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: 7,979 words
Lexile Measure: 2850L

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ABSTRACT

The last 6 years have seen an unprecedented level of activity in the field of international aviation law, with the adoption of three new conventions and one new protocol. This is a testament to ICAO's leadership role and its ongoing relevance, particularly in the field of aviation security.

The tragic events of 9/11 highlighted some weaknesses in the international law regime and were the impetus behind the nine-year process that led to the adoption of the 2010 Beijing Convention and Protocol. This Article reviews the historical background to the new treaties, including the journey taken through the ICAO process. It also analyzes in detail the provisions of the new treaties, assesses the views expressed in support as well as in opposition of their adoption, and considers the important perspective of the airline industry. Finally, the key question of whether or not the Beijing instruments will lead to improvements in aviation security is addressed.

TABLE OF CONTENTS I. INTRODUCTION II. THE LONG ROAD TO BEIJING: A NINE-YEAR PROCESS III. THE NEW REGIME A. Temporal Scope B. Physical Scope of Application C. The New Principal Offenses 1. Use of an Aircraft as a Weapon 2. Release or Discharge of BCN Weapons 3. Hijacking by Coercion or Technological Means 4. Transport Offense 5. From the Transport of Fugitives to Concealment D. Ancillary Offenses 1. Making a Credible Threat to Commit an Offense or Unlawfully and Intentionally Causing Any Person to Receive Such a Threat 2. Organizes or Directs Others to Commit an Offense 3. Agreeing with One or More Other Persons to Commit an Offense E. Military Exclusion Clause 1. Objectives 2. Rationale 3. Scope 4. The Positions of Different States 5. A Redundant Clause? 6. Previous International Incidents 7. Assessment F. Liability of Legal Entities G. Severe Penalties H. Political Offense Exclusion Clause I. Fair Treatment Clause J. Contracting States or States Party? K. To Extradite or to Prosecute: That Is the Question! L. Jurisdiction M. Format: The Chinese Proposal N. Official Languages O. Settlement of Disputes P. Relationship Between Instruments Q. Cooperation Amongst States R. Signature and Entry into Force S. Depositary T. What Drove the Adoption of the Beijing Instruments? U. ICAO Assembly Declaration IV. THE VIEWS OF THE AIRLINE INDUSTRY A. Carriage of Dangerous Goods--End Use B. Transport of BCN Weapons C. The Air Carrier's Dilemma When Transporting Military Equipment V. IS THE SUA PROTOCOL THE CURE OF ALL EVILS? VI. ARE THE BEIJING INSTRUMENTS THE SOLUTION TO SAFER CIVIL AVIATION SECURITY? VII. CONCLUSION

I. INTRODUCTION

Aviation security enjoys a unique position in international aviation law. The International Civil Aviation Organization (ICAO) has now developed seven international conventions in the field--five of which enjoy almost universal acceptance and "have served as valuable precedents for other conventions in the [UN] family." (1) In fact, ICAO was the first UN specialized agency to adopt three international instruments related to the prevention and suppression of acts of international terrorism. (2)

The first international treaty on aviation security was the Tokyo Convention....

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Gale Document Number: GALE|A364437510