Trofimova T.A.
Sylkina
S.M. (scientific adviser)
Al-Farabi
Kazakh National University, Kazakhstan
Foundation of international
legislation in respect of acts of unlawful interference in civil aviation
International civil aviation plays an important role as a part of
economics and transport system, giving possibility of fast and reliable contact
between different regions of the world. This explains why states always paid
attention to its security, including defense of objects of civil aviation from acts
of unlawful interference.
The first international treaties, which directly
connect with safeguarding against acts of unlawful interference in activity of civil aviation, were
accepted by international community by 60th-70th of XX
century. First of all it is connected with fast growth numbers of these acts in
that period, when an object of crime attempt became aircraft most of the states
with developed aviation industry. These international treaties are: Convention
on Offences and certain other Acts Committed on board Aircraft, signed at Tokyo
on 14th September 1963; Convention
for the Suppression of Unlawful Seizure of Aircraft, signed at Hague on 16th
December 1970 and Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, signed at Montreal on 23 September 1971.
The first document became
Convention on Offences and certain other Acts Committed on board Aircraft,
signed at Tokyo on 14th September 1963. This Convention shall apply in respect of not
only offences against penal law, but also in respect of acts which, whether or
not they are offences, may or do jeopardize the safety of the aircraft or of
persons or property therein or which jeopardize good order and discipline on
board [1]. The first attempt to give legal qualification of unlawful seizure of
aircraft or unlawful interference in its exploitation.
However, substantially,
Convention only established responsibility of the Contracting State to restore control of the aircraft to its
lawful commander or to preserve his control of the aircraft, to permit its passengers and
crew to continue their journey as soon as practicable [2].
Tokyo Convention 1963 doesn’t
obligate States to recognize an unlawful seizure of aircraft as an offence
according to their intergovernmental law. Moreover, acts of unlawful seizure by
political and religious motives, which don’t create a threat to security of
flight of aircraft, didn’t be in the object of Convention. Also, it doesn’t
contain any responsibilities in respect of delivery of suspected offenders to the competent authorities for
the purpose of prosecution of offenders, if there aren’t any relevant requests for their extradition.
Nevertheless, Tokyo Convention
1963 gave beginning a fight with unlawful seizures and hijackings of aircrafts.
Convention for the Suppression of Unlawful Seizure of Aircraft, signed
at Hague on 16th December 1970 became the second Treaty in this sphere. It was
qualified an act of unlawful seizure as an offence by
force or threat thereof. In this situation
aircraft must be in flight and an offence must be accomplished on board an
aircraft. In accordance with Hague Convention each Contracting
State must establish its jurisdiction over the offence and any other act of
violence against passengers or crew committed by the alleged offender in
connection with the offence, in the following cases:
a) when the offence is
committed on board an aircraft registered in that State;
b) when the aircraft on
board which the offence is committed lands in its territory with the alleged
offender still on board;
c) when the offence is
committed on board an aircraft leased without crew to a lessee who has his
principal place of business or, if the lessee has no such place of business,
his permanent residence, in that State [3].
Except of these, the most important peculiarity is the
provision which actually establishes universal jurisdiction in respect of
person committed an unlawful seizure of aircraft. So,
the Article 7 of Convention contains the principle aut
dedere, aut judicare. In accordance with this principle the Contracting
State in the territory of which the alleged offender is found shall, if it does
not extradite him, be obliged, without exception whatsoever and whether or not
the offence was committed in its territory, to submit the case to its competent
authorities for the purpose of prosecution [4].
The meaning of Hague Convention 1970 is that it
established the principle of universal jurisdiction of the Contracting States
recognizes an act of unlawful interference as an offence and claimed
recognizing an act of unlawful seizure of aircraft as a serious offence
according to their intergovernmental law by the States.
Rather than Tokyo Convention,
Hague Convention provides that an act of unlawful seizure of aircraft and
attempt of its completion or participation in it are offences. In their respect
the Contracting States must make the offence punishable by severe penalties.
Also, we would like to specify that on the base
of Hague Convention unlawful seizure of aircraft is an offence that shall be deemed to be included as an extraditable offence in
any extradition treaty existing between Contracting States. Contracting States
undertake to include the offence as an extraditable offence in every
extradition treaty to be concluded between them. If a
Contracting State which makes extradition conditional on the existence of a
treaty receives a request for extradition from another Contracting State with
which it has no extradition treaty, it may at its option consider this
Convention as the legal basis for extradition in respect of the offence [5].
Definitely, Tokyo Convention 1963 and Hague
Convention 1970 adopted in 60th-70th years of XX century
and ratified by the most of States. They played and continued to fulfill the
important positive role in suppression with
acts of unlawful interference in
activity of international civil aviation. However, civil aviation, including
all of its compiling elements (aircrafts, airports) continues to stay a
vulnerable object for terroristic and another acts of unlawful interference.
A lot of acts of sabotages,
diversions in respect of civil aviation in 70th actualized necessity
strengthening of measures of suppression with hijackings and seizure of
aircrafts.
Events happened
on 11th September 2001 in the USA, when seized four civil aircrafts
were used for defeat large ground targets (foremost, buildings of International
Trade center in New York) became powerful impulse for global community, and,
especially, for International Civil Aviation organization (ICAO) for searching
new and amending existing international legal measures of raising Aviation
Security and for the suppression with acts of unlawful interference in activity of international civil
aviation.
The
Assembly of ICAO directed the Council and the Secretary General to act urgently to address the new
and emerging threats to civil aviation, in particular to review the adequacy of
the existing aviation security conventions, to review the ICAO aviation
security programme, including a review of Annex 17 and other related Annexes to
the Convention; to consider the establishment of an ICAO Universal Security
Oversight Audit Programme relating to, inter alia, airport security
arrangements and civil aviation security programmes; and to consider any other
action which it may consider useful or necessary, including technical
cooperation in the resolution A33-1:
Declaration on misuse of civil aircraft as weapons of destruction and other
terrorist acts involving civil aviation adopted on the 33th session, leaded nearly
at once after events happened on 11th
September 2001 in the USA [6].
However, Tokyo Convention and Hague Convention widely
apply by States, which repute them useful legal documents with the suppression
with acts of unlawful interference in activity of international civil aviation, in separately aspects
they need in development considering new and arising threats. For example, some
of these threats are use of the aircraft as a weapon; attacks, performed by
terrorists-suicides; attacks, performed with using electronic and computer
equipment; attacks, performed chemical, biological and radioactive substances
don’t comprise on the enough degree by valid conventions. From 2005 to 2009
years the big work had been done in form of amendments to Hague Convention and
Montreal Convention.
The
list of references
[1] Article 1 of
Convention on Offences and certain other Acts Committed on board Aircraft,
signed at Tokyo on 14th September 1963 http://kenyalaw.org/treaties/treaties/66/index.php?id=398
[2] Article 11 of
Convention on Offences and certain other Acts Committed on board Aircraft,
signed at Tokyo on 14th September 1963 http://kenyalaw.org/treaties/treaties/66/index.php?id=398
[3] Article 4 of
Convention for the Suppression of Unlawful Seizure of Aircraft, signed at Hague
on 16th December 1970 http://kenyalaw.org/treaties/treaties/1154/Convention-for-the-Suppression-of-Unlawful-Seizure
[4] Article 7 of Convention for the
Suppression of Unlawful Seizure of Aircraft, signed at Hague on 16th December
1970 http://kenyalaw.org/treaties/treaties/1154/Convention-for-the-Suppression-of-Unlawful-Seizure
[5] Article 8 of
Convention for the Suppression of Unlawful Seizure of Aircraft, signed at Hague
on 16th December 1970 http://kenyalaw.org/treaties/treaties/1154/Convention-for-the-Suppression-of-Unlawful-Seizure
[6]
A33-1:
Declaration on misuse of civil aircraft as weapons of destruction and other
terrorist acts involving civil aviation