Leasing Jurisdiction
The aviation community looked at jurisdiction of the state of registry to
“...when leasing aircraft some of the principles established in aircraft in flight, regardless of the
maritime transportation, in particular, airspace the aircraft is operating in.
the operator also the Law of the Sea, as established by So, generally, anytime an aircraft is in
the United Nations in the late 1950s flight, the jurisdiction of the State of
leases the respective (amended in 1982 to the United Nations registry applies.
Convention on the Law of the Sea.) Notwithstanding the above, the Tokyo
jurisdiction of the State Under maritime conventions, the state of Convention recognises that other
registration of the vessel has jurisdiction jurisdictions may apply as well. Specifically,
of registry...” whenever the vessel operates in five types of offences are listed, over which
“international waters” (i.e. waters outside a State, other than the State of registry,
the sovereignty of any state). may assert jurisdiction:
respective authority, in addition to having The same provisions apply to
jurisdiction, has to have a vested commercial aircraft, so anytime an 1. Offences that have an effect on the
interest in exercising the same. aircraft operates within “international territory of said State
The Convention on Offenses and airspace”, the jurisdiction of the country
Certain Acts Committed on Board of registration applies. While this solved 2. Offences that have been committed
Aircraft, held in 1963 in Tokyo the problem of jurisdiction in by or against any national or
(commonly referred to as the Tokyo international airspace, the problem of permanent resident of said State
Convention), addressed, among other who should have jurisdiction on board of 3. Offences against the security of
things, the issue of jurisdiction on board aircraft in flight operating within said State
commercial aircraft in flight. The main national airspace (i.e. airspace above
purpose of the provisions established by the sovereign territory of a state) still 4. Offences consisting of a breach of
the Tokyo Convention is to protect the had to be addressed. any rules or regulations of said
safety of the aircraft as well as the Generally, a state has territorial State, relating to the flight or
persons or property thereon and to jurisdiction over its airspace. The manoeuvre of aircraft
maintain good order and discipline on signatory States to the Tokyo Convention
board. Establishing jurisdiction over, realised that solely territorial jurisdiction 5. Exercise of jurisdiction is necessary to
and allowing for prosecution of, would not be very practical in commercial ensure said State’s observance of any
offences committed on board is thus the airline operations. If solely territorial obligation under a multi-lateral treaty
main focus of the Tokyo Convention. jurisdiction applied, a long-range
While the provisions of the Tokyo international flight could be operating Important to note is that the Tokyo
Convention have been reviewed several under constantly changing jurisdiction, Convention does not establish a rule of
times over the last decades, there have not making it potentially extremely difficult to exclusive jurisdiction, nor does it establish
been any significant amendments to it. assert such jurisdiction. any scheme of priority of jurisdiction (i.e.
Many countries feel that the Tokyo Also, the country being over-flown at the none of the above jurisdictions pre-empts
Convention is out of date – in particular, time of the offence generally has little to no the other) – instead, the provisions allow
considering the rise in incidents involving interest in pursuing the matter, as most for concurrent jurisdiction to ensure
unruly passengers, combined with an even offences occurring on board an aircraft offenses committed on board of
more complicated operating environment operating at high altitude and high speed commercial aircraft can be prosecuted.
due to increased leasing of commercial have little to no relevance to the country President L.B. Johnson wrote in 1968:
aircraft, charter operations, and code- below. To potentially pursue the matter, ”…it (Tokyo Convention) assures that at
sharing between operators. jurisdiction over the offence would have to least the State of registration will have
Before taking a closer look at some of the match the venue of prosecution, which the competence to exercise its
provisions of the Tokyo Convention, it is might necessitate an unscheduled landing jurisdiction while permitting the exercise
necessary to further define “jurisdiction”. in the respective country – generally not of concurrent jurisdiction by other
International law distinguishes between desirable, as the airlines do want to countries, depending upon their
three different types of jurisdiction: complete their scheduled flights to the respective interests in the offence…”
greatest possible degree. The key, as pointed out before, is to
Personal Jurisdiction – authority over a In other words, the signatory States to provide anyone having a vested interest in
person, regardless of location the Tokyo Convention wanted to ensure pursuing criminal offences committed on
there was minimal interference with the
Territorial Jurisdiction – authority authority of the aircraft commander in
confined to a bounded space, including conducting the flight.
all those present therein and events that The dilemma of allowing for an “...many countries
occur there utmost in operational flexibility,
without creating a “jurisdictional feel that the Tokyo
Subject Matter Jurisdiction – authority vacuum” that could potentially let
over the subject of legal questions offenders go unpunished, prompted Convention is out
involved in a case the signatory States of the Tokyo
Convention to extend territorial of date...”
Aviationsecurityinternational December 2007 www.asi-mag.com 33
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