For an extended duration, handling the crimes committed on aircraft has remained a hard nut to crack. In the 1960s for instance, States held a conference called the International Civil Aviation Organization (ICAO) in Tokyo in order to regulate States’ rights to conduct jurisdiction over the criminal activities that takes place on aircrafts (Abeyratne, 2010). Moreover, the convention also attempted to oversee the behavior of individuals and all other activities that revolve around traveling by air. This paper will discuss the rights to act over any aviation case provided that the actors are within the power, authority and capacity in accordance to the law.
When a crime is committed in aircraft in flight, it can involve more than one nation or jurisdiction. The state in which the aircraft is registered, or the nation where the crime has transpired in their airspace, can legitimately claim the jurisdiction to adhere to the unlawful acts. At the same time, the state of landing may claim the rights to perform jurisdiction over similar crimes. Furthermore, based on the connections of the individuals involved in the crime, the state of both the victim and the wrongdoer may lawfully claim to have control over the exercise.
Alternatively, there may completely lack the jurisdiction to ensure the culprit is held accountable by the law. A good example is the U.S. v Cordova and R. v, Martin, 1956 (Abeyratne, 2010). The ICAO convention attempted to provide an amicable solution to such instances. This convention stipulated the jurisdiction on the country whom the airspace is flown over, the jurisdiction of the nationwide law of the airplane, and the jurisdiction of all involved parties especially during the hijacking of an aircraft.
. According to the general rule, the law of the state of registration applies while article 4 fulfills the criminal jurisdiction of the state flown over. This helped to address the control of the conflict of jurisdiction and filled the existing gaps. Moreover, it reduced the number of competent jurisdictions, irrespective of the rights of all the involved parties to formulate appropriate processes against aircraft hijacking, since it is an exceptional situation under the convention (Abeyratne, 2010).
The Tokyo convention gave power and authority to the aircraft commanders, his crewmembers, and those on board with a right to intervene. This was enhanced to safeguard safety, well-being of persons, and property in the aircraft. However, the right to intervene is subjected to strict conditions, which render the actor liable for their actions.
UN General Assembly Resolutions
The UN adopted Resolution 2551 (XXIV) after discussing the problem of “forcible diversion of civil aircraft” in an attempt to address the acts of illegitimate meddling with international civil aviation. It also required nations to formulate the appropriate measures that would ensure that their laws of the land offer a proper structure for efficacious lawful measures against unlawful acts in civil aircraft. States had to developed laws that held the perpetrators on board accountable.
The General Assembly also approved Resolution 2645 (XXV) in 1970. This act convicted without exception aerial hijacking as well as other civil air travel imposed by the use of threat or force. Moreover, the resolution opposed all violent acts directed to those on board, crewmembers, and the aircraft itself. States were assigned the responsibility to impose the necessary measures to dissuade, avert, or subdue acts within their control. The states could prosecute and punish the offenders or extradite the culprits for prosecution and punishment. The assembly challenged countries to implement both joint and separate actions that will enable them to handle hostages during unexpected incidences. These laws will also help to prevent those on board from extortion.
Aircraft commander’s powers
According to article 6, the commander of the aircraft is allowed to take rational measures that encompass confinement with the purpose of ensuring safety, law, and good under reasonable grounds. The commander of the aircraft acts according to the stipulations in Article 1(1) and are authorized to act in accordance to the penal laws to ensure the safety of individuals and the property therein. He is also mandated to maintain high levels of discipline and respect on the aircraft.
The commander of the aircraft as described above is entitled with the responsibility to adopt measures and confine a passenger even if they did not put the aircraft’s safety into danger or even the property. Notably, this may lead to irrationality (Shubber, 1973). If passengers collude to demonstrate some unlawful actions, the commandant can confine them on suspecting that they are intending to compel an act that might impede the safety and good order of the airplane. However, these powers have been perceived as illogical by some quarters.
While honoring his duties, the aircraft commander can seek assistance from the crewmembers of the passengers. Besides, Article 6(2) allows the travelers and crewmembers to take rational protective measures without permission from the aircraft commander on the account that certain actions may endanger the aircraft’s safety (Shubber, 1973). The decision to give authority to the passengers faced much criticism but an argument was made that the decision was applicable to emergencies that would put the safety of the aircraft at risk.
The aircraft commander can order for the disembarking of any individual who perform unlawful acts illustrated in Article 1 (1) when delivering the accused to the able authorities. The state is allowed to take the disembarkation and apprehend the individual forwarded by the aircraft commander. In addition, the state of landing is supposed to notify the state of registration of the aircraft after conducting a preliminary inquiry into the facts. According to article 10, the aircraft commander, crewmembers, or the passengers are not held responsible for proceedings on the justification of the treatment experienced by the suspected individual. The protection was meant to embolden the concerned parties to eliminate the wrongful acts on board.
Jurisdiction to punish the terrorists
States have encountered difficulties in combating terrorism because of the issue of jurisdiction. To avoid the conflicts by states involving the jurisdiction to prosecute, the convention wanted to address the issue of diplomatic ties that arises during the illegal acts performed on an aircraft. According to Shubber (1973), “jurisdiction over offenses and acts committed on board appertain primarily to the State of registration of the aircraft (Article 3 (1)).” The state that has registered the aircraft is offered the opportunity to formulate criminal laws accepted on an international level to protect its aircraft.
Powers and duties of states
States must cooperate to enhance the security of global civil aviation. The convention in Japan placed specific obligations to the contracting states when a threat or offense is committed on the aircraft. The state where the aircraft is registered, and the state in whose airspace the aircraft is flown, determines whether the said acts are lawful or unlawful. Article 12 adds, “ any contracting state shall allow the commander of an aircraft registered in another state to disembark any person pursuant to Article 8, paragraph 1” (Shubber, 1973). Clearly, the state contracted must permit the request of the commander of the aircraft to disembark the captor. The contracting state is allowed to decide whether the issues raised by the commander of the aircraft are unlawful and then proceeds to take the necessary measures in such a situation. The convicted persons have the right to communicate to acquire assistance from the state in which he is a national.
The importance of cooperation between states
The states must acknowledge that the Tokyo Convention is somewhat ineffective if they fail to implement provisions into their own legislation to allow the legal impact to the concerted action expected by international standards. For example, the laws of custody in each state must agree upon the convention since it enhances immediate inquiry that influences a successful prosecution. Furthermore, the laws in respect to extradition must be formulated to assist the state of registration to take necessary actions against the criminal acts committed on the aircraft (Shubber, 1973).
The stakeholders need to develop strategies to fill the gap in the jurisdiction in aviation. This will prevent the offenders from escaping the wrath of the law as witnessed in previous cases. It is regrettable when an offender goes unpunished because of the loopholes in the jurisdiction. The aircraft commander has the power and authority to act accordingly to warrant the safety of the passengers and the property. He has the capacity to confine the suspects if the goal is to ensure the security of the aircraft and those on board. The crewmembers help the aircraft commander to contain the offenders but can also act autonomously without the permission from the commander. The passengers are also authorized to take necessary precautions to prevent any conspiracy that might jeopardize the safety of the aircraft.
Shubber, S. (1973). Jurisdiction over crimes on board aircraft. BRILL.