Much has been written about the lack of an adequate deterrent to the unruly and disruptive behaviour which occurs onboard countless international flights, despite the international legal framework provided by the Tokyo Convention of 1963 (Offences and Certain other acts committed on board aircraft) and by ICAO Circular 288 (Guidance Material on the legal aspects of unruly/disruptive passengers). Diana Stancu Godet has previously written an article for Aviation Security International on the topic, and since, thanks to a very proactive approach from stakeholders – mainly IATA – work on the modernisation of the Tokyo Convention began in 2012 and resulted in the 2014 diplomatic conference where the Montreal Protocol was crafted. Additionally, work to update Circular 288, pursuant to the adoption of the Montreal Protocol of 2014, has now been completed, concluding with ICAO Doc.10117, published in June 2019, and about which Stancu Godet now updates readers.
Airlines have enhanced their coordination in respect of the prevention, management and deterence of unruly passengers, with fresh operational measures shaping new policies and being behind the restructuring of training programmes for both aircrew and ground service personnel. These operational solutions do not substitute for a legislative solution but provide a useful starting point to broadly underscore the nature of unruly behaviour and, in so doing, aid in the development of an international legal instrument.
Despite some local regulatory and interim operational solutions being taken on the basis of understanding the causes of disuptive behaviour, this phenomenon continues to affect air travel as a whole, causing inconvenience to other passengers, flight and cabin crew, resulting in operational disruption, creating costs for airlines and posing a threat to safety and security. Data collected by IATA from its member airlines through its STEADES programme, to which airlines voluntarily contribute information on unruly passenger cases, shows that unruly passenger incidents have significantly increased in the past few years. Indeed, the actual number of unruly and disruptive behaviour passenger incidents are, industry-wide far higher than those reported, given that most airlines are not IATA members and that even those IATA members who do contribute data do not actually report all, or even the majority, of the incidents they encounter. The spectrum of unruly and disruptive behaviour reported ranges from failure to comply with crew instructions to verbal abuse, sexual assault, and damage to the aircraft. Some factors identified as causing these behaviours include excessive drug or alcohol consumption, lengthy and crowded flights, perceived poor customer service, smoking restrictions, confined conditions on flights, overbooking and delays.
Perhaps we should not be surprised that the number of unruly and disruptive passengers on board international flights has become such a phenomenon, with incidents on the rise, given that many perpetrators are still getting away with their acts unpunished (due to either a lack of jursidiction or no means for perpetrators to pay fines), without facing any prosecution or other legal or economic sanction. Let’s analyse the new provisions and draw a comparison between the principal solutions provided by the revision of the Tokyo Convention of 1963, through to the Montreal Protocol of 2014, and the newly published ICAO Doc.10117, Manual on the legal aspect of unruly and disruptive passengers acknowledging, of course, their different legal value – one being an international convention, the other being, in effect, guidance material.
The Current Legal Context
The Montreal Protocol of 2014, still not yet in force, intends to expand the scope of the Tokyo Convention to enable States to exercise jurisdiction over unruly and disruptive passengers and represents a clear opportunity for States to put in place an international legal instrument which gives them the means to deal with unruly passengers more effectively and strengthen their capacity to deter future incidents. A much wider ratification is crucial for its success and, currently, there are still only 20 ratifications/accessions out of the 22 required for the Protocol to enter into force. In other words, we are far from having an international, harmonised approach to address the recognised escalation in the severity and frequency of unruly behaviour on board aircraft, let alone the fact that some States, including the USA, EU member States (aside from France, Malta, Portugal and Spain), Australia and Canada, have not even signed the Protocol. So far, in 2019, the only new States to have ratified or signed accessions to the Montreal Protocol are Kazakhstan, Malaysia, Turkey and, most recently, Uruguay.
“…expand the scope of the Tokyo Convention to enable States to exercise jurisdiction over unruly and disruptive passengers…”
ICAO Doc.10117 updates the ICAO Circular 288 on provisions related to the list of offences and jurisidction, as well as making consequential changes to the Circular arising from the adoption of the Montreal Protocol. In addition, new guidance on the introduction of an administrative sanctions regime has been developed. It should be noted that Circular 288 will not be discontinued as it will remain relevant for those States who are not party to the Montreal Protocol – once it eventually comes into force! And that, it would appear, will apply to the majority of States.
“…in 2019, the only new States to have ratified or signed accessions the Montreal Protocol are Kazakhstan, Malaysia, Turkey and, most recently, Uruguay.…”
So, even when the Montreal Protocol has its 22 ratifications, its provisions will only bind those States party to it, while the standards contained in ICAO Doc.10117, though not equal in terms of legal power, have wider coverage (193 ICAO Member States) and allows for a faster implementation process than the international convention.
The provisions of the Tokyo Convention afford jurisdiction over offences and other acts committed on board an aircraft to the aircraft’s State of registration. This causes issues, however, when the Captain of the aircraft delivers, or disembarks, an unruly passenger to the competent authorities who often determine that they do not have jurisdiction (such as in the State of landing) when the aircraft is registered in another State. Likewise, the police and authorities in the State of registration may have little connection to an incident which took place in another country or in its airspace. This may result in the unruly passenger being released to continue their journey without facing punishment for their misconduct.
The Montreal Protocol give States the tools they require to deal with unruly passengers whilst preserving their right to discretion as to whether to prosecute, by bestowing: (a) Jurisdiction to the intended State of landing (the scheduled destination). That said, two safeguards are included to reflect the concerns of some States on legal certainty and proportionality. Firstly, the offence must be sufficiently serious i.e. where the safety of the aircraft or of persons or property therein, or good order and discipline on board is jeopardised. Secondly, the State of landing must consider if the offence is an offence in the State of the operator. (b) If the aircraft diverts to a third State, the Protocol gives that State the right to exercise jurisdiction at its discretion. And, (c) the Protocol establishes mandatory jurisdiction for the State of the operator. This takes into account the increasing trend towards leasing aircraft where the State of aircraft registration is not necessarily the State of the aircraft operator.
The ICAO Doc.10117 reflects the new jurisdictional base introduced by the Montreal Protocol.
List of Offences
The Tokyo Convention encompasses both offences under penal law and acts, regardless of their being offences under penal law, capable of jeopardising good order and discipline on board. It does not define what an offence means for the purpose of the Convention, thus opening the door to diverse interpretations according to national laws of States exercising their jurisdiction under the Convention.
The Montreal Protocol clarifies certain behaviours endangering the good order and discipline on board an aircraft which should be considered, at a minimum, as an offence and encourages States to take appropriate criminal or other legal proceedings. These include physical assault, or the threat to commit such an assault against a crew member, and refusal to follow a lawful instruction given by or on behalf of the aircraft Commander (for safety purposes). By defining the types of prohibited behaviour, the intention is to improve certainty for passengers, law enforcement authorities and airlines. However, there is not an exhaustive list of offences provided, leaving States with the liberty to define their own offences in their respective national legislation.
ICAO Doc 10117 does not update the list of offences contained in Circular 288, with the rationale behind this being that the current list of offences is sufficiently comprehensive to cover most unruly and disruptive behaviour on board aircraft and that if any unruly and disruptive behaviour is not specifically listed, it is likely to fall within the scope of the provision concerning the refusal to obey the instruction of the aircraft commander.
“…despite the legal strength of the current list placed in the body of the Convention, the fact that States are only ‘encouraged’ to take measures, weakens its relevance…”
However, behaviours left undefined might leave unregulated potential threats on board. Definitions at an international level are problematic to draft, and can even be very sensitive to discuss, because each State is concerned to avoid giving up their sovereignty to address disruptive behaviours and is keen to have their own characterisation of offensive behaviour. Leaving States to define what prohibited behaviour on board is does not improve the uniformity sought by different national regimes. Moreover, despite the legal strength of the current list placed in the body of the Convention, the fact that States are only ‘encouraged’ to take measures, weakens its relevance.
The provisions of the Montreal Protocol also encourage States to initiate ‘appropriate criminal, administrative or any other forms of legal proceedings’ because, in numerous unruly and disruptive passenger incidents, prosecution or other enforcement action was not always pursued due to the associated costs and difficulties presented by the nature of air transport (with incidents involving people from different States and often having to travel to give evidence or, for crew, to have to delay subsequent flight departures in order to give evidence to local law enforcement). Hence, a number of States have developed less onerous procedures accompanied by lower penalties to allow for the speedy resolution of minor incidents.
The provision introduced by the Montreal Protocol, obliging States to ‘consider whether offences in the State of the operator’ might pose some difficulties in the context of, firstly, how the authorities in the State of landing could know that a certain behaviour, which constitutes an offence according to its territory, is also an offence in the State of the operator and, secondly, how it can be assured that the obligation of a State of landing to ‘consider’ the offence is actually met.
Consequently, ICAO Doc.10117 firstly recommends the establishment of a repository of States’ criminal legislation which could serve as a tool that local authorities could use to show due consideration of an offence in another State and, secondly, it offers guidance and examples on what administrative sanctions or comparable regimes are established in some States to deal with unruly and disruptive passengers, in order to make this information available to other States considering the introduction of such practices.
Data on Unruly and Disruptive Passenger Incidents
IATA provides statistics on a periodical basis through its STEADES programme on unruly and disuptive passenger incidents collected from its member airlines. This provides the means to monitor the trends concerning the frequency and severity of unruly and disuptive passenger incidents.
ICAO’s Annex 17 ‘Security’ has introduced a new standard, applicable as of November 2018, requiring each State to define their processes for reporting information concerning incidents of unlawful interference. So some States have made it a legal requirement to collect statistics on security incidents but a complete and comprehensive dataset, including any action taken by States on unruly and disuptive passenger incidents, can only be achieved through a worldwide, uniform reporting system. ICAO Doc.10117 additionally highlights that it would be useful to enhance States’ safety and security systems by including data concerning unruly and disuptive passenger incidents.
As of this year, IATA introduced, for its member airlines, a new approach for manadatory reporting of any security related incident, including those on unruly and disruptive passengers, through the ‘See It, Report It’ project.
The legal value of the Montreal Protocol of 2014, once in force, will be without a doubt of far more importance than ICAO Doc. 10117 as the provisions of an international convention are binding upon the States who ratified/accepted/acceded or approved it, whilst the provisions of ICAO Doc.10117, containing standards and recommended practices, is not immediately binding upon States as these States can choose whether or not to implement them.
The Montreal Protocol attempts to solve the jurisdictional gaps of the Tokyo Convention, but it still raises doubts on definitions and other acts. ICAO Doc. 10117 updates ICAO Circular 288 as a result of the adoption of the Montreal Protocol and might be considered a bottom-up approach, with guidance and recommendations taking into consideration the provisions of the Protocol on how to tackle the issue of unruly and disuptive behaviour on board and introducing an administrative sanctions regime.
ICAO and its member States, along with aviation stakeholders, have strived towards an appropriate and efficient legal framework for unruly passengers. The Montreal Protocol is indeed an important regulatory effort and its significance should not be underestimated due to the low number of ratifications. But, far from providing a one-size-fits all solution, it certainly highlights opportunities for further refinement.
ICAO Doc.10117 takes us a step further, following the adoption of the Protocol, and considering the bottom-up efforts already made by aviation stakeholders and local authorities worldwide, its standards might reach uniformity faster among the 193 ICAO member States in comparison with the provisions of the Montreal Protocol which, despite its higher legal value, might take a longer time to reach uniformity and, even then, only among the States party to it.
Diana M. Stancu Godet is the managing director of Safe and Secure Skies based in Brussels. With a Masters in Air & Space Law, she started her aviation career at the Romanian Aviation Academy as a legal advisor, whilst also providing courses on international aviation legislation. She became an inspector at the Romanian Civil Aeronautical Authority, in which capacity she organised on-site audits. She was later appointed head of the Air Operations Surveillance Unit with responsibility for the process of certification of the national air operators, performing safety and security audits and assessing security, safety and quality management systems.