(b)
Civil aircraft “in .ight”; while the Convention does not de.ne the concept “in .ight,” it is likely that this phrase will be interpreted in harmony with the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface of 1952 (Article 1, paragraph 2) and the Tokyo Convention of 1963 (Article 1, paragraph 3). An aircraft shall be deemed to be in .ight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends. Consequently, aircraft which are not “in .ight” do not enjoy the special protection of Article 3 bis.
It is also submitted that the protection of Article 3 bis is reserved to “foreign” aircraft and does not include aircraft of the State’s own registration. After discus-sions in the Executive Committee of the Assembly, the reference to aircraft “of the other contracting State” was dropped for the speci.c reason that the protection was to be recognized as mandatory with respect of aircraft, whether belonging to contracting or non-contracting States. At no stage of the deliberations and drafting did the Assembly (in the Plenary, in the Executive Committee or in the Working Group) contemplate regulation of the status of an aircraft in relation to the State of its own registration; such regulation would have exceeded the scope of the Con-vention which deals with international civil aviation. Again, the purpose of the Chicago Convention is to establish conventional rules of conduct in the mutual relations of sovereign States but not to govern matters of their exclusive domestic jurisdiction. Consequently, Article 3 bis will not apply to the treatment of aircraft by the States of their registration. This conclusion does not imply that a State is free to treat aircraft of its own registration without regard to any rules of international law; other sources of international law (e.g., the International Covenants on Human Rights) may be relevant for the conduct of States (protection of the right to life, requirement of due legal process, presumption of innocence, etc.).
When requiring the landing of a civil aircraft .ying above its territory or when issuing other instructions to the aircraft to put an end to a “violation,” contracting States may resort to any appropriate means consistent with relevant rules of international law, including the Chicago Convention and, speci.cally, paragraph
(a)
of Article 3 bis. Consequently, Article 3 bis does not exclude enforcement against foreign aircraft in .ight and does not rule out the use of adequate and proportionate force and does not rule out interception as such. Any act of interception
D.
Other Regulatory Provisions 201
or other enforcement measure not involving the use of weapons against civil aircraft in .ight and not endangering the lives of persons on board and the safety of .ight is legitimate and acceptable. Any interception procedures consistent with the applicable Standards and Recommended Practices adopted by the Council of ICAO pursuant to Articles 37, 54(1) and 90 of the Chicago Convention would be “consistent with relevant rules of international law”.
Two additional provisions of Article 3 bis are likely to deter the occurrences of “misuse” of civil aviation. Firstly, civil aircraft are unconditionally obliged to comply with an order to land or other instruction; contracting States are accepting, under paragraph (c) of Article 3 bis, an obligation to establish all necessary provisions in the national law or regulations to make such compliance mandatory for aircraft of their registration or operated by an operator having his principal place of business or permanent residence in that State. Contracting States are also accepting an obligation to make violation of such laws or regulations punishable by severe penalties and to submit the case to their competent authorities. This provision may offer a practical safeguard that no violators would go unpunished; even if they were to escape from the jurisdiction of the State where the unlawful act was committed, they should be prosecuted and punished by the State of the registration of the aircraft; in practical application this provision may be reinforced by existing or future arrangements for extradition of offenders; and secondly, all contracting States are accepting an unconditional obligation to take appropriate measures to prohibit any deliberate “misuse” of any civil aircraft of their registra-tion or operated by an operator having his principal place of business or permanent residence in that State. Legislative implementation of such a prohibition will no doubt be accompanied by appropriate penalties.
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