Tokyo Convention: Offence, Jurisdiction (Include cases), Air And Aviation Law

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. 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. Assignment On:
Tokyo Convention: Offences, Jurisdiction (Include
cases)
3

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. 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. 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. 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. 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. 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. 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. (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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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