Southeast University
Department of Law & Justice
LLM Final) -Program.
Course Title: International Air and Aviation Law
Cou...
Table of Contents:
01. Introduction
02. Definition of Offence
03. Background of Convention
04. Provisions of Convention
05...
Assignment On:
Tokyo Convention: Offences, Jurisdiction (Include
cases)
3
Introduction:
The Convention on Offences and Certain Other Acts Committed On Board
Aircraft, commonly called the Tokyo Con...
murder, causing explosions, Kidnapping. (For extra clarity, the offences will
sometimes be referred to in this publication...
Compliance and Enforcement:
The Convention authorizes the aircraft commander to impose reason-able
measures, including res...
his aircraft”. Therefore, this protection was given in order to encourage the
crew of an aircraft to fight the unlawful ac...
International Offence in Air:
The inadequacy of the Tokyo Convention and the increase in the number of
hijackings resulted...
the state in which the aircraft lands to allow the passengers and crew
to continue their journey, and to return the aircra...
crimes that may be tried by any country, regardless of where the
crimes occurred or the nationality of the offenders or th...
(1) The State of registration of the aircraft is competent to exercise
jurisdiction over offenses and acts committed on bo...
prescriptive jurisdiction will often be closely bound up with questions of
judicial jurisdiction. In considering whether a...
of that state is applicable. When a crime has been committed during an
international flight, however, there may be difficu...
Under the 1952 Rome Convention on Surface Damage, in principle, actions
may be brought only before the courts of the contr...
that the Convention was drafted prior to the series of hijackings in the late
1960s and that it was not implemented with d...
The State Obligation of Offence in Aircraft:
The Convention obliges states to include hijacking in extradition treaties to...
Unlike the Tokyo and Explosives Conventions, the other conventions
include no prohibition on reservations, in addition to ...
these lapses and to Criminalize such acts. The Convention repeats some of
the provisions of The Hague Convention but it wa...
amendments. From 30 August to 10 September this year (2010) a diplomatic
conference held in Beijing, comprising of represe...
Conclusion:
The increasing threat to safety of an aircraft and its crew and passengers has
led to concern throughout the i...
independent since 1963 and not all of them have yet adopted the Convention
or passed the necessary national laws to empowe...
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Assignment On: Tokyo Convention: Offences, Jurisdiction (Include cases), Air And Aviation Law

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  1. 1. Southeast University Department of Law & Justice LLM Final) -Program. Course Title: International Air and Aviation Law Course Code: LMF 3223 Prepared For: Prepared By: Sayef Amin ID No. 2013020301030 26th Batch, Section: A LLM (Final) – Program Date of Submission: 27/08/2013 1
  2. 2. Table of Contents: 01. Introduction 02. Definition of Offence 03. Background of Convention 04. Provisions of Convention 05. Compliance and Enforcement 06. Main Aim and Objective of Convention 07. Offence and Jurisdiction of Tokyo Convention 08. International Offence in Air 09. Hijacking protected rules and regulation by Tokyo Convention 10. Requirements of jurisdiction of Convention 11. Crimes against aircraft 12. Jurisdiction-Article 3 of the Tokyo convention, 1963 13. Jurisdictional problems 14. Civil and Criminal Jurisdiction 15. Case Study 16. The State Obligation of Offence in Aircraft 17. Reservations 18. Accession or succession 19. Relation between Tokyo Convention, 1963 and the 1971 Montreal Convention 20. Suppression of Unlawful Seizure of Aircraft 21. Conclusion 22. Bibliography 2
  3. 3. Assignment On: Tokyo Convention: Offences, Jurisdiction (Include cases) 3
  4. 4. Introduction: The Convention on Offences and Certain Other Acts Committed On Board Aircraft, commonly called the Tokyo Convention, is an international treaty, concluded at Tokyo on 14 September 1963. It entered into force on 4 December 1969, and as of 2013 has been ratified by 185 parties. The Convention is applicable to offences against penal law and to any acts jeopardizing the safety of persons or property on board civilian aircraft while in-flight and engaged in international air navigation. Coverage includes the commission of or the intention to commit offences and certain other acts on board aircraft registered in a Contracting State in-flight over the high seas and any other areas beyond the territory of any State in addition to the airspace belonging to any Contracting State. Criminal jurisdiction may be exercised by Contracting States other than the State of Registry under limited conditions, when the exercise of jurisdiction is required under multilateral international obligations, in the interest of national security, and so forth. The Convention, for the first time in the history of international aviation law, recognizes certain powers and immunities of the aircraft commander who on international flights may restrain any person(s) he has reasonable cause to believe is committing or is about to commit an offence liable to interfere with the safety of persons or property on board or who is jeopardizing good order and discipline. In strictly domestic cases the Convention does not have application and acts and offences committed in the airspace of the State of Registry are excluded except when the point of departure or intended landing lies outside that State, or the aircraft enters into the airspace of a State other than the State of Registry as for example on a domestic flight which traverses the boundary of another State. Definition of the offences: Although each convention requires the parties to legislate for the offences defined in it, many will already be crimes under existing law, such as 4
  5. 5. murder, causing explosions, Kidnapping. (For extra clarity, the offences will sometimes be referred to in this publication as ‘Convention offences’.) Background of Convention: The International Civil Aviation Organization was established in 1944 by the Chicago Convention to insure the safe and orderly growth of international civil aviation. The ICAO accomplishes this primarily through the development and promulgation of standards and recommended practices (SARPS). The ICAO has also developed a number of international conventions to address specific security concerns. Although the first hijack attempt on a commercial aircraft occurred in 1931, the first real wave of hijackings began around 1958 when individuals hijacked aircraft as a means to divert them from Cuba to the United States. After 1961, the direction of the hijackings reversed and there was a wave of diversions of aircraft from the United States to Cuba. To prevent aircraft diversions, the Legal Committee of the ICAO met in Rome in 1962 to draft a convention on the subject of crimes committed on board an air-craft in international flight. This draft was submitted to the States of the world for comment and diplomatic conference was convened in 1963 for final approval. Provisions of Convention: This Convention applies to offenses against penal law and to acts which, whether offenses or not, affect in-flight safety of persons or property or jeopardize the discipline on board civilian aircraft. It covers offenses or acts committed on board any civilian aircraft registered in a State Party, while the aircraft is in flight or on the surface of the high seas or any other area outside the territory of any State. A State Party, other than the State of registration of the aircraft, may not exercise criminal jurisdiction except when the offense has a direct impact on its territory, citizens, or residents; security; flight rules and regulations; or when the exercise of jurisdiction is called for under a multilateral international agreement. This Convention does not apply in strictly domestic cases and excludes acts or offenses committed in the airspace of the State where the aircraft is registered, unless the point of take- off or intended landing point is outside that State. 5
  6. 6. Compliance and Enforcement: The Convention authorizes the aircraft commander to impose reason-able measures, including restraint, on any person he or she has reason to believe has committed or is about to commit such an act, when necessary to protect the safety of the aircraft and for related reasons; requires contracting States to take custody of offenders and to return control of the aircraft to the lawful commander Main Aim and Objective of Convention: The Convention aims to provide safety to aircraft, protection of life and property on board aircraft and generally to promote the security of civil aviation. A wide range of powers are granted to the aircraft commander, members of the crew and passengers with the sole aim to constitute international unified rules which would give the commander of every aircraft in the world the power to preserve good order and discipline on board the aircraft and to take all preventive measures or measures of restraint necessary to that end. This power can be considered as a means to secure the maintenance of law and order on board the aircraft: the power to arrest, disembark and deliver to competent authorities of contracting states, any person committing or attempting to commit an offence or any act which jeopardizes the safety of aircraft, persons or goods on board, or threatens to create disorder on board. As a corollary, the Convention grants a limited measure of immunity to the persons acting under the circumstances and conditions described in the Convention. Offence and Jurisdiction of Tokyo Convention: The drafters of the Convention thought that “it would be difficult to impose upon an aircraft commander responsibility for maintenance of law and order on board his aircraft, without at the same time giving him protection from possible criminal liability to which he might be subjected in the event he should impose restraint upon an individual who had committed a crime on 6
  7. 7. his aircraft”. Therefore, this protection was given in order to encourage the crew of an aircraft to fight the unlawful acts and offences considered by the Convention. Through the various stages of the drafting history of the Tokyo Convention, the participants had been aware of its intended purpose to create a uniform law applicable to offences on board aircraft. This purpose could not possibly be achieved if the state of the victim, the state of the offender, the state of first landing and so forth, were not also recognized as being competent to exercise jurisdiction in addition to the state of registration of the aircraft. Hence, it is submitted that the Convention recognizes the jurisdiction of the state of registration of the aircraft to the exclusion of all others, except the territorial state, under certain conditions where jurisdiction may be concurrent, although this is not expressly stated in he Convention. The Convention does not prescribe specific offences but rather relies upon offences as codified under national law and it applies to acts which, whether offences or not, affect the in-flight safety of persons or property or jeopardize the discipline on board a civil aircraft. Although the Convention does attempt to cover unlawful seizure of aircraft specifically in Article 11, not all forms of unlawful seizure of aircraft are covered, nor does it provide for a specific response other than an obligation on states to “take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft.” Even though there is a requirement for states parties to take delivery of a person whom the aircraft commander delivers because he has reason to believe the person has committed a serious offence according to the penal law of the state of registration of the aircraft, the Convention lacks proper extradition arrangements enabling effective prosecution of hijackers. The Convention does not oblige a contracting state to punish an alleged offender upon his disembarkation or delivery. Actually, the state of landing must set him free and let him proceed to the destination of his choice as soon as practicable if it does not wish to extradite or prosecute him. Contracting states may extradite the offenders, if at all, only under the provisions of other treaties between the affected states. The failure to provide machinery for mandatory extradition, if prosecution was not pursued in the landing state, is considered a major deficiency of the Tokyo Convention. 7
  8. 8. International Offence in Air: The inadequacy of the Tokyo Convention and the increase in the number of hijackings resulted in the need to define the act of hijacking and recognize it as an international offence, led the ICAO Assembly adopting a resolution on the subject matter and to seek an appropriate legal framework to deal with the offence. As result, the ICAO Council by its resolution of December 1968 referred legal aspects of the problem of unlawful seizure of aircraft to the Legal Committee. On 1 December 1970 a draft Convention was submitted to an ICAO conference at The Hague, attended by 77 States, and was adopted on 16 December 1970. This Convention made significant contributions to the effort of the international community to curb the unlawful seizure of aircraft and to remove the threat caused to international civil aviation. It covers both international and domestic flights; it gives a specific definition of hijacking of aircraft and it includes as well the threat to undertake such an act as an offence, although this is limited to a threat made on board an aircraft in- flight. Another important development was that the number of states competent to exercise jurisdiction over a hijacker was enlarged and a new basis for the exercise of jurisdiction by the state where the chatterer of an aircraft has his/her principal place of business or permanent residence was introduced. Moreover, the Convention grants every contracting state the power to exercise jurisdiction over a hijacker if such states are affected by an offence committed under the Convention, thus making it impossible for the hijacker to escape the normal process of the law. Hijacking protected rules and regulation by Tokyo Convention: Unlawful seizure is the legal name that states at the international level have given to aircraft hijacking. Thus, the 1963 Tokyo Convention obliges contracting states to take all appropriate measures to restore control of an aircraft hijacked in flight to its lawful commander, and obliges 8
  9. 9. the state in which the aircraft lands to allow the passengers and crew to continue their journey, and to return the aircraft and its cargo to those lawfully entitled to possession. In response to a wave of hijackings that began in 1968, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft was concluded in an effort to prevent hijackers from finding immunity in any of the contracting states. Requirements of jurisdiction of Convention: The jurisdiction of a court refers to its capacity to take valid legal action. All governments claim territorial jurisdiction over crimes committed wholly or partly within their territory, including flag vessels (i.e., vessels registered in that country) and embassies. The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) recognize that states have the right and even the duty of jurisdiction with respect to any crime committed upon aircraft registered in that state. Most nation-states also claim nationality jurisdiction over certain crimes committed by their nationals, even when they were committed in other countries. A third jurisdictional basis is known as protective-principal jurisdiction, which gives criminal jurisdiction over offenses committed against national interests. For example, persons who forge currency of a country may commit a crime against that country even if the forgeries are executed beyond the borders by persons who are not citizens. A fourth jurisdictional basis of late 20th-century origin and with less universal acceptance is similar to the third and is known as passive-personality jurisdiction. In certain circumstances, violent crimes against nationals may give rise to jurisdiction even if the crimes occur beyond the borders and the offenders are not nationals. For example, when in 1985 the United States attempted to arrest the hijackers on the Italian cruise ship MS Achille Lauro because of the brutal shipboard murder of American citizen Leon Klinghoffer, the claimed jurisdiction of the U.S. over the hijackers may have been based on passive personality. Finally, international law recognizes that there are universal jurisdiction 9
  10. 10. crimes that may be tried by any country, regardless of where the crimes occurred or the nationality of the offenders or the victims. A long-accepted example of universal crimes giving jurisdiction to all national courts is piracy on the high seas; all countries have jurisdiction to try pirates. In the 20th century, war crimes, crimes against humanity, genocide, and torture were added to the list of crimes giving rise to universal jurisdiction. • Territory: Their territory, including flag vessels (i.e., vessels registered in that country) and embassies. The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) recognize that states have the right and even the duty of jurisdiction with respect to any crime committed upon aircraft. • Airport security: crimes on board aircraft, particularly any crime that jeopardizes the safety of the aircraft and its passengers; Convention for the Suppression of Unlawful Seizure of Aircraft, commonly called The Hague Convention, was signed on Dec. 16, 1970, and went into force on Oct. 14, 1971 concerned specifically. • Hijacking: the passengers and crew to continue their journey, and to return the aircraft and its cargo to those lawfully entitled to possession. In response to a wave of hijackings that began in 1968, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft was concluded in an effort to prevent hijackers from finding immunity in any of the contracting states. Crimes against aircraft: Declaratory of general international law when it defines the offense of piracy principally as any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private [i.e., nongovernmental and not noncommercial] ship or a private aircraft, and directed: (a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. Jurisdiction-Article 3 of the Tokyo convention, 1963: 10
  11. 11. (1) The State of registration of the aircraft is competent to exercise jurisdiction over offenses and acts committed on board. (2)Each Contracting State shall take such measures as may be necessary to establish its jurisdiction as die State of registration over offenses committed on board aircraft registered in such State. (3) This Convention does not exclude any criminal jurisdiction exercised in accordance with national law. Article 4 A Connecting States which is not the State of Registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offense committed on board except in the following cases: (a) the offense has effect on the territory of such State; (b)the offense has been committed by or against a national or permanent resident of such State; (r) the offense is against the security of such State; (d) the offense consists of a breach of any rules or regulations relating to the flight or maneuverings of aircraft in force in such State; (e) the exercise of jurisdiction is necessarily to ensure the observance of any obligation of such State under a multilateral international agreement. Jurisdictional problems: The basic problem encountered when seeking to regulate conduct, and especially criminal conduct, on board an aircraft or ship, or otherwise, is one of jurisdiction. It is therefore convenient to consider first the nature of criminal jurisdiction and the different senses in which the term is employed. There are three different concepts 6: (i) Prescriptive jurisdiction: the power of a State to make legal rules; (ii) Enforcement jurisdiction: the power of a State to enforce legal rules by executive action; (iii) Judicial jurisdiction: the power of the courts of a State to apply legal rules and punish their contravention. Enforcement jurisdiction is almost exclusively restricted to the territory of the State, since generally no State may enforce its laws outside its territory, or against the ships or aircraft of another State, without consent. Prescriptive jurisdiction, which defines the ambit of the criminal law of a State and its power to characterize conduct as lawful or unlawful, is not so limited and there are many examples of States prescribing rules for the conduct of their nationals abroad. In practice, 11
  12. 12. prescriptive jurisdiction will often be closely bound up with questions of judicial jurisdiction. In considering whether a court can exercise criminal jurisdiction in a particular case one must find out whether the conduct constitutes an offence contrary to the law of the State 6. The exercise of criminal jurisdiction by States is often explained in terms of certain. Factors that link the conduct and the State exercising jurisdiction. Common law systems generally claim to prescribe and enforce criminal law on grounds of territoriality i.e. the conduct took place in the territory of the State. For this purpose, vessels and aircraft registered in a State are often assimilated to the territory of that State. But, territorial jurisdiction may also be exercised under the subjective and objective principles of territoriality that can apply when activities take place partly in the territory of one State and partly in the territory of another. The State where the conduct is initiated exercises jurisdiction on the basis of subjective territoriality, and the State where the conduct is completed exercises jurisdiction on the basis of objective territoriality, provided that the conduct constitutes a criminal offence in the law of each State if performed there in its entirety, and if an element of the actuaries of the offence took place there. These extensions of territorial jurisdiction are frequently encountered in common law systems, and are often bound up with notions of constructive presence. Criminal jurisdiction: Although some systems of national law still adhere to the view that ships and aircraft are part of the territory of the state the nationality of which they possess, this is merely a crude metaphor. In international law, a distinction has to be made between three types of state jurisdiction: territorial jurisdiction over national territory and all persons and things therein; quasi- territorial jurisdiction over national ships and aircraft and all persons and things thereon; and personal jurisdiction over all other nationals and all persons under a state’s protection, as well as their property. In case of conflict, territorial jurisdiction overrides quasi-territorial jurisdiction and personal jurisdiction, while quasi-territorial jurisdiction overrides personal jurisdiction.I Civil jurisdiction: For a long time, the failure of states to extend their criminal laws to their aircraft while they were outside national territory posed a serious problem. As long as an aircraft is flying in the national airspace of some state, the law I http://www.britannica.com/EBchecked/topic/10733/air-law/39258/Hijacking 12
  13. 13. of that state is applicable. When a crime has been committed during an international flight, however, there may be difficulty in pinpointing when and where it occurred and hence in determining the state the law of which has been violated. Unless the criminal law and jurisdiction of the state of registry have been extended to the aircraft during the period it is outside the state of registry, there may be none applicable; over the high seas, for example, there would clearly be a gap in the law. This, together with the realization that with the constant increase in air traffic the incidence of offenses on board aircraft was bound to rise, led to the conclusion in 1963 at Tokyo of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, obliging the contracting states to extend their criminal law and jurisdiction to aircraft of their registry when they are outside national territory. The convention furthermore gives the aircraft commander power to ensure law and order on board his aircraft and to disembark any offender in any contracting state in which the aircraft lands. In most countries the general civil law applies, except as modified. In the interest of avoiding statelessness, most states confer their nationality on those born on aircraft of their registry; but there is in air law no general principle of the law of the flag (i.e., the law of the state of registry) being applicable to every occurrence on board. There are, however, various international agreements that affect the exercise of civil jurisdiction by states. A few may be mentioned. The most important is doubtless Article 28 of the 1929 Warsaw Convention on International Carriage by Air, as subsequently modified by Article 8 of the 1961 Guadalajara Convention and amplified by Article 12 of the 1971 Guatemala City Protocol. Under Article 28, an action arising from an “international” carriage by air may be brought only before the courts of certain contracting states and no others. The 1933 Rome Convention on Precautionary Arrest of Aircraft, which has not been widely accepted, exempts aircraft actually used on government services or in commercial transport from precautionary attachment. In other cases, the giving of an adequate bond “shall prevent the precautionary attachment or give a right to immediate release.” Among ICAO members, Article 27 of the Chicago Convention provides that, subject to certain conditions, aircraft of the contracting states on an international flight are exempt from seizure or detention on patent claims in the territory of other contracting states, without having to deposit a security. 13
  14. 14. Under the 1952 Rome Convention on Surface Damage, in principle, actions may be brought only before the courts of the contracting state in which the damage occurred. Committee on the Board of Aircraft Function for Offence: Although the League of Nations made cohesive efforts to create an international criminal court to deal with acts of international terrorism by drafting a Convention to Combat International Terrorism in 1937, this Convention never came into force as it was signed by only 13 states and ratified by only one. Shocked by the rising trend of aircraft hijacking in the early 1960s and the failure of the 1958 Geneva Convention on the High Seas to offer rules applicable to the offence of hijacking of aircraft, the international community considered adopting, under the aegis of the International Civil Aviation Organization (ICAO), the 1963 Tokyo Convention on offences and certain other acts committed on board aircraft, followed by the 1970 Hague Convention for the suppression of unlawful seizure of aircraft and the 1971 Montreal Convention for the suppression of unlawful acts against the safety of civil aviation.II The first action taken by the international community to combat unlawful acts on board aircraft was the Tokyo Convention of 1963. The studies leading to the adoption of the 1963 Convention involved a detailed examination of all the matters relating to the legal status of aircraft and in particular to important aspects like crimes and offences committed on board aircraft, jurisdiction relating to such crimes and he resolution of jurisdictional conflicts. Over the years, several drafts of the Convention were revised with a final text being presented by the Legal Committee of ICAO to the ICAO Council for submission to a diplomatic conference, convened in Tokyo from 20 August to 14 September 1963, for the purpose of further consideration, finalization, adoption and opening for signature of the final draft of the Convention. 61 states and five international organizations were represented at the conference. The Tokyo Convention emerged in its present form on 14th September 1963, thus consolidating the efforts of ICAO since 1950 on the subject of crimes on board aircraft. The Convention came into force six years later, on 4 December 1969. It is claimed that the rationale behind this slow ratification process was the fact II http://www.3skies.eu/AVSEC%20Conventions%20PUBLISHED%20article.pdf 14
  15. 15. that the Convention was drafted prior to the series of hijackings in the late 1960s and that it was not implemented with due haste by most states. The complicated legal and political issues facing many states at the time of the adoption of the Convention was another reason for the late implementation. Although states were slow in ratifying or in acceding to the Convention, it is worth mentioning that, within one year (1969-1970), 80 states ratified the Convention, probably in response to the spate of hijackings that occurred during that period. Case Study: Principle of Territoriality: Argument that application of principle of territoriality leads to denial of international jurisdiction or denial of infringement in foreign patent infringement cases [Judgment of Jan. 27, 2000, Tokyo High Court, 1711 Hanji131] “The internationally recognized so-called principle of territoriality shall be applied to patent cases, and as a consequence, the patentee cannot claim for injunction based on foreign patents with no laws or conventions allowing it even if certain con duct is considered to be an infringement under the foreign law.” Judgment of Oct. 16, 2003, Tokyo District Court, 1874 Hanji23 (“Coral Sand Case”) III The plaintiff is a Japanese company selling and exporting to the U.S. products of coral fossil powder. The defendant is also a Japanese company which has a U.S. patent of composite including coral sands. The plaintiff sought a declaratory judgment of not infringing the defendant’s U.S. patent. Answering the defendant’s argument that the principle of territoriality denies the international jurisdiction in this case, the court quoted the meaning of the principle set by the Supreme Court judgment of Jul. 1, 1997 and stated that the principle is related to the substantive effect of patents but not to jurisdiction. III http://www.ip.courts.go.jp/documents/pdf/thesis/060721_22.pdf 15
  16. 16. The State Obligation of Offence in Aircraft: The Convention obliges states to include hijacking in extradition treaties to be concluded between them; those who do not have such treaties, but make extradition conditional on a treaty, can regard this Convention as the legal basis for extradition. At the diplomatic conference which discussed the draft of the Convention, the drafters rejected the proposal to apply compulsory prosecution or extradition. Automatic extradition, though probably the best deterrent, was considered too severe a commitment by most of the negotiating states. However, they accepted that the contracting state in whose territory the alleged offender is found shall, if it does not extradite him, be obliged to submit the case to its competent authorities, for the purpose of prosecution. This provision together with certain other requirements was designed to ensure that states either prosecute or extradite offenders in their territory. There was extensive debate over these provisions, particularly over the issue of hijacking for political motive and the discretion of states to prosecute in those circumstances with the intention to preclude political motive as a reason for not extraditing where prosecution of an offender does not occur. Notwithstanding its efficiency in some areas, the Convention has a series of weaknesses. The offence must be committed by a person on board an aircraft “in-flight” and thereby it excludes offences committed by persons not on board such as saboteurs who remain on the ground. The Convention provides that the aircraft is deemed 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 doors are opened for disembarkation. Therefore, any hijacking initiated or attempted before the closing of the doors of the aircraft after embarkation, or after the opening of the doors for disembarkation, is not covered. Whilst the Convention includes an accomplice offence, an accomplice only falls within the ambit of the Convention if the assistance is provided whilst on board the aircraft in-flight. Furthermore, it does not cover the unlawful interference with air navigation facilities and services such as airports, air traffic control and radio communications. Reservations: 16
  17. 17. Unlike the Tokyo and Explosives Conventions, the other conventions include no prohibition on reservations, in addition to the reservation that can be made to the disputes article. When a multilateral treaty does not prohibit reservations or allow only specified reservations, reservations can be made provided they are compatible with the object and purpose of the treaty (Article 19(a) of the Vienna Convention on the Law of Treaties).20 Consequently, before accession is effected it will be necessary to consider whether the accession is to be subject to a reservation. If it is intended to accede subject to a reservation, the reservation must be communicated in writing to the depositary of the convention not later than the time of accession. The most convenient course is for the instrument of accession to include the reservation.IV Accession or succession: The conventions provide for States to become Parties by signature followed by ratification, or by accession. Accession is the normal method available if the deadline for signature has passed. However, a Commonwealth State that was formerly an overseas territory may, if the particular convention was extended to it by the former colonial State, is able now to succeed formally to the Convention rather than accede. Such States should already have legislation implementing the Convention, enacted either by the local legislature or by the former colonial State. Succession is effected by depositing an instrument of succession with the depositary of the convention, who is named in each convention, the However, the attitude of Commonwealth States after gaining independence, as well as of foreign States in a similar position, will vary according to the practice adopted by each on and after independence. Relation between Tokyo Convention, 1963 and the 1971 Montreal Convention: Since both the Tokyo and The Hague Conventions dealt only with unlawful seizure and offences committed on board aircraft, due to the increased number of acts of violence committed on board aircraft and on airport ground facilities, the drafters of the Montreal Convention decided to remedy IV http://www.unodc.org/pdf/crime/terrorism/Commonwealth_Chapter_1.pdf 17
  18. 18. these lapses and to Criminalize such acts. The Convention repeats some of the provisions of The Hague Convention but it was considered a breakthrough in combating terrorism against air transport as it pioneered a new series of offences which can be committed without the offender being on board the aircraft by defining them broadly in order to cover all possible acts that might occur. The definition of an aircraft “in service” is introduced, a term used in the offence concerning placement of a device or substance on an aircraft in service which is likely to destroy that aircraft. This offence and the definition of ‘in service’ ensure that a device or substance placed on the aircraft prior to an aircraft being considered in-flight is covered by the Convention. The Montreal Convention is limited to offences which affect the safety of the aircraft ‘in service’ or ‘in-flight’. This limitation was addressed to some extent by the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation 1988, which specifically provided for offences against a person at an airport as well as the destruction or damage of facilities of an airport or an aircraft not in service where such acts endanger or are likely to endanger safety at that airport. Another limitation of the Montreal Convention is that it does not make it an offence to threaten to commit the offences in the Convention, unlike The Hague Convention which specifically criminalizes a threat to unlawfully seize an aircraft, although this is limited to persons on board the aircraft in-flight. Despite the efforts of some delegations during the diplomatic conference for its adoption, the Convention failed to provide a mandatory system of prosecution in case of denial of extradition requests. Notwithstanding its value in some areas, the Convention remains, like the 1963 Tokyo Convention and the 1970 Hague, weak and short of real effect Suppression of Unlawful Seizure of Aircraft: The 1971 Montreal Convention and debated and revised the amendments drafted by its special sub-committee. The main concerns of states attending were that the proposed changes could hamper trade and development, wrongly criminalize the actions of citizens, or require expensive monitoring equipment. The committee was not able to finalize wording for the 18
  19. 19. amendments. From 30 August to 10 September this year (2010) a diplomatic conference held in Beijing, comprising of representatives from 77 States, adopted two new air law instruments: the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft. These new legal instruments “criminalize the act of using civil aircraft as a weapon, and of using dangerous materials to attack aircraft or other targets on the ground. The unlawful transport of biological, chemical and nuclear weapons and their related material becomes now punishable; directors and organizers of attacks against aircraft and airports will have no safe haven. Making a threat against civil aviation may also trigger criminal liability”. After entry into force, the Beijing Convention 2010 will prevail over The Montreal Convention 1971 and its Protocol signed in Montreal 1988. Until then, despite their shortcomings, these other Conventions have been widely accepted as the legal instruments for combating unlawful interference of civil aviation. Today, 185 states have ratified the 1963 Tokyo Convention, 185 the 1970 Hague Convention and 188 the 1971 Montreal Convention. Nonetheless, the international community must acknowledge the fact that the existing air law instruments reflect the focus of states at the time of their adoption and that now there is a need to update them to respond to new and emerging threats, either in the form of a new international instrument or as an amendment 19
  20. 20. Conclusion: The increasing threat to safety of an aircraft and its crew and passengers has led to concern throughout the industry. Changes in society have seen a more violent culture develop and this, combined with mass air travel has resulted in a 4-fold increase in reports of disruptive behavior. The laws to deal with problems on aircraft stem from the Tokyo Convention of 1963 which was designed to combat terrorist hijackings and, consequently, they do not cover cases of assault or disorderly behaviour. Moreover, not all countries have ratified the Convention and many that have do not have national laws to support that ratification. Even in countries that have legislation in place, police enforcement can be a variable feast. Airlines and airports can reduce the risk to aircraft and crew by acknowledging the problem and providing training and support to back up those dealing with problems. Training to better understand the psychology of violent behaviour and how ton deal with it is as important as self defence and restraint training. National and international action is taking place to increase awareness of the danger to aircraft safety and also to that of the crew and fellow passengers. New laws are being introduced to increase the penalties for offenders and to enable the police to deal more quickly and effectively with this growing threat. The 1963 Tokyo Convention was designed primarily to combat terrorism. The hijacking and destruction of aircraft was countered by most, but by no means all, countries agreeing a common policy for dealing with terrorists. The Convention outlined the laws which countries needed to pass to enable the courts to deal effectively with offenders. Not all nation states signed the Convention and not all signatories passed the necessary legislation to make the Convention effective and, as we know, this left safe havens for terrorists to escape from international justice. A number of countries have become 20
  21. 21. independent since 1963 and not all of them have yet adopted the Convention or passed the necessary national laws to empower their police or their courts to deal with the problem. The basis for most countries to deal with unruly passengers stems directly from laws passed in support of the Tokyo Convention and, as can be imagined, a law designed to combat terrorism may not be entirely suitable for prosecuting a passenger who assaults a cabin attendant. Bibliography: 1. en.wikipedia.org/wiki/Tokyo_Convention 2. www.un.org/en/sc/ctc/docs/conventions/Conv1.pdf 3. cns.miis.edu/inventory/pdfs/airterr.pdf 4. books.google.com.bd/books?isbn=9024713129 5. www.icao.int/.../LC35.WP.2-6%20Report%20of%20the%20Drafting %2 6. www.heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi? handle=hein.journals 7. www.britannica.com/.../Convention-on-Offences-and-Certain-Other- Acts.. 8. http://www.unodc.org/pdf/crime/terrorism/Commonwealth_Chapter_1 .pdf 9. www.rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/11.21.pd 10. hansard.millbanksystems.com/commons/1966/.../tokyo-convention- bill 11. www.caas.gov.sg/caasWeb2010/export/sites/caas/en/PDF.../2.1.6.pdf 21

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