Jurisdiction over Crimes on Board Aircraft: with a Foreword by D.N.H. Johnson

by D.H.N. Johnson* Over the last decade few matters having some connexion with international law have aroused public interest to the same extent as "hijacking", "aerial piracy", "unlawful seizure of aircraft", "unlawful interference with aircraft"--call it what you will. Unfortunately, few matters have also contributed to the same extent to create in the public mind a sense of disillusion with international law arising from its apparent inability to suppress an unprecedented menace to freedom of communication. In 1944 the governments that concluded the Chicago Convention on International Civil Aviation referred in their preamble of that instrument to their "having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner". What is now at issue is the extent to which this important obligation has been carried out. Few people are more qualified to examine this question than the author of this work. A lecturer in international law at the University of Baghdad, with a background of postgraduate studies in London and in Cambridge, also having some experience as an international civil servant, Dr. Sami Shubber is well aware of the political, practical and legal obstacles that have prevented the international community from living up to the pledges given in 1944. Even the plethora of terms, cited above, used to describe the menace is itself an indication of the strength of these obstacles.

I Chapter I The Historical Development of the Notion of a Convention Applicable to Crimes in Aircraft.- I The Historical Development of the Notion of a Convention Applicable to Crimes in Aircraft.- The task performed by the ICAO.- (a) First contact with the subject, 1950 (6)-(b) The Subcommittee on the legal status of aircraft, 1953 (7)-(c) The Geneva Session of the Sub-committee, 1956 (7)-(d) The Montreal Draft, 1958 (8)-(e) The Munich Draft, 1959 (8) -(f) The Montreal Redraft, 1962 (11)-(g) The Rome Draft, 1962 (11).- The Tokyo Convention, 1963.- Conclusion.- II The Tokyo Convention.- II The Objectives of the Tokyo Convention.- 1. The unification of rules on jurisdiction.- 2. Filling the gap in jurisdiction.- 3. The maintenance of law and order on board aircraft.- 4. The protection of persons acting under the Convention.- 5. The protection of the interests of the accused.- (a) the right to communicate with diplomatic representatives (34)-(b) Notification of the national State of the accused (36)-(c) Continuation of journey (38)-(d) National Treatment (42).- 6. Prevention of hijacking of aircraft.- Conclusion.- III Jurisdiction Over Crimes on Board Aircraft Under International Law.- Jurisdiction of the State of Registration of the Aircraft.- 1. The position under international customary law.- (a) Definition of jurisdiction (48)-(b) Territorial jurisdiction (50)-Exclusive jurisdiction (50)-(c) Extra-territorial jurisdiction (51)-Concurrent jurisdiction (52).- 2. The position under the Tokyo Convention.- (a) The territorial principle (56)-(b) The extra-territorial principle (56)-(i) Is juridiction exclusive? (61)-(ii) Type of jurisdiction (64)-(iii) Is the exercise of jurisdiction compulsory? (67)-(iv) National law (71).- Jurisdiction of the States which are not the State of Registration of the Aircraft.- 1. The position under international customary law.- (a) Territorial jurisdiction (76)-(b) Extra-territorial jurisdiction (76)-(i) The nationality principle (77)-(ii) The passive personality principle (79)-(iii) The security principle (81)-(iv) The universality principle (82).- 2. The position under the Tokyo Convention.- Territorial jurisdiction: Bases.- (a) Offences having effect on the overflown territory (89)-(b) The offenders being nationals or permanent residents of the territorial State (91)-(c) Offences against nationals or permanent residents of the territorial State (92)-(d) Offences against the security of the territorial State (93)-(e) Breach of air regulations in the territorial State (94)-(f) Compliance with international obligations by the territorial State (95).- 3. Jurisdiction over hijacking.- Conclusion.- IV Some Jurisdictional Problems Arising from the Principle of Aircraft Nationality Under the Tokyo Convention.- The Relevance of Nationality of Aircraft to Jurisdiction.- The Test of Aircraft Nationality in Air Law.- 1. Registration.- 2. The place of aircraft nationality in international air law.- Jurisdictional Problems Arising from the Test of Aircraft Nationality.- 1. Aircraft owned by international organizations.- 2. Joint operating organizations.- 3. International operating agencies.- 4. Flags of convenience.- 5. Hire, charter, and interchange of aircraft.- Conclusion.- V The Material Scope of the Tokyo Convention.- Offences and Other Acts.- 1. Offences against penal law.- (a) The scope of offences (144)-(b) The relevant penal law (146)-(c) Criminal offences outside the scope of the Convention (154)-(i) Political offences (154)-(ii) Racial discrimination (160)-(iii) Religious discrimination (161)-(d) Waiver of rights under Article 2 of the Convention (162).- 2. Acts which are not offences.- (a) Threats to safety of aircraft, persons or property on board (165)-(b) Acts jeopardizing good order and discipline (168).- Hijacking of Aircraft.- Work of the ICAO.- The ILA.- The UN.- The Hague Conference.- 1. The notion of hijacking of aircraft under the Convention.- 2. Measures to combat hijacking.- 3. Hijacking compared with piracy.- Temporal Application of the Convention.- 1. Aircraft in flight.- 2. Aircraft on the surface of the high seas.- 3. Aircraft in terra nullius.- Conclusion.- VI Rights and Duties of the Aircraft Commander, Crew Members and Passengers Under the Tokyo Convention.- Rights of the Aircraft Commander.- 1. The right to impose reasonable measures.- Problems arising under the right (207)-(a) Chartered aircraft (207)-(b) Diplomatic immunities (209)-(c) Conflict with Article 2 of the Convention (212).- 2. The right to disembark en route.- 3. The right to deliver to competent authorities.- 4. The right to require assistance from crew members.- 5. The right to request assistance from passengers.- 6. The right to authorise action.- (a) Crew members (229)-(b) Passengers (230).- Comparison with the Rights of a Ship's Master.- Duties of the Aircraft Commander.- 1. The duty to provide information.- (a) Cases of restraint in the aircraft (234)-Failure to discharge the duty (236)-(b) Cases of disembarkation (237)-Failure to discarge the duty (238)-(c) Cases of delivery (238)-Failure to discarge the duty (241).- 2. The duty to discontinue measures taken on board aircraft.- (a) Failure to discharge the duty (243)-(b) Exceptions to the duty (243)-(i) Landing in a non-Contracting State (243)-(ii) Cases of forced landing (245)-(iii) Consent of the accused (246).- Rights of the Crew Members.- The right to take preventive measures.- Rights of the Passengers.- The right to take preventive measures.- Limitations on the Exercise of Rights under this Chapter.- 1. Geographical limitations.- Comparison with the Warsaw Convention (258).- 2. Temporal limitations.- Conclusion.- VII Immunities Conferred by the Tokyo Convention.- The Persons Enjoying Immunity under the Convention.- 1. The aircraft commander.- 2. Members of the crew.- 3. The passenger.- 4. The owner of the aircraft.- 5. The operator of the aircraft.- 6. The person on whose behalf the flight is performed.- The Scope of the Immunity Granted by the Convention.- 1. Limited immunity.- 2. Presumption of innocence.- 3. Right of action under the Convention.- Conclusion.- VIII The Final Clauses of the Tokyo Convention.- Parties to the Convention.- 1. Members of the U.N..- 2. Members of the Specialised Agencies.- The Coming into Operation of the Convention.- 1. Signature.- (a) Effect of signature prior to ratification (306)-(b) Rights of signatories prior to ratification (311).- 2. Ratification.- Number of ratifications (315).- 3. Accession.- Termination of Contractual Relationship.- 1. Denunciation.- 2. Ipso facto expulsion.- Conclusion.- IX Conclusions.- Conclusions.- Appendix I: The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft.- Parties.- Appendix II: List of Cases of hijacking.