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Cablegate: Icao: Second Meeting of the Special Legal Sub-Committee On

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DOT FOR OST AND OGC
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E.O. 12958: N/A
TAGS: AORC EAIR ICAO KNNP OTRA KTIA PARM XX
SUBJECT: ICAO: SECOND MEETING OF THE SPECIAL LEGAL SUB-COMMITTEE ON
THE PREPARATION OF ONE OR MORE INSTRUMENTS ADDRESSING NEW AND
EMERGING THREATS

REFS: A) STATE 013631 B) STATE 017530 (NOTAL)

SENSITIVE BUT UNCLASSIFIED - PLEASE PROTECT ACCORDINGLY.

1. (U) SUMMARY: The International Civil Aviation Organization
(ICAO) Special Legal Sub-Committee on New and Emerging Threats met a
second time (February 19-21, 2008) to consider the issue of unlawful
transport by air of particularly dangerous goods and related items
and fugitives, as directed by a November 28, 2007 decision of the
ICAO Council (see ref A). The Sub-Committee agreed to incorporate
"transport of materials" offenses into the draft amendment to the
Montreal Convention, using substantively identical text as that
included in the 2005 Protocol to the Convention on the Suppression
of Unlawful Acts against the Safety of Maritime Navigation (SUA).
The Sub-Committee did not reach consensus on whether the amendment
to the Montreal Convention should include a fugitives transport
offense; however, it was agreed that such a provision would be added
in brackets for future consideration. The ICAO Secretariat plans to
prepare new draft texts of both the Hague and Montreal Conventions
and to seek an ICAO Council decision on whether the draft is ready
to forward to the entire ICAO Legal Committee. END SUMMARY.

2. (U) TRANSPORT OFFENSES:

a. Explosives, radioactive material, WMD and related items: The
Sub-Committee considered two options, proposed by Australia, for
incorporating transport offenses into the draft amendment to the
Montreal Convention: Option A would adapt for aviation purposes the
text in the 2005 SUA Protocol. Option B would criminalize unlawful
transport of "high consequence dangerous goods" as defined in Annex
18 to the Chicago Convention. The U.S. delegation (per ref B
guidance) supported Option A. Eleven other states spoke; all
supported inclusion of transport offenses for WMD and related items,
either in general or specifically via Option A. No country
supported Option B. Below is additional background on the
discussion of the "transport of materials" offense provisions:

-- India submitted a working paper claiming the SUA Protocol
provisions would implicate innocent persons and discriminate against
non-parties to the Nuclear Non-Proliferation Treaty (NPT). In the
course of the meetings, India specifically proposed replacing the
term "an IAEA comprehensive safeguards agreement" with "a respective
safeguards agreement" or "a safeguards agreement with the IAEA" in
the transport offenses text. India claimed that the exemptions in
the SUA Protocol for nuclear dual-use transfers consistent with the
NPT applied only to nuclear weapons states-parties to the NPT.
South Africa pointed out that the Montreal Convention only
criminalizes "unlawful" activities, and an activity conducted under
any safeguards agreement would not be unlawful. Other countries
asked for time to study India's proposal; therefore the phrases were
placed in brackets.

-- During discussion of the elements of the offense of transport of
explosives or radioactive material, Canada stated that the amendment
should not cover the failure to obtain a license for otherwise
lawful exports of explosives or conventional arms. The U.S.
delegation agreed. Nevertheless, no agreement was reached on
whether to include the terrorist object/purpose element for this
offense (as used in the SUA Protocol), or delete it, or replace it
with alternate wording.

-- China (two CAAC officials) expressed numerous concerns about
incorporating transport offenses during a February 18 bilateral
meeting with the U.S. delegation. Following U.S. explanations,
however, China supported the effort during the Sub-Committee
meetings. China expressed concern regarding the applicability of
the amendment to state aircraft, noting that there is no standard
definition of what a state aircraft is. China wants to ensure that
the offenses would apply only to civil aircraft, and said it might
raise this issue again in the future.

b. Fugitives: Australia also had 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 the intent of assisting the person in
evading prosecution. The text would be substantively the same as
the "transport of fugitives" provision in the 2005 SUA Protocol.
Four countries, including the United States, supported inclusion of
such a provision in the amendment to the Montreal Convention, while
eight countries made negative comments. The Chair (Thierry Olson of
France) decided to insert the provision with brackets.

3. (SBU) MILITARY EXCLUSION CLAUSE: Lebanon repeated its concerns
and/or opposition to the standard military carve-out included in the
amendments to The Hague and Montreal Conventions in July 2007.
Lebanon's representative asked for clarity as to what other rules of
international law would apply to military forces, since these
Conventions would not apply. The Chair noted that the provisions
used standard wording from many other international counterterrorism
conventions and that it had received broad support in July 2007.
The Chair did not bracket any portion of the military exclusion
provisions, but agreed to reflect Lebanon's comments in the Minutes.
No other countries spoke on the military carve-out, and the U.S.
Delegation did not consider a U.S. intervention necessary given the
Chair's comments.

4. (U) CONSPIRACY OFFENSE: Japan opposed applicability of the
conspiracy/criminal association offense provision, agreed upon by
the Sub-Committee in July 2007, to the transport offense provisions.
The Japanese delegation was confident of Japan's ability to
implement domestically a conspiracy provision applicable to the
non-transport offense provisions in the Montreal Convention and
draft amendment. However, Japan did not think it would be able to
implement a conspiracy provision that applied to transport offenses
since "transport," itself, could be viewed as a preparatory act. The
Chair objected to revising text that was agreed at the
Sub-Committee's first meeting in July 2007, but agreed to note
Japan's concerns in the report on the Sub-Committee proceedings.
(In a bilateral meeting with Japan on this issue, the U.S.
delegation reiterated its view of the importance of extending the
conspiracy provision to transport offenses and noted its willingness
to work with the Japanese to find an acceptable solution. Japan
informed the U.S. delegation that a draft anti-conspiracy law is
being held up in Japan's parliament, hampering Japan's ability to
accede to any international conventions that criminalize
conspiracy.)

5. (U) FORM OF AMENDMENT: Three options were discussed for the form
of the amendments to The Hague and Montreal Conventions: (1)
protocols to both Conventions, (2) new consolidated texts of both
Conventions, and (3) protocols along with unofficial new
consolidated texts. The Sub-Committee did not reach agreement on
which form the amendments should ultimately take.

6. (U) NEXT STEPS: The Sub-Committee discussed whether it needed to
meet again before submitting draft texts to the entire Legal
Committee. (Such a meeting could take place in September or October
2008). Senegal and IATA (the global air carrier industry
association) supported a third meeting. Five countries, including
the United States, opposed another meeting. The Chair indicated
that, since there was not clear consensus, this issue would be
referred to the ICAO Council for a decision sometime in March.
(Only the Council has authority to schedule a meeting of the Legal
Sub-Committee and allocate funding for it. USICAO plans to work
with like-minded Council members to express objection to another
Sub-Committee meeting in order that ICAO, in a tight budget climate,
can save money, and to avoid protracted discussion of some of the
more contentious issues.)

7. (U) PARTICIPANTS: The Legal Sub-Committee members that attended
the meetings were: Argentina, Australia, Brazil, Canada, China,
France, Germany, India, Italy, Japan, Lebanon, Nigeria, Russia,
Senegal, Singapore, South Africa, Switzerland, United Kingdom, and
United States. Legal Sub-Committee members Egypt, Finland, Jordan,
Mexico, and the UAE did not attend. At their request, Colombia, the
Dominican Republic, Greece, South Korea, Turkey, Uruguay, and the
International Air Transport Association (IATA) were allowed to
attend as observers.


Bliss Marshall

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