Aviation Security Law 航空安全法(164)

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When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure or other wrongful exercise of control of an aircraft in .ight or such an act is bound to be committed.
When the offence of hijacking is committed in the above manner, the State in which the aircraft lands has two obligations which it must satisfy according to the terms of the Convention. The .rst obligation is that the landing State “shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve control of the aircraft and shall return the aircraft and its cargo to the person lawfully entitled topossession.”
R.P. Boyle emphasized the above contention when he stated:
The obligation assumed by a State under the Tokyo Convention with respect to the disposition of the hijacker... is to take all appropriate measures to restore control of the aircraft to its lawful commander and to permit the passengers and crew to continue their journey as soon as practicable and to return the aircraft and cargo to persons lawfully entitled.574
I.  The Powers Given to Aircraft Commander and Others in Order to Combat Hijackings
The Conventiongives wide powers to the aircraft commander to control the offence of hijacking. Article6 enables the aircraft commander to use reasonable measures, including restraint, to protect the safety of the aircraft, and maintain good order and discipline, when he has a reasonable ground to believe that a person has committed an offence contemplated in ArticleI (1), viz.:
(a)
Offences against penal laws

(b)
Acts which, whether or not they are offenses, may jeopardise the safety of the aircraft or of persons or property therein or which jeopardise good order and discipline on board

An interesting observation may be made in respect to requirement in (a) above. The aircraft commander will have, according to that paragraph, the power to take measures and restrain a passenger even if his act did not amount to jeopardising the safety of the aircraft or the person or the property therein. This may lead to absurdity. If for example two passengers conspire, while on board the aircraft,
573Boyle(1964, p. 333). 574Boyle(1964, p. 331).
to commit some illegal act upon landing, or upon termination of the .ight, accord-ing to sub-paragraph (a) above the commander can restrain them on the suspicion that the act they are conspiring to commit, is against penal law of a particular jurisdiction. This seems to be illogicalwhen one recalls that the principal objective of the Convention is to assure the maintenance of safety and good order “on board” the aircraft.
The aircraft commander in discharging his duties according to the Convention can require or authorize the assistance of the crew and request the assistance of passengers for that purpose. Even passengers and crew members are authorized under Article 6(2) to take reasonable preventive measures without any authoriza-tion from the aircraft commander whenever they have reasonable grounds to believe that such action is immediately necessary for safety reasons. Although this clause has tried to give powers to other people beside the aircraft commander in order to tighten the measures that leads to the thwarting of acts of unlawful interference against civil aviation, some delegates at the Tokyo Conference attacked this approach on the ground that passengers normally would not be quali.edtodeterminewhetheraparticularactjeopardizedthesafetyofthe aircraft or persons and propertytherein. For this reason, it was unwise to give this authority to passengers.575 However, this argument was rejected on the ground that this provision contemplated an emergency type of situation on which the danger of the aircraft or persons and property on board was clearly present, and in fact no special technical knowledge would be required to recognize the peril.576
The powers entrusted to the commander in order to suppress any unlawful act that threatens the safety of the aircraft go as far as requiring the disembarking of any person (who commits any of the acts referred to in Article 1(1) and discussed above) in the territory of any State in which he lands and delivering him to its competent authorities.577 The State is under an obligation to allow the disembarka-tion and to take delivery of the person so apprehended by the aircraft commander, but such custody may only be continued for such time as is reasonably necessary to enable the criminal extradition proceedings (if any) to be instituted. In the mean-time the State of landing should make a preliminary enquiry into the facts and notify the State of registration of the aircraft578 (Articles 12 and 13).
　
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