Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
Download 0.73 Mb.
|
- Navigate this page:
- Hague Convention, 1970 “Suppression of unlawful seizure of aircraft”
Tokyo Convention p169 BibleThere are 180 States that are signatory to Tokyo, which is rather strong contribution to int’l law – one can argue is now even customary int’l law & applies regardless if a nation has signed it or not. It was the 1st aviation security convention. It didn’t start as an aviation security convention it took a drunken man hitting people over the high seas & NY authorities said they didn’t have jurisdiction for this convention to deal w/ security issues. Scope of application of Tokyo is rather general as it applies to penal criminal law that jeopardizes safety of aircraft & of persons thereon to be of good order while on board. 3 Tokyo Vests jurisdiction into the State of registry of the aircraft. 4 Tokyo A state where one is not a signatory cannot take an action unless the offence affects the territory of that territory, national, etc. This appears to derogate from the general provision of Chicago at 11-13. 6 Tokyo says that an aircraft commander can take reasonable measure to maintain good order (i.e. restraint). 8 Tokyo Commander may disembark the passenger at any State upon landing. The forced landing costs will be passed on to that passenger. 16 Tokyo Where a criminal offence a commander has a duty to deliver the criminal to the contracting State. It’s an informal form of extradition of the landing state. 11 Tokyo Hijacking is “unlawful seizure of aircraft.” Concerns raised that this was overly broad as a SC could seize an aircraft that could be later held to be illegal – would this then be hijacking?! 11 Tokyo deals w/ unlawful seizure of aircraft. It does not deal w/ hijacking? It applies to the aftermath / consequences of the act. The only duty adopted is that of a state where it is landed to restore the aircraft to the control of the commander & second to permit the passengers the to continue w/ their journey. This only covers the consequences of the hijacking but is an obligation on the State where the airplane landed. Tokyo does not stipulate a penalty & does not provide for extradition. Tokyo Benefits: commander of an aircraft has the right to restrain reasonably a passenger (6 Tokyo). commander has the right to disembark a passenger that is disrupting. (8 Tokyo) commander can deliver person to authorities in a signatory state (16 Tokyo) commander can order crew members to take action as need nec. for the situation. commander can authorize fellow passengers to assist restrain an unruly passenger. Q? Is Tokyo helpful in terms of security aviation? Tokyo convention was a pioneering legal effort that created specific jurisdiction w.r.t. states of registry, offences, & other acts that effect safety & discipline on board. This has been around for a long time w/ ships but relatively new for aviation. 1963 something more specific should be done w.r.t. seizure of aircraft (namely issues involving Cuba & Israel). These passengers were sometimes held by X country for illegally entering their country even though they were hijacked there. Due to this an article 11 of Tokyo put an int’l legal duty on to States to oblige the state to restore control of the aircraft to its lawful commander & permit the passengers & crew to continue w/ their journey. Tokyo is not very good, but is better than nothing as it provides the above enumerated benefits. And the crew is also sheltered where the captains request a member to do something. Additionally, a passenger is also sheltered from liability where the captain requests their services i.e. in dealing w/ an unruly passenger. Tokyo was progress BUT it doesn’t apply to any specific act. Its very general. It gives the state of registry jurisdiction but then what if the aircraft lands in Cuba. There is also no duty in Tokyo to impose a legal duty to prosecute. Recall the registry may be in Ireland but the illegal act may take place in France, were the impetus for a court in Ireland to prosecute for an act over another country. This is a weakness of the convention. Another flaw is that there is no offence is enumerated or defined therein. Additionally Tokyo is weak b/c: has a lack of definitions (2) while it creates a jurisdiction it doesn’t require the duty of that jurisdiction take an action (3) Tokyo does not deal with any specific criminal act (such as unlawful seizure). (4) doesn’t mention extradition as a duty of the state either. (5) Art 4 Tokyo says that a state where one is not a signatory cannot take an action unless the offence affects the territory of that territory, national, etc. appears to derogate from the general provision of Chicago at 11-13 (6) Sole jurisdiction is not very helpful in the current economic reality, when many aircraft are registered in one State but are operated in ano/. Hague Convention, 1970 “Suppression of unlawful seizure of aircraft”Act of seizure of control of an aircraft was an epidemic in the 1960’s. There were mixed feelings on this as some saw it as a political act & some were sympathetic of the act. Int’l community, however, started to understand that this was a very real danger as routes were not set out in the flight plan they may not have fuel or know where they are going. Hague Convention in turn was created, it was a fabulous compromise but it left nobody happy. 1970 was a cold war period & to make such agreement was really a major achievement in & of itself. The Hague Convention was a success as to the nature of the subject, its urgency, & procedure allowed for this to take place. Terrorism 1 Hague Best possible definition of a terrorism act. Unlawful act, in flight (merely means that outer doors are closed – the plane doesn’t have to be airborne), w/ intimidation, to seize control aircraft, accomplice – the definition is as exhaustive as possible. (Means doors are closed, not nec. in the air). The intimidation doesn’t nec. have to be onboard. I.e. either we go to Havana or in 10 mins. your house will be on fire. This is intimidation. States were eager to limit this to a int’l development for if it was domestic then domestic law would apply hence art. 3 of the Hague, which states there must be an actual landing in a foreign jurisdiction.
What does severe (in the Russian version its “brutal”) mean? In some nations this may mean capital punishment o/s not. Jurisdiction 4 Hague deals w/ jurisdiction - that being when the offence is committed on board & the plane lands in the territory. Para 2 states that each K’ing State can take measures where the alleged defender is present in their territory & does not extradite him under art. 8. Every state where the alleged offender is found has to prosecute. (Universal jurisdiction) Extradition 1970 cold war, not much int’l cooperation. But the US, USSR & Israel wanted to adopt obligatory extradition of the offender to the state of the aircraft. Thus, if you touch a U.S. aircraft & you will face U.S. justice. Sounds good but to be adopted everyone has to be in agreement – this original proposal would have had teeth.
However, the idea of extradition of one’s own to an enemy state was too much to take by many nations. The convention & consensus was dying – as all could not agree to unconditional extradition. Alternatives were sought (from Roman Times – Aut Dedere Aut Punire – meaning the country had to either extradite or punish the criminals themselves. Issues of punishment then arose for that meant that no matter what the said person had to be punished – hence word “punishment” changed to “prosecute” for situations where the person in question is i.e. insane. BUT even “prosecuting” was not enough for sometimes States did not want to prosecute – hence it was watered down to the point where the wording became the “possibility of prosecution.” “Don’t let the perfect be the enemy of the good.”
Watered down the convention greatly – down to a duty to either extradite or present the case to national authorities for the purpose to prosecute. This is an extensive jurisdiction in art. 4. Particularly at art. 4(2), which says that contracting any state has jurisdiction to prosecute BUT one State was left open w/ out knowing why – it is believed that that state is seen as a last resort. -Authorities must take the prosecution in the same manner as any ordinary case & not w/ politically motivated actions or non-actions by a contracting state. A state can choose not to prosecute – i.e. a safety valve – a bargaining chip. Every state has the right to wave prosecution. 7 Hague Authorities must take an action in the same manner as an ordinary matter, as opposed to one of a political matter. 9 Hague (similar to s.11 Tokyo) although art. 9 para. 2 Hague goes further than Tokyo as it says “facilitate” not “permit” thus a State must give positive assistance to the passengers & crew. In turn a report must be given tot eh ICAO w.r.t. what actions were taken to aid & assist & what action were taken agst the subject who hijacked the plane. But again nothing can be done if such a report is not given. There is no power of enforcement – the only thing that works in turn is the force of public opinion – for a report not being given to ICAO is such circs. Nations themselves will have to take legal actions. In short, Hague: Defines a particular act as an offence (seizure of aircraft) Punishment is to be severe. Universal jurisdiction over the offence & any other act of violence agst passenger or crew Denial of a safe haven anywhere in the world Aut dedere aut judicare - States must extradite or submit offender for prosecution in the same manner as in any o/ ordinary case. (Israel, US and USSR wanted unconditional extradition of the offended, which would have really given Hague bite). Provides for mutual assistance among States in the criminal proceeding Duty to report promptly to ICAO any relevant info concerning the circs of the offence and measures taken (thus responses of States re subject to int’l scrutiny, although no sanction is stipulated in cases of non-compliance. Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
|