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A third instance of concurrent jurisdiction was added to Article4 of the Hague Convention during the Diplomatic Conference at The Hague. Jurisdiction was granted to the State where the carrier, who operates an aircraft but is not the owner of this aircraft, has his principal place of business, or his permanent resi-dence. Article 4(c) of the Convention covers the case of the so-called “bare hull Charter agreements” or “dry lease,” i.e., when an aircraft is hired without crew to an operator. Thus, when an offence is committed on board an aircraft which is registered in a contracting or non-contracting State, and which is “dry” leased to an operator having his head of.ce or permanent residence in a contracting State, the latter shall take necessary measures to establish its jurisdiction over the offence. This has been a useful improvement of Article 4 of the Convention in view of the great frequency of the leased agreements that the air transport industry is using at present.
A very important point which worth mentioning is that although Article 4 requires the Contracting State to assume jurisdiction over the unlawful seizure of aircraft withinthe limitof Article3,itdoesnotprovidefor obligationonthepartof any Stated to actually prosecute the alleged offender. However, a provision which may be of some relevance is found in Article7 which reads:
The Contracting State is whose territory the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever, and whether or not the offence is committed in the territory, to submit the case to its competent authorities, for the purpose of prosecution. Those authorities shall make their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.
Thus, Article 7 states that authorities having jurisdiction under Article 4 are at liberty not to prosecute the hijacker, or this accomplice if it is determined that the offenders would not be prosecuted. R.P. Boyle has observed that the Diplomatic Conference which discussed the draft of the Hague Convention rejected the con-tention to apply compulsory prosecution or alternatively extradition because:
... this obligation is only to submit the offender for prosecution. There is no obligation to prosecute. Many careful distinctions have been adduced. One obvious one is that in case of universal jurisdiction, the State having the hijacker may not have available to it proof of the crime since conceivably it was committed in a distant State and thus the witnesses and other necessary evidence to the State having custody of the hijacker.
However, the reason for rejection of adopting compulsory prosecution appears to me to be a political one for some which States do not want any interference in their sovereign right to permit political asylum in some form for whatever purpose, despite the gravity of the offence. It is interesting to note that both U.S.A. and the Soviet Union have urged that States should be compelled to prosecute the alleged offender if extradition was not granted. It is submitted that this lack of either compulsory jurisdiction or extradition is a serious weakness in the Convention, and stands in the way of an effective international solution to hijacking.598
Another obligation which is imposed upon Contracting States is that each State is required to include the offence referred to in the Convention as an extraditable one in every new extradition treaty. Existing treaties are deemed to include it already. The Convention may in case of a request for extradition, and in absence of an extradition treaty, be given consideration by the States which make extradi-tion conditional on the existence of an extradition treaty, as the necessary legal basis for extradition. For the purpose of extradition, the offence is treated as if it had been committed not in the place in which it occurred but in the territory of the States, required to establish their jurisdiction in accordance with Article 4 above. Article8 of the Convention states:
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Aviation Security Law 航空安全法(173)
