| by Ruwantissa Abeyratne

( September 5 , 2014, Jakarta, Sri Lanka Guardian) Violence in aircraft is raising its hideous head, scaring all of us regular travellers. The International Air Transport Association (IATA) records that between 2007-2013 there were 28,000 incidents of unruly passengers acting violently in aircraft. Passengers fight over reclining seats and get combative over the ever diminishing seat pitch which makes them irritable, tired and testy. Some argue that the airlines are to blame as they keep reducing 1 inch off the existing seat pitch to accommodate 4 more seats. Others complain that airlines are reducing the space of the already closet sized toilets in the aircraft to cram more seats in the cabin to maximize their revenue.

So far, international response to the issue of violence in the aircraft has been tepid and confused at best. At a diplomatic Conference held at the International Civil aviation Organization (ICAO) in March this year, there was an attempt made to introduce an in-flight security officer (IFSO) to assist in security in the aircraft by responding to acts of unruly passengers on board. Going on a fundamentally flawed draft Protocol to the existing Tokyo Convention of 1963, which vests overall control of the aircraft in the commander of the aircraft, this draft document misled and misdirected the meeting by giving two alternatives as to the person in charge of the security and safety of the aircraft by suggesting that one option could be to vest the overall security control in the IFSO. The Conference had various issues for discussion, not the least of which were matters of jurisdiction and enhanced security on board aircraft. The Protocol which was adopted as a result of the Conference was signed by only one fifth of the States participating, where all of Europe and most of North America abstained. Even among the developing States, only a handful signed. It is too early to say whether the new Protocol will suffer the same fate as most treaties adopted under the auspices of ICAO, and be shelved with few ratifications.

Although the draft Protocol submitted to the 38th ICAO Assembly in September/October 2014 offered two options: one where the IFSO was given powers equal to those of the aircraft commander in responding to an offence on board an aircraft; and the other retaining the primacy of authority of the aircraft commander with powers to require or authorize the assistance of other crew members to provide assistance in instances of offences on board aircraft or offences about to be committed, the Conference opted to choose the latter, rejecting the equality of supremacy of control of the aircraft commander and the IFSO in the event of an offence being committed on board or the possible commission of an offence on board, as proposed in the first option. According to the President of the ICAO Council, the achievement of the Conference lay in the fact that the adopted Protocol " serves to enhance global aviation security provisions by expressly extending legal recognition and protections to in-flight security officers (IFSOs) from this point forward...and significantly improves the ability of ICAO Member States to expand jurisdiction over related offenses to the State of the Operator and the State of Landing”. Annex 6 to the Chicago Convention which sates: The pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board, during flight time.

The Tokyo Convention also places the aircraft commander in a position of control. Therefore arguably the IFSO should act, as Option 2 stated, under the authorization of the aircraft commander and comes under the category of "other crew members" as stipulated in Option 2. This sensible approach was offered to the ICAO Council by ICAO's Air Navigation Bureau. The Legal Bureau of ICAO probably was two bewildered to even comment, since they had initially blundered in neglecting to see the fundamental flaw in the draft protocol for which they had responsibility as the Secretary to an equally inept Legal Committee which recommended the draft protocol.

Fortunately, the Diplomatic Conference successfully circumvented some areas of muddled convolution and ineptitude of the text of the final draft Protocol presented by the ICAO Council to the Assembly which was prepared by a group of legal experts called the Legal Committee - a body established by the Council - after lengthy deliberations spanning years. The Protocol adopted by the Conference is much clearer than the version submitted to it.

The Protocol provides that the aircraft commander may require or authorize the assistance of other crew members and may request or authorize, but not require, the assistance of in-flight security officers or passengers to restrain any person whom he is entitled to restrain. Any crew member or passenger may also take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein.

It also states that a IFSO deployed pursuant to a bilateral or multilateral agreement or arrangement between the relevant Contracting States may take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft or persons therein from an act of unlawful interference, and, if the agreement or arrangement so allows, from the commission of serious offences.

The Protocol replaces Article 3 of the Tokyo Convention which provides that the State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board. Article 3 also requires each Contracting State to take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State and asserts that it does not exclude any criminal jurisdiction exercised in accordance with national law. The new provision in the Protocol states that the State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board. Thus far it is the same as the provision in the Tokyo Convention. However, The Protocol and the Tokyo Convention part company with additional text in the Protocol extending State jurisdiction to the State of landing and the State of the operator. The new Article 3 goes on to provide that a State is also competent to exercise jurisdiction over offences and acts committed on board: a) as the State of landing, when the aircraft on board which the offence or act is committed lands in its territory with the alleged offender still on board; and b) as the State of the operator, when the offence or act is committed on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence, is in that State. Each Contracting State is required to take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State.

It is unfortunate for the average traveller that, in the face of this growing problem, the only international organization charged with addressing the growing issue of the unruly and violent passenge, has muddled through and messed up the only document which could have had the ability to provide a remedy.

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