Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - AERIAL HIJACKING
By Neil R. McGilchrist, M.A. (Oxon.); Legal Consultant with International Insurance Services.
The scourge that aerial hijacking represents to the international airline community requires no elaboration. Rarely does a month elapse without some act of violence being perpetrated against an aircraft engaged in international public transport. While many incidents are resolved without injury to the passengers—apart from the consequences of psychological stress—the catastrophe in which a Malaysian Airline System Boeing 737 was destroyed with the loss of all on board in December, 1977, is a clear reminder of the ever present hazards.
Each major incident is invariably followed by demands, from within the airline industry or politicians, that the world should take unified and effective steps to contain the menace. These demands might convey the impression that the international legal establishment is moribund but in fact since the spate of Cuba hijackings of the last decade much effort has been expended and much accomplished. In the last 15 years no less than three international conventions have been adopted under the auspices of the International Civil Aviation Organisation as a response to the burgeoning growth of crimes against aircraft.
This article summarises the scope and effect of these conventions to assess the value of the legal aids now available to Governments. It also considers the associated but distinct private law issue of the extent of the rights of redress which a hijack victim may have in circumstances where he has not suffered physical injury.
To consider the criminal law first the inevitable initial question must be why it has been necessary to draft international conventions specifically for acts of aerial piracy. Piracy on the high seas has for centuries been regarded as a crime under customary international law. As Judge Moore said in the Lotus case before the Permanent Court of International Justice (1927 pcIJ Ser A No. 10):
“ … in the case of what is known as piracy by law of nations there has been conceded a universal jurisdiction, under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come … He is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind … whom any nation may in the interest of all capture and punish.”
While piracy “by law of nations,” as an international crime, may give rise to universal jurisdiction, the difficulty with aerial piracy in its most familiar contemporary form is that it does not fall within the traditional definitions. Article 15 of the Convention on the High Seas 1958 (largely a codification of customary law) defines piracy as consisting of the following acts:—
“(i) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private 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 …”
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