INTERNATIONAL AVIATION LAW AND TERRORISM

SPECIAL FOCUS ON INDIA

Subject: International Relations Submitted to : Prof. Vageeshan Harathi Submitted by : Manognya Cheeti 2010-39

NATIONAL ACADEMY FOR LEGAL STUDIES AND RESEARCH

Terrorism and Global Aviation

An aircraft The last thing that comes to mind when thinking about weapons, but ironically a fully fueled large passenger jet represents awesome destructive power, it carries more explosive power than the smallest nuclear weapon. Illegal seizure of airplanes has been happening ever since commercial aviation started. The first recorded incident of hijacking was in 1931 when a Pan American flight was hijacked. The vulnerability of civil aviation came to light only in the early 1960s when some persons in the U.S. used aircraft as a vehicle to escape to Cuba and thus made it a popular magnet for both political activists and terrorists. Over the next two decades, the domestic threat to aviation was primarily in the form of hijacking and because of governments' unwillingness to sacrifice hostage passengers, or even put them at risk, the hostage plane and passengers were often traded for a change in flight destination, a financial payoff, prisoner release or the broadcast of a political communication. It was believed that the incidents were best dealt with by rational negotiation, emphasizing compromise rather than confrontation on the flight deck, even if it rewarded the hijackers or set a bad precedent. The diabolically innovative idea, in the attack on the World Trade Center was the creation of "second-order effects" in the release of potential energy in the structural collapse of the Twin Towers. And part of the horror of September 11 was not just that the attacks were larger and more successful than previous terrorist incidents, but that they redefined commercial aviation from a target of terrorism to a weapon of evildoers. We have dramatically entered an era on which both travelers and unsuspecting civilians on the ground are endangered by "new and emerging threats" from the "civil aircraft as a weapon of destruction." The first attempt to convert an aircraft into a flying bomb took place on the Christmas Eve 1994, a French Airbus was hijacked by a four-man team from the Algerian terrorist movement GIA, who wanted to crash the plane into the Eiffel Tower, a symbol of international significance, and is the only known prequel to September 11.

The survival of the plane and its occupants is no longer the ultimate objective in a situation involving assailants attempting to seize control of the aircraft. Preventing terrorists from taking over the flight controls, and thus preventing them from turning the plane into a weapon of further destruction, takes precedence no matter what the danger to the plane. Historically, improvements to aviation security have been reactive, responding to each crisis as it occurred. Air India in 1985, Lockerbie in 1988 and the events of 11 September 2001 were land mark events bringing aviation terrorism and security to the worlds attention. As a result of these events, and in an attempt to address the threat from terrorism, considerable efforts have been made by the international community to improve and standardize aviation security measures across the world. In a disaster, an airport can substitute for almost anything else, but nothing can substitute for an airport. ---Walter White, MEM International law focused to subjugate the threats and to curb the attacks on aviation and airport security, by drafting many multilateral international agreements under the guidance of the U.N international civil aviation organization (ICAO).

The Tokyo Convention

The Tokyo Convention was the first substantial effort at dealing with terrorism in the air, and resulted in the first international treaty addressing hijacking. The provisions of the treaty were primarily concerned with jurisdiction over criminal acts committed in the air. Although the Tokyo Convention did "get the ball rolling," it has endured harsh criticism. Most of the criticism centers around the Convention's failure to list any offenses that state parties are required to suppress or to impose any obligations involving the prosecution or extradition of offenders. In other words, a Contracting State under the Convention is not required to punish an offender upon leaving the aircraft. Instead, the state must set the offender free and let such an individual to proceed to any destination if the State does not choose to extradite or prosecute.As a result, the Tokyo Convention left much to be desired with regard to the international legal system.

None of the contracting nations made any attempt to make aircraft hijacking illegal under its laws. As a result, many nations had no provision for harsh punishment of such an offense, much less a provision for extradition or prosecution. It was clear that the international community would have to continue to try to improve on the existing law with regard to terrorist attacks directed at the commercial aviation industry.

The Hague Convention

The Hague convention defined offence as follows: Any person who tries to seize an aircraft by force are threat are by any other wrong means exercises control over aircraft or performs any such related act is considered as an offender. As this excludes offenders not on board the aircraft in flight ,individuals sabotaging an aircraft bad remained on ground are not included in the convection so this lead to the in adequacy and insufficiency same as the Tokyo convention. Though Hague convention tried to define clearly punishing offenses against the commercial aviation industry, still a prominent improvement was needed.

The Montreal Convention

The Montreal Convention, signed into law in 1971, is perhaps the best effort to contain the growing international terrorism problem. It addressed the shortcomings of both the Tokyo Convention and the Hague Convention. Its objectives are best described as follows: The primary aim of the Montreal Convention was to arrive at a generally acceptable method of dealing with alleged perpetrators of acts of unlawful interference with aircraft. In general, the nations represented at the Montreal Convention agreed that acts of sabotage, or violence and related offenses interfering with the safety and development of international civil aviation constituted a global problem which had to be combated collectively by concerned nations of the international community.

A multilateral international convention had to be adopted which extended both the scope and efficacy of national legislation and provided the legal framework for international co-operation in the apprehension, prosecution and punishment of alleged offenders. Montreal convention took some significant steps to overcome the draw backs of its earlier conventions. Though it was much better than the previous conventions, even this convention had some defects. Thus, it is clear that although much work has been done with regard to international treaties defining terrorist acts, there is more to be done.

International Civil Aviation Organisation (ICAO)

The International Civil Aviation Organisation (ICAO), a non-governmental organisation body within the United Nations, came into being on 4 April 1947. ICAO was formed as a result of the ratification of the treaty developed at the Convention on International Civil Aviation (also known as the Chicago Convention) on 7 December 1944. ICAO comprised 188 contracting States in November 2003.1 ICAO's aims and objectives are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport.2 ICAOs role in enhancing civil aviation security has concentrated on the development of standards and recommended practices (SARPS). These standards and practices comprise 18 technical annexes to the Chicago Convention and, where implemented, provide a consistent and appropriate level of security worldwide. ICAOs SARPS are developed and published through a tiered committee structure. Member States are urged to implement these SARPS. It is important to note that ICAO has no powers of enforcement over its members and Governments are able to opt out of regulations which, for one reason or another, they find unacceptable. ICAOs rules and guidelines are created through the Aviation Security Panel, a specialist body inaugurated in 1985 following the bombing of an Air India Boeing 747. At inception, the Panel was tasked with reviewing international security standards and rewriting Annex 17 (the rule book of aviation security outlined later in this section) to the Chicago Convention. The resulting work by the Panel remains the basis of todays international security regulations.
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ICAO website, Contracting States ICAO Website, Objectives of ICAO

A combination of three ICAO initiatives: Annex 17 (Security); a Security manual containing operating guidelines; and Training Programmes should enable any State to develop its own efficient response to terrorism aimed against civil aviation.3The Tokyo, Hague and Montreal Conventions provide the basis for international law in respect of unlawful interference with aircraft. Despite ICAOs efforts, the voluntary nature of enforcement of its rules and guidelines means that effective aviation security exists in only a minority of States around the world.
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Directorate General of Civil Aviation The Directorate General of Civil Aviation (DGCA) is the regulatory body in the field of civil aviation. It is responsible for:

Regulation of air transport services to/from and within India in accordance with the provisions of the Aircraft Rules, 1937;

Licensing of pilots, aircraft maintenance engineers and monitoring of flight crew standards; Registration of civil aircraft; Laying down airworthiness requirements for civil aircraft registered in India and grant of certificate of airworthiness to such aircraft;

Coordination of the work relating to International Civil Aviation Organization; Investigation of minor air accidents and incidents and rendering technical assistance to the Courts / Committees of Inquiry appointed by the Government;

Supervision of Training activities of Flying/Gliding Clubs' Licensing of aerodromes and air carriers; Safety oversight and surveillance of air carriers and aerodromes; Rendering advice to Government on matters pertaining to air transport including bilateral air services agreements with foreign countries;

Aviation Terrorism and Security, Paul Wilkinson and Brian Jenkins, 1999.

Processing amendments to the Aircraft Act, 1934 and the Aircraft Rules 1937, and other Acts relating to aviation, with a view to implementing in India the provisions of the Chicago convention and annexes thereto and other international conventions relating to aviation;

Type certification of aircraft.

Major National Aviation Authorities

Federal Aviation Administration (FAA, USA) Civil Aviation Safety Authority (CASA, Australia) Transport Canada (TC, Canada) Agncia Nacional de Aviao Civil (ANAC, Brazil) Direction Gnrale de l'Aviation Civile (DGAC, France) Civil Aviation Authority (United Kingdom) (CAA, UK) Civil Aviation Authority of New Zealand (CAA, NZ) European Aviation Safety Agency (EASA, is not actually an NAA but plays part of the role within its member states)

Directorate General of Civil Aviation India Civil Aviation Authority of Pakistan (CAA, Pakistan) Civil Aviation Administration of China (CAAC, China) UK Civil Aviation Authority (CAA, UK) Italian Civil Aviation Authority (ENAC, Italy)

Aviation law in India

History of Aviation Law in IndiaIn India the beginning of commercial flight was made on February 18, 1911, when a French pilot Henri Peqet flew airmail from Allahabad to Naini.4 In the history of Air Law in India the first Act was passed in British India which was The Indian Air Act 1911, this act was applied to the whole of British India including the then British Baluchistan, the Santhal parganas and the parganas of splits.5 Then in the year of 1919 an International Convention on Air Navigation was signed in Paris this was the first international convention of its kind and The British India was a signatory to it. as a result of this convention ,Indian skies were opened to foreign air services and made available them.6 The Indian Aircraft Act, 19347 The year 1934 was landmark in the history of Indian civil aviation with the passing of the Indian Aircraft Act 1934. The Act with many amendments has survived even today, despite many revolutionary changes in technology and industry. The aim of the Act is to make better provision for the control of the manufacture, possession, use, operation, sale, import and export of aircraft. So this is how aviation law came in India before the independence. National legislations on aviation Law after independence From the year of 1953 till now Indian parliament has enacted 14 national legislations on aviation these are as follows 1) The Air Corporations Act, 1953 (27 of 1953) 2) The Air Corporations (Transfer of Undertakings and Repeal) Ordinance, 1994 (4 of 1994) 3) The Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 (13 of 1994) 4) The International Airports Authority of India Act, 1971 (43 of 1971) 5) The International Airports Authority of India Act, 1971 (43 of 1971)
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facilities were

http://www.daijiworld.com/chan/exclusive_arch.asp?ex_id=1522&ex_title=A+Century+of+Indian+Aviation %3A+Challenges+and+Opportunities last accessed on 14/4/ 2011 5 http://www.centennialofflight.gov/essay/Government_Role/Intl_Civil/POL19.htm 6 H. Burchall, The Politics of International Air Routes, Blackwell Publishing on behalf of the Royal Institute of International Affairs, 1931-39, pp.89-107 http://www.jstor.org/stable/2601981 7 http://dgca.nic.in/airact/aircraftact.pdf

6) The Airports Authority of India Act, 1994 (55 of 1994) 7) The Carriage by Air Act, 1972 (69 of 1972) 8) The Carriage by Air (Amendment) Act, 2009 9) The Carriage by Air Act, 1972 (69 of 1972) (as amended by The Carriage by Air (Amendment) Act, 2009 10) The Tokyo Convention Act, 1975 (20 of 1975) 11) The Anti-Hijacking Act, 1982 (65 of 1982) 12) The Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982 (66 of 1982) 13) Notification regarding application of the Carriage by Air Act, 1972, (To carriage by air which is not international ) 14) Airports Economic Regulatory Authority AERA Act Indias Response to various International Aviation Laws in Domestic front: As India has been a participating party to almost all the international conventions on air laws, so as a member to these conventions India is abide by rules and regulations laid down in these conventions. These International Conventions are as follows: 1) The Chicago Conference 1944The tremendous development of aviation during World War II demonstrated the need for an international organization to assist and regulate international flight for peaceful purposes, covering all aspects of flying, including technical, economic, and legal problems. For these reasons, in early 1944, the US conducted exploratory discussions with its World War II allies, on the basis of which invitations were sent to 55 allied and neutral states to meet in Chicago in November 1944.8

Anne Graham, Andreas Papatheodorou, Peter Forsyth, Aviation and Tourism: Implications for Leisure Travel, 2008, Ashgate publishing limited , UK, p.60

In November and December 1944, delegates of 52 nations met at the International Civil Aviation Conference in Chicago to plan for international cooperation in the field of air navigation in the postwar era. It was this conference that framed the constitution of the International Civil Aviation Organizationthe Convention on International Civil Aviation, also called the Chicago Convention. This convention stipulated that ICAO would come into being after the convention was ratified by 26 nations. To respond to the immediate needs of civil aviation, a provisional organization was created and functioned for 20 months until, on 4 April 1947, ICAO officially came into existence. India was one of the original signatories to it. At present there are 190 state parties to The Chicago Convention and members of the International Civil Aviation Organization. 2) The Warsaw Convention of 1929 as amended by The Hague Protocol of 1955 and India responded it through The Indian Carriage AIR Act 1972 Ever since the beginning of aviation the liability for injury or death to the passenger is met by the operator or the airlines. The Warsaw Convention which regulates liability for international carriage of person, luggage or goods performed by aircraft for reward. The Warsaw Convention was originally signed at Warsaw in 1929 later on it was amended by The Hague Protocol 1955. India was party to The Warsaw Convention and The Hague Protocol of 1955. The Indian Carriage AIR Act 1972 gives effect to the Warsaw Convention of 1929 and The Hague Protocol of 1955. The Preamble to the Act reads as follows: An Act to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protocol on the 28th day of September, 1955 and to make provision for applying the rules contained in the said Convention in its original form and in the amended form (subject to exceptions, adaptations and modification) to non international carriage by air and for matters Connected therewith. Section 3 of The Indian Carriage AIR Act 1972 is on application of convention to India states that the rules contained in the first schedule, related to the rights and liabilities of carriers, passengers, consignors, consignees and the other persons shall have the force of law in India.

Section 4 applies the amended convention incorporating provision of the Hague Protocol to India. These rules are contained in second schedule to the carriage by Air Act 1972 Section 5 pertains to the liability of carrier in case of death of a passenger. Section 8 further applies The Indian Carriage AIR Act 1972 to carriage by air which is not international. The rules in the First schedule related to the provision of Warsaw Convention of 1929. This schedule has five chapters. Chapter 1 relates to concerns definitions. Chapter 2 is on document of carriage which includes the passenger ticket, the luggage ticket and air consignment notes. Chapter 3 relates to the Liability of the carrier Chapter 4 relates to the provisions relating to combined carriage And in schedule 2 by applying the Warsaw Convention 1929 as amended by the Hague Protocol of 1955 , the provision of schedule are by and large similar to schedule liability limits are double. 3) International Tokyo convention 1963 and India responded it through The Tokyo Convention Act, 1975 The increase in number of incidents of hijacking and increase in the danger against the safety of the flights of aircrafts presented grave problem before the international community and particularly before the International Civil Aviation Organization in order to solve this problem and to punish the hijackers a convention was adopted in 1963 known as the Tokyo convention 1963, it was basically related to the offences and certain acts committed on board aircraft. And in the Tokyo convention powers were given to aircraft commander to ensure safety and discipline on board aircraft For giving effect to the Tokyo convention 1963 Indian parliament has enacted the Tokyo convention 1975 it has four chapters. Chapter I is preliminary, chapter II gives definitions.

Chapter III is the substantive part of the act containing offences. Section 3 here relates to application of criminal law to aircraft registered in India while in flight elsewhere than or over India. Section 4 applies the Indian Extradition ACT 1962 to crimes on board an aircraft registered in any ICAO Convention country while in India deemed to be within the jurisdiction of that country. Section 7 makes provisions as to evidence before a court. Section 10 states that the government shall notify who are the contracting parties to the Tokyo Convention. Under Section 11, the government can notify to treat certain aircraft to be registered in an ICAO Convention country and apply the provision of this Act. 4) International Hague Convention 1970 and India responded it through The Anti-Hijacking Act, 1982Increase in number of incidents relating to hijacking and the shortcoming of the Tokyo Convention compelled the state to think and to take some effective measures to solve the problem and to give deterrent punishment to the hijackers. Then again I.C.A.C. entrust the matter related to the problem of hijacking to a legal sub committee. This legal sub committee. This legal committee prepared a draft for convention this convention was finally adopted and known as the Hague Convention 1970. This convention is a significant mile stone for suppressing the crime of hijacking as compared to the Tokyo Convention, It further widened the net to apprehend the hijackers and to ensure the safety of flight of civil aircrafts. To give effect to The Hague Convention 1970 for suppression of seizure of aircraft and for matter connected therewith. It has three chapters. Chapter I includes preliminary and definitions. Chapter II is on hijacking and connected offences. Section 3 says whoever on board an aircraft in flight, unlawfully, by force or threat of force or by ant other form of intimidation, seizes or exercises control of that aircraft, commits the offence of hijacking of such aircraft.

Section 4 provides punishment for hijacking with imprisonment for life and offences is also liable for fine. Section 7 relates to extradition. The offences are deemed to be extraditable offences under the extradition treaties made by India with other countries. In section 8 the government certifies the state parties to the Hague Convention of 1970. Section 10 states that the provision that the previous approval of the government is necessary for prosecution under the act. 5) International Montreal Convention of 1971 and India responded it through the suppression of Unlawful acts against safety of civil Aviation Act, 1982Undoubtedly, Hague Convention is great milestone in the flied of suppressing the offence of hijacking yet it subject to some criticism so far as certain provisions relating to jurisdiction of states and extradition of offenders or hijackers are concerned. Moreover, it may also be noted that despite the provision of the Hague convention, the incidence to hijacking continued to increase. Consequently, a conference was called at Montreal from 8 to 23 September, 1971.as a result of this conference a convention (known as Montreal Convention for the Suppression of Unlawful Act against the safety of Civil Aviation 1971) was adopted. It would not be wrong to say it is simply an improvement of the Hague Convention. With a view to give effect to the Montreal Convention 1971, the Parliament of India The Suppression of Unlawful Acts against safety of civil Aviation Act, 1982. Chapter I is entitled preliminary and includes definitions. Chapter II relates to offences. Section 3 defines offences. Section 4 stipulates that whoever unlawfully destroys or damages air navigation facility shall be punished with imprisonment for life and fine. Section 5 provides jurisdiction of Indian courts to offences by Indian registered aircraft outside Indian Territory.

Chapter III includes sections 6 to 10 of this Act. Section 6 relates to extradition. Section 7 provides for the government to give the list of contracting parties to the Montreal Convention. Section 9 provides that the previous sanction of the government is necessary for prosecution under this Act CONCLUSION In conclusion it may be summarized that air law in India is well developed in many dimensions. The Aircraft Act provides an overall regulating control of aviation activities in India. As a member of International Civil Aviation Origination (ICAO), India participated in almost every International Convention and responded very well. India has also drafted national legislations for giving effected to international Convention on Aviation, and also implementing those legislations efficiently.

Privacy or Security
Screening persons has found renewed attention after the 9/11 incident, scrutiny of passenger bona fides and greater focus on those with suspicious backgrounds was emphasized, and the aim was now not to catch the bomb but the bomber. It is just common sense that people boarding an aircraft, and thereby gaining access to a vulnerable part of the national transportation infrastructure, should meet certain criteria; they should be who they say they are: they should be a citizen or properly documented alien; and they should not be associated with past terrorism or a terrorist watch list. But challenges to format such simple changes are formidable. There lies a serious terrorist threat as federally issued forms of identification such as passports and visas offer low confidence of being accurate for they have been corrupted. Further airline reservation system is not linked with the governmental information systems which in turn are not linked to each other. Constitutionally, for most countries airline passenger profiling raises distinguished considerations which cannot be overlooked easily because more security is required at the nations airports. Liberty and privacy are predominant among these deliberations. The starting point for many libertarians and privacy advocates is Benjamin Franklin's uncompromising statement in 1759, that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.Oppositely, one well-known airline CEO gives this ultimatum: "You want to travel on the airline system? You give up your privacy. You don't want to give up your privacy? Don't fly. Your privacy isn't equal to the safety of the rest of us. Effective airline passenger profiling systems need not present liberty and privacy, on one hand, and national security, on the other hand, as mutually exclusive policy choices. In designing and implementing the system care can be taken such that to some point both are satisfied, though in todays world safety is more at stake than privacy and should be given more importance.