On 4 April 2014, in Montreal, an International Civil Aviation Organisation (ICAO) diplomatic conference adopted a Protocol to amend the Convention on Offences and Certain Other Acts Committed On Board Aircraft 1963 (Tokyo Convention). The Protocol is the culmination of over four years’ work to modernise the Tokyo Convention, particularly having regard to the increase in frequency of incidents involving disruptive and unruly passengers on scheduled commercial flights.
The Protocol will come into force when 22 member states ratify the instrument. The International Air Transport Association (IATA) has called on the governments of its member airlines to move quickly to ratify the Protocol, which will provide an effective deterrent for unacceptable behaviour on board aircraft.
Key changes to be brought about by the Protocol include:
- Expanding the jurisdiction over offences and acts committed on board aircraft from the State of Registration of the aircraft to:
- the State of the Operator (where the offence is committed on an aircraft leased without crew to a lessee whose principal place of business is, or who permanently resides, in that State), and
- the State of Landing (where the aircraft has its last point of take-off or next point of intended landing within its territory and the aircraft subsequently lands in its territory with the alleged offender still on board).
- Where the State of Registration, the State of the Operator, or the State of Landing has become aware that one or more of the other states are conducting an investigation, prosecution or judicial proceeding in respect of the same offence or act, that state will consult the other states with a view to coordinating their actions.
- The obligation of the above states to consult is without prejudice to the obligation of the contracting state to which the alleged offender has been delivered. Under the Convention, the aircraft commander is able to deliver the alleged offender to the competent authorities of a contracting state in which the aircraft lands. The contracting state to which the person is delivered is obliged to make a preliminary investigation into the alleged offence and then inform the other states, as well as the State of Nationality of the detained person, about whether it intends to exercise jurisdiction.
- Contracting states may establish in-flight security officers who are then deployed pursuant to bilateral or multilateral agreements between the contracting states to take reasonable preventive measures where those officers have reasonable grounds to believe such action is immediately necessary to protect the safety of the aircraft or the persons or property in the aircraft.
- The legal protection currently given to the aircraft commander, members of the crew, any passenger, and the owner or operator of the aircraft in respect of any action taken against the alleged offender is extended to the in-flight security officer.
- Each contracting state is encouraged to initiate appropriate criminal, administrative, or other forms of legal proceedings against any person who commits on board an aircraft an offence or act, and in particular, physical assault or a threat to commit such assault against a crew member or a refusal to follow a lawful instruction given by or on behalf of the aircraft commander for the purpose of protecting the safety of the aircraft or the persons or property in the aircraft.
- Each contracting state is able to legislate for appropriate measures to punish unruly and disruptive acts committed on board.
- Nothing in the Convention precludes any right to seek recovery of damages from a person disembarked or delivered pursuant to the Convention.
With the Protocol having received the substantial support of the ICAO member states that attended the diplomatic conference, it is hoped that the required 22 ratifications will be made quickly to enable the Protocol to come into force and, where necessary, contracting states can pass legislation to implement these changes.