3.
This Convention does not exclude any criminal jurisdiction exercised in accor-dance with the national law.
An analysis of Article5would lead to the conclusion that at least four States are speci.cally empowered to exercise concurrent jurisdiction over an alleged offender. These States are: (1) the State within whose territorial boundaries the offence is committed (whether the offence takes place on its territory or within its airspace.) this reaf.rming and codifying the traditional basis of territoriality; (2) the State of registration of the aircraft (hence, such State is empowered to exercise its jurisdiction over offenders who commit their crimes on board aircraft registered in those States); (3) the State of landing, if the offender is on board the aircraft; and (4) any party to the convention within whose boundaries the alleged offender is present, if that State refuses to extradite the offender to any of the States having jurisdiction under Article 5(1).
Article 5(2) adopts the interpretation ofuniversaljurisdiction as contained in the Hague Convention. Furthermore, Article 5, paragraph 3, provides that the jurisdic-tional basis delineatedby the Conventiondo not supersede any criminal jurisdiction that has derived from nationallaws of the parties to the Convention. Consequently, the jurisdictional relation to nationality may be asserted by the State of nationality of the allegedoffender, and the States which are the targets of the offence or whose nationals are threatened, maimed or killed by the offender may invoke the
615Fitzgerald(1971, p. 73).
protective principle or the lesser recognized jurisdictional basis of passive nation-ality. These additional bases of jurisdiction are expected to further increase the possibility of suppressing the offenders.
In his concluding remarks, Professor Fitzgerald has observed:
Thus, the Montreal Convention breaks new grounds and goes beyond codi.cation in providing for the international legal action to be taken by States in respect of many
616
acts ....
By adopting the Montreal convention, concerned States attempted to provide a framework which would substantially widen the scope and application of national legislation and thereby both penalise and deter unlawful interference with aircraft.
1 Extradition or Prosecution
Article 7 of the Montreal Convention, like its predecessor, embodies the principle of aut dedere aut judicare, which is thebasis of the whole draft. It reads as follows:
The State party in whose territory the alleged offender is present shall, if it does not extradite him, submit without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceeding in accordance with the laws of that State.
According to this provision, a contracting State, has an obligation either to extradite the alleged offender found in its territory or submit his case to the competent authorities for the purpose of prosecution. It appears from the overall reading of “without exception whatsoever” that the Convention makes prosecution mandatory. However, a deeper analysis of the Article brings to bear the fact that it does not mandate the actual prosecution of the offender but merely the submission of the case to the competent domestic prosecuting authorities. This contention is supported by the fact that during the Montreal conference the Israeli delegation proposed that the Convention includes a mandatory prosecution provision, although this proposal was defeatedby voteof35to2 with6 abstentions.
The failure of the MontrealConvention to provide for an objection to prosecute, when the offender is not extradited, was considered a weakness regarding the system of sanctions aut dedere aut punire. A commentator observes:
The lack of mandatory system of prosecution with respect to aerial terrorism must be emphasized. Despite the repeated efforts of some delegations during the Hague and Montreal Conferences, the existing texts on aerial terrorism do not recognize the system of mandatory prosecution in case of denial of extradition requests. On the contrary, the State authorities in charge of the handling of prosecution may well decide that according to their domestic law, the alleged offender should not be prosecuted at all.617
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