air law, the body of law directly or indirectly concerned with civil aviation. Aviation in this context extends to both heavier-than-air and lighter-than-air aircraft. Air-cushion vehicles are not regarded as aircraft by the International Civil Aviation Organization (ICAO), but the practice of individual states in this regard is not yet settled. The earliest legislation in air law was a 1784 decree of the Paris police forbidding balloon flights without a special permit.

Because of the essentially international character of aviation, a large part of air law is either international law or international uniform law (rules of national law that have by agreement been made internationally uniform). Insofar as international air law is concerned, it need hardly be mentioned that an international agreement or an amendment thereto is binding only on states that are parties to it.

Airspace

Sovereignty

A basic principle of international air law is that every state has complete and exclusive sovereignty over the airspace above its territory, including its territorial sea. At the turn of the 20th century the view that airspace, like the high seas, should be free was sometimes advanced. But the principle of airspace sovereignty was unequivocally affirmed in the Paris Convention on the Regulation of Aerial Navigation (1919) and subsequently by various other multilateral treaties. The principle is restated in the Chicago Convention on International Civil Aviation (1944). Airspace is now generally accepted as an appurtenance of the subjacent territory and shares the latter’s legal status. Thus, under the Geneva Convention on the High Seas (1958) as well as under international customary law, the freedom of the high seas applies to aerial navigation as well as to maritime navigation. Vertically, airspace ends where outer space begins.

It follows from the principle of airspace sovereignty that every state is entitled to regulate the entry of foreign aircraft into its territory and that persons within its territory are subject to its laws. States normally permit foreign private (i.e., nongovernmental and noncommercial) aircraft to visit or fly through their territory without too much difficulty. Such aircraft registered in states that are parties to the 1944 Chicago Convention are, under the convention, allowed into the territories of all other contracting states without prior diplomatic permission if not engaged in the carriage of passengers, mail, or cargo for reward.

Commercial air transport is divided into scheduled air services and nonscheduled flights. Charter flights fall mostly, but not invariably, into the latter category. Under the Chicago Convention, contracting states agree to permit aircraft registered in the other contracting states and engaged in commercial nonscheduled flights to fly into their territory without prior diplomatic permission and, moreover, to pick up and discharge passengers, cargo, and mail, but in practice this provision has become a dead letter.

For scheduled air services, the privilege of operating commercial services through or into a foreign country was, at the time of the 1944 Chicago conference, split into five so-called freedoms of the air. The first is the privilege of flying across a country nonstop; the second, of flying across with a stop for technical purposes only. These two freedoms are also known as transit rights. A large number of ICAO members are parties to the 1944 International Air Services Transit Agreement, placing these rights on a multilateral basis. The other freedoms of the air are known as traffic rights, referring to passengers, mail, or cargo carried on a commercial service. The third of the five freedoms is the privilege of bringing in and discharging traffic from the home state of the aircraft or airline; the fourth is that of picking up traffic for the home state of the aircraft or airline; the fifth is that of picking up traffic for or discharging traffic from third states in the territory of the state granting the privilege. This fifth freedom is the main bargaining

point in the exchange of traffic rights among states. Attempts have been made since 1944 to create other freedoms, but each new freedom usually represents in practice a new restriction.

Efforts to conclude a widely acceptable multilateral agreement on traffic rights were unsuccessful, and such rights have continued to be handled through bilateral international agreements. These agreements fix the routes to be served, the principles governing the capacity of the agreed services (frequency of the service multiplied by the carrying capacity of the aircraft used), and the procedures for the approval of fares and tariffs by the respective governments. Most agreements require that airlines operating the same routes consult among themselves before submitting their fares to the two governments concerned for approval, and many agreements specify the International Air Transport Association (IATA), an association of airlines, as the organ for such consultations. The right to carry domestic traffic between points within a state is normally reserved to that state’s own airlines. A bilateral agreement signed at Bermuda in 1946 between the United Kingdom and the United States set a pattern that has generally been followed, although the formal Bermuda-type agreement is likely to be accompanied by confidential memoranda attaching various restrictions.

Private rights

The principle of airspace sovereignty in international law is probably well reflected in the maxim, Cujus est solum ejus est usque ad coelum et ad inferos (“he who owns the land owns what is above and below it”). In private law the acceptance of this maxim for a long time posed little difficulty, and the Code Napoléon of 1804 adopted it almost verbatim; in more recent times, however, it is more than questionable whether such a principle can be accepted without qualification. Both the German Civil Code (1896) and the Swiss Civil Code (1907), while recognizing the principle of Cujus est solum, adopted a functional approach, limiting the right of the owner to such a height and such a depth as are necessary for his enjoyment of the land. In common-law countries the courts have arrived at a broadly similar position. In France, too, both the doctrine and the courts have refused to take Cujus est solum literally. In one celebrated case, Clément Bayard v. Coquerel (1913), the Court of Compiègne, lending judicial authority for the first time to the theory of abuse of rights, awarded damages to a plaintiff whose balloon had been destroyed by “spite structures” erected by the defendant on his own land and ordered the offending spikes to be taken down.

In the course of the 1920s it became clear in most countries, either through judicial decisions or express legislation, that aircraft would be allowed to fly over the private properties of others in normal flight in accordance with aeronautical regulations. This immunity applies only to the mere passage of the aircraft and does not extend to damage caused by it or to other encroachments on the use or enjoyment of the land, such as excessively low flights.

Hijacking

Unlawful seizure is the legal name that states at the international level have given to aircraft hijacking. Thus, the 1963 Tokyo Convention obliges contracting states to take all appropriate measures to restore control of an aircraft hijacked in flight to its lawful commander, and obliges the state in which the aircraft lands to allow 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.

Far more grievous than hijackings as regards the number of persons injured or killed and of aircraft damaged or destroyed have been the many acts of sabotage or violence committed against aircraft and

civil aviation installations. This led to the conclusion at Montreal in 1971 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, on roughly the same lines as the 1970 Hague convention dealing with the problem of unlawful seizure.

International regulation

Under the 1919 Paris Convention, an International Commission for Aerial Navigation (ICAN, or CINA) was created with headquarters in Paris. In 1937 an Inter-American Technical Aviation Conference decided on the creation of a Permanent American Aeronautical Commission (CAPA). Both were superseded by the establishment in 1947 of the International Civil Aviation Organization (ICAO) under the 1944 Chicago Convention. The Soviet Union joined in 1970, making ICAO membership almost universal.

ICAO is a specialized agency affiliated to the United Nations, with headquarters in Montreal. It has a plenary Assembly, which holds the budgetary power; a permanent Council elected triennially, which, among other things, adopts the Annexes to the Convention; an Air Navigation Commission; an Air Transport Committee; and a plenary Legal Committee, which discusses matters of air law of common interest to members and prepares draft conventions for their consideration and acceptance.

One of the most important functions of ICAO is the preparation and periodical revision of international standards and recommended practices relating to civil aviation. It has done much to standardize aeronautical regulations throughout the world. Among other functions of ICAO may be mentioned those in connection with joint support programs among members for financing air navigation facilities and its technical assistance program. The ICAO Council, under the Chicago Convention, may also function as either a conciliation body or a judicial organ in disputes between members.

Air Law

Tang Ut Fong

1Air LawTang Ut Fong*1 IntroductionAir Law is a series of rules governing the use of airspace and its benefits for aviation, the general public and the nations of the world. Definition of which is plenty but it cannot be applied indiscriminately or without exceptions. Like, the terms of Aviation Law and, or Navigation Law are become out-dated, the designation of Air Transportation Law has been employed on occasions, but the areas it covers are only conveying a narrow interpretation. In

presence, the term of Aeronautical Law1is currently being used especially in Romancelanguages, while Air Law is practically adopted in the rest regimes.Air Law is found interesting on the ground of Aviation is in the process of achieving its nextphase of development and arouses interest in ever-larger circles. For instance, when a personboards an aircraft as a passenger and reads the small print on his ticket he suddenly realizesthat he is bound bythe provision of the Warsaw Convention. It will be useful to posses somemeans of appreciating the benefits and disadvantages of the rules to which he has becomebound. Besides, Air law is intertwined with other areas of laws. It involves many aspects ofConstitution law, Administrative Law, Civil law, Commercial law and especially CriminalLaw. Its international nature is always paramount.This paper may be aimed to falling into the category of penal legislation and its proceduresinsofar as it provides a logical description of the legal institutions and rulings and the effectsof the law in connection with international criminal matters. Since the laws have beensubject to analysis by cases and my paper has also been covered two cases laws to explain thepresent conclusion of the law in criminal aspect.2 The History and Development of Air LawBecause of the first engine-powered flight had successfully been carried out by the BrothersWright in 1903, it is already 100 years inthe year of2003. It is possible to review to the pastwhen one takes into account the national rules and regulations in various states.The first concerted attempt at codification on an international scale took place before 1910,when German balloons repeatedly made flights above French territory.2The FrenchGovernment was of the opinion that for safety reasons it would be desirable for the twogovernments involved to try and reach an agreement to resolve the problem. As a result theParis Conference of 1910 was convened, the tendency of the conference did not adopt the ideaof ‘freedom of the air’ but was in favor of the sovereignty of states in the space above their*A PHD candidate of the faculty of Political Philosophy and Ideology, the People’s University, Beijing.1

E.van Bogaert, The Relativity of the Nation of the Law of the Air, Studia Diplomatica, Brussels, 1979, Vol.XXXII, No. 6, Pg. 621-637, Noted also by Nicolas M. Matte, the Treatise on air–Aeronautical Law, 1981,pg. 50.2The International Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons, (TheHague, 29 Jul 1899)4world war, the principle of sovereignty in usable space over national land and water had beenaccepted by international community as a customary rule. Event during the preparation andsignature of Paris Convention of 1919 merelyacknowledged and restated the already existingrule of customary international air law. The words9of the rule emphasize the intention of‘contracting states’ to recognize an existing rule rather than to create a new one formentioning every state, thus the rule also includes ‘non-contracting states’ in which the wordsare implied recognition of legitimate enforcement of air sovereignty, although complete andexclusive, it cannot be considered absolute or free of any legal constraints under internationallaw. Its exercise is actually subject not only treaty obligations but also to some generallyaccepted rules of customary law. As stated, air sovereignty cannot be understood as beingabsolute if international flight is occurred. The rights even if are exclusive are also subject tolimitations.2.3.2 Extension of AirspaceIn international air law,it is somewhat strange either in private law or in public law, that theair sovereignty rule has been recognized and strictly applied without definition ofthe limits ofthe airspace itself. The various definitions of the upper limit can be referring to the past, thestriking distance of a man standing upright on the ground, the height of buildings, the range ofweapons, the range of vision, the altitude inwhich man is able to survive, the flight ceiling ofaircraft or the point of equilibrium between the earth and other planets, were never beenended. As such, sovereign jurisdiction could only be concluded as high as the airspace anaircraft in which the gaseous atmosphere is sufficiently dense to keep it sustained.Sovereignty would therefore be limited to usable or navigable airspace.With the advert of space flight, discussion on delimitation of state territorial airspace andinternational outer space

has been re-opened. To date, in the absence of appropriate air law,regulation and state practice provide evidences to cover the outer space, the use of customarylaw might be a solution of easing the loophole in one of the cases of the circulation of theearth satellites moved in route of orbit, it properly overpasses states territory. No matter theexact height up to which state sovereignty extents, it undermines the emergence within theframework of developing space law, or perhaps a new aerospace lawencompassing bothairspace and out space flight.2.3.3 Problems of National JurisdictionsThere is no system of general rules of international law for the definition of the scope ofnational laws and jurisdictions. In the view of the basic rules of international law recognizingcomplete and exclusive sovereignty of states over state-territorial airspace involvingprohibition of unauthorized flights and obligation to conform to territorial laws andregulations by the foreign aircrafts, the implementationof these rules by the state becomesmost important. As experienced, international law does not provide immediate measure toprotect territorial airspace and to cease the violation. The mentioned‘freedom of the air’, likethe‘sovereignty’itself in thebasic rule of international law, cannot be considered solely to beabsolute and unrestricted.A state sovereignty in territorial airspace and its legal consequences cover:9The rule, restated in Art 1 of Paris Convention and Art 1 of Chicago Convention of 1944, ‘the contractingstates recognize that every state has complete andexclusive sovereignty over the airspace above itsterritory.’51.freedom of air navigation in non-territorial airspace;2.nationality of aircraft involving control, responsibility;3.

right of protection assigned to the registered state10of the flag;4.use of lawful means to suppress unlawful use of aircraft;5.recognitioneitherof exclusive jurisdiction of the territorial stateorof state of theaircraft’snationality; and6.concurrent jurisdictions in other areas of civil aviation activities.The fundamental rules of customary international law underlying the regulatory system ofinternational civil aviation,the major part of which is formed by treaty law. Althoughcustomary rules had been provided a basic premise for the application of treaty obligation,state practice also seems to be indicative of the direction in which the development ofinternational air law is likely to go.Bilateral air agreement, using the notion of airline nationality associated with its ownershipand effective control, recognition of transfer of responsibility from the registration state to thestate of aircraft operator, refraining from interference by the territorial state with its internalorder prevailing onboard the foreign aircraft.As a result of the pressures ofthecontinuing technological revolution and expandinginternational and extra terrestrial activities, there will also beapotential conflict of statesjurisdiction in the matter of certain cases.113 Penal Law and AviationIn the past few years, the development of new rules and sanctions were tensed as to the

criminal offence happened in flight become frequent. There are three internationalconventions governing the provision of penal law in the aspect of aviation. They are:1.The Convention on Offences and Certain Other Acts Committed on Board Aircraft,signed at Tokyo on 14 September 1963 (Tokyo Convention)2.The Convention for the Suppression of UnlawfulSeizure of Aircraft, signed at the Hagueon 16 December 1970 (Hague Convention)123.The Convention for the Suppression of Unlawful Acts against the Safety of CivilAviation, signed at Montreal on 23 September 1971 (Montreal Convention)133.1 The Tokyo ConventionIt is necessary to determine, in the basic concept of the international character of aviation andair law, which state is competent to exercise jurisdiction in case of criminal offenceshappened on board aircraft. In 1910 the Paris Convention was expressed the principle of lawthat state sovereignty over the airspace above its territory where was also indicated in 1944the Chicago Convention. However, we may face a situation in which complication ariseswhen a state other than the state in which anaircraft is registered attempts to exercise its10Art 1(2) of Tokyo Convention stating that ‘this convention shall apply in respect of offences committed oracts done by a person on board any aircraft registered in a contracting state, whilethat aircraft is in flight oron the surface of the high seas or of any other area outside the territory of any state.’11Cited by Marek Zylicz, International Air Transport Law, Martinus Nijhoff Publishers, the Netherlands,1992, pg.70-71.12It is also named as Hijacking Convention.13It is also named as Sabotage Convention.6jurisdiction with regards to offences committed on board such aircraft, due to the offence iscommitted above territories not subject to sovereignty of any particular state, like high sea, orwhen the placecannot be distinguished precisely. We may find number of occasionsdiscussed and recorded on the agenda of the International Law Association, the draftconvention was worked out by the ICAO legal committee in Munich 1959 and Rome1962and other cities, thefinal text of Tokyo Convention was concluded at the Diplomaticconference held in Tokyo in 1963

14.3.1.1 Several TheoriesAccording to the various draft conventions and materials as above mentioned, an analysis ofthe following theories regarding jurisdiction to which is resorted:1.the territorial theory–the law of the state in whose airspace the offence has taken placewill be applied by its national courts. Clearly it is not always possible to determine theexact position of the aircraft at thetime the offence was committed; for that reason isimpracticable for a state to base its jurisdiction solely on this principle.2.the national theory–according to this theory the law of the state where the aircraft isregistered is always applied.3.the mixed theory–side by side with the law of the aircraft’s nationalityandthe law of thestate over which the aircraft passes is enforceable whenever the security or public order ofsuch state is threatened by offences committed on board.4.the theory of the law of the state of departure.5.the theory of the law of the state of landing.153.1.2Case Law-Hijacking / An International CrimeThe eternal pursuit of man has been to lead peaceful life. This is possible only if he believesand acts in the principle of ‘live and let live’. This is equally good for states as they areorganizations of human being. Like Municipal Law, International Law also is a body of rulesfollowed by the states to regulate their actionsinter se.Various attempts have been made torecognize and establish the authority of law. UnitedNations Charter recognizes the need for the rule of law on an international plane andstipulates one of the purposes of the organization to preserve ‘principles of Justice andInternational Law’

16. TheUnited Nations also endeavors to harmonize the relations of thestates for avoiding those situationsmaybring sorrow to the mankind. For this purpose, theorganization also enters into agreements with the specialized agencies established by inter-governmental agreements and having wide international responsibilities.17For checking theinternational delinquencies and international delinquents, the members of the United Nationsare committed.18Thus, the United Nations and members of the United Nations jointly andseverely are committed to respect justice and international law. But, it appears thatthe case14See the Minutes and Documents of the International Air Law Conference (Tokyo, 8-9/1963), the ICAODoc. 8565-LC/151-1 and 151-2 and The Tokyo Convention of 1963.15I.H.Ph. Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law and Taxation Publishers, Deventer.Antwerp, 1988, pg. 16216Art 1 (1) of the U.N. Charter17Art 57 and 63 of the Charter, the Economic and Social Council is authorized to enter into agreementsubject to theapproval of the General Assembly.18See Preamble to the U.N. Charter, the people of the United Nations are ‘determined to establish conditionsunder which justice and respect for the obligations arising from treaties and other sources of internationallawcan be maintained’.7ofPakistan is deliberately violating the international law and the Charter of the U.N. although

she is a member of the U.N. This is manifested in her support to two internationaldelinquents who hijacked the Indian aircraft to Pakistan.The Incident19On 30 January 1971, an Indian Airlines, Fokker Friendship aircraft, with 28 passengers and acrew of 4 on board was hijacked. The plane, which was ona shuttle service from Srinagar toJammu took a sudden turn towards Pakistan border just when it should have started to comeinto land. Minutes before the plane was to land, the Jammu control Tower picked up amessage from the pilot, said he was being skyjacked. It landed at Lahore (West Pakistan) at1.25 pm. The first official message from the civil aviation of West Pakistan was received bythe Director-General at about 6.0 pm. It said that all are safe but ‘the hijackers are still in theaircraft andrefuse to come out. No sooner the hijackers leave the aircraft, the crew andpassengers will leave back for destination to India wherever desired.’ However, in spite ofeagerness of the government of India for sending another aircraft to fetch the passengers andcrew, the Pakistan government delayed the return deliberately and at last sent the passengersand crew by road. The aircraft, 2 other passengers (who hijacked) and the cargo were notreturned. Meanwhile, political asylum was granted to these hijackers and certain conditionswere purported to,have been put by the hijackers were also conveyed to India. Theseconditions were:-the relatives of the hijackers should not be harassed.36 Al-Fatah men arrested in Kashmir during last few days be released.Non-acceptance of these conditions was threatened with the warning of blowing up theaircraft.It may be pertinent to mention that the first condition purported to,have been put by thehijackers was not at all material. India is governed by rule of law and all citizens and aliensare protected by constitution, the supreme law of the land20. The supremacy of law and

impartiality of courts has also been accepted by British Counts. So far as the 2ndcondition isconcerned, it appears that Pakistan who is instigating subversive activities in India was behindthis move.21Therefore, this amounts to intervention in the affairs of India22. Pakistan beingamember of the United Nations cannot interfere in the domestic affairs of India withoutviolatingthe charter of the United Nations23. Again, if there are any differences and disputes,they are to be settled in accordance with the provisions of the Charter24. Hijacking andSpying25are not recognized means, both being against the rules of internationalLaw. This is19The brief of the newspaper report, the Sunday Standard, New Delhi, 31 January 1971.20See Art 14 extends equality before law and equal protection of law, Art 20 prohibits prosecution by stateexcept for any omission or commission, which is an offence at the time of the act, and Art 22 protects theliberty. The courts-high count and the supreme court jealously watch these freedom.21The first secretary of Pakistan Embassy in New Delhi was declared by India a persona non grata when itwas proved that he was the master mind behind this espionage gang known as Al-Fatah.22See Oppenheim, L., International Law, a treatise, 1, pg. 305, 1955 stating ‘intervention is dictatorialinterference by a state in the affairs of another state for the purpose of maintaining or altering the actualcondition of things’.23See Art. 2 (7) of U.N. Charter.24See Preamble, Art l(1), 2(3)(4), 33(1) of the U.N. Charter25See Oppenheim, L., International Law, a treatise, pg. 862 stating ‘a state can never protecta spy, since it(state) cannot officially confess to having commissioned a spy.’

8more so in view of the Tashkent Declaration26under which both states (India & Pakistan) hadagreed to exert all efforts to create friendly relations as envisaged in the U.N. Charter. Thisincident cannot be categorized as a friendly act.The hijacked aircraft was blown up by the 2 hijackers at Lahore airport at 8.35 pm(I.S.T.),the same evening the Indian government handed over the aide memoire27to the Pakistan HighCommissioner in India and Foreign Ministry at Islamabad.Violation of International LawLaw of Nations for international law includes treaties. Treaty includes convention. In regardto the matters of international criminal law, in 1963, the Tokyo Convention on offences andother Acts committed on Board Aircraft was signeddealing with the questions of jurisdiction,in which Art 11 is majored to deal with hijacking. It declares actual or attempted hijacking ofaircraft as an act of quasi-piracy committed against the community of nations. The statesparties are obliged to take measures for the restoration of control to the lawful owner.Pakistan has committed a breach of International law both by granting asylum to thehijackers28as well as by not taking measures to restore the control of the hijacked aircraft.Air navigation is of vital importance, freedom and security in this already risky transport is ofprime importance for the states.Various attempts as stated before have been made in the past to regulate air navigation. Thenecessity for an international agency to deal with the important development was felt and the1919 convention established an international commission for Air Navigation as a permanentcommission under the direction of the league of states. This was taken over by theInternational Civil Aviation Organization (ICAO) created by the International Civil AviationConvention of 1944. This specialized agency having wide international responsibilitiessubsequently became a specialized agency of the U.N.29Since then, ICAO is working alongwith U.N when airlines and private owners of aircraft in the western Hemisphere began to beplagued by an increasing incidence of hijacking of planes. The Tokyo Convention of 14September 1963 is the first attempt to check the problem of the increasing incidence ofhijackinginter aliain the Middle East with a comprehensive international action.Concentrated Efforts

In concern of the danger caused by hijacking is tremendous, the legal committee of ICAOprepared the draft treaties, The Hague Convention and the Montreal Convention) seekingPanel aspects of aviation to deal with hijacking. It is to modify on the Warsaw system and theTokyo Convention, the diplomatic conferences were held during 1960 to 1970, which is toadopt an agreement to deter acts of violence orintimidation to seize control of civilian aircraft26Signed by the Prime Minster of India and President of Pakistan under the goods offices of USSR on 10January 1966 at Tashkent.27‘It is the responsibility of the government of Pakistan, in accordance with the established internationalusage and practice, to ensure the immediate and safe return of the skyjacked aircraft together with thebaggage cargo and mail.’ The Indian Express, New Delhi, 3 February 1971.28See Starke,G.J., In Municipal Law hijacking is piracy, pg. 64, stating ‘Persons Hijacking an aircraft havebecome subject of conventional rules of international criminal law in much the same way as pirates jurgentium under customary rules’. President Kennedy signed a Bill in 1961 declaring hijacking of aircraft anact of piracy, with penalties for the offence ranging up to death cited Glahn, G. Von, Law Amon Nations, pg.329, 1970.29See Art 57 and 63 of the U.N. Charter.9in flight.30The General Assembly of U.N. also referred to the matter of the draft resolutionrecommended by the 6thcommittee regarding aerial hijacking with the votes in favor to noneagainst.31Gist ofthe ResolutionThe General Assembly condemns without exception all acts of aerial hijacking or otherinterferences with civil air travel. It calls upon the states to take all appropriate measures todeter, prevent and suppress such acts within their jurisdiction and for the extradition of suchpersons for their prosecution and punishment. The state in whose territory the hijackedaircraft is landed is obliged to look after the passengers and crew and provide for theircontinuous journey. The state is also under an obligation to return the aircraft and its cargo tothe lawful owner. The resolution also calls upon the states to take collective and severe actionin conformity with the U.N. Charter and in co-operation with the U.N. and ICAO to ensurethat aircraft engaged in civil aviation is not used as a means of extorting advantage of any

kind.Pakistan is a party to the resolution and has voted for it in the legal committee as well as inthe General Assembly. Pakistan therefore cannot shirk the responsibility from it.32Reparation for DelinquencyThe act of hijacking is a violation of conventional law, U.N. Charter and the Resolution ofU.N. and the Conventions of the ICAO. This act is termed as quasi-piracy by the TokyoConvention of 1963 and the hijackers have become one of the subjects of the ConventionalRules of International Criminal Law. In regard to the hijacking of Indian aircraft, itsdestruction in Pakistan and failure of Pakistan government to prevent the destruction amountsto international delinquency by Pakistan. The principle legal consequences of an internationaldelinquency are reparation of the moral and material wrong done.33It isasettled rule ofinternational law that a state becomes responsible if it facilitates the commission of theultravires actor it violating an independent duty of international law. In the present contextPakistan both facilitated the commission of crime, by granting asylum to the delinquents andby not prohibiting the destruction of cargo, mail andthe aircraft,whichwas negation ofalegal duty imposed on Pakistan by the U.N. Resolution and the Tokyo Convention. Tocontend the inability in protecting the aircraft, cargo and mail is a lame excuse. Not only this,Pakistan government cannot harbor the 2 hijackers without violating international law.The quantum of compensation to be paid by a state for international delinquencies must beadequate, has been settled by the ICJ. It is a principle of international law34that the breach ofan international engagement involves an obligation to make reparation in an adequate form.Pakistan thereforeshouldpay the adequate compensation to India as demanded along with aformal apology.3.1.3 The Scope and Purpose ofthe Tokyo Convention30

See 64, American Journal of InternationalLaw, 31 Dec 197031Resolution no. A/RES/2745 (XXV). See U.N. Monthly Chronicle Vol. VII, 11 December 1970.32Chicago Convention and various conventions on aerial navigation prescribe for freedom of air navigationto aircraft, and the 1963 of Tokyo Convention for hijacking.33Kelsen, Hans. Principles of International Law, 2ndedition, 1966, pg. 199-200, and Briggs H.W. The Lawof Nations, Cases, Documents and Notes, 2ndedition, 1952, pg. 601-742.34See Art 1 and 2 (3) of Rome Convention of 1952 and Art 25 of Warsaw Convention of 1966.10Under the Art 1(1), the scope of Convention, it applies to:-offencesagainst penallaw,acts which, whether or not they are offences, may or do jeopardize the safety of theaircraft or of persons or property therein or which jeopardize good order anddisciplineonboard.The exceptional domain is contained in (4) indicating that aircraft used in military, customs orpolice are departedfrom the general scope.The objective of the conventionisdescribed as:-1.to determine the penal law applicable when an offence has been committed aboveterritories not belonging to any particular state, such as the high seas, or in casesin which the place where an offence has been committed cannot be preciselylocated.

2.to define the rights and obligations of the aircraft commander in respect ofoffences and acts committed on board which jeopardize the safety of the aircraft.3.to define the rights and obligations of the authorities of the place where theaircraft lands after an offence or an act which jeopardizes the safety of anaircrafthas been committed.3.1.4 JurisdictionUnder the wording of Art 3 dealing with jurisdiction in which the sub-item (3) is stating ‘theconvention does not exclude any criminal jurisdiction exercised in accordance with thenational law’. It properly means the jurisdictional rules contained in the convention are of asupplementary nature. But, we note that in the same area that the state of registration hasbeen declared competent to exercise jurisdiction over offences committed on board. Therearealso cases in which states other than the state of registration have jurisdiction over suchoffences, as is apparent from Art 4 of the convention. The cases mentioned as follows:-1.the offence has effect on the territory of such state2.the offence hasbeen committed by or against a national or permanent resident of suchstate3.the offence is against the security of such state4.the offence consists of a breach of any rules or regulations relating to the flight ormanoeuvre of aircraft in force in such state5.the exercise of jurisdiction is necessary to ensure the observance of any obligation of suchstate under a multilateral international agreement.Under Art 2 of the Tokyo Convention, it is mentioned that ‘without prejudice to the provisionof Art 4 and except when the safety of the aircraft or of persons or property on board sorequires, no provision of this convention shall be interpreted as authorizing or requiring anyaction in respect of offences against penal laws of a political nature or those basedon racial orreligious discrimination. It should be noted there is nothing appears in either the HagueConvention or the Montreal Convention, both of which might be considered that politicalelement in hijacking is somehow hard to be apart.3.1.5 Unlawful Seizure11Under Art 11 of the Tokyo Convention 1963, there is a special offence to the chapter ofunlawful seizure of aircraft since the phenomenon of which has become increasing frequent

since the late 194035. This is given a deep concern but thearticle is failed to cover all formsof unlawful seizure, it is also failed to prescribe any effective counter-measures, confiningitself to imposing on contracting states the obligation ‘to take all appropriate measures torestore control of the aircraftto its lawful commander or to preserve his control of the aircraft’.Itisexperienced to find that the text of the convention which quoting hijacking is notadequately covered, as illustrated in afore case law, failureto prescribe any sanction againstthe offence as well. In order to enhance protection against unlawful seizure, a separateconvention focus on hijacking, that is, the Hague Convention of 1970 is established toconclude morespecific.3.1.6 ExtraditionUnder Art 16 (1)of the Tokyo Conventionstates‘Offences committed on aircraft registeredin contracting state shall be treated, for the purpose of extradition, as if they had beencommitted not only in the place in which they have occurred but also in the territory of thestate of registration of the aircraft’.Under Art 16 (2) states‘without prejudice to the provision of preceding paragraph, nothing inthis convention shall be deemed to create an obligation to grant extradition.’The entire Art 16merits a special attention as pointedly illustrated in the previous caselawonextradition, but the problem in the absence of restrictive approach to extradition is required tobe elaborated bythe Hague Convention of 1970asfollowing.3.2The Hague Convention

3.2.1The need fortheHague ConventionHijacking is in the fact difficult to overcome because it is vulnerable, the criminal actsinvolved arealsomanifold and unpredictable. Under the summarization of the criminal actswhich can be break-down by the IFALP (International Federation of Air Line PilotsAssociations) as:-1.Afight between the crew and the hijackers may cause a complete loss of control of theaircraft.2.Essential damage may be caused if weapons are used in the cockpit.3.Collisions may result from an aircraft being unable to observe traffic regulations.4.Fuelshortage may occur.5.The crew may be unfamiliar with a particular airport and its approach procedures.36Hijacking activities was focus mainly in the areas of Middle East and the Caribbean duringthe decade years of 60s to 70s. As a result to counteract hijacking, a wider context concertedaction was started at the end of 1960 that entailingthe Hague Convention can be reached inDecember 1970 which made hijacking to be an internationally punishable offence.It isperhaps worthily to mention that the impression of Air Piracy is being used and taken tobe interchangeable with aircraft hijacking. As known that in maritime law in the 195835See AF Lowenfeld, Anviation Law, Documents Supplement, 1981, pg. 1181 (World-wide Hijackingstatistics)36

IH Ph. Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law and Taxation Publishers,Deventer.Antwerp, 1988, pg. 169-170