Recent reports suggest that the Transportation Security Administration (TSA) will be pulling the plug on 174 full-body scanners in airports around the country. While the agency may be satiating individual privacy concerns, it is far from removing airport and civil aviation safety from its list of priorities. Recently, the TSA signed a memorandum of understanding with Saudi Arabia’s General Authority for Civil Aviation. The signing of the memorandum was based on both states’ interest to develop further administrative, technical, and operational cooperation in the civil aviation security field and an affirmative of common interest to strengthen efforts to address threats and reduce risks in civil aviation. Although this type of document does not amount to a substantive contract, it is one of the many instruments that highlight the international community’s dedication to ensure civil aviation security around the world.
The international community has also responded to aviation security threats – specifically the 9/11 attacks – by treating civil aviation-related offenses as violations of international law under the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (“Beijing Convention”) and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (“Beijing Protocol”). While not yet entered into force, the instruments have received over twenty signatures, and are designed to criminalize the use of aircrafts to cause death or destruction, the use of biological substances on board, and ancillary offenses, such as organizing or conspiring to commit such offenses.
On their face, the Beijing Convention and Protocol enable contracting parties to impose liability on both individuals and “legal entities” for committing acts that constitute violations under the instruments. While the international community agrees that individual liability extends merely to natural persons, some have questioned the use of the arguably ambiguous “legal entity” term and its applicability to terrorist organizations – consistent threats to both domestic and international civil aviation security.
Since neither the text nor the drafting history allude to terrorist organizations, the Vienna Convention on the Law of Treaties (VCLT) provides the framework for analyzing the meaning of the Beijing instruments’ “legal entity” provision. Article 31 requires words to be read according to their plain meaning, which can be inferred from the context of the treaty. The language set forth in Article 4 of the instruments’ “legal entity” provision is arguably straightforward: a contracting party may impose liability on a legal entity alleged of committing offenses under the instruments a legal entity when they are either “located in a contracting party’s territory” or “organized under a contracting party’s laws” and only “when a person responsible for management or control of that entity, has in that capacity, committed an offen[s]e set forth [in the instruments.” Although terrorist organizations, such as Al Qaeda, operate cells throughout the world, they are primarily located in Pakistan and Afghanistan, which are not contracting parties to the instruments and therefore cannot impose liability on such groups. Terrorist organizations may satisfy the “management or control” requirement because they are and have been led by individuals, such as Osama bin Laden and Khalid Sheikh Mohammed, who commit acts such as hijacking aircrafts and using aircrafts to transport biological weapons, which constitute offenses under the instruments. However, the drafting history of the instruments do not define “management” or “control;” thus leaving the interpretation up to legal scholars who have consistently held differing views over whether terrorist organizations have hierarchic and centralized command structures.
As illustrated by the 9/11 attacks, the international civil aviation security threats are consistently being designed and executed by terrorist organizations. However, the Beijing instruments fail to hold these groups liable for committing acts in violation of international law. Absent additional language that specifically addresses liability for terrorist organizations, the international framework to deter and punish these types of offenders is incomplete and arguably leaves our airports and aircrafts vulnerable for attack.