The Convention on Offences and Certain Other Acts Committed on Board Aircraft, commonly called the Tokyo Convention, is an international treaty concluded at Tokyo on 14 September 1963. It entered into force on 4 December 1969, and as of 2022 has been ratified by 187 parties.
The convention is applicable to offences against penal law and to any acts jeopardising the safety of persons or property on board civilian aircraft while in-flight and engaged in international air navigation. Coverage includes the commission of or the intention to commit offences and certain other acts on board aircraft registered in a Contracting State in-flight over the high seas and any other areas beyond the territory of any State in addition to the airspace belonging to any Contracting State. Criminal jurisdiction may be exercised by Contracting States other than the State of Registry under limited conditions, viz, when the exercise of jurisdiction is required under multilateral international obligations, in the interest of national security, and so forth.
The convention, for the first time in the history of international aviation law, recognises certain powers and immunities of the aircraft commander who on international flights may restrain any person(s) he has reasonable cause to believe is committing or is about to commit an offence liable to interfere with the safety of persons or property on board or who is jeopardising good order and discipline.
In strictly domestic cases the Convention does not have application and acts and offences committed in the airspace of the State of Registry are excluded except when the point of departure or intended landing lies outside that State, or the aircraft enters into the airspace of a State other than the State of Registry as for example on a domestic flight which traverses the boundary of another State.
Introduction Study of the question of the legal status of the aircraft had been the subject of debate from as early as the pioneering work of the French jurist Paul Fauchille in 1902 and had been frequently visited by early organisations such as, inter alia, the Comité International Technique d'Experts Juridiques AériensEstablished by the First International Conference on Private Air Law, Paris 1925; operated until 1947. (International Technical Committee of Aerial Legal Experts), the Institut de Droit International (Institute of International Law), the International Criminal Police Commission and the International Law Association.Lord Wilberforce, The International Technical Committee of Experts in Air Law, I International L.Q. p 498 (1947) The question remained as one of the most important legal problems until the 13-year-long pre-legislative efforts of the International Civil Aviation Organization culminated in the Convention on Offenses and Certain Other Acts Committed on Board Aircraft coming into force on 4 December 1969.
There are very few subjects connected with the law of the Air on which lawyers have written so much or which they have discussed so often at International Conferences as Crimes on Aircraft. — J. Richard Orme Wilberforce, "Crime in Aircraft", 67 Journal of the Royal Aeronautical Society, p. 175 (March 1963)
ICAO The Convention on International Civil Aviation at Article 43 established the International Civil Aviation Organization with the aim and objective at Article 44 " ...to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to ... [p]romote safety of flight in international air navigation... "
The legal committee of ICAO, established by the Interim Council on 24 June 1946 and approved by the First Assembly on 23 May 1947, acting on a proposal by the Mexican representative placed the question of the legal status of the aircraft on its work programme in 1950.6th Session of the Legal Committee, Montreal, 30 May to 17 June 1950. Cf. ICAO Doc. 7035-LC/128. The Committee appointed Dr. Enrique M. Loaeza (Mexico) as rapporteur on the subject. On 15 May 1953 the Council of ICAO raised the issue of the legal status and directed the Legal Commission to commence work on the matter.Action of the Council, 19th Session, 1953. ICAO Doc 7408-C/864, p 18. Accordingly, the Legal Council at its 9th Session, held at Rio de Janeiro 25 August to 12 September 1953 primarily to study and revise the text of a draft conventionDraft convention prepared by subcommittee in Paris January 1952. See: intending to replace the Warsaw Convention, established a sub-committee on the Legal Status of the Aircraft.9th Session of the Legal Committee, Rio de Jainero 25 August to 12 September 1953. ICAO Doc 7450-LC/136, Vol I, Minutes, p XVIII, para 4(b).
Legal Status of the Aircraft Sub-Committee
The Legal Status of the Aircraft Sub-Committee formed by the ICAO Legal Committee during its 9th Session held at Rio de Jainero was dedicated to studying the problems associated with crimes on aircraft. During the 10th Session of the Legal Committee in 1954, the Sub-Committee held meetings to determine the best procedure to be followed in the further consideration of the legal problems involved in studying the legal status of the aircraft.International Conference on Air Law, August–September 1963 at Tokyo, ICAO Conference Doc No 5. It was established that consideration ought to be given to the physical circumstances wherever the aircraft might be when a crime occurred, further considering the effect upon applicable law.
One of the important problems involved births:
Extract from ICAO News Release, 30 August 1956:
Under Belgian law a birth aboard a Belgian aircraft is considered to have taken place in Belgium. Under British law a birth aboard a British aircraft is considered to have taken place in Great Britain. However, if the aircraft is over French territory at the time, the birth is considered under French law to have taken place in France. In the latter case the child would thus have two nationalities and perhaps even a third, that of its father, if the latter is a national of a third State the laws of which provide that a child always takes the nationality of its legitimate father.
The situation would be quite different, however, if the birth occurred aboard a French aircraft in flight over the territory of a State other than France. A birth aboard a French aircraft over Belgian territory is considered to have occurred in France under both Belgian and French law. On the other hand, if the aircraft was flying over British territory at the moment the birth took place., the birth is considered by France to have taken place in British territory and by Great Britain to have taken place in France. In this case the child would have no nationality, unless the latter was determined by that of its parents.
Similar problems arise in the event of a crime. Offences committed aboard a Belgian aircraft are considered to have been committed in Belgium and are consequently governed by the Belgian penal code. However, if a Belgian alrcraft was flying over Switzerland when an offence was committed, the latter might also be subject to Swiss penal law which may provide entirely different penalties.
In addition to these legal difficulties, there are also major difficulties of a physical nature. When it is established that the territorial law is to apply to an act which occurs aboard an aircraft and that the latter flew, successively, over the territory of several States, it may be difficult, if not impossible, in view of the normal cruising speed of modern aircraft, to establish the exact geographic location where the act actually took place. Similarly, when a crime is committed aboard an aircraft in flight, and its commission extends over a period of time, it may be impossible to determine with certainty the State over whose territory the various parts of the crime were perpetrated and to specify the location where the parts deemed decisive under applicable law were performed.
Geneva Session, 1956
The Sub-Committee held its first plenary session in Geneva on 3 September 1956 armed with a list of the most important problems requiring an international solution. The Sub-Committee's work was greatly lessened by its agreement to limit the scope of the study to criminal aspects:
(1) acts which are crimes under the laws of the States of registration of the aircraft and the law of the State in which the act occurred; (2) acts which are crimes according to the law of one of the States mentioned in (1) above.
While the matter of damage caused by aircraft to third parties on the ground had been handled by the Rome Convention, problems such as the nationality of aircraft, rights aboard aircraft, births, deaths, marriages, conclusion of contracts, drawing up of wills aboard aircraft in flight, etc. remained.
Montreal Draft, 1958 As a result of its study during its full second session done at Montreal in September 1958 the Sub-Committee developed the first ICAO Draft Convention on the Legal Status of the Aircraft12th Session of the Legal Committee, Münich. Vol I.ICAO News Release 19 August 1959. focusing on the problem of crimes committed on board aircraft.
On the conflict of laws, the jurisdiction of the State of Registry was provided for in Article 3(1), as was the jurisdiction of overflown territorial States subject to some conditions.
Munich Draft, 1959 The Legal Committee at its 12th Session held in Munich considered the Draft Convention and Report of the September 1958 Sub-Committee session. The Munich Session had been intended to also examine the question of the Legal Status of the Aircraft Commander and a Draft Convention on Aerial Collisions.
As a result of its Session in Munich the Legal Committee drew up a Draft Convention on Offences and Other Acts Occurring on Board Aircraft. The Draft was comprehensive in scope containing provisions at Article 3 for the principle of jurisdiction over crimes in aircraft, at Article 4 for security against offenders being tried twice, at Articles 5 to 8 on the duties and the rights of the aircraft commander, of the members of the flight crew and of the passengers, at Article 9 for the immunity of certain actions taken on board aircraft, and at Articles 10 and 11 for the obligations and the rights of Contracting States. The Draft provided for the jurisdiction of the overflown territorial State, for the State of Landing and for the State of Registration of the aircraft.
Article 3(1) provided that "[i]ndependently of any applicable jurisdiction, the State of registration of the aircraft is competent to exercise jurisdiction over offences committed on board the aircraft." This provision paralleled maritime law in favour of the unworkable maxim cujus est solum, ejus est usque ad coelum et ad inferosLord A.D. Nair, The Law of the Air (1964) and solved the problem of lex loci delicti commissi over the High Seas. The principle of the law of the flag had been proposed by Paul FauchillePaul Fauchille, 19 Annuaire, p 19 (1902) in 1902 and 1910Paul Fauchille; La circulation aérienne et les droits des états en temps de paix, Revue générale du droit international public, No.1, 1910, pp 55–62. OCLC 46280469. and by the Belgian legal historian Fernand de VisscherFernand de Visscher, 40 Annuaire, p 11 (1937); Conflits de lois en matière de navigation aérienne (lois pénales), Institut de droit international, session de Luxembourg (1937), vingtième commission (rapport définitif présenté par Fernand De Visscher), OCLC 236099225 and 65504219. in 1937.
Article 3(2) dealt with the jurisdiction of the territorial State and the State of Landing, providing:
The criminal jurisdiction of a State in whose airspace the offence was committed, if such State is not the State of registration of the aircraft or the State where the aircraft lands, shall not be exercised in connection with any offence committed on an aircraft in flight, except in the following cases: