曝光台 注意防骗
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the absence of universal jurisdiction in relation to a given offence, means that, if a particular State has no jurisdiction either on the basis of territoriality or protection, or on the personality principle, whether passive or active, it will not be authorized to put the offender on trial, even if he is to be found within the territorial boundaries of the State.554
The inclusion of the offence of “piracy” in the Convention brings to bear the glaring fact that the crime is international in nature, giving the international community the right to take appropriate measures to combat or at least control the occurrence of the offence. The General Convention by its very nature and adoption has demonstrably conveyed the message that piracy is a heinous crime which requires severe punishment. The Convention also calls for solidarity and collectivity on the part of nations in combating the offence in the interests of all nations concerned.555
Notwithstanding the above, it is worthy of note that the phenomenon of hijack-ing as it exists today need not necessarily fall within the de.nition of piracy as referred in Article 15 of the High Seas Convention (1958). Although there exists a marked similarity between the offenses of unlawful seizure of aircraft and acts of piracy directed against ships on the high seas, in that in both cases, the mode of transportation is threatened and abused and the safety of the passengers, crew members and the craft itself is endangered by the unlawful use of force or threat, there may still be a subtle difference that may exist between the offence as applying to sea transport and to air transport.
553Reiff(1959,p 6). 554Feller(1972, p. 212). 555Feller(1972, p. 212).
Whilst admittedly, there are similarities between the acts of piracy against ships
and those against aircraft, the legal differences that may exist should have to be determined in order to inquire whether aircraft hijacking amounts to piracy as de.ned by the Convention.
The essential features of de.nition of piracy as are incorporated in the Geneva Convention areas follows:(1)thepirate mustbe motivatedby“private”as opposed to “public” ends; (2) the act of piracy involves action affecting a ship, an aircraft;
(3)
the acts of violence, detention, and depredation take place outside the jurisdic-tion of any State, meaningboth territorial jurisdiction and airspace above the State;
(4)
acts committed on board a ship or aircraft, by the crew or passengers of such ship or aircraft anddirected against the ship or aircraft itself, or against persons or property, do not constitute the offence of piracy.
Upon close examination, it appears that the de.nition of piracy does not applyto thephenomenonof aerialpiracyor hijacking. Firstlyitisa fact that most hijackings are not carried out in pursuance of private ends. INTERPOL556 reported in 1977 that the percentage of cases in which political motives had impelled the offender was 64.4%. Hijacking of aircraft for political motives would thus not relate to Article 15(1) of the Convention on the High Seas (1958) since acts solely inspired by political motives are excluded from the notion piracy jure gentium. Sami Shubber has observed of the 1958 Convention that its inapplicability to the notion of aerial piracy may lie in the fact that private ends do not necessarily mean that they can affect private groups, acting either in pursuance of their political aims, or gain. The fact that it is not always possible to distinguish between private ends and public ends in de.ance of the political regime of the .ag State may be said to be covered by Article 15(1) of the Convention.557 The reasons given by Shubber were that “private ends” do not necessarily mean private gain.
Under the de.nition, the act of illegal violence or detention must be directed on the high seas, against another ship or aircraft. It is obvious therefore that this interpretation does not apply to hijacking since the offence of hijacking is com-mitted by the offender who travels in the aircraft. It is hard to imagine that an offender could enter an aircraft from outside while the aircraft is in .ight. The Convention also excludes acts committed on board a ship by the crew or passenger and directed against the ship itself, or against persons or property on the ship, from the scope of piracy,558 which will also make the de.nition inconsistent with the exigencies related to the offence of aerial piracy.
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