Criminal offences committed on-board international flights are governed by the Tokyo Convention 1963 (the Tokyo Convention). It provides the guidelines for what principles states should follow and gives aircraft commanders the power to take all reasonable steps, including restraint, against the unruly passenger to protect the safety of those on-board, maintain discipline on the flight and to deliver the unruly passenger to law enforcement agents upon landing. In accordance with Article 10 of the Tokyo Convention, there is immunity from liability so long as the provisions of the Convention are complied with.
Whilst it is generally considered to be a success, over its 50 or so years a number of weaknesses had developed and it became apparent that certain loopholes needed to be closed. The Tokyo Convention failed to provide a suitable deterrent to unruly passengers as under its terms the state of registration of the aircraft was the state with jurisdiction to try the unruly passenger. This rule had become outdated by the complex leasing agreements to which modern aircraft are subject.
In April 2014, the International Civil Aviation Organisation adopted an amendment to the Tokyo Convention, known as the Montreal Protocol. The Protocol redefines elements of the Tokyo Convention in relation to unruly passengers. The effect is that airlines will be empowered to better deal with unruly passengers and improve aviation security. However, the Protocol will only come into force once 22 states have ratified. According to the IATA, ‘Congo is the first State to ratify the Montreal Protocol 2014’ and, at the time of writing, the only one state to have done so (per IATA’s ‘CEO Brief April 2015: Regional View’ as found at http://www.iata.org/publications/ceo-brief/apr-2015/Pages/regions.aspx ). Therefore, the Protocol is not yet in force.
The Protocol, when in force, will strengthen the aviation industry’s position when tackling unruly passengers. The Tokyo Convention was said to be out of date, ineffective and too easily avoided to empower airlines to take remedial actions against unruly passengers (per IATA’s ‘Joint Position Calling for States to Ratify the Montreal Protocol 2014 to Deter Unruly Passenger Incidents and Promote a Safer Air Travel Experience for All’, page 1, available at http://www.iata.org/policy/Documents/tokyo-revision-position-paper.pdf ). The International Air Transport Associationconducted research for the period 2007-2013 which demonstrated an increasing trend of unruly behaviour on board flights. Should a flight be diverted to disembark an unruly passenger, this can cost the airline in the region of US$200,000.00 (Ibid., page 2.).
The Montreal Protocol extends jurisdiction to the states in which the operator is located and the state of destination of the flight (which includes a state to which the flight is diverted should the need arise from the unruly behaviour). Allowing an unruly passenger to be prosecuted upon disembarkation, makes it much easier and quicker, and thus more likely, for states to take to take remedial action and prosecute the passenger.
Much needed clarification as to what constitutes unruly behaviour is also provided. Previously, the aircraft commanderwas required to have reasonable grounds of belief that the behaviour complained of constituted a serious offence under the penal law in the country of registration. It was felt that this put too high a burden on the commander. The Protocol addressed this concern by simplifying the test of simply whether the commander believes the behaviour constitutes a serious offence which includes: physical assault, or a threat to commit assault against a crew member as well as a refusal to follow a lawful instruction. This definition and simplification makes the powers of the commander much clearer. This increases the likelihood that a commander will feel properly empowered to take the appropriate action against the unruly passenger.
The third significant amendment made by the Protocol is that it now enables airlines to recover the costs incurred by unruly passengers from the offending passengers. Whether the passengers in fact have the means, or the airlines the will, to recover those costs is a matter for each airline to consider should the need arise.
It is thus disappointing that the Protocol remains ineffective for want of ratification as its term significantly strengthen the airlines’ position by making it easier to recover losses incurred as well as providing a significant deterrent to would-be unruly passengers. Reducing the incidents of unruly passengers on flights would be a benefit to travellers, crew and security services alike. It is lamentable that more states have not ratified the Protocol to allow its terms to take flight.