Abstract
The trafficking and illicit use of drugs has been a serious problem globally over the years, affecting peoples’ lives and the aviation industry has not escaped the scourge. The illegal carriage by air of narcotics and other psychotropic substances and its various corollaries of violence or Narco-terrorism as it is popularly known, has shown that the activity can cause various other forms of unlawful interference with civil aviation such as the unlawful seizure of aircraft and the causing of damage to persons and property related to international civil aviation. Furthermore, in addition to the disturbing problem of drug use by air crews, the threat of drug trafficking has already had a tremendous adverse impact on aviation and the financial community which supports it Narco-terrorism is considered an offence on two grounds: the fact that the illicit trafficking of drugs is an offence against public health; and the illicit carriage by air of these substances threatens to sabotage the legitimate carriage by air of passengers and freight. Narco-terrorism involves two facets: the transportation of drugs and narcotics by aircraft and across national boundaries by air; and the act of loading and unloading them at aerodromes and airports. The two acts are claimed to be integrally linked to one another in that the essential elements of the unlawful act, i.e., “transport by air” and “trafficking” are inseparable.
Keywords
- Civil Aviation
- Narcotic Drug
- International Civil Aviation Organization
- Civil Aircraft
- Psychotropic Substance
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
1 A. Introduction
The trafficking and illicit use of drugs has been a serious problem globally over the years, affecting peoples’ lives and the aviation industry has not escaped the scourge. The illegal carriage by air of narcotics and other psychotropic substances and its various corollaries of violence or Narco-terrorism as it is popularly known, has shown that the activity can cause various other forms of unlawful interference with civil aviation such as the unlawful seizure of aircraft and the causing of damage to persons and property related to international civil aviation. Furthermore, in addition to the disturbing problem of drug use by air crews, the threat of drug trafficking has already had a tremendous adverse impact on aviation and the financial community which supports it Narco-terrorism is considered an offence on two grounds: the fact that the illicit trafficking of drugs is an offence against public health; and the illicit carriage by air of these substances threatens to sabotage the legitimate carriage by air of passengers and freight. Narco-terrorism involves two facets: the transportation of drugs and narcotics by aircraft and across national boundaries by air; and the act of loading and unloading them at aerodromes and airports. The two acts are claimed to be integrally linked to one another in that the essential elements of the unlawful act, i.e., “transport by air” and “trafficking” are inseparable.
The problem has blown into unmanageable proportions owing to the rapid proliferation of air travel as a means of communication. It is not difficult therefore to figure out the tremendous encouragement given to the drug trafficking trade by the numerous aircraft movements that keep increasing exponentially. The Annual Report of the ICAO Council for the year 2007 has recorded that the total scheduled traffic carried by the airlines of the 190 member States amounted to approximately 2,260 million passengers and some 41 million tonnes of freight. They were carried in 29.3 million scheduled flights in 2007 (of which 16.5 million were international flights and the rest were domestic). 3,730 airports served these flights.
Throughout known history, human society has used substances to alter moods and alleviate physical and mental suffering. These substances, although proving indispensable for the policy of pain and suffering, also proved to be addictive and destructive when misused or abused. As a result, early society made rules which allocate the use of these substances for medicinal or religious purposes and entrusted them to priests, leaders and doctors.Footnote 1
The abuse of drugs has been proliferating as a corrosion of social intercourse from the mid-nineteenth century due to the increased availability of products, the expansion of connections, the necessities brought about by changing socio-economic factors, rapid urbanization and changes in attitudes and values. These factors have contributed to a rapid increase in criminality in human society, leading to the exploitation of human society by insidious criminal elements.
As a response to this problem, global control mechanisms have been introduced by the international community – one of which is a regulatory system for the control of illicit transport of narcotic drugs by air. Not only does illicit transportation of narcotics by air per se constitute an offence, but it also leads to other criminal acts related to terrorism such as the destruction of airports by those involved in the carriage of narcotic drugs by air, destruction of property and aircraft resulting from attempts to transport narcotic drugs and the threats posed to traffic installations.
The need for an international drug control system was first felt in 1909 when representatives of 13 States met in Shanghai to discuss the proliferation of instances relating to the transportation of narcotics for non-medical consumption. Furthermore, the conference was considered necessary, as by the end of the nineteenth century, opium smoking had become rampant in China, affecting a third of the adult male population. As early as 1729, Emperor Yong Cheng forbade opium smoking in China, which resulted in a decrease in trafficking. However, this attempt was to little avail, as opium was being smuggled at that time to China through India by the Portuguese and later by the English. The amount of opium that had been smuggled into China had increased from 13 metric tons in 1729 to 64 metric tons in 1767. During the decade 1820–1830 the quantity of drugs brought into China had taken an upward turn to 2,500 metric tons. As a result, China had 20 million opium smokers in 1838. By 1773 the East India Company of England had established a monopoly in the drug trade, thus inaugurating the first recorded enterprise involved in legal drug trafficking on a large scale.Footnote 2
Today, a wide variety of illicit drugs are traded around the world, the most prolific being cannabis, which involves an estimated 160 million people. Cannabis production was estimated at 47,000 metric tons in the year 2006. The most important supplier to the European hashish market is Morocco, which delivers 80% of the supply. In addition, Amphetamine type drugs are being abused by 26 million people. It is estimated that the global production of amphetamine and methamphetamine is 300 metric tons. The production of Opium occurs mainly in Afghanistan (notably in all its 34 provinces) and opiate abusers number 16 million, and 10 million of them are abusing heroin. The sophistication of heroin production in Europe has grown, making the product purer and the supply richer and more prolific. It is encouraging that Southeast Asia has, however, reduced its production by 78% since 1996. The United Nations Office of Drug Control opines, in a somewhat conservative manner that it is not unrealistic to believe that Southeast Asia may become virtually free of opium production in a few years. This is heartening in the context that the abuse of cocaine involves 13 million people, with a concentration in North America and Western Europe.
It is an understatement to say that the problem of illicit carriage of narcotics is acute today. The illicit carriage of drugs and psychotropic substances, which is a crime per se, invariably gives rise to Narco-terrorism.Footnote 3 The Oxford English Dictionary has the overarching definition of Narco-terrorism as Terrorism associated with the trade in illicit drugs. Criminals who perpetrate offences in dealing in drugs and associated crimes often copy methods from political assailants to influence the politics of a country by causing terror and obstructing justice. The problem is further compounded by the fact that, in the modern world of terrorist warfare and civil war, terrorist organizations have taken to the illegal drug trade as a source of income funding their ideology driven organizations. Over the years, several definitions of “Narco-terrorism” have been used.
Illegal returns from the illicit trade in drugs is phenomenal. One estimate claims the FARC cartel of Colombia has a net profit from drug related crime (including the “taxation” and “protection” of the illegal cocaine trade) of at least 300 million USD every year.Footnote 4 The United Nation has estimated that the annual total income from the drug trade for movements such as al‐Qaeda is 2.4 billion US dollars. It is also claimed that 12 of the 28 organizations, have been listed as terrorist organizations by the U.S. State Department, are stated to be involved in the illegal drug trade, ranging from Sendero Luminoso of Peru to the “Tamil Tigers” of Sri Lanka.Footnote 5
2 B. United Nations Initiatives
In its resolution 40/122 dated 13 December 1985, related to the International Conference on Drug Abuse and Illicit Trafficking, the General Assembly expressed its grave concern and that of nations of the world regarding the awesome and vicious effects of drug abuse and illicit trafficking, which threaten the stability of nations and the well-being of mankind and which therefore constitute a grave threat to the security and development of many countries, focused on the dangers posed for producer, consumer and transit countries alike by the illegal cultivation, production and manufacture of and demand for drugs and by their illicit traffic.
Recalling its earlier resolutions and relevant resolutions and decisions of the Economic and Social Council and the Commission on Narcotic Drugs in the international campaign against traffic in and abuse of narcotic drugs and psychotropic substances, the Assembly recognized special responsibilities of the United Nations and the international community to seek viable solutions to the growing scourge of drug abuse and illicit trafficking. It also noted the work of the Commission on Narcotic Drugs towards the preparation of a draft convention against illicit traffic in narcotic drugs and psychotropic substances.
The Assembly also noted with appreciation the statement made by the Secretary-General before the Economic and Social Council on 24 May 1985,Footnote 6 referred to in Council decision 1985/131 of 28 May 1985, which drew attention to the gravity, magnitude and complexities of the international drug problem and in response proposed a world-wide conference at the ministerial level in 1987 to consider all aspects of the problem. Recognizing that the interregional meeting of heads of national drug law enforcement agencies, which be convened at Vienna in 1986, could make a significant contribution to the deliberations of the conference at the ministerial level proposed by the Secretary-General, and taking into account the various reviews of the activities of the United Nations agencies in the narcotics field that have already been undertaken and noting with satisfaction the Secretary-General’s designation of the Under-Secretary-General for Political and General Assembly Affairs as the overall co-ordinator of all United Nations activities related to drug control, the Assembly strongly urgedFootnote 7 all States to summon the utmost political will to combat drug abuse and illicit trafficking by generating increased political, cultural and social awareness, it called upon the United Nations, the specialized agencies and other organizations of the United Nations system to give the highest attention and priority possible to international measures to combat illicit production of, trafficking in and demand for drugs.
Further, the Assembly called upon all States that have not already done so to become parties to the Single Convention of Narcotic Drugs of 1961Footnote 8 and the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961Footnote 9 and to the Convention on Psychotropic Substances of 1971, and, in the meantime, to make serious efforts to comply with the provisions of these instruments. The General Assembly also took the step of addressing strategy and policies for drug control in its Resolution 40/129. The Assembly recalled in limine its resolution 32/124 of 16 December 1977, in which it requested the Commission on Narcotic Drugs to study the possibility of launching a meaningful programme of international drug abuse control strategy and policies.
It also recalled its resolution 36/168 of 16 December 1981, by which it adopted the International Drug Abuse Control Strategy and the basic five-year programme of actionFootnote 10 proposed by the Commission on Narcotic Drugs in its resolution 1 (XXIX) of 11 February 1981Footnote 11 as well as its resolution 38/98 of 16 December 1983, in which it decided that, beginning with its eighth special session, the Commission on Narcotic Drugs, meeting in plenary during its sessions and in the presence of all interested observers, would constitute the task force envisaged in General Assembly Resolution 36/168 to review, monitor and co-ordinate the implementation of the International Drug Abuse Control Strategy and the basic five-year programme of action.
Taking note of resolution 2 (XXXI) of 21 February 1985 of the Commission on Narcotic DrugsFootnote 12 and Economic and Social Council decision 1985/130 of 28 may 1985 the Assembly approved the programme of action for 1986, the fifth year of the United Nations basic five-year programme of the International Drug Abuse Control Strategy, reviewed by the Commission on Narcotic Drugs at its 31st session.Footnote 13
In a separate exercise, the Assembly taking into consideration that in response to the threat posed by the drug problem the international community had adopted numerous declarations and initiatives, interregional and regional, multilateral and bilateral, in order to condemn and combat the problem and to achieve its total eradication,Footnote 14 commended the valuable contributions of the Secretary-General of the United Nations and the Secretary-General of the International Conference on Drug Abuse and Illicit Trafficking to the preparatory work for the Conference and noting the continuing efforts of the Commission on Narcotic Drugs, the United Nations Fund for Drug Abuse Control, the International Narcotics Control Board, the Division of Narcotic Drugs of the Secretariat, intergovernmental and non-governmental organizations and the regional commissions in this regard.
The Assembly also welcomed the commitment of the Secretary-General to cover the cost of holding the Conference through absorption within the regular budget for the biennium 1986–1987, without prejudice to ongoing initiatives, programmes and work of the United Nations in the field of drug control.
In December 1988, the General Assembly, as a further measure towards developing its preparation of a draft convention against illicit traffic in narcotics drugs and psychotropic substances considered the report of the Secretary-GeneralFootnote 15 on the progress achieved in the preparation of the draft convention, and welcomed with appreciation Economic and Social Council resolution 1988/8, in which it decided to convene the Review Group in mid-June 1988 at Vienna, with the mandate of continuing the preparation of the draft convention and preparing the organizational aspects of the Conference of plenipotentiaries for the adoption of a convention against illicit traffic in narcotic drugs and psychotropic substances. It took note with satisfaction of the report of the Secretary-General, and the report of the Commission on Narcotic Drugs on its tenth special sessionFootnote 16 and the recommendations therein, approved by the Economic and Social Council in its resolution 1988/8 and decisions 1988/118 and 1988/120 of 25 May 1988 and 1988/159 of 26 July 1988, in which it decided, inter alia, to convene the Conference of plenipotentiaries to adopt the convention, and to extend to ten working days the 33rd session of the Commission on Narcotic Drugs in order to allow it to consider suitable measures to be taken prior to the entry into force of the convention; and requested the Commission on Narcotic Drugs, as the principal United Nations policy-making body on drug abuse control, to identify suitable measures to be taken prior to the entry into force of the convention. The Assembly also urged all States to adopt a constructive approach with a view to resolving any outstanding differences over the text of the convention; and requested all States, while reaffirming their commitment to the Declaration of the International Conference on Drug Abuse and Illicit TraffickingFootnote 17 as an expression of the political will of nations to combat the drug problem, to assign the highest priority to the Conference of plenipotentiaries and to participate actively in it, at the highest possible level, for the adoption of the Convention.
Whilst expressing its appreciation to the Secretary-General, the Commission on Narcotic Drugs and all related organs established by the Commission, for their effectiveness in responding to its request to prepare the draft Convention, the Assembly once again urged all States that had not yet done so to ratify or to accede to the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961, and the Convention on Psychotropic Substances of 1971; and requested the Secretary-General to report to the General Assembly at its 44th session on the implementation of the present resolution, particularly on the conclusions of the Conference of plenipotentiaries for the adoption of a convention against illicit traffic in narcotic drugs and psychotropic substances.
At its 43rd Plenary Meeting, in November 1989, the United Nations summoned a special session of the General Assembly to consider the question of international co-operation against illicit production, supply, demand, trafficking and distribution of narcotic drugs, with a view to expanding the scope and increasing the effectiveness of such co-operation. At this session, the General Assembly reiterated its concern about the serious problem of the illicit production, supply, demand, trafficking and distribution of narcotic drugs and about the devastating effect of drug abuse on individuals and society. Noting statements delivered before the Assembly in plenary meeting during its 44th session, including the address given by the President of the Republic of Colombia on 29 September 1989Footnote 18 and, in particular, his call for a special session of the General Assembly, the Assembly decided to hold a special session, at a high political level, to consider as a matter of urgency the question of international co-operation against illicit production, supply, demand, trafficking and distribution of narcotic drugs, with a view to expanding the scope and increasing the effectiveness of such co-operation. It requested the Secretary-General to make the necessary administrative arrangements for the convening of the special session.
In December 1989 at its 82nd Plenary meeting, the General Assembly, on the subject of implementation of the United Nations Convention against Illicit traffic in Narcotic Drugs and Psychotropic Substances, expressed its appreciation to the Secretary-General for the report on the conclusions of the conference of plenipotentiaries that adopted the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances at Vienna. It also expressed its appreciation to the States that participated in the preparation and adoption of the Convention; and urged States that have not yet done so to proceed rapidly to sign and to ratify the Convention, so that it may enter into force as early as possible. The Assembly also urged States to establish the necessary legislative and administrative measures to that their internal juridical regulations may be compatible with the spirit and scope of the Convention; and invited States, to the extent that they are able to do so, to apply provisionally the measures set forth in the Convention, pending its entry into force for each of them.
The Secretary-General was requested to modify the section of the annual reports questionnaire regarding the implementation of international treaties to that the Commission on Narcotic Drugs, at its regular and special sessions, may review that steps that States have taken to ratify, accept, approve or formally confirm the Convention. The Assembly invited the Commission on Narcotic Drugs, as the principal United Nations policy-making body on the subject, to identify suitable measures to be taken prior to the entry into force of the Convention. It also requested the Secretary-General to assign the appropriate priority to providing the Division of Narcotic Drugs of the Secretariat ant he secretariat of the International Narcotics Control Board with the necessary financial, technical and human resources that would enable them to carry out the additional responsibilities under the Convention for the biennium 1990–1991.
The Secretary-General was further urged to provide assistance to States, at their request, to enable them to establish the legislative and administrative measures necessary for the implementation of the Convention. All States that had not yet done so were requested to ratify or to accede to the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961, and the Convention on Psychotropic Substances of 1971.
The Assembly also requested the Secretary-General, within existing resources and drawing, in particular, on funds available to the Department of Public Information of the Secretariat, to provide for, facilitate and encourage public information activities relating to the Convention and also to disseminate the text of the Convention in the official languages of the United Nations.
In December 1989, the Assembly considered measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.
The General Assembly expressed the view that it was convinced that a policy of firmness and effective measures should be taken in accordance with international law in order that all acts, methods and practices of international terrorism may be brought to an end. In this context, the Assembly noted the ongoing work within ICAO regarding research as to the detection of plastic or sheet explosives and the devising of an international regime for the marking of such explosives for the purposes of detection, and taking note of Security Council Resolution 635 (1989) of 14 June 1989 relating thereto, expressed its confidence that the ICAO work would contribute significantly towards curbing acts of unlawful interference with civil aviation.
The Assembly also expressed deep concern at the world-wide persistence of acts of international terrorism in all its forms, including those in which States are directly or indirectly involved, which endanger or take innocent lives, have a deleterious effect on international relations and may jeopardize the territorial integrity and security of States. The Assembly called attention to the growing connection between terrorist groups and drug traffickers. Its was also convinced of the importance of the observance by States of their obligations under the relevant international conventions to ensure that appropriate law-enforcement measures are taken in connection with the offenses addressed in those conventions, and the importance of expanding and improving international co-operation among Stats, on a bilateral, regional and multilateral basis.
The Assembly was convinced further that international co-operation in combating and preventing terrorism will contribute to the strengthening of confidence among States, reduce tensions and create a better climate among them, and was mindful of the need to enhance the role of the United Nations and the relevant specialized agencies in combating international terrorism.
The necessity of maintaining and protecting the basic rights of, and guarantees for, the individual in accordance with the relevant international human rights instruments and generally accepted international standards was recognized to the extent that the Assembly reaffirmed the principle of self-determination of peoples as enshrined in the Charter of the United Nations.
The Assembly noted the efforts and important achievements of the International Civil Aviation Organization and the International Maritime Organization in promoting the security of international air and sea transport against acts of terrorism, and recognized that the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism. The Assembly, while condemning unequivocally as criminal and unjustifiable, all acts, methods and practices of terrorism wherever and by whomever committed, including those which jeopardize friendly relations among States and their security, deeply deplored the loss of human lives which results from such acts of terrorism, as well as the pernicious impact of these acts on relations of co-operation among States. It called upon all States to fulfil their obligations under international law to refrain from organizing, instigating, assisting or participating in terrorist acts in other States, or acquiescing in or encouraging activities within their territory directed towards the commission of such acts. States were also urged to fulfil their obligations under international law and take effective and resolute measures for the speedy and final elimination of international terrorism and to that end, in particular, to prevent the preparation and organization in their respective territories, for commission within or outside their territories, of terrorist and subversive acts directed against other States and their citizens.
The Assembly also called upon States to ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts; and to endeavour to conclude special agreements to that effect on a bilateral, regional and multilateral basis.
Co-operation of States with one another in exchanging relevant information concerning the prevention and combating of terrorism was considered vital, together with the adoption of steps necessary to implement the existing international conventions on this subject to which they are parties, including the harmonization of their domestic legislation with those conventions. The Assembly appealed to all States that have not yet done so to consider becoming party to the international conventions relating to various aspects of international terrorism referred to in the preamble to the present resolution; and urged all States, unilaterally and in co-operation with other States, as well as relevant United Nations organs, to contribute to the progressive elimination of the causes underlying international terrorism and to pay special attention to all situations, including colonialism, racism and situations involving mass and flagrant violation of human rights and fundamental freedoms and those involving alien domination and foreign occupation, that may give rise to international terrorism and may endanger international peace and security. Finally, it firmly called for the immediate and safe release of hostages and abducted persons, wherever and by whomever they are being held.
2.1 I. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
On 19 December 1988 the United Nations adopted its Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Convention brought to bear the deep concern of the United Nations regarding the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society. Concern was also raised at the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity.
The Convention recognized the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States and that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority.
The Convention also provides that subject to its constitutional principles and the basic concepts of its legal system, the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences, the possession of equipment or materials or substances listed in the Convention, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances, are offences. Also, those who publicly incite or induce others, by any means, to commit any of the offences established in accordance with the Convention or use narcotic drugs or psychotropic substances illicitly and participate in, associate or conspire to commit, attempts to commit and aid, abet, facilitate and counsel the commission of any of the offences established in accordance with its definitive provisions shall be guilty of an offence under the Convention.
Subject to its constitutional principles and the basic concepts of its legal system, each Party is required to adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption. Knowledge, intent or purpose required as an element of an offence set forth in paragraph 1 of this article may be inferred from objective factual circumstances.
2.2 II. Some Recent Efforts of the United Nations
One of the significant steps in the international campaign against traffic in drugs of the General Assembly was its pronouncement in December 1994 where, at its 101st Plenary meeting, the Assembly recalled inter alia, its Resolutions 36/132 of 14 December 1981 and 38/93 of 16 December 1983, in which it specifically acknowledged the economic and technical constraints impeding many developing countries from combating the illegal production of and illicit traffic in drugs and drug abuse. The Assembly noted the concern expressed by the Secretary-General in his report on the work of the Organization,Footnote 19 in which he recognized the need for greater efforts to reduce the traffic in and illicit use of drugs. The Assembly also considered the activities of the Commission on Narcotic Drugs and the International Narcotic Control Board, and appreciated the action being taken by the United Nations Fund for Drug Abuse Control in providing financial resources and support or integrated development programmes, including the replacement of illicit crops in affected areas. It reaffirmed the need to improve and maintain regional and interregional co-operation and co-ordination, particularly in law enforcement, in order to eliminate drug trafficking and drug abuse, and noted the growing interest in regional and interregional co-ordination.
Concern was expressed that, despite the significant national efforts deployed for this purpose, including those of a number of Latin American and Caribbean and Asian countries, the illicit traffic in narcotic drugs and psychotropic substances had increased noticeably. The Assembly was aware of the serious impact on the life and health of peoples and on the stability of democratic institutions resulting from the illicit production, marketing, distribution and use of drugs, and recognized that, to root out this evil, integrated action was required for simultaneously reducing and controlling illicit demand production, distribution and marketing.
It was considered that action to eliminate the illegal cultivation of and traffic in drugs must be accompanied by economic and social development programmes for the affected areas, programming activities for replacing illegal crops in such a manner as to conserve the environment and improve the quality of life of he social sectors concerned.
The Assembly recognized the dilemma of transit States which are seriously affected, both domestically and internationally, by drug trafficking, which was stimulated by demand for and production and use of illicit drugs and psychotropic substances in other countries. The Assembly expressed its awareness of the need to mobilize a co-ordinated strategy at the national, regional, and international levels, which would cover countries with illegal users and producers and countries used for transit in the world-wide distribution and marketing circuit, in order to eliminate drug trafficking and drug abuse.
In December 1993, at its 85th Plenary Meeting, the Assembly presented a global programme of action on international action to combat drug abuse and illicit production and trafficking. The General Assembly commenced its presentation by reiterating its grave concern that the illicit demand for, production of and traffic in narcotic drugs and psychotropic substances continue to threaten seriously the socio-economic and political systems and the stability, national security and sovereignty of an increasing number of States.
The Assembly was fully aware that the international community was confronted with the dramatic problem of drug abuse and the illicit cultivation, production, demand, processing, distribution and trafficking of narcotic drugs and psychotropic substances and that States needed to work at the international and national levels to deal with this scourge, which has a strong potential to undermine development, economic and political stability and democratic institutions. The Assembly emphasized that the problem of drug abuse and illicit trafficking has to be considered within the broader economic and social context, and also the need for an analysis of transit routes used by drug traffickers, which are constantly changing and expanding to include a growing number of countries and regions in all parts of the world. It was alarmed by the growing connection between drug trafficking and terrorism in various parts of the world, and recognized the efforts of countries that produce narcotic drugs for scientific, medicinal and therapeutic uses to prevent the channelling of such substances to illicit markets and to maintain production at a level consistent with illicit demand. It stressed the important role of the United Nations and its specialized agencies in supporting concerted action in the fight against drug abuse at the national, regional and international levels, and recognized the role of the Commission on Narcotic Drugs as the principal United Nations policy-making body on drug control issues, as a positive one.
Reaffirming the importance of the role of the United Nations International Drug Control Programme as the main focus for concerted international action for drug abuse control and commending its performance of the functions entrusted to it, the Assembly affirmed the importance of the role of the United Nations International Drug Control Programme as the main focus for concerted international action for drug abuse control and commended its performance of the functions entrusted to it. It also affirmed the proposals set out in the United Nations System-Wide Action Plan on Drug Abuse Control and recognizing that further efforts are needed to implement and update it, and invited the relevant agencies of the United Nations system to make greater progress in incorporating within their programmes and activities action aimed at dealing with drug-related problems.
3 C. ICAO Initiatives
The Air Navigation Commission at the 11th Meeting of its 24th Session on 25 February 1957 considered a request of ICAO of inviting comments on the carriage of opiates and derivatives in first-aid kits on board aircraft on international flights.Footnote 20 Special reference in this letter had been made on the following points:
-
(a)
Is it believed necessary to carry opiates or drugs containing opiates and their respective derivatives in the first-aid kits of aircraft for use in case of emergency or in the kits carried by airlines for the relief of passengers suffering from certain diseases?
-
(b)
Do the regulations in a country prohibit the carriage of drugs containing opiates or their derivatives in limited quantities in first-aid kits on board aircraft on international flights? If so, under what safeguards would you allow such drugs to be carried?
-
(c)
Do the regulations of that country prohibit a qualified crew member from administering subcutaneous or intravenous injections in case of emergency on international flights?
Substantive replies were received from 28 Contracting States, Belgian Congo and Netherlands Antilles. In addition three States (Burma, Guatemala, Mexico) acknowledged receipt or had no comment to offer on the State Letter. Comments were also received from the United Nations European Office, Division on Narcotic Drugs, IFALPA, the Aero Medical Association and the ATA (through the United States government).
3.1 I. Basic Principles of Aeronautics on International Narcotic Control
The Commission noted in 1957 that any use or carriage of narcotics was subject to control under international laws on narcotic drugs. The ECOSOC Division of Narcotic Drugs, referring to the ICAO State Letter, had indicated that any discussions ICAO has on the subject or any decisions or regulations they adopt would be of great importance for the work of its Commission on Narcotic Drugs in connection with their preparation of a new Single Convention intended to codify all international treaties relating to narcotic drugs.
The Commission also noted that the international regulations on narcotic drugs consist of a complex system of several Conventions under the supervision of ECOSOC and its Committee on Narcotic Drugs. They were directed at establishing international control of all drugs causing addiction and the application of certain principles as regards the manufacture, prescription, sale and traffic of narcotic drugs. These had generally been introduced into national regulations to prevent any abuse and illicit traffic. Here was nevertheless some lack of uniformity in the detailed application as not all States are parties to all Conventions. It was believed that the codification of all existing treaties into a single Convention, planned by ECOSOC, in the near future, would promote uniformity. In principle, there was no intent in the international regulations to restrict the legitimate use of opiates or narcotic drugs for medical purposes and in case of emergencies. A number of States had adopted specific legal provisions for the carriage of such drugs in aircraft first-aid kits. Other States believed that effective control of their contents was difficult so as to prevent any possibility of abuse.
The Commission was of the view that opiates or other restricted substances carried on board were generally subject to control and the laws applicable in the State of Registry. For instance, the supplies could only be obtained for legitimate, medical or scientific purposes in limited quantities under control, by medical prescription and from an authorized source. A record had to be kept and any use and replacement of such drugs must be accounted for. It is therefore desirable that first-aid kits be protected against misuse by being kept under lock and key or sealed. Preferably opiates or similar drugs might be kept in a sealed container within the first-aid kit. It was also necessary that a record be kept of the quantity, name of product and manufacturer, date of prescription, dispensing agency and signature of person responsible for the control and its use.
One of the significant achievements of the Commission was its conclusion that the terms “opiates and derivatives,” “narcotics” and “narcotic drug” should be considered to include opium, coca leaves, their alkaloids and preparations or derivatives therefrom, whether prepared from substances of vegetable origin or by means of synthesis, or their combinations, and other synthetic drugs liable to produce addiction and controlled by international narcotic regulation.
The Commission concurred with the conclusion that the difficulties reported by some countries might have been caused by a lack of uniformity of national laws and practices developed under a complex system of international narcotic Conventions and the detailed conditions under which opiates and similar drugs had been carried on board. It appeared possible to eliminate existing differences – and potential difficulties – if certain principles for effective control and safeguards against abuse, such as quantity limitations, could be more generally agreed upon by all Contracting States.
As recommended by the Air Navigation Commission in its 545th Report,Footnote 21 the Council decided:
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(a)
That States should be informed of the Commission’s study on the carriage of opiates and derivatives in first-aid kits on board aircraft on international flights and of its conclusion that the Recommendation of Annex 6 continues to be satisfactory and that the carriage of opiates and derivatives in aircraft first-aid kits is considered desirable; and
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(b)
That States should be invited to note the implication in this Recommendation that foreign carriers should be permitted to carry first-aid kits with contents as described in Annex 6 on international flights, under control, according to international narcotic laws and subject to satisfactory safeguards against abuse, and to notify ICAO when they do not permit this.Footnote 22
It agreed that ECOSOC and WHO should be invited to study the related medical and legal problems, in particular the application of efficient safeguards against abuse and of uniform principles under which opiates or other drugs might be used and carried in first-aid kits on board aircraft, in an effort to promote uniformity under existing laws and to avoid difficulties. It was also agreed that such studies should take into account any factors affecting international civil aviation, such as the safety of persons on board and relief in the case of emergencies in flight or of aircraft accidents, and the ICAO Secretariat should call the attention of the bodies making the studies to these factors.
At its 30th Session in April 1957, Council considered further the question of the carriage of opiates in aircraft first aid kits and recognizing that there were three points for decision. The first was: “Is the carriage of opiates in aircraft first-aid kits desirable?” The Commission’s conclusion was that it was desirable – there was a Recommended Practice in paragraph 6.2(a) of Annex 6 which listed narcotics and analgesics among the contents of first-aid kits, and the Commission believed that it should stand. The second point was: “Should their carriage be permitted?” From the ICAO standpoint the answer was obviously “Yes” – if the carriage of opiates and derivatives was desirable it should be permitted – but the issue was complicated by the fact that the international movement of drugs was subject to international narcotics control. The Commission was of the view that all that could be done in the circumstances was to inform contracting States of the present study, to ask them to note the implication in Annex 6 that foreign operators should be permitted to carry first-aid kits with the contents described in that paragraph, and to request them to notify the Organization of differences between their national regulations or practices and this provision. It recommended that the Council decide accordingly. States, ECOSOC and WHO might also be invited to study the related legal and medical problems, in particular the application of efficient safeguards against abuse and of uniform principles under which opiates or other drugs might be used and carried in first-aid kits on board aircraft, in an effort to promote uniformity in existing laws and avoid difficulty. The third point was whether qualified crew members should be permitted to administer narcotic drugs in cases of emergency. On this again national regulations and practices differed, and the Commission’s conclusion was that States might be asked to accept the practice of the State of Registry of the aircraft.
The Council in its Annual Report to the Assembly for 1957Footnote 23 advised that in the light of the replies received from States to the letter inviting comments on the carriage of opiates and derivatives in first-aid kits on board aircraft on international flights, the Air Navigation Commission had concluded that the recommendation in Annex 6 (that first-aid kits should contain analgesics and narcotic) was adequate but that there was a need for more uniformity in its practical application.
Consideration was also given to what action ICAO might take on a number of other medical and health problems in aviation such as the carriage of sick persons, pregnant women, live animals and dead bodies, pollution of food and drinking water on board and removal of refuse from aircraft. A majority of Council members felt that these problems were of much more concern to other organizations (particularly WHO and IATA) than to ICAO and that ICAO could not take any useful action on them. The Secretary General was instructed to keep in touch with developments in connection with them to ensure that any action taken by other organizations would not unnecessarily interfere with ICAO’s Facilitation Programme.
The Economic and Social Council, acting on the request of the ICAO Council, to consider the problem of the carriage of narcotic drugs in first-aid kits of aircraft engaged in international flight, noted that the Council of the International Civil Aviation Organization at the eighth meeting of its 30th session, on 1 April 1957, invited the World Health Organization to study the medical aspects of this question.
The Air Navigation Commission of ICAO later noted that in 1958, the United Nations had recommended to Governments,Footnote 24 to take all necessary measures to prevent the misuse and diversion for illicit purposes of narcotics drugs carried in first-aid kits of aircraft engaged in international flight, in particular by ensuring that such drugs are kept in sealed or locked containers to which only authorized persons have access, that adequate records of supply and use, and of stocks, of narcotic drugs are maintained by the airline companies concerned, and that such records and stocks are subject to regular inspection.
In this context, the Economic and Social Council (ECOSOC) had also requested the Secretary-General to invite the views of the International Criminal Police Organization on the safeguards which should be taken to prevent the diversion of such drugs for illicit purpose and invited the Commission on Narcotic Drugs to consider the report referred to in the preceding paragraph, at its 14th session if possible, and to advise the Economic and Social Council whether further measures should be recommended to governments for application.
In an overview of action taken by ICAO on the carriage of opiates in first-aid kits in aircraft it was observed that the Air Navigation Commission first dealt with the subject when considering how to overcome the difficulties experienced by States in the application of Annex 6, dealing with the carriage of narcotic drugs in aircraft first-aid kitsFootnote 25 These discussions when reported to Council resulted in council’s invitation to ECOSOC and to the World Health Organization (WHO) to study various aspects of the problem.
The Air Navigation Commission was then informed on progress on this subject and at that time the Commission had noted that the problem of the carriage of opiates in aircraft first-aid kits on international flight was being studied further by the World Health Organization and the United Nations’ Commission on Narcotic Drugs. The Secretary was requested to keep the Commission informed or later developments as appropriate.
It was also observed that the Economic and Social Council in Resolution 689F adopted at its 26th Session, July 1958, had requested the Secretary-General of the United Nations, to invite the views of the International Criminal Police Organization (ICPO or Interpol), on the safeguards which should be taken to prevent diversion of such drugs for illicit purposes.Footnote 26 And to prepare, if the World Health Organization study supports the carriage of narcotic drugs in first-aid kits of aircraft engaged in international flight, a report on the legal problems, in particular concerning the application of efficient safeguards against abuse and of uniform principles under which opiates or similar drugs might be used and carried in first-aid kits on board aircraft in an effort to promote uniformity under existing laws. This report was to be prepared in consultation with the Secretariats of the International Civil Aviation Organization and the World Health Organization.
Pursuant to this request, the World Health Organization, with the assistance of a consultant with wide experience in aviation medicine and air carrier problems had prepared a study which concluded that it was desirable to carry a limited amount of narcotics in aircraft first-aid kits and commented on a number of medical aspects which might be taken into consideration to prevent abuse. The United Nations Legal Office concluded that while drugs carried in first-aid kits are not exempted from other relevant provisions of the narcotic treaties, the import certificate and export authorization system then prevalent did not apply to drugs carried under appropriate safeguards in first-aid kits for emergency cases as long as they do not cross the customs lines at points of transit or destination.
The World Health Organization report, the United Nations’ Secretariat legal opinion and the administrative measures proposed by the International Criminal Police Organization to prevent diversion of drugs for illicit purposes were considered by the United Nations Commission on Narcotic Drugs at its 14th Session in April/May 1959. On the basis of the Narcotic Commission’s recommendation, the ECOSOC at its 28th Session in July 1959 unanimously adopted Resolution 730C (XXVIII). In this Resolution the UN Secretary-General had been invited “in co-operation with ICAO and WHO, and in consultation with ICPO, to prepare and to distribute to Governments in sufficient time for consideration at the 15th Session of the Commission on Narcotic Drugs, a set of requirements essential to ensure proper use of narcotic drugs and to prevent their abuse and diversion for illicit purposes, such requirements to be recommended to Governments as a basis for the control of the carriage of narcotic drugs in first-aid kits on board aircraft engaged in international flight”. Accordingly a joint Secretariat Working Group of the UN Division of Narcotic Drugs, WHO, ICAO and ICPO (Interpol) had met in Geneva in January 1960 and prepared the set of requirements referred to above under which opiates or similar drugs may be carried in aircraft first-aid kits on international flight and used in emergency.
The UN Commission on Narcotic Drugs had later discussed and approved the Inter-Secretariat report at its 15th Session, May 1960. Pursuant to this, the ECOSOC at its 30th Session, July 1960, unanimously adopted the Resolution 770E (XXX) prepared by the Commission on Narcotic Drugs which included recommendations to States on the carriage of narcotic drugs in first-aid kits of aircraft engaged in international flights, and safeguards to prevent abuse.
In view of the ECOSOC recommendations aimed at eliminating the difficulties experienced by States, the Air Navigation Commission of ICAO considered whether any further action by ICAO was necessary or whether the subject should be deleted from the Work Programme.Footnote 27
At its 39th Session the General Assembly of the United Nations adopted Resolution 39/143 on “International campaign against traffic in drugs” which, inter alia, called upon the specialized agencies to participate actively in its implementation. In December 1984, the Secretary General of the United Nations also addressed a letter to the Executive Heads of the specialized agencies requesting their co-operation in the efforts directed to control the abuse and illicit trafficking of narcotic drugs. Believing that a very large percentage of illicit narcotic drugs and psychotropic substances was carried by air, the United Nations Division of Narcotic Drugs requested the co-operation of ICAO in this field.
ICAO’s activities in narcotics control became significant in 1984 when, in November of that year, ICAO was represented at the 11th meeting of Operational Heads of National Narcotics Law Enforcement Agencies, Far East Region (HONLEA). An ICAO observer also attended the Third and Fourth Sessions of the Enforcement Committee of the Customs Co-operation Council in February and September 1985 respectively, where matters of narcotics law enforcement were discussed. On the same two occasions, the ICAO observer attended the United Nations Ad Hoc Inter-agency meetings on Co-ordination in matters of International Drug Abuse Control.
At the informal meeting of the Council on 11 June 1985, a preliminary consideration was given to the constitutional mandate of ICAO in the field of suppression of illicit transport of narcotic drugs and psychotropic substances by air. In this connection it should be noted that:
-
(a)
Under the Agreement between the United Nations and the International Civil Aviation Organization,Footnote 28 the Organization is obliged to co-operate in establishing effective co-ordination of the activities of specialized agencies and those of the UN; in particular, ICAO is obliged to consider formal recommendations made by the United Nations and to furnish to the United Nations required information. In this context, it was therefore noted that UN General Assembly Resolution 39/143 called upon the specialized agencies of the United Nations system to participate actively in the implementation of that Resolution, entitled “International campaign against traffic in drugs”. Consequently, the Organization had a responsibility to undertake a study of the problem of suppression of illicit transport on narcotic drugs and psychotropic substances.
-
(b)
The Chicago ConventionFootnote 29 contains several provisions referring to elements of International air law which may be relevant for the control and suppression of drug trafficking.
Article 10 – If all aircraft coming from abroad land only at designated customs airports and depart only from such airports, the control of illicit transport would be greatly facilitated.
Article 13 – Clearance and departure of cargo are subject to the regulations of the contracting States whose territories are involved; the movement of any specific cargo is subject to the legal regulations and effective control of the States concerned.
Article 16 – Contracting States have the right to search aircraft of other contracting States on landing or departure; obviously, the same right is applicable for the search of aircraft of their own registry.
Article 23 – Customs and immigration procedures affecting international air navigation should be in accordance with the practices established or recommended from time to time pursuant to the Convention; that clearly is reflected in the procedures established in Annex 9 to the Convention; however, the predominant provisions in this field are enacted by States through their immigration and customs legislation, the latter being co-ordinated internationally through the Customs Co-operation Council. Annex 9 deals with customs and immigration procedures but mainly in order to ensure that the procedures used are efficient and do not interfere with the speedy clearance of aircraft and their loads.
Article 35(b) – Each contracting State has the right, for reasons of public order and safety, to prohibit the carriage in or above its territory of certain articles; it is within the legislative power of the contracting States to adopt an unconditional interdiction on the carriage of narcotic drugs and psychotropic substances into or over their territory and to establish measures for enforcing such legislation.
Article 37(j) – It is within the legislative function of the ICAO Council to adopt standards, recommended practices and procedures dealing with customs and immigration, import and export of specific articles.
These Articles of the Chicago Convention should be read in conjunction with Article 22 of the Convention under the terms of which each contracting State agrees to adopt all practical measures to facilitate and expedite air navigation and to prevent unnecessary delays to aircraft, crews, passengers and cargo. These requirements are further specified in Annex 9 to the Chicago Convention on Facilitation of Air Transport.
Although it might perhaps be suggested that Annex 9 could contain provisions urging aeronautical authorities to extend every possible assistance in the suppression of drugs trafficking, more detailed instructions or guidance material would seem out of context with the character of Annex 9, which is essentially aimed at overcoming obstacles to the rapid clearance of aircraft and their loads. This objective should be preserved and not diluted by inclusion in the Annex of provisions which would appear to run counter to the prime objective. On the other hand, recognition of ICAO’s co-operation in drug trafficking control could be made by inclusion of text in the Annex, to provide for the following:
-
(a)
That any special inspection procedures required in the control of narcotics traffic be accomplished speedily, with efficient equipment, without inconvenience to passengers and in such a way as to ensure the timely clearance of aircraft and their loads on arrival and departure; and
-
(b)
Point out that most seizures of narcotics and related substances in illicit traffic result from police and drug enforcement intelligence rather than from routine inspection and consequently that sampling rather than exhaustive methods of inspection are to be preferred.Footnote 30
Another programme of ICAO which has a bearing on or which would be affected by any ICAO activities related to the campaign against illicit trafficking in narcotic drugs and psychotropic substances is Aviation Security (Annex 17 to the Chicago Convention and the Security Manual, Doc 8973); however the protected interest in the aviation security programme is aviation itself.
Two other international organizations, i.e., ICPO-INTERPOL and the World Customs Organization (WCO), have a direct responsibility in the suppression of illicit traffic in narcotic drugs. INTERPOL’s role has been involved with influencing national legislation and co-ordinating the work of police services world-wide to eradicate the sources of raw material, processing and refining facilities and the apprehension and prosecution of offenders.
The WCO has, for many years, been concerned with the suppression of smuggling narcotics and psychotropic substances within its general competence to deal with customs matters. Its main instrument in this field is the International Convention on mutual administrative assistance for the prevention, investigation and repression of customs offenses, signed in Nairobi in 1977. The “Nairobi Convention,” as it is called, contains specific references to illicit traffic and an Annex (Annex X) dealing with assistance in action against the smuggling of narcotic drugs and psychotropic substances. These provisions are designed to complement those of prevailing treaties on narcotic drugs. The WCO is also developing with the International Air Transport Association a Memorandum of Understanding between the two organizations containing guideline for both customs authorities and airlines to follow to help prevent illicit traffic of drugs on board aircraft.
The definition of “smuggling” contained in the Nairobi Convention applies to all modes of transport. Pertinent exchanges of information undertaken by Customs Administrations pursuant to the Convention extend to all means of transport used or suspected of being used for the smuggling of narcotic drugs or psychotropic substances or that seem likely to give rise to such operations. Assistance, on request, relating to surveillance extends over particular vehicles, ships, aircraft or other means of transport reasonably believed to be used for smuggling narcotic drugs or psychotropic substances into the territory of the requesting Contracting Party.
The WCO’s main deliberative organ in these matters is its Committee on Customs Enforcement. The current work programme of this Committee in the area of narcotics smuggling includes exchanges of information on couriers, their routes and pertinent traffic trends, development of catalogues of enforcement aids and places of concealment (in co-operation with INTERPOL and the UN Division of Narcotic Drugs), investigative techniques (undercover work), seminars and training programmes an action to monitor and pre-empt financial transactions relating to narcotics smuggling. A recommendation of the Customs Co-operation Council in 17 June 1985 adopted on the proposal of its Enforcement Committee seeks ‘to secure the fullest co-operation of airline and shipping companies and others involved in the international transport and travel industries to assist the international Customs community in suppression the illicit traffic in narcotic drugs and psychotropic substances’.
In the light of the above, it appears that in this field and in accordance with its constitutional responsibilities, ICAO can play the following role:
-
(a)
Monitor the adherence of States of the convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances in order to ensure inter alia that international civil aviation interests are not penalized by objective liability or responsibility unless there is a specific criminal involvement of the carrier or his staff
-
(b)
Formulate and adopt as required technical specifications related to civil flight operations
-
(c)
Develop as required guidance materials
-
(d)
Co-operate with the United Nations Division of Narcotic Drugs and other international organizations through consultation and attendance at meetings
-
(e)
Ensure that facilitation measures and measures directed to control the illicit traffic of drugs do not have an unnecessarily negative impact on each other so as to maintain the separate thrusts of these programmes
4 D. Other Regulatory Provisions
4.1 I. Article 4 of the Convention on International Civil Aviation
Article 4 of the Chicago Convention is the only provision in the Convention explicitly using the words “misuse of civil aviation”; even there, however, the expression is used only in the heading (in fact, in the margin in the original signature copy) and not in the substantive text of the Article. The first paragraph of the Preamble to the Convention refers to “abuse” of international civil aviation without any attempt at a definition of that term.
Article 4 of the Convention has never been the subject of nor involved in a decision or interpretation either by the Assembly or the Council. Therefore, that Article 4 is of no relevance to the problem since it refers only to the obligations of States and to the acts of States. The drafting history of this Article indicates that the underlying intent of Article 4 was to prevent the use of civil aviation by States for purposes which might create a threat to the security of other nations. The intent of Article 4 originated in the Canadian “Preliminary Draft” which stated as one of the purposes of ICAO (or PICAO, as was then envisaged), the future organization “to avert the possibility of the misuse of civil aviation creating a threat to the security of nations and to make the most effective contribution to the establishment and maintenance of a permanent system of general security”. In the further drafting development (“Tripartite Proposal” presented to the Conference by the Delegations of the United States, United Kingdom and Canada) the wording was changed to read: “Each member State rejects the use of civil air transport as an instrument of national policy in international relations”. This wording practically repeated the text of the Treaty for the Renunciation of War of 27 August 1928 (commonly known as the Briand–Kellogg Pact) in which the signatories renounced war “as an instrument of national policy in their mutual relations”. The words “purposes inconsistent with the aims of this Convention” in Article 4 therefore essentially mean “threats to the general security”.
Article 4 does not offer any solution to the problem of “misuse of civil aviation” within the scope of paragraph 2 above, namely, the status of an aircraft which is used for criminal purposes or other unlawful purposes.
The Chicago Convention in general does not contain any provisions which would foresee the specific situations when an aircraft is used for or involved in criminal activities or other activities violating the law and public order of the State. However, there are numerous provisions in the Convention which offer effective safeguards to States that their applicable laws and public order are observed by foreign aircraft (with respect to aircraft of its own registry, the State concerned has unrestricted jurisdiction). Articles 11, 12 and 13 of the Convention in essence confirm the rule of general international law that foreign aircraft, its crew, passengers and cargo do not enjoy any “extraterritorial” status while in the airspace or on the ground of another State; such aircraft are fully subject to the applicable laws of the State concerned. Under the Convention, the State may require the landing of a foreign aircraft involved in non-scheduled flight (Article 5), may prohibit or restrict foreign aircraft from flying over certain parts of its territory or over the whole territory (Article 9), may require landing of foreign aircraft at a designated customs airport (Article 10), may search the foreign aircraft (Article 16) and may regulate or prohibit the carriage of certain articles in or above its territory (Article 35(b)).
It is submitted that all States possess within the existing framework of the Chicago Convention full jurisdiction in the application of their respective laws to prevent or prohibit the use of civil aircraft for unlawful purposes. The practical problem therefore does not appear to arise in the field of the applicability of particular laws but in the field of practical enforcement of such laws with respect to aircraft, particularly aircraft in flight.
4.2 II. Article 3 bis
Problems of interception of and other enforcement measures with respect to a civil aircraft in flight are directly addressed in Article 3 bis adopted by unanimous consensus on 10 May 1984 by the 25th Session (Extraordinary) of the ICAO Assembly. The drafting history of this Article supports the conclusion that Article 3 bis is declaratory of the existing general international law with respect to the following elements:
-
(a)
Obligation of States to refrain from resorting to the use of weapons against civil aircraft in flight
-
(b)
Obligation, in case of interception, not to endanger the lives of persons on board and the safety of aircraft
-
(c)
Right of States to require landing at a designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention
While Article 3 bis accepted in paragraphs (b) and (d) the terminology “for any purpose inconsistent with the aims of the Convention” exactly as it is used in Article 4 of the Convention, the drafting history indicates conclusively that the scope of the phrase is different in Article 3 bis than in Article 4. At the 25th Session (Extraordinary) of the Assembly, convened in Montreal in 24 April to 10 May 1984, this phrase was meant to cover not only violations of the “aims” of the Chicago Convention as spelled out in the Preamble to the Convention and in its Article 44 (which deals with the aims and objectives of the Organization rather than the Convention), but any violation of the law and public order of the State concerned. In the Assembly discussions specific references were made to transport of illicit drugs, contraband, gun running, illegal transport of persons and any other common crimes.
It should be stressed that the scope of applicability of Article 3 bis is subject to significant restrictions; the protection of this Article is reserved only to:
-
(a)
“Civil aircraft”; consequently, “state aircraft” would not enjoy the same protection.
-
(b)
Civil aircraft “in flight”; while the Convention does not define the concept “in flight,” it is likely that this phrase will be interpreted in harmony with the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface of 1952 (Article 1, paragraph 2) and the Tokyo Convention of 1963 (Article 1, paragraph 3). An aircraft shall be deemed to be in flight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends. Consequently, aircraft which are not “in flight” do not enjoy the special protection of Article 3 bis.
It is also submitted that the protection of Article 3 bis is reserved to “foreign” aircraft and does not include aircraft of the State’s own registration. After discussions in the Executive Committee of the Assembly, the reference to aircraft “of the other contracting State” was dropped for the specific reason that the protection was to be recognized as mandatory with respect of aircraft, whether belonging to contracting or non-contracting States. At no stage of the deliberations and drafting did the Assembly (in the Plenary, in the Executive Committee or in the Working Group) contemplate regulation of the status of an aircraft in relation to the State of its own registration; such regulation would have exceeded the scope of the Convention which deals with international civil aviation. Again, the purpose of the Chicago Convention is to establish conventional rules of conduct in the mutual relations of sovereign States but not to govern matters of their exclusive domestic jurisdiction. Consequently, Article 3 bis will not apply to the treatment of aircraft by the States of their registration. This conclusion does not imply that a State is free to treat aircraft of its own registration without regard to any rules of international law; other sources of international law (e.g., the International Covenants on Human Rights) may be relevant for the conduct of States (protection of the right to life, requirement of due legal process, presumption of innocence, etc.).
When requiring the landing of a civil aircraft flying above its territory or when issuing other instructions to the aircraft to put an end to a “violation,” contracting States may resort to any appropriate means consistent with relevant rules of international law, including the Chicago Convention and, specifically, paragraph (a) of Article 3 bis. Consequently, Article 3 bis does not exclude enforcement against foreign aircraft in flight and does not rule out the use of adequate and proportionate force and does not rule out interception as such. Any act of interception or other enforcement measure not involving the use of weapons against civil aircraft in flight and not endangering the lives of persons on board and the safety of flight is legitimate and acceptable. Any interception procedures consistent with the applicable Standards and Recommended Practices adopted by the Council of ICAO pursuant to Articles 37, 54(1) and 90 of the Chicago Convention would be “consistent with relevant rules of international law”.
Two additional provisions of Article 3 bis are likely to deter the occurrences of “misuse” of civil aviation. Firstly, civil aircraft are unconditionally obliged to comply with an order to land or other instruction; contracting States are accepting, under paragraph (c) of Article 3 bis, an obligation to establish all necessary provisions in the national law or regulations to make such compliance mandatory for aircraft of their registration or operated by an operator having his principal place of business or permanent residence in that State. Contracting States are also accepting an obligation to make violation of such laws or regulations punishable by severe penalties and to submit the case to their competent authorities. This provision may offer a practical safeguard that no violators would go unpunished; even if they were to escape from the jurisdiction of the State where the unlawful act was committed, they should be prosecuted and punished by the State of the registration of the aircraft; in practical application this provision may be reinforced by existing or future arrangements for extradition of offenders; and secondly, all contracting States are accepting an unconditional obligation to take appropriate measures to prohibit any deliberate “misuse” of any civil aircraft of their registration or operated by an operator having his principal place of business or permanent residence in that State. Legislative implementation of such a prohibition will no doubt be accompanied by appropriate penalties.
4.3 III. Other Legal Aspects
States can exercise criminal jurisdiction over foreign aircraft in flight over their territory as well as over the territory not subject to Sovereignty of any State (e.g., the high seas) also under the conditions set forth in the Tokyo Convention of 1963.Footnote 31 Article 4 of that Convention permits “interference” with an aircraft in flight in order to exercise criminal jurisdiction over an offence committed on board in the following cases:
-
(a)
The offence has effect on the territory of such State.
-
(b)
The offence has been committed by or against a national or permanent resident of such State.
-
(c)
The offence is against the security of such State.
-
(d)
The offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State.
-
(e)
The exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.
Since the Tokyo Convention has been accepted by many of ICAO’s Contracting States, this provision represents an important additional clarification to Article 3 bis of the Chicago Convention with respect to the interpretation of the term “any purpose inconsistent with the aims of this Convention”. It is submitted that any offence foreseen in Article 4 of the Tokyo Convention gives right to the State concerned to “interfere,” i.e., to require the landing or give the aircraft other instructions and to resort to proportionate and adequate use of force against such aircraft.
The United Nations Convention on the Law of the Sea does not foresee the right of hot pursuit of aircraft; the target of hot pursuit may be exclusively a ship but the procedures of hot pursuit may be effected by an aircraft (Article 111, paragraph 6).
4.4 IV. ICAO Assembly Resolution A 27-12
At its 27th Session, held in September/October 1989, the ICAO Assembly adopted the above Resolution which recognised the enormity of drug abuse and illicit trafficking in drugs and psychotropic substances and urged the ICAO Council to give the highest priority to adopt concrete measures in order to prevent and to eliminate possible use of illicit drugs by crew members, air traffic controllers and other staff of international civil aviation. The Resolution also urged the Council to continue its work in order to prevent illicit transport of narcotic drugs and psychotropic substances. A fortiori, the Assembly called upon Contracting States to continue their efforts to prevent the illicit trafficking of drugs by air, to take appropriate legislative measures to ensure that the crime of illicit transport of narcotic drugs and other psychotropic substances by air is punishable by severe penalties. Contracting States are also urged by this Resolution to become parties, as soon as possible to the United Nations Convention of 1988.
It is incontrovertible that the foregoing discussion brings to bear the concerted efforts of the international community both through the United Nations Organization (through its General Assembly) and through the International Civil Aviation Organization – towards controlling the problem of narcotic drug trafficking. A third force – the carriers themselves – have had considerable success in their anti-narcotic drug programme. One of the best examples of carrier action is reflected in the United States Customs Carrier Initiative Agreement Programme which was introduced in 1984. This programme is a purely voluntary arrangement between governments and carriers in which the government allows each airline to create a security programme that is approved by Customs. The Carrier Initiative Agreement Programmes are aimed at both prevention and interdiction, covering areas of training, prevention and co-operation.
The enormity of the offence of narcotic drug trafficking by air pervades multifarious delinquencies and criminal offences. These may lead to hijacking of aircraft, destruction of aircraft, interception of aircraft and several other offences leading to loss of life and destruction of buildings and installations. Therefore, in the overall perspective, the offence could be termed “misuse of civil aviation”.
The problem of “misuse of civil aviation,” “improper use of civil aviation,” “undue use of civil aviation” or “criminal use of civil aviation” was raised by several delegations at the 25th Session (Extraordinary) of the ICAO Assembly in April/May 1984 and was mentioned by several Representatives on the Council in the context of discussions on the proposed amendment of Annex 2 to the Convention on International Civil Aviation with respect to interception of civil aircraft. In that context, several Representatives expressed concern that necessary procedures must be foreseen to prevent the use of civil aviation for unlawful purposes, in particular for drug trafficking which is more and more generally recognized to be a serious crime against humanity. The problem to be addressed is essentially how to reconcile the protection of civil aircraft in situations of interception with the protection of the law and order of States concerned and with the enforcement of such applicable laws. The scope of the problem encompasses in particular the concern of several States whether Article 3 bis of the Chicago Convention and the amended Annex 2 leave sufficient safeguards for States to prevent, prosecute and punish and deliberate use of civil aircraft for unlawful purposes.
Article 3 bis provides inter alia that every State must refrain from resorting to the use of weapons against civil aircraft in flight. The worlds “refrain from” do not provide the necessary strength to the provision as it does not explicitly prohibit the use of weapons against aircraft in flight. The study of the problem of “misuse” of civil aviation and of its consequences for law enforcement with respect to civil aircraft in flight leads to the following conclusions:
-
(a)
Although the term “misuse of civil aviation” is a legally imprecise term which has no firm basis in the Convention on International Civil Aviation apart from the title of Article 4, it still reflects the overall threat posed by unlawful interference with civil aviation.
-
(b)
The phrase “any purpose inconsistent with the aims of this Convention” has historically a different meaning in Article 4 of the Convention and in paragraphs (b) and (d) of Article 3 bis.
-
(c)
The concept of “misuse of civil aircraft” should best be referred to as “deliberate use of civil aircraft for unlawful purposes.”
-
(d)
The Chicago Convention contains effective provisions safeguarding full jurisdiction of States to prevent or prohibit the use of foreign aircraft for unlawful purposes in their territory.
The above conclusions may be drawn upon to use the relevant provisions of the Chicago Convention as a base to formulate other legal documents that would enforce more stringent control over this offence.
From an administrative perspective, certain measures may be taken to address the problem, and to limit and control production and distribution of drugs. These measures could be coordinated under the broad umbrella of the United Nations through the International Criminal Police Organization (ICPO, Interpol) and the World Customs Organization (WCO). States have a lead role to play in the introduction and implementation of Counterterrorist measures which are directly aimed at disbanding terrorist organizations. They could also enact effective legislation against money laundering which could, through national financing oversight mechanisms track and freeze payments and assets of drug dealers, etc. This rests mainly with national financial oversight authorities. Domestically, States could introduce drug rehabilitation programmes and provide adequate counselling and treatment to drug abusers. Above all, a stringent police presence would be needed to arrest street crimes that are drug related and drug deals on the streets.
Notes
- 1.
Report of the International Conference on Day Abuse and Illicit Trafficking, Vienna, 17–26 June 1987. United Nations: New York 1987 at 7.
- 2.
Bell (1991, p. 2).
- 3.
Narco-terrorism is a term coined by former President Fernando Belaunde Terry of Peru in 1983. President Terry considered Narco-terrorism to be attacks of a terrorist nature against his nation’s anti-narcotics police. In the original context, Narco-terrorism is understood to mean the attempts of narcotics traffickers to influence the policies of a government or a society through violence and intimidation, and to hinder the enforcement of the law and the administration of justice by the systematic threat or use of such violence.
- 4.
Hartelius (2008, p. III).
- 5.
Hartelius (2008, p. III).
- 6.
A/C.3/40/8, Annex.
- 7.
A/C.3/40/8.
- 8.
United Nations, Treaty Series, vol. 520, No. 7515, p. 204.
- 9.
United Nations, Treaty Series, vol. 976, No. 14151, p. 4.
- 10.
Official Records of the Economic and Social Council, 1981, Supplement No. 4 (E/1981/24), annex II.
- 11.
See Official Records of the Economic and Social Council, 1981, Supplement No. 4 (E/1981/24), Chap. XI, sect. A.
- 12.
See Official Records of the Economic and Social Council, 1985, Supplement No. 3 (E/1985/23 and Corr. 1), Chap. IX, sect. A.
- 13.
See A/40/773, annex.
- 14.
As illustrated, by, inter alia, the following meetings and initiatives:
-
The Inter-American Programme of Action against the Illicit Use and Production of Narcotic Drugs and Psychotropic Substances and Traffic Therein, adopted by the Inter-American Specialized Conference on Traffic in Narcotic Drugs, held at Rio de Janeiro, Brazil, from 22 to 26 April 1986;
-
The Tokyo Declaration entitled “Looking forward to a better future,” issued at the Tokyo Economic Summit, held from 4 to 6 May 1986 (see A/41/354, annex I, para. 5);
-
The 19th Ministerial Meeting of the Association of South-East Asian Nations, held at Manila on 23 and 24 June 1986;
-
The recommendations of the first Interregional Meeting of Heads of National Drug Law Enforcement Agencies, held at Vienna from 28 July to 1 August 1986 (see A/41/559, para 10);
-
The Economic Declaration of the Eighth Conference of Heads of State or Government of Non-Aligned Countries, held at Harare from 1 to 6 September 1986;
-
The Puerto Vallarta Declaration, adopted at the Regional Meeting of Ministers of Justice and Attorneys-General, held at Puerto Vallarta, Mexico, from 8 to 10 October 1986 (A/C.3/41/5, annex);
-
The Meeting of Ministers of Interior and Justice of the 12 member States of the European Community, held in London on 20 October 1986;
-
The recommendations of the Interregional Conference on the Involvement of Non-Governmental Organizations in Prevention and Reduction of the Demand for Drugs, held at Stockholm from 15 to 19 September 1986 (A/C.3/41/7, annex, paragraph 84).
-
- 15.
A/43/678.
- 16.
See Official Records of the Economic and Social Council, 1987, Supplement No. 3 (E/1988/13).
- 17.
Report of the International Conference on Drug Abuse and Illicit Trafficking, Vienna, 17–26 June 1987 (United Nations publication, Sales No. E.87.I.18), Chap. I, Sect. B.
- 18.
See Official Records of the General Assembly, 44th Session, Plenary Meetings, 13th meeting (A/44/PV.13).
- 19.
Official Records of the General Assembly, 39th Session, Supplement No. 1 (A/39/1).
- 20.
See C-WP/2372, 7/3/57 at p. 1.
- 21.
See C-WP/2372.
- 22.
See AN-WP/1984, 1/12/58 at 1.
- 23.
Doc 7866, A11-P/3 at 21.
- 24.
E/RES/689 (XXVI) 29 July 1958.
- 25.
AN-WP/1604; XXIV-11, 25/2/57.
- 26.
See AN-WP/1984 Appendix B.
- 27.
The Economic and Social Council (ECOSOC) in Resolution 770E (XXX) approved certain recommendations to Governments on safeguards to prevent abuse for the carriage of narcotic drugs in first-aid kits of aircraft engaged in international flights.
- 28.
Doc 7970.
- 29.
Convention on International Civil aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300/9 Ninth Edition, 2006.
- 30.
A recommendation of the Customs Co-operation Council dated 17 June 1985, recognizes ‘that the proper balance between the needs of customs enforcement and the facilitation of legitimate trade and travel can best be achieved if customs enforcement is selective and intelligence based and that it is therefore essential that every effort be made to develop and exploit the best possible intelligence.’ (Recommendation on the Development of Co-ordinated Enforcement and Intelligence Operations aimed at Identifying and Interrupting Concealed Illicit Drugs).
- 31.
Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, ICAO Doc 8364.
References
Bell R (1991) The history of drug prohibition and legislation. Interpol International Criminal Police Review, September – October 1991
Hartelius J (2008) Narcoterrorism, Policy Paper 3/2008. United Nations
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Abeyratne, R. (2010). Narco-terrorism. In: Aviation Security Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11703-9_4
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