Aviation Security Law 航空安全法(162)

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The Tokyo Convention was the .rst substantial effort at dealing with terrorism in the air. It was followed by The Hague and Montreal Conventions.562
In 1950, the Legal Committee of ICAO, upon a proposal from the Mexican Representative on ICAO Council for study of the legal status of airports, referred the subject to the ad hoc Sub-Committee established by the Legal Committee.563 After a surveyhad been made of all the problems relating to legal status of aircraft, it was decidedby the Committee that the best course would be to con.ne the work to a detailed examination of some particularly important matters, namely crimes and offenses committed on board aircraft, jurisdiction relating to such crimes and the resolution of jurisdictional con.icts. The Sub-Committee thought that resolving these problems was of vital importance for the following reasons:564
(1)
One characteristic of aviation is that aircraft .y over the high seas or over seas having no territorial sovereign. While national laws of some States confer jurisdiction on their courts to try offenses committed on aircraft during such .ights, this was not the case in others, and there was no internationally agreed system which would co-ordinate the exercise of national jurisdiction in such cases. Further, with (the) high speed of modern aircraft and having regard to the great altitudes at which they .y as well as other factors, such as meteorological conditions, and, in certain parts of the world, the fact that several States may be over.own by aircraft within a small space of time, there could be occasions when it would be impossible to establish the territory in which the aircraft was at the time a crime was committed on board. There was, therefore, the possi-bility that in such a case, and in the absence of an internationally recognized system with regard to exercise of national jurisdiction, the offender may go unpunished.

(2)
National jurisdictions in respect of criminal acts are based on criteria which are not uniform; for example, on nationality of the offender, or nationality of the victim, on the locality where the offence was committed, or on nationality of the aircraft on which the crime occurred. Thus, several States may claim jurisdiction over the same offence committed on board aircraft, in certain cases. Such con.ict of jurisdictions could be avoided only by international agreement.

561See Sarkar(1972, p. 200).
562See International Legal Materials 1963, (II) at 1042.
563See Boyle(1964, pp. 305–328), fora detailed analysis of the Tokyo Convention.
564Report of the Sub-Committee, LC/SC “Legal Status,” WD No. 23, 10 October 1956.

C. Concerted Action Under the Auspice of the ICAO
(3) The possibility that the same offence may be triable in different States might result in the offender being punished more than once for the same offence. This undesirable possibility could be avoided by a suitable provision in the Convention.
After sustained deliberation and contradiction, the Sub-Committee on Legal Status of Aircraft produced a draft convention which was submitted to the Legal Committee on9September 1958.565 The Legal Committeein turn considered the draft convention at its 12th Session held in Munich in 1959,566 undertaking a substantial revision of the draft. The revised text was submitted to the ICAO Councilsubsequently, who in turn submittedthe draft to Member States and various international organizations for their comments.A new Sub-Committee was formed for the purpose of examining the Convention of State organization in 1961 to examine and prepare a report. This report was studied by the Legal Committee in its 14th Session heldin Romein 1962.A.nal textofa Convention was drawnupat this meeting and communicated to Member States with a view to convening a Diplomatic conference in Tokyo with a long-term prospect of adopting a Conven-tion on aerial rights. This Convention was signed in Tokyo on 14 September 1963 by the representatives of49 ICAO Member States, and entered into force after six years, on4 December 1969.567 This slow processof rati.cationof the Convention (5 years) was by no means due to the ineptitude of the Convention as has been claimed568 but was solely due to the fact that the Convention was drafted prior to the series of hijacking in the late 1960s and was not implemented with due dispatch by most States. Another reason for the delayed process was the complicated legal and political issues facing many countries at the time of the adoption of the Convention.569 A signi.cant feature of the Tokyo Convention is that although at .rst, States were slow in acceding to or ratifying the Convention, 80 States rati.ed the convention within one year (1969–1970) presumably in response to the spate of hijackings that occurred during that period.
　
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