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Published online by Cambridge University Press: 09 March 2016
Incidents of unlawful interference with international civil aviation over the past few years have posed novel and difficult problems for international lawyers. For example, a person may unlawfully seize an aircraft and thereafter escape to a state that refuses either to extradite him or prosecute him. Or a group of guerillas may, after an aircraft has been unlawfully seized, detain the aircraft, passengers and crew and even destroy the aircraft in circumstances where the state in which the detention and destruction have occurred may decide to take no action. The inability of an aggrieved state, such as the state of registry of the aircraft or states of which the crew and passengers are nationals, to secure the extradition or prosecution of the alleged offenders could greatly nullify the effect of the Tokyo, Hague and Montreal Conventions which contain provisions aimed at ensuring disposal of an alleged offender who has committed a hijacking or other act of unlawful interference with international civil aviation and its facilities. In view of these and related problems, there was an attempt in the International Civil Aviation Organization (ICAO), from mid-1970 to mid-1971, to develop an internationally agreed procedure for securing the enforcement of international obligations of states in respect of unlawful interference with international civil aviation. This attempt failed. As the failure to find a solution in no way lessened the importance of the problems, a concise presentation of the history of the negotiations which took place in ICAO fora in 1970-1971 may be useful for those who may consider taking up this subject in the future.
1 The texts of these Conventions will be found in the following sources: Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963), Doc. 8364; 2 Int’l Leg. Mat. 1042 (1963); 58 Am. J. Int’l L. 566-73 (1964); 704 U.N.T.S. No. 10106 (1969). Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, 1970), Doc. 8920; 10 Int’l Leg. Mat. 133-36 (1971). Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal, 1971), Doc. 8966; 10 Int’l Leg. Mat. 1151-56 (1971).
2 The International Civil Aviation Organization (ICAO), a specialized agency in relationship with the United Nations, has its headquarters office in Montreal. Established in 1947, its aims are to develop principles and techniques of international air navigation and to foster the planning and development of international air transport. As at May 1, 1972, the Organization had 183 contracting states. The constitutional instrument of ICAO is the Convention on International Civil Aviation (Chicago, 1944) : Doc. 7300/4; 15 U.N.T.S. 295.
3 Doc. 8891 A17 Committee В Assembly — Seventeenth Session (Extraordinary), Montreal, June 16-30, 1970, Report of Committee B, 23-25. Such conventions would include the Tokyo Convention (1963), the Hague Convention (1970), and the Montreal Convention (1971); see supra note 1.
4 For details of these events, see Keesing’s Contemporary Archives, September 26-October 3, 1970, 24203-24209 and Time (Canada), September si, 1970, 14-15, ao-27. There have been other instances of aircraft, crew and passengers being held for ransom; see Evans, Alona E., “A Proposed Method of Control,” 37 J. Air L. and Comm. 171-81 (1971). On February 27, 1972, it was announced that the West German government had paid a ransom of $5,000,000 to guerillas for the release of a Lufthansa Boeing 747 and its 14 crew members hijacked from India to South Yemen. After a period of uncertainty, two of the crew members and 172 passengers were released; but, prior to payment of the ransom, the hijackers threatened to blow up the aircraft and the 12 remaining crew members. (The Montreal Star, February 25, 197a, at 1).
5 UN Security Council Resolution 286 (1970); for text, see 9 Int’l Leg. Mat. 1291 (1970).
6 Address by U Thant, United Nations 25th Anniversary Program, New York City, September 14, 1970, Press Release SG/SM/1333, ANV/87. See also Sundberg, , Jacob, W.F., “The Case for An International Criminal Court,” 37 J. Air L. and Comm. 211-27 (1971).Google Scholar
7 C-Min. 71/1, at 4-10.
8 Ibid., 11-14.
9 C-Min. 71/5 and C-Min. 71/6. C-WP/5229 Revised Resolution proposed by the Representative of the United States and C-WP/5232 Revised Resolution presented by the Representative of Canada. Meanwhile, under date of September 24, 1970, Algeria, invoking Article 54(n) of the Chicago Convention, requested the ICAO Council to consider urgently the question of the detention of two Algerians by Israeli authorities. The incident to which the communication related had taken place on August 14, 1970 when two passengers of Algerian nationality, travelling on a BOAC aircraft, had been detained by the Israeli authorities when the aircraft landed at Lod Airport. The matter was discussed by the Council on October 5 (C-Min. 71/7). On October 15, the President of the Council announced that the two passengers had been released whereupon it was decided that no further discussion of the matter need take place (С-Min. 71/9). For summaries of discussions on the above questions, see Doc. 8923-C/998, Action of the Council, 71st Session (1970), 53-57 (Resolutions) and 17-18 (Algerian request).
10 Article 11 of the Tokyo Convention specifies steps to be taken in the event of the occurrence of an unlawful seizure of aircraft. In particular, it is concerned with enabling the passengers, crew, cargo and aircraft to continue on their journey.
11 Article 7 of the Hague Convention provides that a contracting state which has taken the alleged offender into custody shall, if it does not extradite him, be obliged to submit the case to its competent authorities for their decision whether to prosecute him and that these authorities shall take their decision in the same manner as in the case of other offences.
12 Article 8 of the Hague Convention contains detailed provisions concerning extradition of the alleged offender; but the obligation to extradite is qualified.
13 For reference to the Hague Convention, see supra note 1.
14 For the texts of the Council Resolutions of October 1, 1970, see Doc. 8923-C/998, Action of the Council, 71st Session, 55 and 57; Doc. 8936-LC/164-2 Legal Committee, 18th Session, London, September 29-October 22, 1970, Volume II Documents 179-80; 9 Int’l Leg. Mat. 1286-87 (1970).
15 Doc. 8936-LC/164-2, op. cit. supra note 14, 35-41; 9 Int’l Leg. Mat. 1201-06 (1970).
16 Ibid., 42-47.
17 For minutes of these discussions, see Doc. 8936-LC/164-1 Legal Committee, 18th Session, London, 29 September-22 October 1970, Volume I Minutes 207-274. For the Legal Committee’s report on the Council Resolutions, see Doc. 8936-LC/1642, op. cit. supra note 14, 27-55 and 9 Int’l Leg. Mat. 1193-1217 (1970).
18 General Assembly Resolution 2645 (XXV), November 25, 1970. For text, see 9 Int’l Leg. Mat. 1288-89 (1970).
19 For the text of the draft Convention, see LC/SC CR-Report, 27/4/71, Report of Subcommittee on Council Resolutions of October 1, 1970 (Montreal, April 14-27, 1971), 29-37. The report is hereinafter called “Subcommittee Report.”
20 Canadian-United States draft convention, Article I,
21 Ibid., Article 2.
22 Ibid., Article 3.
23 Ibid., Article 4.
24 Ibid., Article 5.
25 Ibid., Article 6.
26 Ibid., Article 7.
27 Ibid.., Article 8. An “interested state” was variously described in the draft convention as being the state of registration or operation of the aircraft, any state whose nationals were detained, the state in whose territory unlawful interference had taken place and any state whose national had suffered death or physical injury as a result of unlawful interference. “Air service state” meant any state that had an international air service with a state determined to be in default and any state with which a state determined to be in default had an international air service. The state of operation of the aircraft referred to the state in which the lessee of an aircraft leased without crew had his principal place of business or, if the lessee had no such place of business, his permanent residence.
28 Subcommittee Report, 17 (para. 45).
29 Legal Committee Report in Doc. 8936-LC/164-2, op. cit. supra note 14 (hereinafter referred to by document number only), 28 (para. 4.1); Subcommittee Report, 2 (para. 7), 17-18 (para. 45).
30 Doc. 7300/4; 15 U.N.T.S. 295.
31 Doc. 7500; 84 U.N.T.S. 389.
32 Legal Committee Report, in Doc. 8936-LC/164-2, at 28 (para. 4.2); Subcommittee Report, 2 (para. 7).
33 Legal Committee Report in Doc. 8936-LG/164-2, at 28 (para. 4.2).
34 Legal Committee Report in Doc. 89360/164.2, at 34 (para. 4.3); Subcommittee Report, 9 (para. 18).
35 Legal Committee Report in Doc. 8936-LC/164-2, at 34 (para. 4.5); Subcommittee Report, 2-3 (paras. 7 and 9.1).
36 8 Int’l Leg. Mat. 679 (1969).
37 Subcommittee Report, 5-6 (para. 14).
38 For example, when, on November 16, 1970, the Council discussed the dates of the Legal Subcommittee session, the question was raised whether the advice of die United Nations should be sought on whether consideration of joint action against states, as envisaged in the draft convention examined by the Legal Committee at London in October 1970, was within the competence of ICAO or was a matter solely within the competence of the United Nations; see C-Min. 71/13 — Part I Decisions, 4 (para. 6); also Doc. 8923-C/998, Action of the Council, 71st Session (1970), 13-14.
39 C-Min. 73/10; see also Doc. 8986-0/1003, Action of the Council, 73rd Session (1971)) 7-9.
40 For the full debate, see Doc. 8954 A18-LE, Report and Minutes of the Legal Commission, Assembly— 18th Session, Vienna, June 15-July 7, 1971, at 13-37.
41 Doc. 8954 A18-LE, op. cit. supra note 40, at 15-16.
42 Ibid., 19.
43 Ibid., 25; A18-WP/94 LE/10.
44 Doc. 8954 A18-LE, 35-36. The vote was recorded as follows:
In favour (28)
Algeria, Bulgaria, Burundi, Cameroon, Chile, Congo (People’s Republic of), Czechoslovak Socialist Republic, France, Hungary, Iran, Iraq, Ivory Coast, Lebanon, Libya, Pakistan, Poland, Romania, Rwanda, Saudi Arabia, Senegal, Sudan, Syria, Togo, Tunisia, Union of Soviet Socialist Republics, United Arab Republic, Upper Volta, Yemen (People’s Democratic Republic of).
Against (24)
Argentina, Australia, Austria, Brazil, Canada, China (Republic of), Denmark, Ecuador, Germany (Federal Republic of), India, Ireland, Israel, Italy, Liberia, Netherlands (Kingdom of the), New Zealand, Norway, Panama, Portugal, South Africa, Sweden, United Kingdom, United States of America, Venezuela.
Abstentions (11)
Barbados, Belgium, Ghana, Jamaica, Japan, Kenya, Nigeria, Philippines, Sierra Leone, Spain, Uganda.
After the vote had been taken, there was some discussion as to whether the vote had been recorded correctly (Doc. 8954 A18-LE, 36-37). When the Chairman of the Legal Commission communicated the results of the vote to the plenary meeting of the Assembly, he stated that the Commission had decided, by a vote of 28 to 25, with 11 abstentions, to recommend the transfer of the Council Resolutions of October 1, 1970 to Part B of the Legal Committee’s programme (Doc. 8963 A18 Min. Р/1-16, Minutes of the Plenary Meetings, Assembly, 18th Session, Vienna, June 15-July 7, 1971, at 187).
45 Doc. 8963 A18 Min. P/1-16, op. cit. supra note 44, at 127.
46 Ibid., 127-28.
47 See supra note 44 for votes in Legal Commission.
48 Doc. 8963 A18-Min. P/1-16, op. cit. supra note 44, at 139.
49 Ibid., 132.
50 Ibid., 133.
51 Air Hijacking: An International Perspective, International Conciliation, November 1971, No. 585, at 78.
52 There have been a number of recent developments to which reference may now be made. (1) In late May and early June 1972, there were some spectacular incidents involving unlawful interference with international civil aviation, including the Lod Airport massacre, on May 30, during which three extremists killed twenty-six persons and wounded some eighty others. (2) On June 19, 1972, the ICAO Council adopted a resolution in which, inter alia, it directed “the Legal Committee to convene immediately a special subcommittee to work on the preparation of an international convention to establish appropriate multilateral procedures within the ICAO framework for determining whether there is a need for joint action in cases envisaged in the first resolution adopted by the Council on October 1, 1970 and for deciding on the nature of joint action if it is to be taken.” (10 Int’l Leg. Mat. 897-898 (1972)) (3) On June 20, 1972, the United Nations Security Council reached a consensus decision on hijacking in which it invited “States to expand and intensify co-operative international efforts and measures in this field, in conformity with Charter obligations, with a view to ensuring the maximum possible safety and reliability of international civil aviation.” (10 Int’l Leg. Mat. 919 (1972)) (4) The special subcommittee, mentioned in item (2) above, met at the Department of State in Washington, D.C. from September 4 to 15, 1972 and prepared a report on the taking of joint action which it recommended be placed before the ICAO Legal Committee as soon as possible. The report reflects the emergence of new elements which could form the basis of a convention on joint action. Notably, there is a United Kingdom proposal to provide for the taking of joint action against a state whose action or inaction in respect of the offender or alleged offender constitutes a threat to the safety of civil aviation. Various proposals before the subcommittee were aimed at keeping the procedures “Within the framework of ICAO” as contemplated by the Council Resolution of June 19 1972, and this would be achieved by involving the ICAO Council or senior ICAO officials in the proceedings. Some members of the special subcommittee continued to press the view that jurisdiction in regard to sanctions in respect of air services was within the exclusive sphere of the United Nations Security Council. These and related topics will no doubt be discussed extensively when the subject comes before the ICAO Legal Committee, probably during 1973.