The Beijing Convention 2010 and India’s preparedness on related Aviation Security Legal Instruments

India’s Aviation Security legal regime is broadly based on four Special legislations besides General laws flowing from Indian Penal Code and Code of Criminal Procedure. Aircraft Act 1934 provides basis for framing relevant rules which have been done under Section 4 (dealing with Rule making to implement Provisions of Chicago Convention 1944) read with Section 5 (general power of Rule making) of the Act. These Rules titled as Aircraft(Security) Rules 2011,establish the ‘Appropriate Authority’ ,for the purposes of Annex 17 to Chicago Convention 1944, and its jurisdiction, powers , duties , responsibilities and functioning of Aviation Security apparatus in India. Tokyo Convention Act 1975 giving effect to provisions of Convention on offences and  certain other acts committed on board aircraft, 1963 done at Tokyo, made Indian Penal Law applicable to Aircrafts registered in India, wherever they may be and provisions as to the evidence in Courts and applicability of Extradition laws. The Anti-Hijacking Act, 1982 was made (amended in 1994) to give effect to the Convention for the Suppression of Unlawful seizure of Aircraft 1970, signed at The Hague. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 was made to implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation was, 1971, signed at Montreal. It is popularly known as Anti-Sabotage Convention. This Act covers the sabotage of Aircraft and was later by an amending (1994) Act, expanded to include Sabotage and damage at Airports and to its navigational facilities.

 

If we examine the Articles of Chicago Convention 1944, then we notice with great amazement the prophetic inclusion of two Articles, one Article 4 dealing with misuse of Civil Aircraft[1]and the other Article 14 relating to use of Civil Aircraft in spreading[2] diseases. However their real purport was clearer when for the first time the use of a Civil Aircraft as weapon to cause large-scale destruction (WMDs) was demonstrated in the tragic events of 9/11 attacks[3] in USA. Further, the Dangerous materials like Biological, Chemical and Nuclear weapons, if carried on board Aircraft can also pose danger to the Passengers on board and if these are sprayed or thrown on ground from air, it can lead to mass casualties and damage. The cyber attacks on Air Navigational facilities of the aircraft or airport  from Devices placed on board or attacks  triggered from Ground are no longer in the realm of Fiction but a distinct reality. For example, Spanair Flight 5022 that crashed just after takeoff from Barajas Airport in August 2008, killing over 150 people was perhaps victim of such a cyber attack launched through a malware into its critical computer system.

 

The United Nations Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971 (Montreal) was neither intended nor found adequate to meet these threats emerging in 1990s and afterwards. Even  its Supplementary Protocol (Montreal Protocol for the Suppression of Unlawful 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 )of 1988 did not cover the eventuality of damages to air navigational facilities due to  Cyber Attacks. Another new development which is revealed during the investigation of such incidents is the vast geographical spread of players and large degree of planning which goes into in organizing such criminal attacks on Civil Aviation. Criminalizing their conduct was not within the purview of 1971 Convention or 1988 Protocol.

In fact right from 1995, the new and emerging threats on the horizon of civil aviation drew the attention of ICAO and the Legal Committee was asked to include deliberations on items like disruptive passengers. The matter related to Terrorist threat to use of Explosives and Radio Active materials[4] has been subject matter of discussion in various forums related to Aviation Security. ICAO took up the matter and sponsored a series of meetings on it. The efforts to fill in the legal gaps were galvanized after the incidents of 9/11 in USA. After systematic efforts of nine years, these culminated in the Diplomatic Conference in Beijing from 30th  August 2010 till 10th September 2010.The Conference adopted[5] two new Legal Instruments , one a Convention and another a Protocol. The Convention named as Beijing Convention on the Suppression of unlawful acts relating to International Civil Aviation (2010) is made to modernize the 1971 Convention and supersede its provisions. It is not an amending document but an entire fresh piece of legal instrumentation in place of 1971 Convention and 1988 Protocol. On the other hand the Beijing Protocol updates by way of bringing about large-scale amendments to the provisions of Hague Convention (Hague Convention for the Suppression of Unlawful Seizure of Aircraft) 1970. Both the Instruments (Beijing Convention and Beijing Protocol) are outcome of years of deliberations and product of collective wisdom of International Community. Our country was an important member-country in preparing the draft for Beijing Convention as well as the Beijing Protocol. While it has signed the Protocol, it has so far not signed or ratified the Beijing Convention[6]. Notwithstanding our objections to certain provisions of the Beijing Convention, there is immediate need to criminalize the use of Civil Aircraft as Weapon of Mass Destruction (WMD) and release/discharge of Dangerous Biological, Chemical and Nuclear weapons from a civil aircraft to cause death, bodily injury or serious damage to property or environment. The use of inherently dangerous materials against or on board a civil aircraft and the Transportation of BCN weapons and radioactive material have been criminalized in Beijing Convention .These also needs to be included in the Domestic Legislation. Similarly possibility of Cyber attack on Air Navigational facilities has to be criminalized. The criminalization of Credible Threat to commit an offence also needs to be considered as provided in the Beijing Convention. All these modifications could be done without referring to Beijing Convention if we have any reservations towards it.

As indicated in the beginning , In our country ,the 1971 Montreal Convention[7] has been  given the Domestic legal cover by enacting the Law ‘ Suppression of Unlawful Acts against Safety of Civil Aviation (66 of 1982) Act ,1982’ and its Supplementary ,the 1988 Montreal Protocol[8] by enacting the amending Law, Suppression of Unlawful Acts against Safety of Civil Aviation(Amendment)  (40 of 1994) Act ,1994. Now if we wish to modernize these two important laws and incorporate various provisions like the criminal liability of the Directors and Organizers of Aviation Security Crimes we have to bring large-scale amendments to them. Further, since new concepts like criminal liability for Credible Threat and remote players like directors and organizers of offences have to be introduced, it would be better to bring a fresh legislation and repeal the two old ones. But what will be the consequences of such repealing law on our existing ratification of 1971 Convention and 1988 Protocol, without denouncing the same, has to be examined before we embark on the task of making the repealing law. Had we signed the Beijing Convention, the new legislation would have been in line of our ratification as the Beijing Convention on coming into force, achieves superiority over the 1971 Convention and 1988 Protocol.

It is learnt from News paper reports that the Union Cabinet had approved introduction of a comprehensive Anti-Hijacking Bill 2014, on 2nd December last.  The current law, the Anti-Hijacking Act, 1982, amended in 1994, was to be superseded.  The Bill however could not be introduced. Further the Cabinet also gave approval to ratify corresponding International Instrument, the Beijing Protocol 2010, to which India is already a signatory. What happened to the Ratification of Beijing Convention 2010 , with or without reservations or making laws to implement at least those provisions which India had itself proposed or agreed at Beijing,  is not known. It is high time that we respond to the needs to amend law in light of our experience in tackling Kandahar Hijack of Indian Airlines Flight IC 814 in 1999, Incidents following Terrorist Hijacking of 9 Sept 2001 in USA, the terrorist strikes carried out at Rome and Vienna airport on 27 December 1985 and Suicide bombing of Moscow's Domodedovo International Airport’s international arrival hall on 24 January 2011.Our Security agencies are already in receipt of threats from militant setups to hijack Air India aircraft or cause violence at airports .

 

The modernizing of the legal framework for aviation security will be our way to show to the world that we mean business in tackling the International Terrorism attacking Civil Aviation and reassuring the International Community of our commitment towards keeping the skies safe.

 

Author

Sharda Prasad MSc LLb

Advocate practicing in Supreme Court

Former Addl Commissioner Civil Aviation Security Government of India

Can be contacted at: spy1809@gmail.com

[1] Article 4 Misuse of civil aviation Each contracting state agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention.

[2] Article 14 Prevention of spread of disease Each contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases…

[3] Attacks using civil aircraft as weapon in different cities of USA on 11th September 2001

[4] 1997 (New York) International Convention for the Suppression of Terrorist Bombings,. 1999 (New York) International Convention for the Suppression of the Financing of Terrorism and 2005 (New York) International Convention for the Suppression of Acts of Nuclear Terrorism were results of such efforts

[5] Done on 10th September 2010 at Beijing.

[6] As on 1st January 2015, 30 Countries have signed the Beijing Convention, 5 have ratified it and 5 have acceded to it. . The Convention will come into force after 22 States have ratified/accepted/approved/acceded to it.

[7] India has signed the Montreal Convention 1971, on 11 December 1972 and Acceded to it on 12 November 1982.

[8] India Acceded to the Montreal Protocol 1988, on 22 March 1995.

 

 

Sharda Prasad 
on 12 January 2015
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