" passengers refers to passengers who fail to respect the rules ofconduct on board aircraft or to follow the instructions of crew mem bers and thereby disturb the good orderand discipl ine on board aircraft. In recent years, there has been an increase in the reported incidents involvingsuch passengers. According to a survey conducted by the International Air Transpo rt Association (IATA)to which 62 airlines responded, representing approximately 23% of the IATA member airlines worldwide,there were 1 132 reported cases of unruly passengers in 199 4,2 036 cases in 19 95 ,3 5 12 cases in 1996 and5 416 case s in 1 997. In 2000, ICAO conducted a survey through a questionnaire, to which 6 2 ContractingStates replied, representing some 80% of the total number of passengers carried worldwide in 1999 onscheduled services by the airlines of ICA O Contracting States. While many States have not yet establisheda reporting system, approximately 67% o f the S tates replying to the questionnaire indicated that in recentyears they had experienced an increase in the number of unruly passengers. Due to the lack of a uniformreporting system, it is not possible to provide com plete and comprehensive data.1.2 Th e incidents involved various types ofo ffen ces and reprehensible acts, including assault on crewmembers or passengers; fights among intoxicated passengers; child molestation, sexual harassment andassault; illegal con sum ption of drugs on board; refusal to stop smoking or consuming alcohol; ransackingand sometimes vandalizing of airline seats and cabin interior; unauthorized use of electronic devices;destruction of safety equipment on board; and other disorderly or riotous conduct. It has been noted that"what happens generally in the street is now happening on board aircraft". Rep orts of these incidents are notrestricted to a particular airline, country, customer, class of service, or length o r type o f flight. In a numberof cases, the acts and offences directly threatened the safety of the aircraft. In some cases, the aircraftcomm ander had to make an unscheduled stopover to disembark the unruly passengers for safety reasons.These are the occurrences which particularly cause international concern.1.3 Although the identity of unruly passengers and the relevant evidence can usually be established,there ar e many cas es in which unruly passengers have to be released withou t being subm itted to judicialproceedings due to the lack ofjurisdiction of the State where the aircraft lands. Under most dom estic laws,States other than the State of registry of the aircraft normally do not have jurisdiction over offencescommitted on board the aircraft outside their respective territory, except for certain offences covered byinternational treaties or international custom ary law, such as hijacking, sabotage, and hostage taking. Unde r. nternational law , while international conv ention s relating to aviation security have proven to be an effectivetool in comba tting terrorism including hijacking, sabotage and similar forms of unlawful interference againstcivil aircraft, these conventions are not specifically designed to deal with other, less seriou s types of offencescomm itted by unruly passengers. Under the Con vention on Offences a n d Certa in O ther Acts Comm itted onBoar dAir craft, signed at Tokyo on 14 Septem ber 1963, offend ers cannot be held in restraint beyond the firststopover; by the tim e the aircraft has returned to the State of registry, the offenders, as well as the witnesses,will be long gone . Many of fender s have taken adva ntage of this situation to avoid prosecution.


5/20

2 ICAO Circular 288-LE/I

I .4 In view o f the increasing number and significance of these offences, the ICAO C ouncil decidedin 1996 to include the subject of unruly passengers in the General Work Programme o ft he Legal C omm itteeand in 1997 to establish a Secretariat Study Grou p on Unruly Passengers.1.5 The Study Group considered that more effective measures on the part of governments arenecessary to deal with the problem. For this reason, where action has not yet been taken, appropriatemeasures, including legal measures, should be developed without delay.1.6 The Study Group identified three major area s for action, namely, the drafting of a list of specificoffences for inclusion in national law, the extension ofjurisd iction ov er such offences, and the ap propriatemechanisms for addressing these offences.1.7 The Grou p noted that certain States, such as Australia, Canada, the U nited Kingdom and theUnited States, have decided to extend their domestic jurisdiction to certain offences committed on boardforeign aircraft subsequently landing in their respective territories. The relevant legislative provisions ofthese States have been studied by IC AO. It is considered that in parallel with m easures o f a practical na ture,such as stafftraining and airline programmes, the amendment of national legislation should at this stage serveas the primary and immediate mechanism for dealing with the unruly passenger problem.1.8 As a result of the work of the Study Group, the 33rd Session of the ICAO Assembly adoptedResolution A33-4, setting forth model legislation as developed by the Group. The Resolution urges allContracting States to enact as soon as possible national law and regulations to dea l effec tively with theproblem of unruly or disruptive passenge rs, incorporating s o far as practical the model legislation set out inthe Appendix to the Resolution.1.9 This guidance material is designed to addres s the issues relating to the three ma jor areas fo r action(1.6 refers). It is addresskd to the Contracting S tates of ICA O for their information and reco mm ended action .It should be noted that the material principally covers the legal aspects of the unruly passenger problem.Other measures, such a s the training of relevant airline staff, establishing o r updating airline policy, andincreasing the aware ness of airport police and other law enforce ment autho rities, are also necessary and aretherefore strongly encouraged. In this respect, reference is made to the efforts both within and o utside ICAOto develop guidelines and othe r material containing preventive measures against unruly passengers, in par-ticular, the ICAO training package material develope d by the Aviation Security Section (AS TP 123/Airline),as well as relevant airline programmes and o ther relevant documentation.


6/20

Chapter 2THE LIST OF OFFENCES

2.1 THE PURPOSE OF THE LIST2.1.1 A uniform list of offenc es is considered desirable for two reasons: firstly, in order to provide acommon denominator for offences as a basis for national prosecution; and, secondly, in order to offeruniform criteria for Sta tes to extend their respective jurisdiction.2.1.2 Th e movem ent of aircraft across national borders means that they will be subject to the laws andregula tions of different jurisdictions. Due to the diversity of laws and regulations, an a ct or omission whichis regarded a s an offence in one jurisdiction may not be so regarded in anoth er jurisdiction. When su spectedoffend ers are to be prosecuted in a State where a foreign aircraft has landed, the question may arise whethertheir ac ts or omissions constitute o ffence s not only in the State of landing but also in the State of registry ofthe aircr aft and in the State where the acts or om issions occurred. Accordingly, it was considered useful bythe Study Group to establish a list of offences that would be regarded as a common denominato'r. Such auniform list will be instrum ental for the purpose of incorporating the relevant offen ces into States' respectivenational laws or regulations allowing prosecution and application of sanctions.2.1.3 Since the urisdiction over unruly passengers will sometimes involve extraterritorial elements, theState of land ing may encou nter certain diff iculties in ascertaining the scop e of its jurisdiction. A uniform listof offences will therefore assist the relevant States, particularly the State where an aircraft lands with thesuspected offend er on board, in determining its basis for jurisdiction.

2.2 THE CONTENT OF THE LIST2.2.1 Th e App endix to this circular conta ins draft model legislation on certain offen ces committed onboard civil aircraft. The list of offences set out in Sections 1 to 3 was developed by the Study Group forinclusion into national law or regulations. Section 1, Assault and Other Acts of Interference against aCrew Member on Board a Civil Aircraft, provides that any person wh o com mits on board a civil aircraftany of the following acts thereby commits an offence:

"(1) assault, intimidation or threat, whether physical or verbal, against a crewmem ber, if such act interferes with the perform ance o f the duties of the crewmember or lessens the ability of the crew member to perform those duties;

"(2) refusal to follow a lawful instruction given by the aircraft comm ander, or onbehalf of the aircraft commander by a crew member, for the purpose ofensuring the safety of the aircraft or of any person or property on board or forthe purpose of maintaining good order and discipline on board."


7/20

4 ICAO Circular 288-LE/I

2.2.2 Section 2, Assault and Other Acts Endangering Safety or Jeopardizing Good Order andDiscipline on Board a Civil Aircraft, addresses offences other than those specifically against a crewmember. Thes e offences include those against passen gers. Th e first paragraph of Section 2 provides that anyperson who comm its on board a civil aircraft an act of physical violence against a person, sexual assault o rchild molestation commits an offence. The second paragraph p rovides that any person w ho com mits on boarda civil aircraft any of the following acts comm its an offence , if such act is likely to endan ger the safety ofthe aircraft or of any person on board or if such act jeopa rdizes the good ord er and discipline on board theaircraft:

"(a) assault, intimidation or threat, whether physical or verbal, against anotherperson;"(b) intentionally causing damage to, or destruction of, property;"(c) consuming alcoholic be verages or drugs resulting in intoxication."

2.2.3 Section 3, Other Offences Committed on Board a Civil Aircraft, covers other offenc es thatdo not fall into the first two ca tegories. It provides that any person who com mits on board a civil aircraft anyof the following acts thereby comm its an offence:

"(1) smoking in a lavatory, or smok ing elsewher e in a manner likely to enda ngerthe safety of the aircraft;"(2) tampering with a smoke detector or any other safety-related d evice on boardthe aircraft;"(3) operating a portable electronic device when such act is prohibited."

2.3 COMMENTS ON THE OFFENCES SET OUT INSECTIONS 1 TO 3 OF THE APPENDIX

2.3.1 Th e first category of offenc es included in the list covers offences involving ac ts of interferenceagainst a crew member on board a civil aircraft. Crew members need special protection, since they areresponsible not only for maintaining good ord er and discipline on board but also fo r the safety o f the aircraft.Their situation may, to a limited extent, be considered somewhat similar to the situation of police officersor peace officers on the ground. In fact, certain State s have designated aircraft com man ders as peace officersfor the period when the aircraft under their control are in flight. In many national criminal co des, offencesagainst an on-duty police officer or peace officer are subject to heavier penalty than offences against amember of the general public. In line with this general practice, Section 1 is designed to offe r protection tocrew mem bers who enforce rules of conduct and m aintain good order on board aircraft in the public interest.The term "lessens the ability of the crew member to perform those duties" in paragraph (1) of Section 1 isintended to cover certain situations that might not be covered by th e term "interferes with the pe rformanceof the duties", thereby offerin g better and wider protection to the crew . The term is not intended to coverminor side effects on a crew member, su ch as psychological side effects, ift he ac t is directed against anothercrew member and does not actually lessen the ability of the crew member.2.3.2 With respect to paragraph (2) o fs ec ti on 1, it should be understood that the authority to giveinstructions ultimately rests with the aircraft commander. However, unless there is contrary evidence,


8/20

ICAO Circular 288-LE/I 5instructions from a crew member are deemed to be given on behalf of the commander. Instructions are notlimited to verbal instructions but may also inc lude those given in writing and those given through illuminatedsigns on the aircraft, such as seat belt sign s and non-smoking signs, when they a re activated. The term"refusal" includes intentional and e xpress conduct of n on-compliance but does not include inadvertentconduct.2.3.3 The second category of offences included in the list are those endangering safety or disturbinggood order and discipline on board a civil aircraft. In paragraph ( 1) of Section 2, an act of ph ysical violenceagainst a person, sexual assault or child molestation is deemed to be, due to its gravity, an act endang eringsafety orjeop ardiz ing good o rder and discipline on board a civil aircraft. In these cases, the public prosecutordoes not have to prove the endangering orjeop ardiz ing nature of th e relevant act of the alleged offender. Theterm "physical violence ag ainst a person" is a close approxima tion to the term "battery" kn own in commonlaw jurisd iction s which requires p hysical contact but doe s not necessarily give rise to injury. The physicalcontact d oes not need to cre ate bodily injury but must interfere with the health or comfo rt of the victim andmust be more than merely transien t or trifling in nature. The term "child molestation" is intended to offerspecific protection to children, who a re more vulnerable to these type s of acts than adults. For the purposeof the application o f the provision, an act listed in paragraph (2 ) of Section 2 will constitute an offence onlyif such an act has the conseq uence of endangering safety or disturbing good o rder and discipline on boardthe aircraft. The reason fo r adding this constitutive element for the offence is to limit jurisdiction. If a S tatewhere an aircraft lands is expected to exercise jurisdiction over any simple assault on board a foreign aircrafteven if such ac t neither o ccu rs in its territory nor af fects its interest, it may be co nsidered that the net is casttoo wide from a jurisdictional point of view. Adding the abovc-m entioned element to the offenc e will havethe effect o f limiting the jurisdiction of the State of landing to fewer but more serious cases. For cases whichfall squarely within territorial o r flag jurisdiction, State s remain fre e to treat, for example, a simp le assaultas a punishable offenc e whether or not such assault has the consequence of endangering safety or disturbingthe good order and discipline on board aircraft.2.3.4 In th is con nec tion, it should be recalled that Article 1, paragraph 1 (a), of the Convention or theSupp ression of UnlawfulActs Against the Safety of Civil Aviation (signed at Montreal on 23 September 1971)dec lares it an offen ce for any person to perform "an act of violence against a person on board an aircraft inflight if that act is likely to endanger the safety of that aircraft". Therefore, if an assault has reached suchgravity as to enda nger the safety of the aircraft, the M ontreal Convention will normally apply. On th e otherhand, the Mo ntreal Convention doe s not cover other acts that only jeopardize good order on board. In mostcases involving unruly passengers, it is this latter aspect that has caused public concern regarding theefficiency and regularity of air transportation and, indirectly, the safety of civil aviation. Accordingly, thelist 'should be used to supplement the Montreal Convention. It should be noted, however, that Section 2 isintended to deal with unruly behaviour that undermines the safety or good order and discipline on board acivil aircraft, but not to cover every minor breach of such good orde r and discipline.2.3.5 Section 3 dea ls with the third category of offences , which covers acts not specifically mentionedin Sections 1 or 2. T hese o ffences have a direct, negative impact upon the safety of aircraft. For instance,tampering with a smoke detector could potentially increase the fire hazard on board the aircraft, andoperating electronic devices may interfere with the electronic systems on board. It is therefore considerednecessary to include thes e offen ces in the list.2.3.6 The application of Sections 1 to 3 of the list should be without prejudice to the lawful exerciseof th e authority by or on behalf of the aircraft commander pursuant to the relevant international conventionsor national law.


9/20

6 ICAO Circular 288-LE/1

2.4 . THE APPLICABILITY OF THE LIST2.4.1 The list of offences in Sections 1 to 3, along with the jurisdiction clause in Section 4, isrecommended for incorporation into national law or regulations. Notwithstanding individual legislativedrafting styles and techniques of different States, for the sake of international uniformity, States areencouraged to incorporate the list into their criminal code, or their aviation regulations, or both.2.4.2 The list, as reflected above, is intended to apply to certain offences committed on board a civilaircraft. Although it has been suggested that incidents relating to unruly passengers should refer t o thosewhich take place not only on board aircraft but also on the ground, offences committed on the ground, e.g. onthe premises of an airport, have not been included. It should be recalled that airports are normally within theexclusive jurisdiction of the State where they are located and are subject to the domestic laws of that State.2.4.3 The model legislation does not address the issue of penalties for the offences listed in Sections 1to 3. It is believed that this matter should be left to the discretion of sovereign States. As a general guidelineand bearing in mind that such offences when committed on board aircraft may be considered more seriousthan when committed on the ground, the Study Group recommends that the applicable penalties shouldcorrespond to the relative gravity ofthe offences. In general, the Study Group is of the view that the offenceslisted in Section 1 and Section 2, paragraph (I) , are considered more serious than the other offences listedin the model legislation. Furthermore, the offences listed in Section 2 are considered more serious than thoselisted in Section 3.


10/20

Chapter 3JURISDICTION

3.1 As m entioned in Ch apter 1, unruly passengers often have to be released without being submittedto judicial proceeding s due to lack of jurisdiction of th e State where the aircraft has landed. It has beenpointed ou t that there is a jurisdictional gap in this respect.3.2 Gene rally, a State will have jurisdiction ove r an offence when the offen ce is comm itted in itsterritory (territorial jurisdiction) or on board an airc raft on its registry (flag jurisdiction). A State may alsoexercise criminal urisdiction over its nationals for certain offences comm itted by them, o r committed againstthem, wherev er the offence may have been committed (personal jurisdiction). The jurisdiction of a Statemay a lso extend to certain o ffences committed ou tside its territory but having effects on the governmentalfunctions of such State (protective principle). For instance, a State may exerc ise its jurisdiction overforeigners outside its territory who engage in counterfeiting its currency or o fficial documents. Furthermore,certain interna tional crimes, suc h as piracy, slav ery and aircraft hijacking, are, by interna tional customarylaw or international conventions, subject to universal or quasi-universal jurisdiction.3.3 In a num ber o f cases involving unruly passengers, the State of landing, which has custody of thealleged offender delivered by an aircraft comm ander, does not have jurisdiction u nder any of theaforementioned principles. For instance, an offence may take place on board a foreign aircraft when suchaircraft is outsid e the territorial airspace o f the Sta te wh ere it subsequen tly lands. When the State of landingis requested to prosecute the offende r who is not its national, it often finds itself having no jurisdiction, sincethe offe nce h as taken p lace neither in its territory nor on board its aircraft and it is neither directed againstit or its nationals, nor involving a crime of sufficient gravity to establish universal jurisdiction. For thisreason, some States have, in their respective domestic legislation, extended their jurisdiction to coveroffences committed on board foreign aircraft that next land in their respective territories. Based on thisemerging practice, the Secretariat Study Group has prepared a jurisdictional clause, which is set out inSection 4 of the Appendix.3 .4 Clause 1 in Section 4 is intended to fill the jurisdictional gap referred to above, wh ile leaving theabove -mentioned principles of jurisdiction unaffected. In addition to the restatemen t of the territorialjurisdiction and flag jurisdiction, the jurisdictional clause introduces two new elements. The first newelement relates to the jurisdiction of the State of landing. So me States have introduced and exercised suchjurisdiction, and s o far no protest against the introduction or exerc ise of such jurisdiction has been filed norother opposition t o such jurisdiction has been recorded. On the other hand, there seem s to be at present noclear rule under pu blic international law as to wh at extent and under what cond itions States may exercisejurisdiction over an offence committed on board foreign aircraft outside of their territory. Accordingly, inthe absenc e o fa n international convention regulating this matter or until the practice ofex tendingjurisdictionbecomes a custom ary rule, a cautious attitude should be m aintained regarding the extraterritorial element ofsuch jurisdic tion. On the basis of this consideration, th e proposed jurisdictional claus e subjects thejurisdiction of th e State of landing to several restrictive conditions under paragraph 1 (4) of the clause, whichlimit the scope o fjurisdic tion. In this connection, it should be noted that in extending their jurisdiction asa S tate of landing, some States attached certain restrictive conditions to the ex ercise of such jurisdiction. For


11/20

8 ICAO Circular 288-LE/Iinstance, one State required that the aircraft must have its next scheduled destination or last place ofdeparture in that State. Another State required that the act under the jurisdiction of the State of landing mustconstitute an offen ce in both the State of landing and the State regis is try.3.5 Th e second new element introduced in the jurisdictional clause relates to the State ofth e operato rof the aircraft in long-term lease situations. In today's environment wh ere many aircraft are leased, it mightnot be adeq uate to include only the State of registry, since the S tate of the operator may also hav e to beinvolved for purposes ofjurisdiction . Under A rticle 5, paragraph 1 (d), of the Montreal Conven tion of 19 71,when the offence is committed against or on board an aircraft leased without crew to a lessee, jurisdictionis established in the State where the lessee has its principal place o f business or, if the lessee has no suchplace of business, the lessee's permanent residence. This provision already reflects the notion of the Stateof the operator. Under Article 83 bis of the C onvention on Inter natio nal Civil Aviation, the State of registrymay, by agreement with the State of the operator, transfer certain safety-related fun ctions and duties to thelatter. In view of this trend, the jurisdictional clause states in paragraph 1 (2 ) that a State shall havejurisdiction over any act constituting an o ffence under Sections 1,2, or 3, if the act took place on board anycivil aircraft leased with o r without crew to an operator whose principal place o f business is in that State or,if the operator does not ha ve a principal place of business, whose permanent residence is in that State.


12/20

Chapter 4THE LEGAL M ECHANISMS AVAILABLE

FOR COM BATTING THE PROBLEMOF UNRULY PASSENGERS

4.1 GENERAL4.1.1 In view of th e subject matter in question and given the jurisdictional issues discussed in Chap ter 3,the a doption of an international instrument, in the form of an international convention or am ending protocol,may w ell be the preferable solution in the long term. However, the urgency o f the problem is an importantfactor to be taken into consideration.4.1.2 Until the international civil aviation commu nity decides to adopt a new international instrument,the other legal mechanisms available at this moment for combatting the problem o funru ly passengers includethe adoption of national laws, bilateral arrangements, and the interpretation and application of existinginternational conventions.

4.2 NATIONAL LAWS4.2.1 The proposed model legislation is recommended for incorporation into national law. It is theobjective that a sufficiently large number o f States accept an d implement this recommendation, so that adesirable degree of uniformity will be achieved internationally.4.2.2 Incorporation of the model legislation into national law or regulations is recommended withoutmodifications o r amendments to the extent possible and appropriate, taking into account the existing nationallegislation, in orde r to achieve the greatest possible deg ree of uniformity. Whe ther the incorporated c lausesshould have the force of primary legislation (e.g. insertion into the national Aviation Act, or relevantprovisions o f the penal code, o r both) or secondary legislation (e.g. by way of regulation adopted under theAct) remains a matter for each State to decide in light of its existing domestic legislation, the penalties itconsiders desirable to attach to the offences, and its legal structure.

4.3 BILATERALIMULTILATERAL AGREEMENTSOR ARRANGEMENTS4.3.1 Bilateral/multilateral ag reements or arrangements hav e not been com monly used for dealing withthe issue of unruly passengers. However, if such issues become serious on particular routes or betweenparticular co untries, bilateral/multilateral agreeme nts or arrangemen ts could be considered as a means to dealwith ce rtain issues relating to unruly passeng ers (e.g. collection of evidence, han dling of offenders, and other


13/20

10 ICA0 Circular 288-LE/Imatters relating to judicial assistance). In addition, a possible gap in applicable offences or as regardsjurisdiction could be filled through a bilateral/multilateral arrangement or through a relevant clause or clausesin bilateraVmultilatera1agreements. Furthermore, the relationship between the State of registry of aircraftand the State of the operator could be regulated through bilateraYmultilatera1agreements or arrangements.

4.4 EXISTING INTERNATIONAL CONVENTIONS4.4.1 The existing international conventions applicable to offences committed on board civil aircraftinclude the Convention on Offences and Certain Other Acts Committed on Board Aircrafi, Tokyo,14 September 1963; the Convention for the Sup pression of Unlawful Seizure of Aircraft, The Hague,16 December 1970; and the Convention or the Suppression of Unla wfil Acts a gainst the Safety of CivilAviation, Montreal, 23 September 1971. The provisions of these conventions could be applied with a viewto making the fullest possible use of these instruments in order to deal with unruly passengers. For example,if an act of assault on board an aircraft in flight is likely to endanger the safety of aircraft, the MontrealConvention of 197 1, by virtue of its Article 1, paragraph 1 (a), may be applicable.4.4.2 The Tokyo Convention of 1963 applies in respect of offences against penal law and acts that mayor do jeopardize the safety of the aircraft or of persons or property therein or that jeopardize good order anddiscipline on board. This term is broad enough to include most, if perhaps not all, offences or acts relatingto unruly passengers. However, under Articles 9 and 13 of the Tokyo Convention, the authorities of the Statewhere the aircraft makes a landing are obliged to accept only the delivery of persons who, in the opinion ofthe aircraft commander, have committed a serious offence under the penal law of the State of registry of theaircraft. For persons who have committed less serious offences or other reprehensible acts, the commandermay disembark them under Article 8, but the State where the aircraft has landed is under no obliggtion to takecustody or other measures against them (Article 13, para. 2). In order to assist aircraft commanders inexercising their powers under Article 9 of the Tokyo Convention, it may be desirable to arrive at a commonunderstanding as to what constitutes a serious offence. The Secretariat Study Group was of the view that dueto the need to offer enhanced legal protection for the crew and the type of the risks involved as well as theirpotential consequences, the offences covered by Section 1ofthe model legislation, namely, assault and otheracts of interference against a crew member on board a civil aircraft, should be considered as serious offenceswithin the meaning of Article 9 of Tokyo Convention of 1963.4.4.3 Furthermore, Article 9 distinguishes "delivery" from "disembarkation" ofpersons in Article 8 andspecifies that such delivery must be accompanied by "evidence and information" lawfully in the possessionof the aircraft commander. These provisions appear to permit the conclusion that the State of landing has anobligation to do more than just accept the delivery of the person, namely, to investigate and, if sufficientevidence is furnished, to consider prosecution.4.4.4 On the basis of the foregoing consideration and in relation to the Tokyo Convention of 1963, itis recommended to States that the offences against crew members as set out in Section 1 of the modellegislation be considered as serious offences within the meaning ofArticle 9 ofthe Convention and that whena State accepts the delivery of a person pursuant to Article 9 of the Convention, it will bring the person toappropriate legal process, including prosecution if the situation so warrants. If this recommendation isuniformly accepted by States, the existing mechanism under the Tokyo Convention may be used to resolveimportant issues relating to unruly passengers.4.4.5 In addition, it has been mentioned that Article 1, paragraph 1 (a), of the Montreal Convention of1971 is applicable to "an act of violence against a person on board an aircraft in flight if that act is likely to


14/20

ICAO Circular 288-LEA I I

enda nger the safety of that aircraft". Th is provision may also be applied in cases involving unruly passenge rswhere such passengers commit acts of violence on board which are likely to endanger the safety of theaircraft. Howev er, the Mo ntreal Con vention of 1971 will not apply if acts committed by unruly passe ngersjeopa rdize the good orde r and discipline on board, without be ing likely to endanger the safety of the aircraft.This sh ow s the limitation of the application of the Montreal Conven tion of 1971 in unruly passenger cases.It would ap pear preferab le to resolve these cases through the inclusion of relevant offences under nationallaw, as discussed above .4.4.6 In addition and in the lon ger term, the advisability of an ap propriate international legal instrumen t(e.g. a protocol to the Tok yo Con vention of.1963) specifically for these purposes a s an effective mechanismto deal w ith the problem relating to unruly passengers should be considered.


15/20

THIS PAGE INTENTIONALLY LEFT BLANK


16/20

RESOLUTION O F THE ICAO ASSEMBLY

A33-4: Adoption of national legislation on certain offences committed on board civil aircraft(unrulyldisruptive passengers)The Assembly:Recognizing that, under the Preamble and Article 44 of the Convention on International Civil

Aviation, one of the aims and objectives of the Organization is to foster the planning and development ofinternational air transport so as to meet the needs of the peoples of the world for safe, regular, efficient andeconomical air transport;

Noting the increase of the number and gravity of reported incidents involving unruly or disruptivepassengers on board civil aircraft;

Considering the implications of these incidents for the safety of the aircraft and the passengersand crew on board these aircraft;

Mindful of the fact that the existing international law as well as national law and regulations inmany States are not fully adequate to deal effectively with this problem;

Recognizing the special environment of aircraft in flight and inherent risks connected therewith,as well as the need to adopt adequate measures of national law for the purpose of enabling States to prosecutecriminal acts and offences coqstituting unruly or disruptive behaviour on board aircraft;

Encouraging the adoption of national legal rules enabling States to exercise jurisdiction inappropriate cases to prosecute criminal acts and offences constituting unruly or disruptive behaviour onboard aircraft registered in other States;

Therefore:Urges all Contracting States to enact as soon as possible national law and regulations to deal

effectively with the problem of unruly or disruptive passengers, incorporating so far as practical theprovisions set out in the Appendix to this Resolution; and

Calls on all Contracting States to submit to their competent authorities for consideration ofprosecution all persons whom they have a reasonable ground to consider as having committed any of theoffences set out in the national laws and regulations so enacted, and for which they have jurisdiction inaccordance with these laws and regulations.


17/20

THIS PAGE INTENTIONALLY LEFT BLANK


18/20

AppendixMOD EL LEGISLATION ON CE RTAIN OFFENCES

COM MITTED ON BOARD CIVIL AIRCRAFTSection 1: Assault and Other Acts of Interferenceagainst a Crew Member on Board a Civil Aircraft

Any person w ho comm its on board a civil aircraft any of the following acts thereby comm its an offence:( I ) _ assault, intimidation o r threat, whether physical o r verbal, against a crew member if suchact interferes with the performance of the duties of the crew member o r lessens the abilityof the crew mem ber to perform those duties;(2 ) refusal to follow a lawful instruction given by the aircraft comm ander, or on behalf of theaircraft commander by a crew member, for the purpose of ensuring the safety of theaircraft or of any person or property on board o r for the purpose of maintaining goodorder and discipline on board.

Section 2: Assault and Other Acts Endangering Safety orJeopardizing Good Order and Discipline on Board a Civil Aircraft

(1) Any person who com mits on board a civil aircraft an act of physical violence against aperson or of sexual assault or child molestation thereby comm its an offence.

(2) Any person who commits on board a civil aircraft any of the following acts therebycom mits an offence if such act is likely to end ange r the safety of the aircraft or of anyperson o n board o r if such act jeopardizes the good ord er and discipline on board theaircraft:(a ) assault, intimidation o r threat, whether ph ysical or verbal, against another person;(b ) intentionally cau sing damag e to, or destruction o f, property;(c ) consu ming alcoholic beverages o r drugs resulting in intoxication.

Section 3:. Other Offences Committed on Board a Civil AircraftAny person w ho com mits on board a civil aircraft any of the following acts thereby comm its an offence:

( I ) smo king in a lavatory, or smoking elsewh ere in a manner likely to endanger the safety ofthe aircraft;


19/20

16 ICAO Circular 288-LWl

( 2 ) tampering with a smoke detector or any other safety-related device on board the aircraft;(3 ) operating a portable electronic device when such act is prohibited.

Section4: Jurisdiction1. The jurisdiction of (Name of State) shall extend to any offence under Sections 1,2, or 3 of thisAct if the act constituting the offence took place on board:

(1) any civil aircraft registered in (Name of State); or(2) any civil aircraft leased with or without crew to an operator whose principal place ofbusiness is in (Name of State) or, if the operator does not have a principal place of

business, whose permanent residence is in (Name of State); or(3 ) any civil aircraft on or over the territory of (Name of State); or(4) any other civil aircraft in flight outside (Name of State), if

(a) the next landing of the aircraft is in (Name of State); and(b) the aircraft commander has delivered the suspected offender to the competentauthorities of (Nameof State), with the request that the authorities prosecute the

suspected offender and with the affirmation that no similar request has been orwill be made by the commander or the operator to any other State.

2. The term "in flight" as used in this section means the period from the moment when power isapplied for the purpose of take-off until the moment when the landing run ends.

- ND-


20/20

published in separate english, arabic, french, russian and spanish editions

Documents