- Related Topics:
- transportation
- air space
- transportation law
Criminal jurisdiction
Although some systems of national law still adhere to the view that ships and aircraft are part of the territory of the state the nationality of which they possess, this is merely a crude metaphor. In international law, a distinction has to be made between three types of state jurisdiction: territorial jurisdiction over national territory and all persons and things therein; quasi-territorial jurisdiction over national ships and aircraft and all persons and things thereon; and personal jurisdiction over all other nationals and all persons under a state’s protection, as well as their property. In case of conflict, territorial jurisdiction overrides quasi-territorial jurisdiction and personal jurisdiction, while quasi-territorial jurisdiction overrides personal jurisdiction.
For a long time, the failure of states to extend their criminal laws to their aircraft while they were outside national territory posed a serious problem. As long as an aircraft is flying in the national airspace of some state, the law of that state is applicable. When a crime has been committed during an international flight, however, there may be difficulty in pinpointing when and where it occurred and hence in determining the state the law of which has been violated. Unless the criminal law and jurisdiction of the state of registry have been extended to the aircraft during the period it is outside the state of registry, there may be none applicable; over the high seas, for example, there would clearly be a gap in the law. This, together with the realization that with the constant increase in air traffic the incidence of offenses on board aircraft was bound to rise, led to the conclusion in 1963 at Tokyo of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, obliging the contracting states to extend their criminal law and jurisdiction to aircraft of their registry when they are outside national territory. The convention furthermore gives the aircraft commander power to ensure law and order on board his aircraft and to disembark any offender in any contracting state in which the aircraft lands.
Civil jurisdiction
In most countries the general civil law applies, except as modified. In the interest of avoiding statelessness, most states confer their nationality on those born on aircraft of their registry; but there is in air law no general principle of the law of the flag (i.e., the law of the state of registry) being applicable to every occurrence on board. There are, however, various international agreements that affect the exercise of civil jurisdiction by states. A few may be mentioned. The most important is doubtless Article 28 of the 1929 Warsaw Convention on International Carriage by Air, as subsequently modified by Article 8 of the 1961 Guadalajara Convention and amplified by Article 12 of the 1971 Guatemala City Protocol. Under Article 28, an action arising from an “international” carriage by air may be brought only before the courts of certain contracting states and no others. The 1933 Rome Convention on Precautionary Arrest of Aircraft, which has not been widely accepted, exempts aircraft actually used on government services or in commercial transport from precautionary attachment. In other cases, the giving of an adequate bond “shall prevent the precautionary attachment or give a right to immediate release.”
Among ICAO members, Article 27 of the Chicago Convention provides that, subject to certain conditions, aircraft of the contracting states on an international flight are exempt from seizure or detention on patent claims in the territory of other contracting states, without having to deposit a security. Under the 1952 Rome Convention on Surface Damage, in principle, actions may be brought only before the courts of the contracting state in which the damage occurred.
Crimes against aircraft
Piracy
The 1958 Geneva Convention on the High Seas intends to be declaratory of general international law when it defines the offense of piracy principally as
any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private [i.e., nongovernmental and not noncommercial] ship or a private aircraft, and directed: (a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
The convention defines the effect of piracy under international law as follows:
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.
A state, having done so, may decide upon the penalties to be imposed and the fate of the ship, the aircraft, or the property. This definition of piracy deliberately excludes acts committed for political motives, as well as acts confined within a ship or aircraft, such as mutiny or the hijacking of an aircraft by its passengers or crew. Although some states, for example, the United States, have in their own laws categorized hijacking as aircraft piracy, this in itself is unable to bring about the consequences of piracy under international law.
Hijacking
Unlawful seizure is the legal name that states at the international level have given to aircraft hijacking. Thus, the 1963 Tokyo Convention obliges contracting states to take all appropriate measures to restore control of an aircraft hijacked in flight to its lawful commander, and obliges the state in which the aircraft lands to allow the passengers and crew to continue their journey, and to return the aircraft and its cargo to those lawfully entitled to possession. In response to a wave of hijackings that began in 1968, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft was concluded in an effort to prevent hijackers from finding immunity in any of the contracting states.
Far more grievous than hijackings as regards the number of persons injured or killed and of aircraft damaged or destroyed have been the many acts of sabotage or violence committed against aircraft and civil aviation installations. This led to the conclusion at Montreal in 1971 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, on roughly the same lines as the 1970 Hague convention dealing with the problem of unlawful seizure.
Goods, passengers, shippers, and other parties
Problems of liability arising from the international carriage of passengers, baggage, and cargo by aircraft are dealt with by the widely accepted Warsaw Convention on International Carriage by Air, which was concluded in 1929, amended in 1955 by the Hague Protocol, supplemented in 1961 by the Guadalajara Convention, and further amended in 1971 by the Guatemala City Protocol. The 1971 protocol was much influenced by the so-called Montreal agreement of 1966, which was an agreement among airlines accepting the terms of the United States government for withdrawing its denunciation of the Warsaw Convention. Not every party of the Warsaw Convention has accepted the 1955 or the 1971 amendment protocol; nor is a party that accepts either protocol required to denounce the treaty which the protocol amends. The result is that there are in fact three separate treaties (Warsaw, Warsaw–Hague, and Warsaw–Hague–Guatemala City) with a number of states being parties to more than one.
The contracting states to the Warsaw convention seek to reduce and eliminate problems of conflict of laws by agreeing to adopt uniform rules in their internal laws governing the international carriage of persons, baggage, or cargo by aircraft. The qualification “international” has the special meaning attributed to it by the convention and, in order to avoid ambiguity, carriage governed by the Warsaw Convention is often referred to as Warsaw carriage. Some states have extended the rules of the convention to carriage not governed by the convention. The rules established by the convention are mandatory in the sense that the parties to the contract of carriage cannot vary them, especially not to the detriment of the consumer. They are also exclusive in the sense that no additional claims can be brought against the carrier outside the terms of the convention.
In the event a passenger is injured or dies, or baggage or cargo is damaged or lost during “international” carriage, the convention makes the carrier prima facie liable. In order to avoid liability, the carrier has to prove that he and his servants and agents have not been at fault. His liability may also be excluded in whole or in part if the injured person is wholly or partly to blame for the damage. In return for the presumption of his liability, the carrier is given the benefit of limited liability, a benefit that he forfeits if it is proved that the damage resulted from his willful misconduct or that of his servants and agents. The convention lays down detailed rules on the issuance and contents of the appropriate documents of carriage (passenger ticket, baggage check, and air waybill) and enforces them with the penalty of absolute and unlimited liability.
For the carriage of passengers, the Guatemala City Protocol further lays down rules on possible supplementary compensation schemes and periodic increases of the liability limit. The rules concerning documents of carriage, which can have important effects on the carrier’s liability, were substantially modified at The Hague and again at Guatemala City.
While aircraft may fly over private lands in normal flight, most national laws protect the landowner against excessively low flights and other undue interference with his possession and use of land, such as the performance of aerobatics and buzzing. In addition, normally, every system of national law allows third parties on the surface (of the Earth) to recover for damage done by an aircraft in flight, or by persons and things in or falling from it, though in some countries there are limits to the amount recoverable. Some national laws base liability on fault. The majority, however, hold the owner or the operator of the aircraft absolutely liable for any damage caused. Insurance against third-party liability is compulsory in many states.
In 1933 a convention was concluded in Rome on surface damage caused by foreign aircraft. This was supplemented by the 1938 Brussels Insurance Protocol. Both have since been superseded by the 1952 Rome Convention on the same subject. The convention applies only to surface damage caused in a contracting state by aircraft registered in another contracting state. It accepts the principle of absolute liability, subject to the exception of contributory negligence, providing however that
there shall be no right to compensation . . . if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.
The convention makes the operator of the aircraft liable. The main raison d’être of the convention is said to be its scheme of compulsory insurance; in return, the liability of the operator is limited according to the weight of the aircraft, unless the damage is caused by a deliberate act of the operator, his servants, or agents, done with intent to cause damage. An unauthorized user of the aircraft also incurs unlimited liability. Actions to recover compensation may be brought only in the state in which the damage occurred. An important element in the convention is the provision that judgments rendered under it are enforceable in all other contracting states. The convention came into force in 1958, but the number of states that have accepted it is not very high. The wording of Article 1(1) of the convention quoted above gives rise to doubt whether damage resulting from sonic booms is covered. In view of the treatment accorded to passengers by the Guatemala City Protocol, a revised convention establishing absolute, unlimited, and adequately secured liability for all damage caused by aircraft to third parties on the surface would seem indicated.
