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

http://www.icao.int/publications/Documents/9902_en.pdf