¹ See United States of America v. Cordova (1950), 89 F. Supp. 298 (E.D.N.Y.); U.S.Av.R. 1; 3 Avi 17311. The gap in the jurisdiction of the United States federal courts was partly filled by a statute of Congress in 1952: see Crimes of Violence Over the High Seas in American Aircraft, Public Law 82–514; Title 18 U.S.C. 7(5); (1952) U.S.C.Av.R 437. A similar gap existed in Canada until an amendment of the Criminal Code in 1959: see An Act to Amend the Criminal Code, 7–8 Eliz. 2, c. 41, s. 3 (1959). Such legislation must be drawn with great care: see the United Kingdom experience in R. v. Martin and others, [1956] 2 Q.B. 272, (1956) 40 Cr.App.R. 68, (1956) U.S.CAv.R. 141 (Central Criminal Court); R. v. Naylor, [1961] 3 W.L.R. 898, 2 All E.R. 932, 45 Cr.App.R. 69 (Central Criminal Court); Cox v. Army Council, [1962] 2 W.L.R. 950, (1962) 46 Cr.App.R. 258 and a note by Bowett in (1961), 37 Brit. Yb. Int’l L. 554. For a recent Commonwealth statutory provision on the subject of crimes on board aircraft, see section 8(1) of the New Zealand Crimes Act, 1961 (1961, No. 43). For other texts on the same topic, see ICAO LC/COL No. 1 National Legislations concerning the Legal Status of the Aircraft, pp. (xiv), 232(1959).

² The mean cruising speeds of some of the subsonic jet aircraft are as follows: Convair 600, 634 mph; DeHavilland lai, 605 mph; Vickers VC-10, 585 mph; Convair 880, 580 mph; Douglas DC-8 Intercontinental, 570 mph; Boeing 730, 555 mph; Boeing 707–320 Intercontinental, 550 mph; DH Comet 4, 520 mph. ICAO Doc 8087 C/925 August 1960 The Technical, Economic and Social Consequences of the Introduction into Commercial Service of Supersonic Aircraft. A Preliminary Study (hereinafter referred to as “ICAO Doc 8087 C/925”), 115.

Supersonic aircraft currently under study could eventually achieve speeds ranging as high as Mach 3, i.e., three times the speed of sound. See ICAO Doc 8087 C/925, Addendum No. 2, A Summary of the Comments of Contracting States on the Preliminary Report, Supplemented by Material from Other Sources, June 1962 (hereinafter referred to as “ICAO Doc 8087 C/925, Addendum No. 2”), 3–5.

³ Large subsonic jet aircraft normally cruise on international flights within a range of 20,000 to 40,000 feet. One Mach 3 supersonic aircraft under study would have a cruising altitude of 60,000 to 70,000 feet. ICAO Doc 8087 C/925, Addendum No. 2, supra note 2, at 17.

⁴ As early as 1912, the Comité Juridique International de l’Aviation drew up a series of provisions concerning acts on board aircraft. Since that time, other organizations and many individuals have drawn up draft conventions or statements of principles concerning offences and other acts on board aircraft. For examples of such texts, see ICAO Doc 8111 LC/146-2, op. cit., infra note 5, 65–42. A general bibliography on early writings on the question of the legal status of the aircraft will be found in ICAO LC/SC Legal Status WD No. 7 24/1 /56 ; specialized bibliographies concerning offences committed on board aircraft are to be found in (i) Comité Organisateur du Septième Congrès International de Droit Pénal, Les Quatre Rapports Généraux Presentés au Congrès d”Athènes (26 septembre-2 octobre 1957), 182–185 and (ii) International Law Association, Report of the Forty-eighth Conference, New York (1958), 304–305.

More recent writings on the subject include: Cheng, , “Crime on Board Aircraft” (1959), 12 Current Legal Problems 177 CrossRefGoogle Scholar; de Juglart, , “Les Infractions Commises à Bord des Aéronefs dans la Doctrine Internationale” (1960), 14 Rev. Fr. de Dr. Aér. 123, 227Google Scholar; Mankiewicz, , “Aspects et Problèmes du Droit Pénal de l’Aviation Internationale” (1958), 4 Annuaire Français de Droit International 112 CrossRefGoogle Scholar; Salinas, , “Legislación Aplicable a los Actos Realizados y Hechos Ocuridos a Bordo de una Aeronave en Vuelo Internacional” (1958), 10 Rev. del Instituto de Derecho Aeronáutico 13 Google Scholar; Veira, , “Elementos de Direito Penal Internacional Aeronautico” (1960), 4 Revista da Faculdade de Direito de Pelotas 19.Google Scholar Of general interest is Sarkar, , “The Proper Law of Crime in International Law” (1962), 11 Int’l & Comp. L.Q. 446–470.CrossRefGoogle Scholar

⁵ ICAO is a specialized agency in relationship with the United Nations. The ICAO Legal Committee is open to all 100 contracting states. Fifty-one of these states attended the Fourteenth Session of the Committee held in Rome between August a 8 and September 15, 1962, when the subject of offences and certain other acts committed on board aircraft was discussed. For the details of the work of the Committee on this subject, see Minutes and Documents of the Legal Committee as follows: ICAO Doc 8111 LC/146-1-2, Twelfth Session (August-September, 1959) and ICAO Doc 8302 LC/150-1-2, Fourteenth Session (August-September, 1962). These publications will be hereinafter identified by their document number only, thus: “ICAO Doc 8111 LC/141-1”, “ICAO Doc 8111 LC/141-2”, etc. Draft conventions prepared by the Legal Committee are submitted for final adoption to diplomatic conferences (ICAO Assembly Resolution A7–6: Procedure for Approval of Draft Conventions on International Air Law) which are free to modify the texts placed before them.

⁶ For the text of the draft, see ICAO Doc 8302 LC/150-1, (xix)–(xxiv). As far back as 1950, the Legal Committee appointed a rapporteur on the subject of the legal status of the aircraft; and, in 1953, it appointed a subcommittee on the subject. However, it was not until 1956 that ICAO began substantive work on the particular question of offences and certain other acts committed on board aircraft. The sequence of ICAO meetings held on that question has been as follows: Subcommittee on the Legal Status of the Aircraft (Geneva, 1956 and Montreal, 1958) ; Legal Committee, 1959; Subcommittee on the Legal Status of the Aircraft, 1962 and Legal Committee, 1962.

⁷ For a further discussion of this point, see FitzGerald, , “Legal Aspects of Offences and Certain Other Acts Occurring on Board Aircraft” (Conference delivered at the Centro per lo Sviluppo dei Trasporti Aerei, Rome, on September 4, 1959), 5.Google Scholar

⁸ The passenger capacity of some of the larger jets can, depending on seating configuration, range as high as 189 for the Boeing 707–320 International; 176 for the Douglas DC-8 Intercontinental, and 150 for the Vickers VC-10. ICAO Doc 8087 0/925, supra note 2, at 115. Supersonic aircraft under study would not necessarily reach these peaks, since, for a given payload, the supersonic aircraft will be substantially heavier than a subsonic one. Ibid., 14. One Mach 3 aircraft that might be developed in due course would have a passenger capacity of 100 to 150. ICAO Doc 8087 C/925, Addendum No. 2, supra note 2, at 17. An aircraft with a cruising speed of Mach 1.8 to Mach 2.2 would have a passenger capacity of 100 (at 37 inches per passenger). Ibid., 14.

It has been estimated that, during 1962, the airlines belonging to the contracting states of ICAO carried 123,000,000 passengers; and it is expected that the number will increase to 136,000,000 in 1963. ICAO News Release, December 28, 1962. Approximately one-quarter of that number were international passengers.

⁹ For the meaning of the expression “penal laws”, see infra 235.

¹⁰ Signed at Rome on October 7, 1952. For the text of this convention in English, French and Spanish, see ICAO Doc 7364 and U.N.T.S. no. 310 (1958), 181; for English text see schedule to the Foreign Aircraft Third Party Damage Act, 3 & 4 Eliz. 2, c.15 (Can., 1955); and (1952) 19 J. Air Law & Com. 447.

¹¹ See, for the identical text, Article 3(6) of that convention in: Canada Treaty Series, no. 36(1944), 34; U.N.T.S. no. 15(1948), 295. At Rome in 1962, the Legal Committee decided not to provide that the draft convention should apply as regards civilian fare-paying passengers on board a state aircraft. For a discussion of this point, see ICAO Doc 8302 LC/150–1, at 41–49.

¹² ICAO Doc 8302 LC/150-2, at 11.

¹³ Ibid., 12. For discussions in the Legal Committee concerning the definition of the expression “offences”, see ICAO Doc 8m LC/146-1, at 45-47, and ICAO Doc 8302 LC/150-1, at 103–111.

¹⁴ ICAO Doc 8302 LC/150-1, at (xxvi).

¹⁵ ICAO Doc 8302 LC/150-2, at 13.

¹⁶ See U.N. Doc A/CONF.13/L.52; 38 Department of State Bulletin III (1958) and ( 1958) 52 Am. J. Int’l Law 834.

¹⁷ ICAO Doc 8302 LC/150-1, at 94.

¹⁸ Supra 237.

¹⁹ In a given case, the states concerned could include: the state of registration of the aircraft on which the offence has been committed; the state of departure of the aircraft; the state of nationality of the author of the offence; the state where the offence produces an effect; the state whose national security, national defence or head of state has been affected by the offence. For a note on the merits of various priority systems, see ICAO Doc 8111 LC/146-2, at 183–188.

²⁰ ICAO Doc 8302 LC/150-2, at 14.

²¹ ICAO Doc 8111 LC/146-2, at 7.

²² The intent is to prohibit a second trial not only in respect of the same act as constituting the offence charged in the first trial, but even where, on the second occasion, the offence charged in respect of the same act is a different one. For example, this might happen if the same act constitutes one offence in one contracting state and another in a second contracting state. See ICAO Doc 8111 LC/146-2, at 33.

²³ ICAO Doc Sin LC/146-2, at 9.

²⁴ Some early cases involved the seizure of Czechoslovakian aircraft by relugees who compelled the pilots to fly to West Germany. There have also been some celebrated hijackings of aircraft in the Far East. (For examples of cases occurring in 1953 and 1958, see Knauth, , “Air Law Crimes in Aircraft-Status of Aircraft with reference to Criminal Law for Aircraft-Report, Case Materials, Draft Texts,” in International Law Association, Report of the Forty-eighth Conference, New York (1958), 290.Google Scholar Later, came a wave of hijackings involving Cuban aircraft. During 1961, there were a number of hijackings involving United States, Venezuelan and Portuguese aircraft: (i) On May 1, a National Airlines aircraft was diverted to Havana, while flying from Miami to Key West. 107 Cong. Rec. 15458 (daily ed. August 21, 1961). (ii) On July 25, an Eastern Airlines aircraft was diverted to Havana while in flight over Florida. Ibid, (iii) On August 3, a Continental Airlines B-707 was seized between Phoenix and El Paso and the hijacker tried to force the pilot to fly to Havana with ten hostages. He was captured and convicted of transporting in interstate commerce kidnapped persons for the purpose of stealing an aircraft, transporting an aircraft knowing it to have been stolen, and obstruction of commerce. See Bearden v. United States of America, 7 Avi. 18,191 (U.S.CA., Fifth Circuit, June 14, 1962). But the conviction was later set aside and the case remanded: see 8 Avi. 17,484 (U.S.S.C., February 25, 1963). (iv) On August 9, a Pan American DC-8 was hijacked in flight between Mexico City and Guatemala and its crew forced at gunpoint to fly to Havana. 107 Cong. Rec. 15458 (daily ed. August 21, 1961). The hijacker was placed at the disposal of Mexican authorities on November 26, 1961. Montreal Star, November 27, 1961, 1, col. 6. (v) On November 10, six hijackers took over an aircraft of Transportes Aéreos Portugueses as it reached Lisbon on a flight from Casablanca. After a leaflet-dropping run over Lisbon, they forced the pilot to fly to Tangiers. Ibid., November 10, 1961, 1, col. 3. (vi) On November 27, five men seized a Venezuelan aircraft flying between Caracas and Maracaibo and, after a leaflet-dropping expedition over Caracas, forced it to proceed to Curacao, a Dutch possession. Ibid., November 27, 1961, 1, col. 6.

The many incidents in the United States pointed up serious gaps in existing criminal law in that country and resulted in the enactment of Public Law 87-197 of the 87th Congress (75 Stat. 466; 49 U.S.C. 1472(i)-(n), 1473(a) (Supp. III, 1962)) amending the Federal Aviation Act of 1958 (Public Law 85–726; 72 Stat. 731; 49 U.S.C. 1301-1542). For a discussion of Public Law 87–197, see Bayitch, “International Law” (1961), 16 U. Miami L. Rev. 240 at 260–265 (Criminal Law of the Air) and Bradford, “The Legal Ramifications of Hijacking Airplanes” (1962), 48 A.B.A.J. 1034-1039. The definition of “aerial piracy” in Public Law 87–197 is not the same as the traditional definition of the expression “piracy” found in Article 15 of the Geneva Convention on the High Seas, 1958 (UN Doc A/CONF. 13/L.53; 38 Dept. of State Bulletin, 1115(1958); (1958) 52 Am. J. Int’l Law 842), since the Convention does not, unlike Public Law 87-197, include piratical acts committed within national territory.

In addition to Public Law 87–197, there was also adopted a special Civil Air Regulation (SR-448A), effective October 13, 1961, concerned with precautions to prevent the hijacking of aircraft and interference with crew members in the performance of their duties (26 F.R. 9669), and replacing SR-448 adopted and effective July 28, 1961 (26 F.R. 7009).

On December 20, 1962, in a Notice of Proposed Rule Making, it was proposed that the United States Civil Air Regulations be amended so as to require the door of the flight crew compartment of a large passenger-carrying aircraft operated by an air carrier or commercial operator to be closed and locked during en route flight (27 F.R. 12649). At an earlier date, the United States had already adopted regulations excluding from admission to the flight deck persons other than crew members save in the case of certain authorized persons (flight inspectors, etc.) See s. 40.356 of Part 40-Scheduled Interstate Air Carrier Certification and Operation Rules issued under authority of Sec. 313(a) of the Federal Aviation Act of 1958.

²⁵ For the origin of the word “hijacker”, see Mencken, , The American Language-Supplement II, 671, note 3 (1948)Google Scholar and The Oxford English Dictionary-Supplement and Bibliography, 463 (1933).

²⁶ The subject of the legal status of the aircraft commander has been carried on the legal work programme of ICAO since 1947; but only those aspects coming under the draft convention on offences and certain other acts committed on board aircraft have been the object of extended study.

General information concerning the powers and duties of aircraft commanders is found in the following papers: (i) ICAO Doc 8111 LC/146-2 with its note entitled Duties and functions of the aircraft commander and other operating personnel — Analysis of answers to the questionnaire of 9 July 1957, and related information, 170–178. This is an analysis of information received from ICAO contracting states, as well as from the International Air Transport Association, the International Federation of Airline Pilots’ Associations and the Fédération Internationale des Transporteurs Aériens Privés, (ii) ICAO LC/COL No. 2 National laws and regulations relating to the authority, functions and duties of the aircraft commander with respect to offences committed on board aircraft and against the safety of flight, pp. (v), 42 (1959).

There has been an extensive literature on the subject of the powers and duties of the aircraft commander generally. See bibliography in Institut Français du Transport Aérien, “Le Statut Juridique du Commandant d’Aéronef (En Droit Public et en Droit Privé), Note de Travail No. 263-264 Législation, December 1954, 54. Major works on the subject include: Guerreri, Giuseppe, Il Commandante di Aeromobile (Milan, 1962)Google Scholar; Honig, J. P., The Legal Status of Aircraft (The Hague, 1956)CrossRefGoogle Scholar; Kamminga, M. S., The Aircraft Commander in Commercial Air Transportation (The Hague, 1953)CrossRefGoogle Scholar; Westerburg, Werner, Die Polizeigewalt des Luftfarzeugkommandanten (Bonn, 1961)Google Scholar, and Yörükoglu, Omer, Le Statut Juridique du Commandant de Bord Etude de Droit Français et de Droit International (Lausanne, 1961).Google Scholar

²⁷ ICAO Doc 8111 LC/146-2, at 34-35. For the resolution adopted by the ICAO Council on this matter on June 15, 1956, see ICAO Doc 7740 C/895 Action Taken by the Council During Its Twenty-eighth Session, 24–25.

³⁸ Indeed, as noted earlier (supra note 24), it has been proposed in the United States that the flight crew compartment doors be closed and locked during en route flight.

²⁹ Here are three instances where persons other than the aircraft commander had to intervene to quell violent passengers: (i) On October 14, 1961, an unruly passenger on a jet aircraft of Japan Air Lines tried to unlock the main door of the aircraft while it was over the Pacific. When the steward tried to stop him, the passenger threw a champagne glass in his face. The passenger was finally subdued and the pilot headed to Wake Island for an unscheduled stop. There the passenger was given an injection, placed in a sleeping bag and, later, handed over to Japanese authorities at Tokyo. (Montreal Star, October 14, 1961, 1, cols. 6-7). (ii) On November 12, 1961, it took four stewards to overpower a 23-year-old man who went berserk on a Quantas Airlines jet during a flight from London to Sydney. During the struggle, a steak knife which he had taken from the galley was wrested from him. Ibid., November 13, 1961, 12, cols. 6-7. (iii) On November 16, 1961, an American struggled in the open doorway of a Nigerian Airways DG-3 some 10,500 feet above the Nigerian jungle trying unsuccesfully to save a fellow passenger from a suicide leap. Ibid., November 17, 1961, 27, cols. 7–8.

³⁰ An aircraft is considered to be in flight, for the other purposes of the convention, from the moment when power is applied for the purpose of take-off until the moment when the landing run ends: Article 1(2).

³⁰ This definition is based on the definition of “pilot-in-command” found in International Standards and Recommended Practices Operation of Aircraft-International Commercial Air Transport-Fifth Edition-October 1957-Annex 6 to the Convention on International Civil Aviation, Chapter 1.

³² Nor will the supersonic aircraft necessarily have more space available, supra note 8.

³³ ICAO Doc 8111 LC/146-2, at 10–11.

³⁴ The United Kingdom put this question before the ICAO Legal Committee in 1959 and 1961. For a summary of the discussions on the United Kingdom proposals made with a view to overcoming the difficulty, see ICAO LC/SC “Resolution B” No. 6 11/1/63 The relationship of the Rome draft convention on offences and certain other acts committed on board aircraft to the question of the hire, charter and interchange of aircraft. The ICAO legal subcommittee charged with studying the question is scheduled to meet on March 18, 1963.

³⁵ ICAO Doc 8111 LC/146-2, at 39.

³⁶ The restriction of the liberty of a person disembarked to proceed to a destination of his choice came dramatically to world attention during the summer of 1962 when British authorities sought to deport Dr. Soblen. It will be recalled that after being sentenced to life imprisonment in the United States for espionage, Dr. Soblen while on bail pending an appeal fled to Israel in June 1962. He was expelled from that country, sent to Athens on a specially chartered aircraft and there transferred to an El-Al aircraft for carriage to the United States via London. During the journey he stabbed himself and was removed from the aircraft and taken to hospital, although he was refused admission to the United Kingdom. Habeas corpus proceedings were instituted, but the writ was discharged : R. v. Secretary of State for Home Affairs, Ex parte Soblen, [1962] 3 An E.R. 373. Meanwhile, El-Al having been directed on two occasions to remove Soblen from the United Kingdom, did not comply with these directions. On August 11, 1962, a deportation order was made authorizing any immigration officer to place Soblen on board a ship or aircraft about to leave the United Kingdom and authorizing his detention pending the carrying out of that order and the directions to the airline were revoked. In a press statement issued at about the same time, the Secretary of State for Home Affairs stated that it was his intention that Soblen should be placed on an aircraft leaving the United Kingdom for the United States. Application for a writ of habeas corpus was again made, but it was refused, such refusal being confirmed on appeal : R. v. Brixton Prison (Governor), Ex parte Soblen, [1962] 3 An E.R. 641 and 658. Said Lord Denning, M.R., in rendering judgment on the appeal: “The applicant was in no better position than a stowaway. I need not go into the many other matters which might weigh with the Home Secretary. Suffice it to say that, in my judgment, the fact that the applicant was a wanted criminal in the eyes of the United States, and the fact that the United States asked for him, does not take away the power of the Home Secretary to make a deportation order. I see no ground for attributing to the Home Secretary anything in the nature of a sham or want of bona fides or any unlawful or ulterior purpose. I think, therefore, that this deportation order is good and I would dismiss this appeal.” Ibid., 662.

³⁷ Nor would non-admission appear, in the United Kingdom, to preclude deportation. Thus, the Master of the Rolls, in the Soblen case (supra note 36 ), rejected the argument to the effect that an alien who had been refused leave to land could not be deported.

³⁸ ICAO Doc 8302 LC/150-1, at 161–168.

³⁹ During the discussions at Rome ( August-September 1962), it was submitted to the ICAO Legal Committee that there was overlapping of this provision and Article 2(3); but no action was taken to avoid such overlapping. See ICAO Doc 8302 LC/150-1, at 92–93.

⁴⁰ See the example given supra 246.

⁴¹ By the United Kingdom; supra note 34.

⁴² It is expected that the report of an ICAO legal subcommittee on this question will be placed before the International Conference on Air Law convened for August 20, 1963, to prepare a definitive text of the convention on offences and certain other acts committed on board aircraft. The subcommittee also had the larger mandate of studying legal problems affecting the regulation and enforcement of air safety which have been experienced by certain states when an aircraft registered in one state is operated by an operator belonging to another state.

⁴³ Possibilia nunc; impossibilia tunc.