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Paragraph 1 of Article 13 states the primary unquali.ed obligation of each Contracting State to “take delivery.” Paragraph 2 addresses the obligation of a contracting State, after having taken delivery, to take custody. It provides that the Contracting State is under an obligation to take “custody” only if it is satis.ed that the circumstances so warrant such action. Thus, the State is left free to judge for itself whether the act is of such a nature as to warrant such action on its part and whether it would be consistent with its law since under paragraph 2 any such custody is to be affected only pursuant to the law of the State taking custody. However, such custody may only be continued for that period of time which is reasonably necessary to enable criminal proceedings to be brought by the State taking custody, or for extradition proceedings to be instituted by another interested or affected State. On the other hand, any person taken into custody must be given assistance in communicating immediately with the nearest appropriate representa-tive of the State of which he is a national (Article 13(3)).
IV. Extradition
Article 16 of the Convention provides that offenses committed on aircraft registered in a contracting State are to be treated, for the purpose of extradition, as if they had been not only in the place where the offence has occurred, but also in the territoryof the State of registration of the aircraft. Without prejudice to this provision it is
declaredthat “nothing in this Convention shall be deemed to create an obligation to
grant extradition.” A commentator observes:
The Tokyo Convention does not oblige the Contracting State to punish an alleged offender upon his disembarkation or delivery. Ironically, the landing State must set him free and let him proceed to the destination of his choice as soon as is practicable if it does not wish to extradite or prosecute him. The Contracting States are obliged to extradite the offenders, if at all, only under provisions of other treaties between them.581
The failure to provide for a machinery of mandatory extradition if prosecution was not conducted was considered a major set-back of the Tokyo Convention. However, the above loopholes from which the Convention severely suffers are not the only ones:
Looking for the vantage point today, it is obvious that the Tokyo convention left major gaps in the international legal system in attempting to cope with the scope of aircraft hijacking. there were no undertaking by anyone to make aircraft hijacking a crime under its national law, no undertaking to see to it the crime was one punishable y severe penalties and most important, no undertaking to either submit the case for prosecution or to extradite the offender to a State which would wish to prosecute.582
V. Responsibilities of States
As has been mentioned, all States party to the Convention undertake to permit disembarkation of any person when the commander considers that it is necessary to protect the safety of the .ight or for the maintenance of good order and discipline on board. States also commit themselves to take deliveryof any person the commander reasonablybelieves has committed a serious offence on board.583 In this case, when they have taken delivery, States concerned must make an immediate inquiry into the facts of the matter and report the .ndings to both the State of Registration and to the State of which the person is a national.584 Where the State considers the circumstances warrant such action, it shall take custodial or other measures, in accordance with its laws, to ensure that the persondelivered to it remains available while the inquiry is conducted. Such measures may be continued for a reasonable time to permit criminal or extradition proceedings to be instituted when such proceedings follow from the inquiry.585
Although the Convention is unequivocalin providing clearly that all contracting States should ensure their legal competence in respect of aircraft on their register,
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Aviation Security Law 航空安全法(167)
