Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
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Air Law
Unruly Passengers: The Airline
Industry Perspective on the Revision
of the Tokyo Convention
ABSTRACT
Unruly passenger incidents on board aircraft in commercial service have become a significant
operational issue faced by airlines, flight and cabin crew on a daily basis. These incidents
threaten flight safety and security, impact the travel experience of other passengers and
lead to significant costs and operational disruption for carriers.
The Convention on Offences and Certain Other Acts Committed on Board Aircraft
(ICAO, 1963), commonly known as the Tokyo Convention 1963, is the international air
law instrument that deals with offences and certain other acts committed on board
aircraft in flight. On 4th April 2014, States attending a Diplomatic Conference
in Montreal, Canada, adopted a protocol to amend the Convention that
recognised “the escalation of the severity and frequency of unruly behaviour
on board aircraft that may jeopardise the safety of the aircraft or of persons
or property therein or jeopardise good order and discipline on board”.
This paper explores this issue and focuses on the likely effectiveness of
the revision of the Tokyo Convention 1963 as part of a wider range
of measures to deal with unruly passenger incidents.Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
THE AUTHOR
Mr Tim Colehan is Assistant Director, Member and
External Relations for the International Air Transport
Association (IATA). He is responsible for policy analysis and
development as well as working with airline members,
regional airline associations and others to articulate and
advocate the industry positions to governments and
regulators.
He has been involved in IATA’s initiatives in response to the
growing issue of unruly passengers including advocating
for the revision of the Tokyo Convention 1963. He was
part of the IATA delegation at the recent ICAO Diplomatic
Conference that adopted the Montreal Protocol 2014.
Prior to joining Member and External Relations, Mr Colehan
was Area Manager for Thailand, Cambodia, Myanmar and
Laos based in Bangkok after serving as Country Manager,
Gulf Area, responsible for all aspects of IATA’s local
operations and activities.
Mr Colehan holds an MSc in Air Transport Management
from Cranfield University, UK.Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
Tim Colehan
International Air Transport Association
UNRULY PASSENGER INCIDENTS – A SIGNIFICANT ISSUE
In recent years, there has been a general upward trend in instances of unruly and disruptive
behaviour on board aircraft in commercial airline service. That is the conclusion drawn from
statistics gathered and analysis undertaken by IATA, the trade association that represents 243
airlines that are responsible for 84 per cent of global traffic. Analysis of the IATA data shows
the following common types of behaviour (IATA, 2013, p. 2):
a) Illegal consumption of narcotics or cigarettes;1
b) Refusal to comply with safety instructions (e.g. an instruction to fasten a seat belt or
disrupting a safety announcement);
c) Verbal confrontation with crew members or other passengers;
d) Physical confrontation with crew members or other passengers;
e) Passengers who interfere with crew duties or refuse to follow instructions to board or leave
the aircraft;
f) Making threats that could affect the safety of the crew, passengers and aircraft (e.g. threat
to kill or injure someone, bomb threat. Attempting to enter the cockpit has also been
reported by airlines as a concern);
g) Sexual abuse or harassment; and
h) Other types of riotous behaviour that could jeopardise the safety or alter good order and
discipline on board the aircraft (e.g. screaming, annoying behaviour, kicking and banging
heads on seat backs).
Long-term analysis shown in Figure 1 indicates that, for the period 2007 to 2013, there was
an average of one unruly passenger incident per 1,600 flights. In 2013 alone, there were over
8,000 unruly passenger reports equating to 1 incident for every 1,370 flights.
1
The consumption of alcohol from private supply is also a reported problem although not captured as a specific category by the
IATA analysis.
Journal of Aviation Management 2014 9Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
© 2014 International Air Transport Association (IATA). All Rights Reserved
Figure 1: Unruly Passenger Reports 2007 to 2013
Figure 2 shows that approximately 20 per cent of these incidents were serious enough to require
the intervention of police or security services at the place of landing.
© 2014 International Air Transport Association (IATA). All Rights Reserved
Figure 2: Unruly Passenger Incidents Requiring Police/Security Service Intervention 2007 to 2013
10 Journal of Aviation Management 2014Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
These statistics are obtained from the Safety Trend Evaluation, Analysis and Data Exchange
System (STEADES), a database owned and managed by IATA to which 170 airlines submit
periodic reports (IATA, 2014). Participation in STEADES is entirely voluntary and therefore the
data collected, while constituting a significant sample, is likely to under-represent the global
extent of the issue.
Airlines also confirmed the growing trend towards unruly and disruptive behaviour in their
responses to an IATA survey conducted in 2013 (IATA, 2013). The responses from 53 members
located in every region of the world demonstrate that this issue affects airlines operating in all
parts of the world without being confined to any particular region and in all classes of travel.
All of the airlines surveyed had experienced an unruly passenger event on their services within
the last 12 months. Of those, 43.4 per cent had experienced more than 100 such events on
their services in the relevant 12-month period (see Figure 3).
More than 100 43.40%
50 to 100 15.09%
20 to 50 13.21%
Less than 20 28.30%
Figure 3: How many unruly passenger events would you estimate have occurred on your services in the last 12 months?
Journal of Aviation Management 2014 11Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
About 53 per cent of respondent airlines felt that unruly passenger events had increased in
frequency on their services in the last five years (see Figure 4).
Increased 52.83%
Decreased 9.43%
Stable over time 24.53%
Not possible to say 13.21%
Figure 4: In your view, have unruly passenger events increased or decreased on your services in the last 5 years?
It is beyond the remit of this paper to discuss what factors may be behind the increase in
unruly incidents. It is possible that it simply reflects societal changes where anti-social behaviour
is increasingly prevalent. However, what is deemed acceptable on the ground takes on a
completely different complexion in the confined environment of an aircraft cabin at 35,000 feet.
The increasing reports of unruly passenger behaviour over recent years led IATA to develop
a holistic approach to the problem, focusing on prevention, management and deterrence. On the
operational side, guidance materials were developed containing advice, tools and best practices
that enable airlines to enhance policies and procedures aimed at preventing and managing
unruly incidents. IATA’s legal team also undertook a thorough review of the Tokyo Convention
1963 to ensure that it remains a sufficient deterrent to unruly behaviour. This comprehensive
review identified a number of gaps in the Convention that needed to be addressed in light of
the increasing incidence and severity of unruly incidents.
12 Journal of Aviation Management 2014Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
LIMITATIONS OF THE TOKYO CONVENTION 1963
The gaps in the Convention that were identified by IATA’s review are outlined below:
Jurisdictional Issues
The identity of an unruly passenger can usually be easily ascertained because any unlawful
conduct that takes place in a confined space should, in theory, facilitate the job of law
enforcement authorities. However, the reality is that, in many cases following an incident, the
State where the passenger disembarked does not have jurisdiction (as the State of landing)
when the aircraft is registered in another State.
The consequence is that the offenders are simply left unpunished, which undermines the deterrent
effect that the Convention may otherwise have. In the IATA survey conducted during March and
April 2013, more than 60 per cent of airlines reported that prosecutors at the place of landing cite
lack of jurisdiction as a primary reason for not pursuing charges against an offender.
The jurisdictional gap for certain types of passenger conduct has also been expressly recognised
by the courts. Because jurisdiction does not exist in the State of landing, the hope is that:
“signatories to the Tokyo Convention will be astute in seeking the extradition for prosecution
of those who commit offences aboard their registered or controlled aircraft. Failing this,
‘crime’ committed aboard aircraft may go unchecked.”2
However, expanding the scope of the jurisdiction provision would actually obviate the need
for a proactive approach to extradition. It must be noted, in this respect, that the State of
registry is unlikely to seek extradition for minor property or conduct offences, especially in cases
where the high cost of extradition processes outstrips the perceived seriousness of the conduct
in question. Just because a particular conduct does not merit extradition, however, does not
necessarily mean that the conduct is undeserving of summary penalty or other sanction at the
place of landing.
Recognising the limitations of the Convention, some States including Australia, Canada, France,
the United States and the United Kingdom have already exercised State-of-landing jurisdiction
and have amended their domestic laws to permit national courts to exercise jurisdiction over
events that occur on board foreign aircraft which land in their territory.3 Nevertheless, many
States are understandably reluctant to unilaterally extend jurisdiction to events occurring outside
their territory in the absence of an international agreement. A number of States have indicated,
2
The Queen v Duggan 1995, No. 96, CACC000096/1995, Hong Kong Court of Appeal, at 5 (per Justice Mortimer).
3
While ICAO Circular 288 is a positive step forward in this area, it is IATA’s view that treaty-level rules are necessary if meaningful
international uniformity is to be achieved. See further International Civil Aviation Organization. (2002). Circular 288 – Guidance Material
on the Legal Aspects of Unruly/Disruptive Passengers. Montreal. International Civil Aviation Organization Publishing Division.
Journal of Aviation Management 2014 13Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
for instance, that their legislatures would not enact such a law without a basis grounded in
treaty law. Moreover, in the absence of a mandatory State-of-landing jurisdiction provision,
it may be difficult to convince national legislators of the importance of modifying their
applicable domestic law.
Another jurisdictional issue relates to those aircraft that are registered in one State but have
operators that have their legal presence in another State. This is facilitated by a Protocol relating
to an Amendment to the Convention on International Civil Aviation, signed at Montreal on
6 October 1980 (ICAO, 1980).
In 1980, airlines leased three per cent of all aircraft and owned 97 per cent. Yet in 2014, airlines
leased approximately 40 per cent of all aircraft (by operating lease). This number is projected
to increase to 50 per cent in the next few years (Reed Business Information Ltd, 2014). Thus,
it is reasonable to predict that it will become less and less likely over time that the State of
registration will be the same as the State of the operator.
A new State of operator jurisdiction would prevent the erosion of the State of registration
principle over time by sensibly conferring jurisdiction upon the State most closely connected to
the airline in question. It is possible that a leased aircraft may seldom, or never, visit the State
of registration.
It should be observed that State of operator jurisdiction is neither a new concept in air law, nor
within those air law instruments that deal with criminal liability. The same or similar concept is
employed in the Convention for the Suppression of Unlawful Seizure of Aircraft (ICAO, 1970),
the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (ICAO,
1971), the Convention on Compensation for Damage Caused by Aircraft to Third Parties (ICAO,
2009a), the Convention on Compensation for Damage to Third Parties Resulting from Acts of
Unlawful Interference Involving Aircraft (ICAO, 2009b), the Convention on the Suppression
of Unlawful Acts Relating to International Civil Aviation (ICAO, 2010a) and the Protocol
Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (ICAO,
2010b).
Definition of Offences
The Convention currently does not provide for a definition of what constitutes a criminal
offence, leaving this issue to be determined by the penal law of the State having jurisdiction
over the incident in question. Conduct that may constitute a criminal offence in the State of
embarkation, the State of registration of the aircraft, the State of the operator or the State
of the perpetrator or victim may not be a criminal offence in the country where an unruly
passenger disembarked.
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Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
Police or prosecution authorities, in practice, may not pursue an unruly passenger at all because
they are not certain how the offending conduct fits into the scope of their domestic criminal
law. In many cases, authorities simply prefer to release the passenger to his or her onward
journey. In IATA’s view, some elaboration of the types of conduct prohibited would improve
certainty for passengers, law enforcement authorities and airlines.
Right of Recourse
Unscheduled landings to disembark or deliver unruly passengers to State authorities have
a significant impact on a carrier’s operating costs. A single diversion can cost anything from
US$6,000 to US$200,000. For example, long haul flights may need to jettison fuel prior to
landing to comply with the aircraft’s maximum landing weight limits. Other costs, such as
landing fees, accommodation, ground-handling charges, passenger compensation and fuel
uplift to complete the onward journey are also incurred. In many cases, crew will reach their
maximum number of hours under applicable flight and duty time rules, meaning that a new
crew will have to be flown in to operate the onward journey.
Carriers may seek to recover these expenses from unruly and disruptive passengers through civil
proceedings or some form of judicial restitution order in the context of criminal proceedings.
However, the Convention is silent on a right of recourse and carriers are usually left to bear the
significant cost of these events themselves. In particular, if the passenger in question leaves the
jurisdiction, it will often be difficult or impossible to recover these losses.
Allowing carriers the prospect of recovering the operational and post-incident costs arising from
an unruly passenger incident would have a strong deterrent effect.
Temporal Scope
The Convention only applies when the aircraft is “in flight”, which is considered to be “from
the moment when power is applied for the purpose of take-off until the moment when the
landing run ends.”
This is at odds with the Convention for the Unification of Certain Rules Relating to International
Carriage by Air (McGill University, 2012) and the Convention for the Unification of Certain
Rules for International Carriage by Air (ICAO, 1999), commonly known as the Warsaw 1929
and Montreal 1999 Conventions respectively, which deal with air carrier liability. Under those
Conventions, the carrier is potentially liable to its passengers for an accident which occurs from
the point of initial embarkation up until the point of disembarkation. Thus, an unruly passenger
could cause injury to another passenger during embarkation and for which the airline would be
liable under the Warsaw/Montreal regime. However, that same unruly passenger would not be
liable of committing an offence or other unlawful act under the Tokyo Convention.
Journal of Aviation Management 2014 15Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
The recent Convention on the Suppression of Unlawful Acts Relating to International Civil
Aviation (ICAO, 2010) adopts a broader scope to that of the Tokyo Convention. Under this
Convention, “an aircraft is considered to be in-flight at any time from the moment when all
its external doors are closed following embarkation until the moment when any such door is
opened for disembarkation”.
In IATA’s view, the temporal scope of the Tokyo Convention should reflect the period during
which the aircraft commander’s powers apply.
THE ROAD TO REVISION
In 2009, the increase in unruly passenger incidents led IATA to make a formal request to the Legal
Committee of ICAO to review and enhance the Tokyo Convention to allow law enforcement
authorities adequate means to pursue offenders. A stronger legal framework that operators can
rely upon would have a strong deterrent effect.
ICAO subsequently established a Secretariat Study Group on Unruly Passengers and in October
2011 agreed that the issue of unruly passengers needed to be addressed by the international
community and that the Tokyo Convention should be reviewed. A Special Sub-committee
of the Legal Committee was then created to review the Tokyo Convention. The 35th Session
of the Legal Committee held in Montreal from 6 to 15 May 2013 considered a draft text of
a Protocol to revise the Tokyo Convention and decided to submit the text to the ICAO Council.
At its 11th Meeting of its 199th Session, the Council decided to convene a Diplomatic Conference
to amend the Tokyo Convention from 26 March to 4 April 2014.
THE MONTREAL PROTOCOL 2014 – KEY CHANGES
The Diplomatic Conference to amend the Tokyo Convention was concluded on 4 April 2014.
It adopted the Protocol to amend the Convention on Offences and Certain other Acts Committed
on board Aircraft’ (“the Protocol”) (ICAO, 2014) and includes the majority of the revisions that
the airline industry through IATA had advocated for. Together with the operational measures
already being taken by airlines to prevent and manage unruly passengers, IATA strongly
believes that the Protocol will provide an effective deterrent for unruly behaviour by making the
consequences of such behaviour clear and enforceable. The key changes are outlined below.
Extension of Jurisdiction
A significant majority of States at the Diplomatic Conference supported the extension of
mandatory jurisdiction to the State of landing. However, several States expressed concerns
about the impact of extending jurisdiction relating to legal certainty and proportionality,
particularly where the aircraft commander decides to divert to a third country to disembark an
unruly passenger. A Working Group was established during the Conference in an attempt to
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Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
seek consensus. The result was that the Protocol gives mandatory jurisdiction to the intended
State of landing (the scheduled destination). If the aircraft diverts to a third State, that State is
still competent to exercise jurisdiction at its discretion. However, two safeguards were included
as a compromise. Firstly, the offence must be sufficiently serious i.e. where the safety of the
aircraft or of persons or property therein, or good order and discipline on board is jeopardised.
Secondly, the State of landing must ascertain if the offence is considered an offence in the State
of operator.
States overwhelmingly supported the industry position and the Protocol establishes mandatory
jurisdiction for the State of operator. This takes account of the increasing trend towards dry
leasing aircraft where the State of aircraft registration is not necessarily the State of operator.
The extension of jurisdiction will close the existing gaps in the Convention, giving States the
legal tools they require to deal with unruly passengers.
Definition of Offences
The Protocol clarifies certain behaviours which should be considered, at a minimum, as an
offence and encourages States to take appropriate criminal or other legal proceedings. These
include physical assault or a threat to commit such assault against a crew member and refusal to
follow a lawful instruction given by or on behalf of the aircraft commander (for safety purposes).
In addition, the Conference passed a Resolution to update ICAO Circular 288 (ICAO, 2002)
which establishes a detailed list of offences and model legislation that States can use when
developing their domestic legislation.
The elaboration of the types of conduct prohibited will improve certainty for passengers, law
enforcement authorities and airlines.
Right of Recourse
The Protocol recognises the expressed right of airlines to seek compensation from unruly
passengers at their discretion. The presence of this clause should have strong deterrent value.
Scope
The Protocol effectively brings the scope of the Tokyo Convention in line with other international
air law instruments, giving greater certainty to carriers.
THE CHALLENGE
Whilst the Protocol will undoubtedly close many of the gaps in the Convention and will have
a strong deterrent effect, it will only be effective if States become parties to it. The Protocol will
enter into force when 22 States have deposited their instruments of ratification, acceptance,
approval or accession at ICAO. Changes to domestic laws are often a prerequisite for ratification
Journal of Aviation Management 2014 17Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
of international treaties. Thus, given the vagaries of the different legislative systems and
domestic political agendas, it is likely to be some time before the Protocol enters into force
and even longer until it is widely ratified. Recent experience of other aviation law instruments
supports this thesis. For example, the Montreal Convention 1999 (ICAO, 1999) which deals
with air carrier liability has been in force for over a decade, but only 55 per cent of ICAO
States are parties to it.
IATA and its regional airline association partners are working with other key stakeholders to
advocate for governments to prioritise the ratification of the Protocol as a key element of
a wider strategy to deal with the growing problem of unruly passengers.
THE NEED FOR A COMPREHENSIVE, MULTI-STAKEHOLDER APPROACH
Whilst its importance cannot be understated, the new Protocol is only one element of a wider
range of measures needed to effectively deal with the issue of unruly passenger behaviour.
IATA has been working with its membership to develop a set of core principles (see Appendix
A) which set out a comprehensive approach to tackling the issue. These principles highlight the
need for governments and the wider aviation industry to work together and were unanimously
endorsed at the 70th IATA Annual General Meeting in Doha in June 2014.
The principles serve as industry acknowledgement of its responsibility to implement effective
policies and procedures (such as de-escalation techniques, restraint and responsible service of
alcohol training) that help prevent and manage unruly passenger incidents, whilst highlighting
the need for governments to provide a strong international legal framework that is a stronger
deterrent to unruly behaviour. Significantly, the principles also outline the need for wider
stakeholder participation to help tackle this problem by taking measures to prevent issues
in the air. Recent experience in the United Kingdom showed that such initiatives have been
effective in reducing unruly behaviour on board flights (Daily Telegraph, 2014). Initiatives
should include airport operators and airport concessionaires ensuring appropriate awareness
training is provided to staff in the responsible sale and service of alcohol, etc. Ground handling
agents and security service providers (e.g. screeners) are also requested to ensure their staff
report unruly behaviour to the airline representatives so that they can make an informed
decision on whether to accept a passenger for travel.
CONCLUSION
Airlines are working on numerous operational initiatives to prevent and manage unruly
passenger incidents, but the industry cannot deal with the issue alone. A comprehensive and
balanced approach as set out in the core principles is needed.
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Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
By adopting the Montreal Protocol 2014, States have publicly recognised the increased
frequency and severity of unruly passenger incidents and the inherent threat to safety, security
and good order on board aircraft. The Protocol represents a once-in-a-generation opportunity
for governments to put in place an international legal instrument which gives them the means
to deal with unruly passengers more effectively and to deter future incidents. Therefore, urgent
and widespread ratification of the new Protocol is needed. Taken together with measures being
implemented by the airline industry, this will lead to a safer and a more pleasant air travel
experience for all.
Journal of Aviation Management 2014 19Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
Appendix A – Industry Principles on Unruly Passengers
1. The Tokyo Convention 1963 as amended by the Montreal Protocol 2014 is a modern and
effective international legal framework to deal with unruly and disruptive behaviour on
board aircraft. Therefore, States should ratify the Montreal Protocol 2014 and implement
consequential changes to national legislation as soon as possible;
2. As an important complementary measure, governments should consider legislation to
establish jurisdiction over offences and acts committed on board foreign civil aircraft that
subsequently land in their territory with an offender still on board;
3. Governments should apply ICAO Circular 288 – Guidance Material on the Legal Aspects
of Unruly/Disruptive Passengers, and any subsequent updates thereto, as a guide for the
development of national legislation;
4. Governments and national authorities should seek to raise public awareness of the
consequences resulting from a failure to follow crew instructions or other behaviour which
disturbs good order and discipline on board aircraft;
5. Where not already in place, member airlines should implement a policy for the consistent
and effective handling of unruly passengers that reflects IATA Recommended Practice 1798a
and the IATA Guidance on Unruly Passenger Prevention and Management;
6. Member airlines should develop appropriate training programmes for crew and ground
service personnel that focus on prevention and management and include components
dealing with the responsible service of alcohol (where applicable) and conflict de-escalation
techniques;
7. Member airlines should clearly communicate to passengers the consequences and sanctions
applicable to unruly and disruptive behaviour on board aircraft, generally and through the
use of graduated warnings, as appropriate in specific cases; and
8. Airport operators, airport concessionaires and security providers are urged to engage with
industry efforts by establishing procedures in respect of unruly and disruptive behaviour
and, in particular, reporting their relevant observations about conduct on the ground.
20 Journal of Aviation Management 2014Air Law
Unruly Passengers: The Airline Industry Perspective on the Revision of the Tokyo Convention
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