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Article 4 does not offer any solution to the problem of “misuse of civil aviation” within the scope of paragraph 2 above, namely, the status of an aircraft which is used for criminal purposes or other unlawful purposes.
The Chicago Convention in general does not contain any provisions which would foresee the speci.c situations when an aircraft is used for or involved in
D. Other Regulatory Provisions
criminal activities or other activities violating the law and public order of the State. However, there are numerous provisions in the Convention which offer effective safeguards to States that their applicable laws and public order are observed by foreign aircraft (with respect to aircraft of its own registry, the State concerned has unrestricted jurisdiction). Articles 11, 12 and 13 of the Convention in essence con.rm the rule of general international law that foreign aircraft, its crew, passen-gers and cargo do not enjoy any “extraterritorial” status while in the airspace or on the ground of another State; such aircraft are fully subject to the applicable laws of the State concerned. Under the Convention, the State may require the landing of a foreign aircraft involved in non-scheduled .ight (Article 5), may prohibit or restrict foreign aircraft from .ying over certain parts of its territory or over the whole territory (Article 9), may require landing of foreign aircraft at a designated customs airport (Article 10), may search the foreign aircraft (Article 16) and may regulate or prohibit the carriage of certain articles in or above its territory (Article 35(b)).
It is submitted that all States possess within the existing framework of the Chicago Convention full jurisdiction in the application of their respective laws to prevent or prohibit the use of civil aircraft for unlawful purposes. The practical problem therefore does not appear to arise in the .eld of the applicability of particular laws but in the .eld of practical enforcement of such laws with respect to aircraft, particularly aircraft in .ight.
II. Article 3 bis
Problems of interception of and other enforcement measures with respect to a civil aircraft in .ight are directly addressed in Article 3 bis adopted by unanimous consensus on 10 May 1984 by the 25th Session (Extraordinary) of the ICAO Assembly. The drafting history of this Article supports the conclusion that Article 3 bis is declaratory of the existing general international law with respect to the following elements:
(a)
Obligation of States to refrain from resorting to the use of weapons against civil aircraft in .ight
(b)
Obligation, in case of interception, not to endanger the lives of persons on board and the safety of aircraft
(c)
Right of States to require landing at a designated airport of a civil aircraft .ying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention
While Article 3 bis accepted in paragraphs (b) and (d) the terminology “for any purpose inconsistent with the aims of the Convention” exactly as it is used in Article 4 of the Convention, the drafting history indicates conclusively that the scope of the phrase is different in Article 3 bis than in Article 4. At the 25th Session (Extraordinary) of the Assembly, convened in Montreal in 24 April to 10 May 1984, this phrase was meant to cover not only violations of the “aims” of the Chicago Convention as spelled out in the Preamble to the Convention and in its Article 44 (which deals with the aims and objectives of the Organization rather than the Convention), but any violation of the law and public order of the State concerned. In the Assembly discussions speci.c references were made to transport of illicit drugs, contraband, gun running, illegal transport of persons and any other common crimes.
It should be stressed that the scope of applicability of Article 3 bis is subject to signi.cant restrictions; the protection of this Article is reserved only to:
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