VZCZCXYZ0069
OO RUEHWEB

DE RUEHMT #0059/01 0651954
ZNR UUUUU ZZH
O 051954Z MAR 08
FM AMCONSUL MONTREAL
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0828
INFO RULSDMK/DOT WASHDC
RUEKJCS/SECDEF WASHDC
RHMFIUU/FAA NATIONAL HQ WASHINGTON DC
RUEAWJA/DOJ WASHDC
RHEBAAA/USDOE WASHDC
RHEFHTA/TSA HQ WASHDC

UNCLAS MONTREAL 000059 
 
SIPDIS 
 
SENSITIVE 
 
DOT FOR OST AND OGC 
FAA FOR AGC-JENNISON 
TSA FOR GENERAL COUNSEL 
 
SIPDIS 
 
SIPDIS 
 
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