Changing trends in both international terrorism and the proliferation of weapons of mass destruction (WMD) have provided an impetus to strengthen international aviation law. As international travel and trade have increased, the risk that WMD or related materials and technologies could be trafficked using civilian aircraft has also grown. The International Civil Aviation Organization (ICAO) is currently attempting to amend the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (otherwise known as the Montreal Convention) to criminalize the transfer of materials, equipment, and technology intended to be used for the design, manufacture, or delivery of WMD via civilian aircraft. If completed, this initiative would provide an additional defense against WMD trafficking and support existing nonproliferation efforts.
Despite efforts to bolster international export control regimes, illegal transfers of WMD-relevant commodities involving states and non-state actors continue to occur on a regular basis. For instance, in January 2009, U.S. officials discovered that Iranian authorities were attempting to evade sanctions to acquire metals from Chinese firms that could be used in long-range ballistic missiles. An increasing number of instances in which civil aviation rather than shipping is used to transfer conventional weapons in violation of international law suggests that states or individuals seeking to transfer WMD-related materials may already or in the future attempt do so using civilian aircraft. One such example of conventional weapons proliferation occurred in December 2009, when Thai authorities seized a cargo plane that was carrying grenades, rockets, and other related equipment from the Democratic People's Republic of Korea (DPRK) after it made an emergency refueling stop in Bangkok. These exports represented a clear violation of UN Security Council Resolutions 1718 (2006) and 1874 (2009).
A number of militant non-state actors are actively seeking WMD. For example, Al-Qaeda leader Osama bin Laden declared that it is his religious duty to acquire WMD. The organization's progress towards achieving this goal is unclear; however, it is known that Al-Qaeda leadership passed up opportunities to use crude chemical weapons with the justification that they were in the process of obtaining "something better." ICAO's proposed amendments to the Montreal Convention would strengthen the international nonproliferation regime, making it more difficult and more costly for state or non-state actors to acquire or use WMD.
In particular, the amendments would reinforce UN Security Council Resolution (UNSCR) 1540 and the Proliferation Security Initiative (PSI). UNSCR 1540 requires states to "adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer, or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them." The PSI is an international arrangement launched in 2003 by the United States that commits participating states to "require aircraft that are reasonably suspected of carrying cargoes of WMD, their delivery systems, or related materials to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights." The proposed amendments to the Montreal Convention are analogous to amendments that were adopted in 2005 as a protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). Like the other UN counter-terrorism conventions, violations of the Montreal and SUA Conventions are extraditable offenses. States that do not extradite are required to establish jurisdiction and prosecute, thus denying any "safe haven" for terrorists.
The International Civil Aviation Organization (ICAO)
ICAO is a UN agency that performs the depositary function for several international legal instruments related to civil aviation. The organization sets aviation standards, and offers recommendations for air navigation, flight inspection, prevention of unlawful interference, and border-crossing procedures. On March 24, 2005, ICAO surveyed its member states to determine whether existing conventions should be expanded to address new and emerging threats. The majority of states that responded to the survey believed that such changes were necessary.
In response, ICAO formed a Special Sub-Committee of the Legal Committee (SSCLC) to assess how international aviation law could be strengthened. Argentina, Australia, Brazil, China, Finland, France, Germany, Japan, Lebanon, Mexico, the Russian Federation, Senegal, Singapore, South Africa, Switzerland, the United Arab Emirates, the United Kingdom, and the United States were members of the SSCLC, and Canada, Italy, India, Nigeria, Jordan, and Egypt were designated as ex officio members.
The SSCLC met from July 3-6, 2007 and February 19-21, 2008 in Montreal, Canada. During these meetings, the committee drafted amendments to the Montreal Convention to address a number of acts not criminalized by existing international aviation law that the committee believed should be outlawed. These included:
- the use of civil aviation as a weapon;
- the use of civil aviation to unlawfully spread biological, chemical, and nuclear substances;
- acts against civil aviation using biological, chemical, and nuclear substances;
- the use of civil aviation to knowingly transfer materials that were intended to be used in or to deliver WMD; and
- the use of civil aviation to transport fugitives in an attempt to evade prosecution under one of the UN counter-terrorism conventions.
The ICAO Legal Committee took up this issue in its 34th Session, which convened September 9-17, 2009. During this meeting, the amendments proposed by the SSCLC were reviewed and discussed, though no final wording was determined.
The Montreal Convention
The Montreal Convention opened for signature in 1971 and criminalizes certain actions that take place while an aircraft is in service. The convention defines "in service" to mean an aircraft being used to transport people or freight, whether it is on the ground or in the air. Actions currently criminalized by the convention include: acts of violence against people on board, destruction of civilian aircraft, the placing of devices or substances on board with the intention to damage or destroy the aircraft, interfering with operations, and communicating false information to crew that could endanger the flight.
The proposed amendments would additionally criminalize the intentional and unlawful use of "an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment." This would pertain to the use of civilian aircraft as a weapon such as in the 9/11 attacks or the use of civil aircraft to spread "toxic chemical, radioactive, biological, or nuclear material or similar substances" in a way that causes or is likely to cause harm. The use of such substances against those inside an aircraft would also be criminalized.
As regards trafficking, the proposed amendments to the Montreal Convention would also criminalize the transport of "any equipment, materials, software, or related technology that significantly contributes to the design, manufacture, or delivery of [WMD] with the intention that it will be used for such purpose." The actions of those that knowingly help transfer these items, even if they do not directly place them on the plane, would also be criminalized. If the proposed amendments are accepted, the resulting protocol would constitute the first international treaty that criminalizes the use of civilian aircraft to transfer WMD or related materials.
For purposes of clarification, the proposed amendments provide definitions for the types of materials that are discussed. The wording for these draft definitions is taken directly from the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005 SUA Protocol), an instrument that has not yet entered into force.
The proposed amendments would criminalize the actions of someone that "transports, causes to be transported, or facilitates the transport of, another person on board an aircraft knowing that the person has committed an act that constitutes an offense set forth in [any of nine UN counter-terrorism conventions], and intending to assist that person to evade criminal prosecution." The inclusion of criminalizing the transfer of fugitives in the proposed amendments to the Montreal Convention was heavily debated in both the SSCLC and ICAO Legal Committee meetings. Failure to find consensus on this issue could potentially derail the approval of the agreement.
It is important to note that offenses involving the transfer of WMD-related materials or fugitives would be determined individually in a court of law and would be based on knowledge and intent of the individual. While it may be a challenge to prove intent in cases involving dual-use items, those who unknowingly helped someone commit an offense would not be held liable. This clause would protect the staff of many airline companies that often have no knowledge of what is in the containers that are being loaded on and off of civilian aircraft. Altogether, the proposed amendments to the Montreal Convention strengthen the growing international norm against the proliferation of WMD and related materials. If successfully adopted, they would give more teeth to existing legal prohibitions like UNSCR 1540 by incorporating the binding extradition and enforcement regime common to all the UN counter-terrorism conventions.
Concerns of Member States
During the September 2009 ICAO Legal Committee meeting, states discussed the proposed amendments to the conventions. Though all states present were determined to strengthen international aviation law against terrorism, some were apprehensive about particular issues.
A number of states voiced concerns that criminalizing the shipment of certain types of WMD-related materials and technologies could negatively affect legitimate international trade, hinder their development, or wrongfully hold liable civil aviation employees. According to one state, because labels on packages are typically completed by the sender, it is impossible for airline employees to know whether the contents match what is written on the labels. Installing equipment to detect certain materials could help airlines verify the contents of their cargo, but the cost may outweigh any perceived benefit to a degree that many states would be unable to accept. Some states proposed that for these reasons air carriers be completely exempted from the proposed amendments to the convention; however, this proposal was a non-starter. While it is true that the proposed amendments to the Montreal Convention would only criminalize intentional actions, such arguments reflect apprehension about how intention could be interpreted by states after the agreement entered into force.
Another concern regarded language referring to the obligations of states under the Nuclear Non-Proliferation Treaty (NPT). Under the proposed amendments, material under international safeguards would automatically be presumed to be intended for peaceful purposes and would be approved for transport. Conversely, any nuclear material outside of safeguards would be presumed to be illegitimate. The initial wording would have banned the shipment of any fissionable material or equipment "not under safeguards pursuant to an International Atomic Energy Agency (IAEA) comprehensive safeguards agreement." This language, which was drawn from the 2005 SUA Protocol, does not capture the India-specific safeguards agreement approved by the IAEA in 2008. Hence, the wording of the proposed amendments was changed to "nuclear activity not under safeguards pursuant to a safeguards agreement with the International Atomic Energy Agency."
The International Air Transport Association (IATA)
IATA is an international industry trade group made up of 230 airline companies in over 120 countries that represents around 93% of the world's international scheduled air traffic. IATA helps to regulate shipments of dangerous goods and regularly publishes the IATA Dangerous Goods Regulations Manual.
During the September 2009 ICAO Legal Committee meeting, IATA submitted a working paper outlining its views on the proposed amendments. According to IATA, "airlines already transport infectious pathogens (microbial & biological agents), toxic materials, explosives, and radioactive materials (including fissile material) almost every day," and they "do not know, and are never provided with, the intended 'end use' for the materials." One of IATA's main concerns was that the amendment criminalizing the intentional shipment of materials that could be used in WMD or their delivery could negatively impair the legitimate and lawful transfer of goods or cause the arrest of innocent airline employees.
Additionally, IATA noted that radioactive material shipments often have problems with "denial of shipment," which occurs when items are prevented from being transported into or through a country because of regulations concerning the movement of radioactive materials. Because certain medical isotopes with short half-lives are vital for diagnosing and treating disease, unnecessary delays in shipment can be very detrimental. In its working paper, IATA expressed concern that the proposed amendments restricting the shipment of radioactive materials could potentially make the denial of shipment problem worse.
IATA also voiced concern over the amendment seeking to criminalize the act of knowingly transporting a person seeking to evade criminal prosecution. In the Association's opinion, it is impossible for an airline company or its employees to make a reasonable estimate of whether a passenger is seeking to evade prosecution. The organization firmly believes that the any wording attempting to criminalize the transport of fugitives should be removed from the proposed amendments.
Protocol of 2005 to the SUA Convention
As indicated, the text for many of the proposed amendments to the Montreal Convention was taken directly from the 2005 SUA Protocol. This protocol criminalizes the use of a civilian ship to transfer WMD, WMD-related material, and fugitives fleeing prosecution for offenses committed in violation of the UN counter-terrorism conventions. Currently 21 states have signed the 2005 SUA Protocol, and of those, 11 have become contracting states to the protocol through either ratification or accession. The combined merchant fleets of those contracting states only constitute approximately 6.04% of the gross tonnage of the world's merchant fleet.
In their 2009 working paper, IATA posited that the low number of ratifications "indicates the reluctance of the international community to accept the transport of fugitives as a criminal offense in the codification of international law." However, a significant reason for the underwhelming support of the 2005 SUA Protocol may be its ship-boarding provision. This agreement introduces provisions for representatives from states to board ships if there are reasonable grounds to believe that the ship or any person aboard the ship has been involved in an offense that is covered by the convention. Ships can even be boarded without consent if the state under which the ship is registered does not respond within four hours of being informed of the situation. The convention also allows the use of force "when necessary to ensure the safety of officials and persons on board, or where the officials are obstructed to the execution of authorized actions." Because no similar interception clause exists in the proposed amendments to the Montreal Protocol, the fact that the 2005 SUA Protocol has not rapidly attracted contracting parties does not necessarily indicate that the proposed amendments to the Montreal Protocol would not be widely accepted.
While its ship-boarding provision may make the 2005 SUA Protocol more difficult for states to accept, its membership is steadily growing, and it will soon enter into force. The protocol now has 11 of the 12 required ratifications required for entry into force. The most recent state to ratify was the Dominican Republic, which did so on March 9, 2010. Once the protocol enters into force, states that have signed it are obliged to refrain from acts that would defeat the object and purpose of the treaty, even if they have not yet maneuvered the requisite changes to their domestic laws through their legislative processes. 
The fact that the 2005 SUA Protocol is so close to entering into force demonstrates that the international community may not oppose its provisions as strongly as IATA suggests. In this light, the protocol's current status does not justify opposition to the proposed amendments to the Montreal Convention. Instead, the evidence suggests that if adopted, the proposed amendments to the Montreal Convention could enter into force at an early date.
Additional Protection against Proliferation
Efforts to amend the Montreal Convention have come at a crucial time. Proliferation to state and non-state actors using civil aviation is becoming a greater concern. States and non-state actors have typically used ships to illegally transport WMD materials, but faced with improvements in port controls and interdiction initiatives, proliferating states could turn to aircraft to transport certain illicit materials. Once completed, the protocol would reinforce actions taken by individual states to prosecute traffickers by providing firm international legal justification for extradition and the denial of safe haven. Governments seeking to prosecute foreigners caught smuggling WMD materials in their borders would have more confidence that doing so would not negatively affect their relationship with the violator's home state.
The proposed amendments to the Montreal Convention would also strengthen the international norm against WMD trafficking by giving states the opportunity to individually commit themselves to preventing proliferation. While UNSCR 1540 requires states to establish individual guards against WMD trafficking, it constitutes a relatively top-down approach to combating proliferation. The veto power of the P-5 states does not allow for equitable decision-making, and non-aligned states in particular are growing increasingly resentful of attempts to use the Security Council for legislation and norm creation. However, in a treaty-based regime, every nation would have to demonstrate its commitment to stemming proliferation by deciding whether or not to be bound by the new protocol. The number of contracting parties would increase over time, and holdout states would be forced to defend their nonparticipation. Support for the strengthened convention, which could come in fora like the IAEA, the NPT review process, and the conferences of states parties to the chemical and biological weapons conventions would reinforce the growing consensus that trafficking in WMD and related materials is a serious threat to international peace and security and will not be tolerated.
The next step for ICAO will be to ensure that the final wording of the proposed amendments to the Montreal Convention is strong enough to erect another meaningful barrier against WMD proliferation while remaining acceptable to member states. Increased burdens in terms of legislative and regulatory enforcement could be made more palatable to developing countries if there are concurrent efforts to provide technical assistance. Efforts to conclude this agreement coincide with the stated nonproliferation goals of a number of world leaders. Because of this, more attention should be drawn to ICAO's efforts in order to create political momentum. Like most nonproliferation agreements, the proposed amendments to the Montreal Convention will likely be opposed by a few states. It is important that this does not allow the adoption of a new protocol to be set aside or delayed. The benefits that this agreement would bring are needed right now.
- Documents from the 34th Session of the ICAO Legal Committee, September 9-17, 2009, Montreal, Canada, www.icao.int.
- NTI, "NIS Nuclear Trafficking Database," Nuclear Threat Initiative Website.
- Natalino Ronzitti, "Coordinating Global and Regional Efforts to Combat WMD Terrorism," Quaderni IAI Instituto Affari Internazionali, March 2009, www.iai.it.
- Rolf Mowatt-Larssen, "Al Qaeda Weapons of Mass Destruction Threat: Hype or Reality," Belfer Center for Science and International Affairs, February 2010, http://belfercenter.ksg.harvard.edu.
- Rens Lee, "Why Nuclear Smuggling Matters," Foreign Policy Research Institute, June 2009, http://gees.org.
- International Maritime Organization (IMO), "Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-general Performs Depositary or Other Functions," International Maritime Organization website, accessed February 2, 2010, www.imo.org.
- Chris Trelawny, "Containerized Cargo Security: A Case for 'Joined-Up' Government," International Maritime Organization, www.imo.org.
 Glenn R. Simpson, "Fresh Clues of Iranian Nuclear Intrigue," Wall Street Journal, January 16 2009, http://online.wsj.com.
 "Thailand seizes 'arms plane flying from North Korea,'" BBC News, December 12, 2009, http://news.bbc.co.uk.
 Rolf Mowatt-Larssen, "Al Qaeda Weapons of Mass Destruction Threat: Hype or Reality," Belfer Center for Science and International Affairs, February 2010, p. 2, 5, 13, http://belfercenter.ksg.harvard.edu.
 Ibid, p. 6, 26.
 UN Security Council Resolution 1373, September 28, 2001; UN Security Council Resolution 1456, January 20, 2003; UN Security Council Resolution 1540, April 28, 2004.
 U.S. Department of State, "Proliferation Security Initiative," U.S. Department of State, www.state.gov.
 Convention on International Civil Aviation, April 4, 1947, www.icao.int.
 International Aviation Trade Association (IATA), working paper presented at the International Civil Aviation Organization Legal Committee, Montreal, Canada, September 9-17, 2009, www.icao.int.
ICAO, Report of the Special Sub-Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats, Paper Submitted by the Australian Delegation, Appendix 2, Montreal, Canada, July 3-6, 2007. www.icao.int.
 ICAO Legal Committee, "Draft Report on the Work of the Legal Committee During its 34th Session," Montreal, Canada, September 9-17, 2009, www.icao.int.
 ICAO Legal Committee, "Report of the Drafting Committee," Montreal, Canada, September 9-17, 2009, www.icao.int.
 ICAO Legal Committee, "Draft Report on the Work of the Legal Committee During its 34th Session," Montreal, Canada, September 9-17, 2009, www.icao.int.
 IATA working paper, supra note 8.
 International Maritime Organization (IMO), "Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-general Performs Depositary or Other Functions," International Maritime Organization website, accessed February 2, 2010, www.imo.org.
 IATA working paper, supra note 8.
 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, March 1, 1992, www.imo.org.
 International Maritime Organization (IMO), "Revised treaties to address unlawful acts at sea adopted at international conference," document provided to the Diplomatic Conference on the Revision of the SUA Treaties, Geneva, Switzerland, October 10-14, 2005, www.imo.org.
 IMO, "Status of Multilateral Conventions," supra note 21.
 Hazel Smith, "North Korea Shipping: Potential for WMD Proliferation?" Asia Pacific Issues 87 (February 2009), East-West Center, www.eastwestcenter.org, p. 10.
 Non-Aligned Movement, "Communication of 27 October 2009 Received from the Permanent Mission of the Arab Republic of Egypt on Behalf of the Vienna Chapter of the Non-Aligned Movement," Letter received by the IAEA Secretariat on 27 October, 2009, Vienna, Austria. www.iaea.org.