On 1 July 2018 a new international convention came into effect.[i] Its purpose—to expand the hijacking offences under international law in response to the 9/11 attacks against the United States. Before 9/11, using civilian aircraft as a weapon was yet not contemplated in international law. After 9/11, the international community came together at a diplomatic conference on air law in Beijing in 2010 to address the new threats against civil aviation. The result was a new Convention – the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing Convention).
The Beijing Convention was drafted along with the Beijing Protocol[ii] of 2010 (collectively, the “Beijing Instruments”). The Protocol amends the Hague Convention 1970, which originally made hijacking of aircraft a criminal offence. One of the main changes is to recognise (and criminalise under the Convention) seizing control of an aircraft by technological means (such as using jamming or spoofing signals).[iii]
Both legal instruments, when introduced, were expected to achieve very wide acceptance. In 2010, when the instruments were finalised, the then FAA Assistant Chief Counsel for International Affairs and Legal Policy, Michael Jennison, commented on the regime in 2010 as follows:
Much of what has been accomplished by ICAO will now serve to assist complementary UN efforts in this area,” …. “For the United States this Convention and Protocol are both significant and symbolic in that they finally criminalize the 9/11 offenses — most especially those provisions relating to the organizing, directing, financing and conspiring activities that support the actual terrorist acts. The old Montreal Convention had included an ‘accomplice’ provision but the accomplice had to be physically on board the aircraft to be criminally responsible. These new Beijing instruments provide for improved enforcement and prosecution of the no centralized terrorist networks and support systems that we’re dealing with today.
Overview of the changes to International Law
As a brief overview, the Beijing Instruments criminalise the following acts:
- using a civil aircraft as a weapon to cause death, injury or damage;
- using civil aircraft to discharge biological, chemical and nuclear (BCN) weapons or similar substances to cause death, injury or damage;
- using BCN weapons or similar substances to attack civil aircraft;
- unlawful transport of BCN weapons or certain related material;
- unlawful transport of explosive or radioactive material for terrorist purposes; and
- cyber-attacks on air navigation facilities.
Jamming or Spoofing of Civil Aviation
The changes also expand the definition of hijacking. Previously, an offence under the Hague Convention 1970 could only be committed by a person “on board” the aircraft. Now, with the Beijing Protocol amendments, a person commits an offence if that person “unlawfully and intentionally seizes or exercises control of an aircraft” without requiring them to be “on board” the aircraft. These changes recognise the potential for a person to intentionally use remote technology, such as jamming or spoofing, to exercise control of civilian aircraft.[iv]
While the attacks of 9/11 did not involve the use of remote technology to hijack the aircraft (rather the offenders were situated on board) the possibility of using jamming or spoofing devices has raised concerns for the safety of civil aviation. Professor Andrew Dempster, from the University of New South Wales, highlighted the vulnerability of GPS-based aircraft systems from illegal jamming devices, particularly in and around airports.[v] Though Professor Dempster raised incidents of unintentional jamming, the use of similar devices could foreseeably be used for nefarious purposes. A jamming signal from such a device could disrupt the GPS (or other navigation) system to the point where the aircraft loses reliable navigational input.
Assistant Professor Todd Humphries from the University of Texas, in his testimony to a Subcommittee on Homeland Security in the United States in 2013, also warned that “GPS spoofing remains a significant risk to civil manned aircraft”.[vi] Such GPS spoofing might result in a misrepresentation of the aircraft’s position, while the onboard systems continue to interpret the position as accurate.[vii] Other navigation systems are also vulnerable to spoofing attacks.[viii] CASA’s senior avionic engineer, Jayson Rowe, has pointed out that radio navigation systems could similarly be jammed or spoofed.[ix] So too could satellite communication devices.[x]
When is an aircraft “in service”
The Beijing Instruments also increased the length of time in question for an act to be deemed criminal. Prior to the changes, the Hague Convention only covered acts done to an aircraft “in flight”. An aircraft “in flight” is defined at the time “from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation.”[xi] Now, with the changes, both the Hague Convention and the Beijing Convention cover aircraft “in service” for many of the criminal provisions, which is defined as “the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing.”[xii] Such a change means that there is less of a distinct start time for the liability provisions; there is no definition for what is the beginning of pre-flight preparations. For example, if an aircraft has sat on a tarmac for more than 24 hours since its last flight and is being washed or refuelled for its next flight, have pre-flight preparations for the next flight begun? The resulting grey area might make for subsequent difficulties in prosecutions and convictions, depending on the legal system involved.
We consider that a broader geographical definition of where the criminal provisions can be considered to have occurred, where not in conflict with local laws, would be more appropriate than limiting the criminal offences to when an aircraft is in service. Certainly, terrorist acts can accomplish their goals whether or not an aircraft is “in service” and whether or not it is filled with innocents.
Moreover, the Beijing Instruments expand the jurisdiction of states from what was previously known (circumstances when states have authority to prosecute under international law). A State will have jurisdiction under both the Beijing Convention and the Hague Convention to prosecute when the offence is committed in that State, the State of registration, the State of landing when the offence was committed on board, the offence is committed by a national, the offence is committed against a national, the offence is committed by a resident of the State (if they are a stateless person).[xiii] Expanding the jurisdiction of states, particularly to allow for prosecution of individuals when an offence is committed against one of their nationals, enables states to seek justice for and enforce the international standards to which they are committed.
Who does the new law apply to?
The United States, China and the United Kingdom, among other States, signed the Beijing Instruments at the Diplomatic Conference in 2010. Australia signed the Convention on 15 March 2013. Under international law, however, States are not bound by such treaties until ratified. None of the aforementioned States, including Australia, have ratified either the Beijing Convention or the Beijing Protocol as yet.
In 2011, the United States State Department declared its intent to transmit both the Convention and the Protocol “to the Senate for advice and consent, as well as seek any necessary implementing legislation, with an aim of ratifying both instruments as expeditiously as possible.”[xiv] Under the US Constitution, the Senate’s “advice and consent” is required before an international treaty can be adopted. Also, just as under Australian law, international treaties do not automatically apply within the domestic law – new domestic legislation must be drafted or amended to give effect to the international law. However, neither instrument has been referred to the United States Senate to date.[xv]
What does it mean for Australia?
As Australia has only signed the Beijing Instruments and not yet ratified them, Australia is not bound by them. As mentioned above, it is only if domestic legislation comes into force to enact the various provisions (noting amendments to many Acts and Regulations would need to be made to do so) that the regime will have legal force in Australia. To date, Australia has not given effect to the Beijing Instruments in Commonwealth law, nor explicitly explained its present views on the utility or otherwise of doing so.
While it could be argued that Australian law already carries significant protections for the multifarious threats against civil aviation (particularly since the 2001 terrorist attacks) it arguably does not carry the same force as specific offences created for aerial terrorism of the magnitude of the 2001 attacks.
For example, there are no specific provisions prohibiting cyber-attacks on civilian aircraft or air navigation services even though such offensive conduct would likely be anticipated or fall under more general offence provisions as set out in the Crimes (Aviation) Act 1991.[xvi]
[i] The Convention only came into effect for those States that have ratified the instrument.
[ii] Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 10 September 2010, UNTS (entered into force 01 January 2018).
[iii] Article II of the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 10 September 2010, (entered into force 01 January 2018).
[iv] Article II of the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 10 September 2010, (entered into force 01 January 2018).
[vi] Statement on the Vulnerability of Civil Unmanned Aerial Vehicles and Other Systems to Civil GPS Spoofing, Todd Humphries, Submitted to the Subcommittee on Oversight, Investigations, and Management of the House Committee on Homeland Security, p 5, <https://homeland.house.gov/files/Testimony-Humphreys.pdf>
[ix] See < http://www.flightsafetyaustralia.com/2017/11/skyhacked/>.
[xi] Article 2(a) of the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened for signature 10 September 2010, (entered into force 1 July 2018).
[xii] Article 2(b) of the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened for signature 10 September 2010, (entered into force 1 July 2018).
[xiii] Article VII of the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 10 September 2010, (entered into force 01 January 2018); and Article 8 of the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened for signature 10 September 2010, (entered into force 1 July 2018).
[xvi] See for example sections 16-20 of the Crimes (Aviation) Act 1991 (Cth).