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Moreover, the sanction adopted by the Bonn Declaration involving suspension of air services in no way deprives a State of a fair opportunity to operate an international airline pursuant to Article 44(f). On the contrary, a State found to be in default would not be giving a fair opportunity to other States. The U.S. Repre-sentative in the Legal Committee held in Montreal in 1973 said:
Defaulting States had no longer had the privilege of Article 44(f) until such time as it provided a fair opportunity to the rest of the community. Article 44(f) would have to be read in context with Articles 44(d) and (h), and with the directive as stated in Article 44(a) that the Organization shall ensure safe and orderly growth of international civil aviation throughout the world.633
The U.S. Representative said that the power to suspend air services as a sanction is not only compatible with the Chicago Convention but also with internationallaw.
If a party to the Chicago Convention committed a material breach of the obligation to ensure the safety of civil aviation, then other parties individually had the right to suspend the operation of the Convention in whole or in part with respect to the defaulting State in accordance with customary international law, as speci.ed in Article 60 of the Vienna Convention on the Law of Treaties.634
When they ratify or adhere to the Chicago Convention, they not only become members of ICAO, but also, they undertake to take appropriate steps to ensure the safety and security of international civil aviation. Hence, the harbouring of perpe-trators by way of failure to prosecute or extradite may be said to constitute a violation of the basic rationale of the Chicago Convention. To breach the obligation set forth by the Chicago Convention is to impliedly denounce the Convention. Therefore, the defaulting State in such an instance cannot claim the rights conferred upon it by the Convention.
IV. Problem of Prosecution or Extradition
The fourth problem of the Bonn Declaration is the issue of prosecution or extradi-tion. Sanctions under the Declaration are expected to follow the failure of the delinquent State to prosecute, extradite and/or return the aircraft. However, public international law provides no rule which imposes a duty to extradite, or prosecute. Hence extradition or prosecution becomes either a matter of comity or treaty
633ICAO Doc 8936-LC/164-1 at 228. 634ICAO Doc 9050-LC/169-1 at 39.
G. A New Convention on the Marking of Plastic Explosives 253
between States. Even when a treaty exists, extradition may be refused in certain circumstances. Therefore, surrender of an alleged criminal cannot be demanded as of a right in the absence of a binding treaty between the respective parties. Any attempt to bind States to extradite or prosecute offenders in the absence of a treaty to that effect would de.nitely be an encroachment on State-sovereignty, making such act a violation of customary international law.
Besides the above problems surfacing from the Bonn Declaration, there exist also certain gaps with respect to the application of the Declaration:
1.
How would the decision to suspend air services be taken by the members of the Declaration, would it be by majority or unanimously?
2.
Who will judge that a State is no longer in default, and when will the services be resumed? Should there be disagreement among the seven States parties on these points and should a procedure be needed to be laid down in order to regulate these matters?
3.
Did the Declaration take into account the diversity of violations attributable to the defaulting State and that whether there would be the same penalty automati-cally applicable to every case?
The Bonn Declaration, unlike the three Conventions discussed above, represents a fragmented attempt on the part of the international community to control terror-ism or unlawful interference with international civil aviation. This, however, by no means con.rms the fact that the three international conventions were comprehen-sive attempts by the entirety of the international community. While the conventions lacked a certain compulsion in their requirements, the Bonn Declaration, which seemingly had a punitive .avour, lacked respectable representation by the interna-tional community. It is time to view both these approaches with a view to coalescing them to form a synthesis of action. The element of sanction as introduced by the Bonn Declaration should be fused with the international .avour of the three conventions. The international community may be able to work out a workable, effective and enforceable instrument on this basis.
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