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Tokyo Convention,1963

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 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.

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.

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 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:
  1. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
  2. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

Jurisdiction-Article 3 of the Tokyo convention, 1963:
  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:
  1. the offense has effect on the territory of such State;
  2. the offense has been committed by or against a national or permanent resident of such State;
  3. the offense is against the security of such State;
  4. the offense consists of a breach of any rules or regulations relating to the flight or maneuverings of aircraft in force in such State;
  5. the exercise of jurisdiction is necessarily to ensure the observance of any obligation of such State under a multilateral international agreement.

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.

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.

Written by: Sandeep Rana, BA+LLB, (5th-year student) at Chandigarh University)

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