ICAO: INCORPORATION OF TRANSPORT OFFENSES IN

UNCLAS STATE 013631

SIPDIS

SIPDIS
MONTREAL FOR USICAO

E.O. 12958: N/A
TAGS: AORC EAIR ICAO KNNP OTRA KTIA PARM XX
SUBJECT: ICAO: INCORPORATION OF TRANSPORT OFFENSES IN
MONTREAL CONVENTION AMENDMENT

REF: 07 STATE 149106/149107

SUMMARY
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1. Work is underway in the International Civil Aviation
Organization (ICAO) to amend the Montreal and The Hague
aviation security conventions to strengthen their provisions
against aviation-related terrorist acts. In November 2007,
as a result of successful U.S. and Australian outreach
(reftel),the ICAO Council decided to include consideration
of the issue of unlawful transport by air of particularly
dangerous goods and related items and fugitives in the
amendment exercise. A Special Legal Sub-Committee of ICAO
will meet in Montreal February 19-21 to work on incorporating
such provisions in the draft amendment. This demarche is
intended to inform the member states on the Special Legal
Sub-Committee of the U.S. position and urge their support.
END SUMMARY.

OBJECTIVES AND ACTION REQUESTS
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2. Australia continues to take the lead in proposing
provisions requiring that states parties prohibit the
unauthorized transport via civil aircraft of explosives and
weapons of mass destruction (WMD),their delivery systems and
other materials, equipment, and technology related to WMD.
The ICAO circulated Australia's proposed text on WMD
transport offenses to the Legal Sub-Committee members on
February 5, 2008. The U.S. supports the Option A text that
is based on the 2005 SUA Protocol (see reftel). We seek
similar support from the other member states for the Option A
text and hope for a productive session in Montreal February
19-21 on inclusion of the text into the draft amendment.


3. Embassies are requested to approach host governments
immediately on this issue. Embassies may discuss the
background below with host governments, and/or leave it as a
nonpaper.

-- Embassies may provide a copy of Australia's papers and the
ICAO report on the Council's November 28, 2007 decision if
host governments do not have them available. Please contact
the POCs below if you need a copy of these documents.

-- Embassy Canberra should inform host government that the
U.S. is sending this demarche to the Legal Sub-Committee
member states.

-- USICAO is requested to discuss this issue with counterpart
missions that will participate in the February 19-21 Legal
Sub-Committee meetings.

-- For embassies Amman, Beirut, Dakar, Helsinki: Jordan,
Lebanon, Senegal and Finland did not receive reftel because
they were no longer on the ICAO Council as of November 2007.
Nevertheless, the ICAO Secretariat has informed us that the
membership of the Legal Sub-Committee has not changed.
Reftel will be provided by e-mail upon request.

REPORTING DEADLINE AND POC
--------------


4. All embassies are requested to report delivery of this
demarche and host government's response by February 15.
Replies may be sent via e-mail. POCs are Jane Purcell in ISN
(202-647-6186, purcelja@state.sgov.gov or purcelja@state.gov)
and Andrew Keller in L (202-647-6194, kelleran@state.sgov.gov
or kelleran@state.gov). The Department greatly appreciates
Embassies' assistance.

BACKGROUND
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5. As described in reftel, the ICAO Special Legal
Sub-Committee met July 3-6, 2007 and worked on draft
protocols to amend The Hague and Montreal Conventions on
aviation security to strengthen their provisions against
aviation-related terrorist acts. The meeting included
representatives from: Australia, Brazil, Canada, China,
Finland, France, Germany, India, Italy, Japan, Lebanon,
Nigeria, Russia, Senegal, Singapore, South Africa,
Switzerland, the UAE, the UK and the United States. Jordan,
Egypt, Argentina and Mexico also were named to the Legal
Sub-Committee, but did not attend the July 2007 meetings.


6. At the July meeting, Australia tabled, with U.S. and UK
support, a paper that proposed addressing transport offenses
related to proliferation of weapons of mass destruction (WMD)
as part of the protocol to the Montreal Convention, based
either on the 2005 SUA Protocol or on Chicago Convention
Annex 18 regulating the transport of dangerous materials.
The Legal Sub-Committee was unable to reach consensus on the
proposal, and therefore referred the issue to the ICAO
Council for further guidance.


7. When the ICAO Council addressed this question on November
28, 2007, 20 of the 34 member states made presentations in
favor of including transport offenses. Only Germany spoke
against the proposal, and in fact questioned the need for any
amendment to the Montreal Convention. The ICAO Council
decided that "the issue of the unlawful transport by air of
particularly dangerous goods and related items and fugitives
should be considered by the Special Sub-Committee of the
Legal Committee." The ICAO Council directed the Legal
Sub-Committee to meet again at ICAO headquarters in Montreal
February 19-21, where discussion of the incorporation of
transport offenses into the draft amendment will be the
primary topic.


8. The United States is very pleased by the ICAO Council's
November decision to pursue consideration of transport
offenses in the Montreal Convention amendment. The support
from a large number of states was, and will continue to be,
instrumental in ensuring that this amendment takes into
account the need to address the abuse of the civil aviation
system for such WMD proliferation or terrorist purposes.


9. Australia has submitted, and ICAO has circulated,
proposed draft text for the Montreal Convention amendment
that that would require criminalization of the transport of
dangerous materials. Two options have been provided. The
U.S. supports Option A (described in Attachment A of
Australia's paper),which would require criminalization of
the unauthorized transport via civil aircraft of explosives,
WMD, their delivery systems, and other materials, equipment,
and technology related to WMD. We urge the other members of
the Legal Sub-Committee to support Option A as well.


10. The Option A text is based on the International Maritime
Organization's (IMO) 2005 Protocol to the 1988 Convention for
the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (SUA). The SUA Convention was itself
modeled after the Montreal Convention of 1971, which the ICAO
is now amending. The text of the 2005 SUA Protocol is
available online at www.state.gov/t/isn/trty/81728.htm.


11. We see significant advantages, including with regard to
national implementation, in following the SUA model. It
would ensure the necessary complementarity between maritime
and air transport, and therefore would be the most effective
in preventing gaps in the international counterterrorism
legal framework related to the transport via civil aviation
of explosives, WMD, and WMD-related items. Incorporating
these provisions into domestic law will also be easier for
those countries that are already addressing this issue in
conjunction with accession to the 2005 SUA Protocol.


12. The Option B text in Australia's paper has significant
limitations, since it would not address core proliferation
concerns relating to illicit transfers of equipment used for
the production of weapons of mass destruction and their
delivery vehicles. Additionally, the U.S. is concerned that
the structure of this option - its linkage to a list of goods
that is subject to change (without formal amendment of the
convention) - may make ratification (at least in the U.S.)
more difficult and may hamper domestic implementation because
of due process concerns for criminal defendants.


13. (If asked whether Option A will penalize states that are
not party to the NPT:)
The U.S. considers the wording of the 2005 SUA Protocol to be
an excellent model to follow in the ICAO context.
Nevertheless, we are open to examining in the ICAO context
the possibility of alternative ways to make clear which
actions are illegal and within the scope of the transport
offenses.


14. Australia has also proposed inclusion of an offense
provision requiring criminalization of the act of
transporting a fugitive on board an aircraft with the
knowledge that the person has committed a terrorist act and
with the intent of assisting the person in evading
prosecution for such act. The Australian proposal is
substantively analogous to the "transport of fugitives"
provision in the 2005 SUA Protocol. The United States
supports inclusion of such provision in the amendment to the
Montreal Convention.

End background.
RICE