The modification in Customary International Law to minimize the crimes of hijacking:

Although Customary International Law is an often maligned as being a toothless tiger but there

is a lot of International Law that is actually essential to the day to day workings of the global

uplift and it also covers the very aspects of skyjacking which commonly regarded as Hijacking .

Hijacking is termed as the unlawful seizure of an aircraft by an individual or a group of people

and in the terms of common connotation it is widely called Aircraft hijacking. The concept of

aircraft hijacking or skyjacking is a contemporary addition to the roster of international and

national crimes and an obligation to control at international and national level is only beginning

to be recognized by the States.1In the terms of wider perspective hijacking is an act which

against the safety of the civil aviation and it resembles piracy 2It is also a thing which is to be

noted that that when a person on the board has committed any act of interference in the plane on

unlawful grounds by an apprehension of force and threat then the contracting states shall take all

the appropriate measures to restore control of the aircraft. Furthermore, the contracting State,

when the aircraft lands, shall permit its passengers and the whole crew to resume and continue

their journey as soon as practicable and shall return the aircraft and its cargo to the person who

are lawfully entitled for its possession. 3

It is also a thing to be noted that any contracting state shall take the delivery of any person whom

the aircraft commander delivers and that it shall immediately make a preliminary enquiry into the

facts.4It is very evident from the above provisions that an attempt to define the term hijacking

has not been made, but it simple imposes upon a Contracting State and lays more emphasis on

1
Aircraft Hijacking :Its causes and cure by Alone E.Evans Vol.63 (1969)p 695

2
Is Hijacking of Aircraft Piracy in international Law? by Dr Sami Shubber p 193 Vol XLIII
3
Article 11 of Tokyo Convention, 1963
4
Article 13 of Tokyo Convention, 1963
the return of the hijacked aircraft and its passengers to those persons who are entitled to its

possession and to permit its passengers and crew to resume their journey as soon as possible. It is

also evident from the Hague Convention 1970 that any person any persons who on board an

aircraft in flight (a) unlawfully, by force or threat thereof or by any other form of intimidation,

seizes or exercises control of that aircraft or attempts to perform any such act, or (b) is an

accomplice of a person who performs or attempts to perform any such act, commits an

offence.5This provision does not define the term hijacking at all and on any profound basis but it

simply mentions its essential elements .The following are the very essential elements of the

offence of the hijacking.

 Unlawful use of force, or threat thereof or any other form of the intimidation

 To do above-mentioned acts with a view to seize the aircraft or to exercise control over it.

 The said acts should have been committed on board an aircraft in flight.

 Accomplice of person who performs or attempts to perform the above-mentioned act is

also guilty of the offence of hijacking.

The above-mentioned essential elements are similar to those which are mentioned in the Tokyo

Convention, 1963 6and the only innovation in Hague Convention, 1970 is that it includes an

accomplice of a person who performs or attempts to perform any such act.7The broad and wider

concept of the offence of hijacking has been incorporated on detail grounds in the Montreal

Convention 19718. The article of the Montreal Convention 1971 provides that any person

commits an offence if he unlawfully and on intentional grounds (a) performs an act of violence

5
Article 1 of Hague Convention .1970
6
Article 11 of Tokyo Convention ,1963
7
Aircraft Hijacking under the Hague Convention 1970 A new regime by Sami Shudder I.C.L.Q Vol 22 Part 44 (1973)
Part 44 (1973) at p.690
8
Text of the Montreal Convention (1971) pp.742-48
against a person on board an aircraft ;(b) destroys an aircraft in service or causes damages to

such an aircraft which renders it incapable of flight or it is likely to endanger its safety in flight;

or (c) places or causes to be placed on an a aircraft in service ,by any means whatsoever ,a device

or substance which is likely to destroy that aircraft or to cause damage to it which is likely to

endanger the safety of the flight or (d) destroys or damages the air navigation facilities or

interferes with that operation if any such act is likely to endanger the safety of aircraft in flight or

(e) communities information which he knows to be false, thereby endangering the safety of an

aircraft in flight. Besides this, it is further provided that any person also commits an offence if he

attempts to commit any of the offence mentioned earlier or if he is an accomplice of a person

who commits or attempts to commit any such offence.

There is certain and staunch incidents in which development of law relating to skyjacking .The

enhancement and increase in the number of incidents of hijacking and increase in the dangers

against the safety of the flights of aircraft presented grave problems before the international

community and specifically before the international community and particularly before the

International Civil Aviation Organization. In order to solve this problem and to punish the

hijackers a Convention was adopted in 1963 which is known as the Tokyo Convention, 1963

despite the adoption of this Convention the number of the horrific incidents continued to increase

and this Convention failed to solve the problem.9India also acceded to the Tokyo Convention and

with a view to give effect to the provisions of the convention, Parliament of India, enacted. The

Tokyo Convention Act, 197510 increase in the number of the incidents relating to hijacking or

skyjacking and the shortcomings of the Tokyo Convention compelled and persuaded the states to

ponder on the vital aspects and to take some effective measures to solve the problems and to give

9
Legal Aspects of the Problem of unlawful seizure of Aircraft by Sushma Malik p.61 at pp 65-71
10
For text of the Act see I.J.I.L (1975), pp, 274-279.
the deterrent punishments and sanctions to the hijackers. This mechanism started in September,

1968 when the International Civil Aviation Organization Council was asked to study the problem

of hijacking .In December, the legal sub –Committee prepared a draft for Convention .In order to

consider this draft and to adopt a Convention ,a conference was called in December ,1970 .The

Convention was finally adopted and was known as the Hague Convention ,1970 .After having

been ratified by the prescribed number of the states the convention which is known as the Hague

Convention came into force on 14th October,1971.

It is a well known fact that Hague Convention, 1970 is a significant milestone for suppressing

the crime of the hijacking or skyjacking.11As pointed out earlier the Hague Convention further

elaborated the very concept of Hijacking as compared to the Tokyo Convention it further

widened the concept of the hijackers and certain jurisdictions were established in order to have

control over the hijackers and also to ensure protection of the passengers of the civilian aircrafts

.The state parties may have the jurisdiction over the hijackers in some way and it will be very

difficult and hard for the hijackers to slip away from the hands of the law. As it was pointed by

Sami Shubber, These features of jurisdiction have brought the offence of hijacking very near to

piracy under the customary International Customary law, thus it is not without jurisdiction that

the Aerial Piracy has been applied to this new regime in the field of International Civil

Aviation12.Yet another special feature of the Hague Convention is that the offences shall be

deemed to be inducted as extraditable offences in any of the extradition treaty to be concluded

between them .It is further provided that each of the offences shall be treated for the purpose of

the extradition only as if it had been committed not only in the place in which it occurred but

11
Aircraft Hijacking under the Hague Convention ,1970 –A New Regime by Sami ShubberVol 22 (1973),p.687 at
p725
12
Ibid
also in the territories of the States required to establish their jurisdiction in accordance with the

provisions inscribed in the article of the Convention .13.Thus, Hague Convention 1970 is

regarded as the one of the prominent step forward in the endeavor of the international

community to crush and to suppress the hijackers and their activities and to create a peaceful

environment for International Civil Aviation. Furthermore, the Hague Convention is derived

from the Tokyo Convention, which may lead one to wonder whether or not its adoption as a

protocol to the Tokyo Convention would have been more desirable, as there would have been

some advantage to be gained from the link between the two instruments for instance, right of

aircraft commander and the present crew members to take measures, protection of such persons,

arrest and delivery of hijackers.

It is a well-known fact that Hague Convention is a great milestone in the field of suppressing the

offence of hijacking yet it is subject to some criticism so far as certain provisions relating to

jurisdiction of States and extradition of offenders or hijackers are concerned. Moreover, it may

also be noted that despite the provisions of Hague Conventions, the incidence of the hijacking

continued to increase.Consquently, a conference was called at Montreal from 8th to 23rd

September, 1971 .As a result of the Conference, a convention known as the Montreal Convention

was adopted in the year 1971.Under to the relevant article of this Convention, the concept of the

hijacking or skyjacking was further expanded and widened.14Under this Convention, the State

parties have undertaken that they will provide deterrent punishment to the hijackers. Other

provisions are similar to that of the Hague Convention and it would not be wrong to say that it is

simply an improvement of the Hague Convention and as the matter of the fact , it would have

13
Article 5 of Hague Convention ,1970
14
Article 1 of Montreal Convention ,1971
been been better if the provisions of Montreal Convention had been adopted as protocol to the

Hague Convention.15

Now, coming towards the universal jurisdiction I n respect of the crime of the hijacking which

indicates that the doctrine related to universal jurisdiction is universally recognized and accepted

in respect of Crime of piracy and the war crimes. Since, it is accepted fact that hijacking or

skyjacking is known as the aerial piracy. The principle of universal should apply in respect of the

crime of hijacking .By universal jurisdiction in respect of a crime it means that the crime is

against the interests of international community and in order to suppress such a crime, all states

can exercise jurisdiction in respect of the crime of hijacking. By universal jurisdiction in respect

of the crime, it is mean that the crime is against the interests the international community and in

order to oppose and to suppress such crime, all states can exercise jurisdiction in respect of the

crime. The Hague Convention 1970 and the Montreal Convention 1971 on hijacking have gone a

long way to confer universal jurisdiction, to a great extent on all states. If an offender or alleged

offender is within the territory of a state, both conventions contain provisions for him to be taken

into custody and of he is not extradited. For this case to be placed before the prosecution

authorities. Although neither Convention creates a duty to extradite or an inescapable duty to

prosecute authorities are nevertheless under the duty to take their decision in the same manner as

in the case of any ordinary offence of a serious nature under the law of that state. If the decision

is in the affirmative, the above mentioned universal jurisdictional clause ensues that the Courts

will be competent to hear in the case.16

15
As remarked by Cheng and RHF Austen in the book Air Law ,p,at 183
16
Bin Cheng and RHF Austen , Air law, in the present State of International Law and other Essays (1973),183 at p
197
Under the light of above mentioned legal arguments, it is very safe to say that Tokyo Convention

was the first initial to suppress the act of hijacking .In order to remove the shortcomings of

Tokyo Convention the Hague Convention 1970 was adopted which was an improvement and

proved to be and more feasible than the previous one but it also some defects and shortcomings

which was later removed by the Montreal Convention, 1971 .The biggest problem faced by the

whole procedure was the extradition of the hijackers or skyjackers. Under the umbrella of

international law the concept of the extradition is based upon bilateral treaties. Thus, by its very

nature extradition is based on bilateral series. Thus by its very nature extradition is not a matter

regulated by international law and the duty to surrender cannot arise except under a treaty. 17An

attempt was made under Hague Convention to solve this problem ,A specific article of the Hague

Convention provided that offence shall be deemed to be included an extraditable offence in the

common extradition treaty existing between contracting States. The contracting States further

undertook to include the offence as extraditable in every extradition treaty to be concluded

between them. The obvious effect of this provision is that the offence of hijacking may not be

treated as a political crime. It is undoubtedly a great achievement of the Hague Convention. The

Montreal Convention has tried to improve upon the provision of Tokyo Convention .Thus it may

be said that at present there is no lack of adequate law for the suppression of the offence of

hijacking the need is to properly implement the existing provisions.

17
International Law,Vol II 2nd Edition p 720.