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

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Date: Jan. 2014
From: Vanderbilt Journal of Transnational Law(Vol. 47, Issue 1)
Publisher: Vanderbilt University, School of Law
Document Type: Article
Length: 27,169 words
Lexile Measure: 1940L

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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...

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Gale Document Number: GALE|A364437512