International Conference on Air Law, Volume I: Minutes

Doc 8979-LC/165-1

INTERNATIONAL CIVIL AVIATION ORGANIZATION

INTERNATIONAL CONFERENCE on AIR LAW The Hague, December 1970

Volume I - MINUTES

MONTREAL CANADA Published in separate English, French and Spanish editions by the International Civil Aviation Organization. AN correspondence, except orders and subscriptions, should be addressed to the Secretary General of ICAO, International Aviation Building, 1080 University Street, Montreal 101, Quebec, Canada. Orders for this publication should be sent to one of the following addresses, together with the appropriate remittance (by bank draft or post office money order) in U.S. dollars or the currency of the country in which the order is placed or in a freely convertible currency:

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VOLUME I

-Page INTRODUCTION...... (ix> History ...... Action by ICAO Council ...... ti:\ Documentation for the Conference ...... (ix The Convention and the Final Act ...... (x) Contents of Doc 8979-~~/165...... (x)

MINUTES OF MEETINGS

Inaugural Meeting, 1 December 1970 (1100) ...... 1 Agenda Item No. 1: Opening of the Conference ...... 1

Address of Welcome on behalf of the Government of the Kingdan of the Netherlands ...... 1 Address of the President of the ICAO Council ...... 3 First Plenary Meeting, 1 December 1970 (1200) ...... 5 Agenda Item No. 2: Adoption of the Agenda ...... 5 Agenda Item No. 3: Adoption of the Rules of Procedure ...... 5 Agenda Item No. 4: Establishment of Credentials Committee ...... 5 Agenda Item No. 5: Election of the President of the Conference .... 5 Table of Contents

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Page Second Plenary Meeting, 1 December 1970 (1505.) ...... 7 Agenda Item No. 6: Election of Vice-presidents of the Conference . . Agenda Item No. 7: Report of the Credentials Committee ...... Agenda Item No. 8: Organization of Work ...... Agenda Item No. 9: Consideration of the draft convention ...... General debate ...... Third Plenary Meeting, 2 December 1970 (1000) ...... Agenda Item No. 9: Consideration of the draft convention ...... General debate ...... Fourth Plenary Meeting , 2 December 1970 (1440) ...... Agenda Item No. 9: Consideration of the draft convention ...... Generaldebate ...... First Meeting of the Commission of the Whole, 2 December 1970 (1455) ... Agenda Item No. 8: Organization of Work ...... Agenda Item No. 9: Consideration of the draft convention ......

Article 1 (a DOC Nos. 7, 8, 15, 16, 18, 19 and 23) ...... Second Meeting of the Commission of the Whole, 3 December 1970 (0935) . . Agenda Item No. 9: Consideration of the draft convention ...... Article 1 ...... Vote on SA Doc No. 19 ...... Vote on SA Doc No. 23 ...... Fifth Plenary Meeting, 3 December 1970 (1440) ...... Agenda Item No. 6: Election of Vice-presidents of the Conference . . Third Meeting of the CQmnission of the Whole, December 1970 Agenda Item No. 9: Consideration of the draft convention ...... Article 1...... Proposal by Ghana (SA Doc No. 6) ...... Proposal by the Union of Soviet Socialist Republics (SA Doc NO. 32) Question whether Article 1 of the Convention s5ould expressly state

#. . whether the aircraft Efiould be those registered in a Contracting State or registered in any State whatever (~eportof the Legal Camittee (seventeenth session) on the subject of Unlawful Seizure of ~ircraft) ...... Proposal by Japan (SA DOC NO. 36) ...... Table of Contents (iii)

Sixth Plenary Meeting. -4December 1970 (0940) ...... Agenda Item No . 8: Organization of work ...... (b) Establishment of Canmission of the Whole and of Camittees as necessary ...... Fourth Meeting of the C~mnissionof the Whole. 4 December 1970 (0945) ... Agenda Item No . 9: Consideration of the draft convention ...... Arkicle 1 ...... Vote on the amendment proposed by the Australian Delegation .... Vote on the menbents proposed by the United Kingdan Delegation (SA D~CNO . 37) ...... Fifth Meeting of the Canmission of the Whole. 5 December 1970 (0935) ... Agenda Item No . 8: Organization of Work ...... Camposition of the Camnittee on Final Clauses ...... Canposition of the Drafting Committee ...... Agenda Item No . 9: C~nsideration~ofthe draft convention ...... Article 2 ...... 11) ...... 37. 32. 9. 16. 29) ...... Sixth Meeting of the Ccsmnission of the Whole. 7 December 1970 (0940) ... Agenda Item No . 9: Consideration of the draft convention ...... Article 2. paragraph 3 ...... Vote on the joint draft amendment of Barbados. Zambia and the International Law Association (Information Paper NO . 1) ..... Vote on the draft amendment of the United Kingdan (Information Paper No . 1) ...... Vote on the draft amendment cif Jamaica. the Netherlands and Trinidad and Tobago (Information Paper No . 1) ...... Vote on the draft amendment of the USSR (SA Doc No . 32) ...... Vote on the draft amendment of Greece (Information Paper No . 1) . . Article 2. paragraph 4 ...... Vote on Article 2 as a whole ...... Article 3 ...... Seventh Meeting of the Cummission of the Whoile. 7 December 1970 (1440) . . Agenda Item No . 9: Consideration of the draft convention ...... Article 3 (SA DOC Nos . 33. 48. 60. 44) ...... Credentials Committee ...... Agenda Item No . 9: Consideration of the draft convention ...... Article 4 ...... Table of ~onterrts

.Page Eighth Meeting of the Ccnmnission of the Whole. 7 December 1970 (2000) . . 73 Agenda Item No . 9: Consideration of the draft convention ...... 73 Article 4 ...... First category of proposed amendments ...... Second category sf propused amendments ...... Ninth Meeting of the C~amissionof the Whole. 8 December 1970 (0940) . . Agenda 1.t- No . 9: Consideration of the draft convention ...... Article 4 ...... Vote on the Austrian amendment to Article 4. paragraph 1 (SA DOC NO . 39) ...... Vote on the draft amendment of Argentina. Barbados. Cameroon. Costa Rica. India. Jamaica. Peoplets Republic of the Congo. Trinidad and Tobago and Zambia (SA Doc No . 46) ...... Vote on Article 4 as a whole as amended ...... Article5 ...... Articles 6. 7 and 8 ...... Article 9 ...... Article 9. paragraph 2 ...... Tenth Meeting of the Commission of the Whole. 8 December 1970 (1435) . . Agenda Item No . 9: Consideration of the draft convention ...... Article 9. paragraph 2 (SA Doc Nos . 19. 32. 47. 54) ...... Article 10 (SA Doc No . 13) ...... Eleventh Meeting of the Commission of the Whole. 8 December 1970 (2000) . Agenda Item No. 9: Consideration of the draft convention ...... Article 10 (SA Doc No . 13) ...... New Article (SA Doc No . 68) ...... Article 6 ...... Paragraph 1 (SA Doc Nos . 15. 32. 43... 44 and 52) ...... Paragraph 2 ...... Paragraph 3 SA Doc Nos . 44 and 67) ...... Paragraph 4 t SA Doc Nos . 11. 32 and 66) ...... Twelfth Meeting of the C-ission of the Whole. 9 December 1970 (0945) . Agenda Item No . 9: Consideration of the draft convention ...... Procedure ...... Vote on order of discussion ...... Article 8 ...... Vote on the amendment of Senegal to Article 8. paragraph 1 (aDOC NO . 6) ...... Vote on the amendment of Tanzania to Article 8. paragraph 2 (SA DOC NO . 64) ...... Table of Contents

.Page Thirteenth Meeting of the Commission of the Whole. 9 December 1970 (1445) 109 Agenda Item No . 9: Consideration of the draft convention ...... Article 8 ...... Paragraph 1 ...... SA Documents Nos . 71 and 28 ...... Document SA No . 64 ...... Fourteenth Meeting of the Cammission of the Whole. 10 December 1970 (0940) Agenda Item No . 9: Consideration of the draft convention ...... Preamble (sA Doc Nos . 7. 16. 32. 51 and 61) ...... Fourth preambular paragraph ...... Seventh Plenary Meeting. 10 December 1970 (1200) ...... Agenda Item No . 7: Report of the Credentials Committee (a Doc NO . 76)

Fifteenth Meeting of the Cammission of the Whole. 10 December 1970 (1440) Agenda Item No . 9: Consideration of the draft convention ...... Article 8 ...... Vote on Sd Doc No . 33. Rev . 2 ...... Vote on SA Doc No . 26 Revised ...... Article 7 ...... Sixteenth Meeting of the Cmission of the Whole. 11 December 1970 (0940) . Agenda Item No . 9: Consideration of the draft convention ...... Article 7 ...... Result of the vote on SA Doc No . 72. Revised ...... Eighth Plenary Meeting. 11 December 1970 (1130) ...... Agenda Item No . 9: Consideration of the draft convention ...... Report of the Cammittee on Final Clauses (SA Doc No . 80) ......

Seventeenth Meeting of the Commission of the Whole. 11 December 1970 (1700) Agenda Item No . 11: Adoption of the Final Act of the Conference ... SA Doc NO . 81: Draft Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviation Organization at The Hague in December 1970 ...... Table of Contents

.Page Eighteenth Meeting of the Commission of the Whole. 12 December 1970 (0930) . Agenda Item No . 9: Consideration of the draft convention ...... Title of the Convention ...... Preamble and Articles (SA Doc No . 83 and Addendum) ...... Preamble (SA Doc No . 83 Addendum) ...... Article 1 (SA Doc No . 83) ...... First phrase and sub-paragraph (a) ...... Sub-paragraph (b) and final phrase ...... Article 2 ...... Article 3. paragraph 1 ...... Article 3. paragraph 2 ...... Article 3. paragraph 3 ......

Nineteenth Meeting of the Ccgnmission of the Whole. 12 December 1970 (1445) Agenda Item No . 9: Consideration of the draft convention ...... Article 3 (SA Doc No . 83) .... Pkragraph 4 ...... Paragraph 5 ...... Article 4 (SA Doc No . 83) .... Paragraph 1 ...... Paragraph 2 ...... Paragraph 3 ...... Article5 ...... Article 6 ...... Paragraph 4 ...... Article 7 (SA Doc No . 83 ~ddendum) Article 8 ...... Paragraph 1 ...... Paragraph 2 ...... Twentieth Meeting of the Commission of the Whole. 12 December 1970 (2015) . Agenda Item No . 9: Consideration of the draft convention ...... Article 8 (SA Doc No . 83 ~ddendum)...... Paragraph 3 ...... Paragraph 4 ...... Article 9 (SA Doc No . 83) ...... Paragraph 1 ...... Paragraph 2 ...... Article 10 ...... Paragraph 1 ...... Paragraph 2 ...... Article 11 (SA DOC lo. 3 ...... Table of Contents

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Page Ninth Plenary Meeting. 14 December 1970 (1005) ...... Agenda Item No . 9: Consideration of the draft convention ...... Printed text of the draft convention for the suppression of unlawful seizure of aircraft ...... Article 1 ...... Article 2 ...... Article 3. paragraph 1 ...... Article 3. paragraph 2 ...... Article 3. paragraph 3 ...... Article 3. paragraph 4 ...... Article 3. paragraph 5 ...... Article 4. paragraph 1 ...... Article 4. paragraph 2 ...... Article 4. paragraph 3 ...... Article 5 ...... Article 6. paragraph 1 ...... Tenth Plenary Meeting. 14 December 1970 (1440) ...... Agenda Item No . 9: Consideration of the draft convention ...... Article 6. paragraph 2 ...... Article 6. paragraph 3 ...... Article 6. paragraph 4 ...... Article 7 ...... Vote on Article 7. as amended ...... Vote on Article 8. paragraph 1 ...... Article 8. paragraph 2 ...... Eleventh Plenary Meeting. 15 December 1970 (0930) ...... Agenda Item No . 9: Consideration of the draft convention ...... Article 8. paragraph 2 ...... Vote on Polish counter-amendment to the Zambian proposal ...... Vote on the new Zambian proposal ...... Vote on Article 8. paragraph 2. as amended ...... Article 8. paragraph 3 ...... Vote on Article 8. paragraph 3. as amended ...... Vote on Article 8. paragraph 4 ...... Vote on Article 8. as amended ...... Vote on Articles 9 and 10. Article 11. as amended. the Preamble and the title ...... Closingsenkence ...... Agenda Item No . 10: Adoption of a convention and other instruments . . Agenda Item No . 11: Adoption of the Final Act of the Conference ... Table of Contents

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Page- Twelfth Plenary Meeting, 16 December 1970 (1025) ...... 195 Agenda Item No. 10: Adoption of the Convention and ather instruments 195 Thirteenth Plenary Meeting, 16 December 1970 (1655) ...... 213 Agenda Item No. 12: Signature - of the Final Act of the Conference - of the Convention and other instruments ...... 213 Closing of the Conference ...... 215 INTRODUCTION

The International Conference on Air Law which met at The Hague frcm 1 to 16 December 1970 was the fifth in a series of conferences on air law held under the auspices of the International Civil Aviation Organization. The previous ones were held at Rome (1952), The Hague (1955), Guadalajara (1961) and Tokyo (1963). The Conference was convened for the purpose of considering a draft convention on unlawfu1,seizure of aircraft prepared by the Legal Ccunmittee of the International Civil Aviation Organization.

History

The Sixteenth Session of the Assembly of ICAO held in Buenos Aires in September 1968 discussed the question of unlawful seizure of aircraft and adopted Resolution A16-37 on that subject; in that Resolution the Assembly requested the Council to institute a study of other measures to cope with the problem of unlawful seizure of aircraft, In December 1968, the Council decided to refer the legal aspects of the question of unlawful seizure of aircraft to the Legal Caamnittee with a request to the Chairman of that Cammittee to establish a Subcommittee. The Subcommittee of the Legal Committee on the subject of Unlawful Seizure of Aircraft met in Montreal in the first Session from 10 to 21 February 1969 and in the second Session from 23 September to 3 October 1969; the reports and documentation of these Sessions will be found in Doc 8838-~~/157. At its Seventeenth Session held in Montreal in February-March 1970, the Legal Cominittee prepared a Draft Convention which it considered, by a unanimous vote, reaQ for presentation to States as a final draft; Minutes and documents of the Seventeenth Session of the Legal Committee will be found in Doc 8877-~~/161.

Action by ICAO Council

Acting under Resolution ~7-6(procedure for Approval of Draft conventions), the Council decided in March 1970 to circulate the Draft Convention on Unlawful Seizure of Aircraft prepared by the Legal Camittee, together with the CmitteeSs Report thereon to States and international organizaticns determined by the Council and requested them to send their comments by 31 August 1970. The Council also decided to convene an international conference of plenipotentiaries from 1 to 16 December 1970 to consider, with a view to approval, the Draft Convention on Unlawful Seizure of Aircraft. The Council accepted the invitation of the Government of the Kingdom of the Netherlands to hold the Conference at The Hague.

Documentation for the Conference

The documents made available to the Conference are reproduced in Vol. 11. Introduction

The Convention and the Final Act

Following its deliberations, the Conference adopted the text of the Convention on the Suppression of Unlawful Seizure of Aircraft. The Convention was signed ont16 December 1970 at The Hague on behalf of the following fifty

Afghanistan, the Kingdan of Italian Republic, the Argentine Republic, the Jamaica Barbados Japan Belgium, the Kingdan of Luxembourg, the Grand Duchy of Brazil, the Federative Republic of Malaysia Bulgaria, the People's Republic of Mexican States, the United Byelorussian Soviet Sociali st Republic Netherlands, the Kingdm of the Cambodia, the Khmer Republic Panama, the Republic of Canada Philippines, the Republic of the China, the Republic of Polish People's Republic Colanbia, the Republic of Portugal, the Republic of Costa Rica, the Republic of Rwanda, the Republic of Czechoslovak socialist Republic South Africa, the Republic of Denmark, the Kingdom of Sweden, the Kingdam of El Salvador, the Republic of Swiss Confederation, the Ethiopia, the lkpire of Thailand, the Kingdm of French Republic, the Trinidad and Tobago Gabonese Republic, the Turkey, the Republic of Germany, the Federal Republic of Ukrainian Soviet Socialist Republic Ghana, the Republic of Union of Soviet Socialist Republics Greece, the Kingdom of United Kingdan of Great Britain and Guatemala, the Republic of Northern Ireland Hungarian People's Republic United, States of America Indonesia, the Republic of Venezuela, the Republic of Iran, the Elupire of Yugoslavia, the Socialist Federa 1 Israel, the State of Republic of

The Final Act of the Conference was signed on .16 December 1970 at The Hague on behalf of the Governments represented at the Conference.

The text of the Convention and of the Final Act is reproduced in Vol. I1 of this document.

Contents of Doc 8979-~~/165

Volume I of this Document contains the present Introduction, the List of Delegates and the Minutes of the Plenary Meetings of the Conference and of the Commission of the Whole as revised by tk speakers and approved by the President of the Conference; Volume I1 contains documents which were made available to the Conference. LIST OF DELEGATES, OBSERVERS AND ADVISERS WHO ATTEllDFD TKE COWEXE3iCE

Contracting States

AFGHANISTAN BULGARYL Mr. S.M. Ghazi Mr. L. Kutchoukov Mr. M.I. Mawassan Mr. M. Harizanov Mr. G.T. Dimov ALGEFUA Mr. D. Moutafchiev Mr. M. Medjad Mrs. E. Terzieva Mr. H.B. Azzout Mr. A. Lahlou CAMBODIA -Mr. M. Bouzerar Mr. N. Tat

Mr. A. Aberkane Mr. -S. Ros

ARGENTINA CAMEROON Mr. J.C. Araujo Mr. P. Beb a Don Mr. E.A. Mussel Mr. G. Njamkepo

AUSTRALIA CANAM Mr. L.R. Edwards Mr. A. Bissonnette Mr. C. E. ,McDonald Mr. L.S. Clark Mr. C. Kennedy AUSTRIA Mr. A. MacNutt Mr. J. Coreth Mr. R. Linke CEYLON Mr. W. Pahr Mr. S.J. Walpita

BARBADOS CHILE Mr. W. Waldron-Ramsey Mr. G. Lagos Mr. I.D. Archer CHINA (REPUBLIC OF) BELGIUM Mr. F-S. Chu Mr. E.M. Luyckx Mr. K.E. Hsiao Mr. J.L.L. Bocque Mr. D-C. Kao Mr. J.C. Cox Mr. W. Tsai Mr. A. Melchior COLOMBIA BRAZIL Mr. R. de Zubiria Mr. G. Nascimento-Silva Mr. H. Herrera Mr. J. Fraga Lourenco Mr. E. ~4squezRocha Mr. J. Valente Mr. E.A. da Silveira CONGO (PEOPLE'S REPUBLIC OF) Mr. B.M. Neele Mr. F.X. Ollassa Mr. A. Cravo COSTA RICA Mr. A. Ortiz Mr. M. Dobles Mr. A. JimCnez Mr. I. Querido (xii)

CZECHOSLOVAK SOCIALIST REPUBLIC GREECE Mr. v. Ma19 Mr. C. Himarios Mr. J. Qlecek Mr. G. Zotiades Mr. P. Kriz Mrs. 0. Evgenidou Mr. K. Siege1 Mr. J. Maniatopoulos Mr. J. Fejfar DENMARK GUATEMALA Mr. E. Krog-Meyer Mr. L. Vasquez-Canet Mr. T. Baekgaard Mr. G. Genz de Te jada Mr. E, ~lsb Mr. P. Lachmann HUNGARY Mr. B. Rosenvinge Mr. S. Huvos Mr. G. Jelenik Mr. T. Hardicsay EL SALVADOR Mr. J. Martonyi Mr. P. Van Eck Mr. A. Pakay

INDIA Mr. B.S. Gidwani E;TIIIOPIA Mr. G. Bekele INDONESIA Mr. H. Alemayehou Mr. Soesanto Mr. H. Woldegiorghis Mr. B. Budiarti Mr. F. Mahmud l?lxumD Mr. H.R.T. Situmorang Mr. S.O.O. Palasto Mr. S. Sutyanto Mr. E.Z. Kiuru Mr. M.H. Umar Mr. P. J.V. Lindholm Mr. V,M. Metsllampi -IRAN Mr. E. Kazemi FFWJCE Mr. J. Abolmaali Mr. G. de ~acharrikre Mr. M. Mohseni Mr. A. Garnault Mr. G. Guillaume IRELAND Mrs. M,R. dlHaussy Mr. N.A. OtBrien Miss V. Linant de Belle fonds Mr. R. Hayes Mr. M.A. Viennois Mr. J-A. Leveque ISRAEL Mr. S. Arad GABON Mr. I. J. Mintz Mr. S. Pither Mr. N. Ben-Yehuda Mr. G. Oyaya Mr. Y. Cohen GERMANY, FEDERAL REPUBLIC OF -ITALY Mr. H. Groepper Mr. A. Savorgnan

Mr. G. Schmidt-Rtintsch Mr. G. ' Rinaldi Baceelli Mr. O.H.H. Faull Mr. C. Chirico Mr. P.G. Poetz Mr. M.G. Fortini Mr. E. von Puttkamer Mr. A. Sciolla-Lagrange Mr. M. Roebbert Mr. M. Serafini Mr. E. Sessa GHANA Mr. F.E. Creppy JAMAICA Mr. T.K. Pappoe Mr. K.O. Rattray (xiii)

JAPAN NEW ZEALAND Mr. M. Fujisaki Mr. P.W. Graham Mr. C. Yamsda Mr. A.C. Doyle Mr. T. Kameyama Mr. F.A. Muller Mr. T. Ohara Mr. S. Hashimoto NORWAY Mr. T. Kiya Mr. G. Rogstad Mrs. K. ~ruzeliusHeffermehl KEMlA Mr. 0. Sandvik Mr. P. Ndibo Mr. K.A. Amoo-Adare PANAMA Mr. C.M. Arze KOREA (REFUBLIC OF) Mr. E. Isaza Mr. P.S. Chin Mr. J.S. An PARAGUAY Mr. K. Jhung Mr. T.R. Salanoni Mr. W.B. Suh Mr. G. Riego

KUWAIT PHILIPPINES Mr. A. Samhan . Mr. D.R. Garcia Mr. M. Al-Awadhi Mr. J.T. Garcia, Jr. Mr. F.S. Hamza Mrs. S.M. Aguirre

LEBANON POLAND Mr. K. Lsbaki Mr. M. Kowieski Mr. A. Fattal Mr. A. 0lsz6wka Mr. W.Miroslawski LIBYA Mrs. K. Miszewska Mr. H.M. Cuniali Mr. L. J. Lukasik Mr. M. Buzakuk Mr.. 1.2. Rsjski Mr. A.O. Zarrouk PORTUGAL LUXEMBOURG Mr. M. Almeida Coutinho Mr. P. Hamer Mr. J.E. de Mello Gouveia Mr. J. Barros Prata MALAYSIA Mr. T. S.A.H. Jumat ROMANIA Mr. H.Y.A. ~ani' Mr. D.D. Popescu Mr. B. Thamazios Mr.G. Chirila Mr. B. Rajaram Mr. R. Econanu

MMICO RWANDA Mr. A. Cortina Gutierrez Mr. A. Munyaneza Mr. P. Nogueron Consuegra SOUTH AFRICA NETHERLANDS (KINDGQM OF THE) Mr. A. J. F. Viljoen Mr. W. Riphagen Mr. M. v.d.S. &eyer Mr. M.R. Mok Mr. P. J. Truter Mr. A. Bos Mr. J.R. Bouwer SPAIN Mr. C. Cathalina Mr. F. J. Vallaure Mr. C. Fasseur Mr. C. G&ez Jara Mr. J.P. Honig Mr. J.A. de Yturriaga Mr. J. Lamers Mr. S. Moro Mr. T.H. de Meester Mr. W.B. Teunis Mr. S. Werners (xiv)

SWEDEN UNION OF SOVIET SOCIALfST REPUBLICS Mr. K.G. Lag6rfelt Mr. A. Semenkov Mr. B. Voss ~r.P. mseev Mr. B. Karle Mr. I. Berkesov Mr. C.O. Ljungstran Mr. G. Golubov Mr. J.O. Stahl Mr. Y. Kolossov Mr. V. Orekhovsky SWI- Mr. W. Guldimann UNITED ARAB REPUBLIC Mr. F.C, Pictet Mr. E.Y. El-Shinnawi Mr. I!. Bruntler Mr. A. Osman Mr. B. BuchmUller Mr. M.A.H. El Safty Mr. C.A. .Markees Mr. E,H.Y. Mostafa Mr. J.P. Ritter UNITED KINGDOM !EluZmm Mr. A.W.G. Kean Mr. I.A. Wakil Mr. K. J. Chamberlain Mr. S. Arain Mr. R.I.T. Cranartie Mr. E.P. Kmwika Mr. P. Harvey Mr. R:S. Ny%a Mr. C.E. Prior 'Mr. F.B. Rugeiyamu Miss GI&E. Wh$te Mr. P. Sebalu UNITED STATES OF AMERICA Mr. Z.M. Baliddawa Mr. J.R. Stevenson Mr. F.B. Mahatme Mr. J.B. Rhinelander Mr. R.P. Boyle Mr. L. Gotzlinger Mr. K.E. Malmborg Mr. P. Kongsrrmut Mr. R.L. Saloschin Mr. C. ArthayUkti Mr. J.T. Stewart Mr. W. Wayurakul Mr, R. Boylan Mr. C. F. Salans TIIINIULD AND TOBAGO Mr. J. F. Huisentruit W. %- Clarke Mr. A. Kuhl Mr. E. Roopnarine Mr. T. Baden-Semper VENEZUELA Mr. V. J. Delascio TUNISIA Mr. H.R. Palacios Mr. A.R. El Hicheri Mrs. H. Hernandez Mr. E. Bouhlila YUGOSLAVIA TURKEY ~r.M. ~ilutinovid Mr. D. Turlaligil Mr. B. ~latari6 Mr. M. Ezgu Mr. B. ~ili~ovi6 Mr. H. Afra Mr. M. ~ilutinovi6 Mr. S. Atay Mr. I?. Apz ZAMBIA Mr. Ad Karahan Mr. V. Rrishnadasan UGANDA Mr. C.M.L.K. Ntende Mr. M.B. Matovu Mr. J. J. Obbo Non-Contracting States

BYELORUSSIAN SOVIET LESOTHO SOCIALIST REPUBLIC Mr. M.C. Molapo Mr. D. Glushenko Mr. V. Lukyanovich UKRAINIAN SOVIET SOCUST REPUBLIC HOLY SEE Mr. M. Zolotarev Mr. A.M. Stuyt Mr. V. Voloshin

International Organizations

UNITED NATIONS Mr. C. Malek Mr. P. Weis

COUNCIL OF EUROPE Mr. H.P. Furrer

FEDERATION AERONAUTIQUE INTERNATIONALE Mr. J.W. R. Sanders

INSTITUTE OF AIR TRANSPORT Mr. J. L. Jouan

INTERNATIONAL COUNCIL OF AIRCRAFT OWNER AND PILOT ASSOCIATIONS Mr. H.M. Koemans

INTERNATIONAL AIR TRANSPORT ASSOCIATION Mr. K. HammarskJ'dld Mr. A. ~un~ueira5'. Mr. G. ~gr~uezde la Plata Mr. M.J. Nederlof Mr. H. Razavi Mr. J. Thamka Gazdik

INTERNATIONAL CWER OF COMMERCE Mr. H. Leygraaff

IN'I'E~TIONAL CFUMINAZI POLICE ORGANIZA'I?ON Mr. A. Brisset Mr. K. Karunatilleke

INTERNATIONAL FEDERATION OF AIRLINE PILOTS ASSOCIATIONS Mr. A.D. Mills Mr. 0. Forsberg Mr. G. Stone Mr. A.A. van k'ijk (xvi)

INTERNATIONAL LAW ASSOCIATION Mr. B. Cheng Mr. R.R. Nys Mr. E. Pepin Mr. N. Poulantzas Mr. J.W.F. Sundberg

INTERNATIONAL TRANSPORT WORKERS* FEDERATION Mr. K.A. Golding Mr. M.S. Hoda Mr. J.A. Wahle

INTERNATIONAL UNION OF AVIATION INsms Mr. D.H.F. Graves INAUGURAL MEETING

(!Tuesday, 1 December 1970 at 1110 hours)

1. The inaugural meeting of the International Conference on Air Law was held on 1 December 1970 in the Netherlands Congresgebouw, The Hague.

AGENDA ITEN NO. 1: OPENING OF THE: CONFERENCE

2. Mr. Walter Binaghi, President of the Council of the International Civil Aviation Organization, declared open the International Conference on Air Law convened under the auspices of ICAO to consider a draft Convention on Unlawful Seizure of Aircraft. He stated that the Representative of the host Government, His Excellency, the Minister of Justice of the Kingdom of the Netherlands, Dr. Karl Polak, would address the Meeting.

ADDFZSS OF WELCOME ON BEHALF OF THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS

3. His Excellency, the Minister of Justice of the Kingdom of the Netherlands, Dr. Karl Polak addressed the Meeting as follows:

"~r.President of the Council of the International Civil Aviation Organization, Mesdames, Messieurs, SeEoras y Sefiores, Ladies and Gentlemen,

On behalf of the Netherlands Government, I bid you all a most cordial welcome to this country and to this conference. The importance of the subject to discuss which this conference has been convened is self-evident. The safety and smooth running of international civil aviation is a matter of prime and common concern to countries and peoples throughout the world. All States, however different their interests may be, share the same basic interest in the preservation and promotion of international air transport. Modern society cannot function properly without it. Yet today, no airline, no air passenger, no country, can feel secure against the unlawful seizure of an airplane. Eighty-six aircraft have been taken over by hijackers during the first nine months of this year alone; more than 8000 passengers were involved.

Last year the United Nationsr General Assembly adopted a resolution in which it expressed its deep concern about the increase in unlawful acts of interference with international civil aviation and urged that effective legal measures be taken against unlawful seizure of aircraft in flight. Last week, the General Assembly adopted a new - and stronger - resolution, with 105 votes in favour, none against and 8 abstentions. Inaugural Meeting

In a speech he made on the occasion of the U.N.'s 25th anniversary, the Secretary-General, U Thant, declared that hijacking was a crime against an international service, affecting a diversity of nations, people and interests, and as such should be matle amenable to a rule of international law. Airplanes may be constructed in one country, owned by another country and insured in a third country. They fly frm one country to another, use facilities all over the world, carry passengers of all nationalities and are often crewed by men of several different nationalities.

Since the adoption of the U.N. Assembly's resolution of 1969, a number of States have enacted or prepared national legislation to make hijacking a specific offence to which severe penalties apply. This evening, for example, a Bill on these lines will be discussed by the Lower House of the Netherlands Parliament. But national legislation against unlawful seizure of aircraft in flight must remain ineffectud if it is not anbodied within the framework which an international treaty provides.

The 17th Assembly of the ICAO - an extraordinary one - emphasized' the need for adequate action against unlawful seizure of aircraft and especially for an international convention that would facilitate the extradition and punishment of hijackers.

We all know that penal law is not a universal remedy against crime. Prevention is better than cure. Many airports have demonstrated that this fact is widely understood today. Let us hope that the need for these measures will only be temporary, but that they will be effective as long as they are needed. All the same, we cannot for the time being dispense with legal means for the detection, extradition, prosecution and punishment of hijackers. It is up to you, then, to provide the international community with such means.

For this reason the Netherlands Government is delighted that the ICAO has accepted its invitation to hold the conference here in The Hague. You will have a lot of work to do in the next two weeks. It is important that your work should be successful. For the world expects you to succeed. And I have no doubt that this conference, at which are assembled so many very distinguished lawyers from all continents, will in fact be successful in its endeavours. I should just like to warn you, however, of the dangerous temptation to which we lawyers are often exposed: that of legal perfectionism. The convention you will be elaborating should, from a legal point of view, be as good as possible. Don't forget that sometimes the better is the enemy of the good. We hope and believe that a very large number of States will consider it a necessity and, indeed, a moral obligation to sign and ratify the new convention without delay. We hope also that this convention will prove to be an enrichment of international law, as other Hague Conventions have been in tkle past. 1n6ugural Meeting

You will, I am sure, forgive me fur concluding by expressing the wish that the need may never arise to apply in practice the new instrum&nt that will bear the name of this city - a city of which, I trust, you will, on returning to your own countries, retain many pleasant memories.

Thank you ."

ADDRESS OF THE PRESIDENT OF THE ICAO COWIL

4. Mr. Walter Binaghi, President of the ICAO Council, speaking on behalf of tkie Degates present and the ICAO Council, expressed gratitude to the Kingdom of the Netherlands for making it possible for the Conference to meet in the hospitable City of The Hague which was famous in the annals of the developnent of fnternatforlal: law. Such a generous invitation from the Kingdom of the Netherlands was not new to ICAO. Many conferences had been held in The Hague and the City had given its name to many Conventions.

5 But the role of the Government of the Kingdom of the Netherlands had not been restricted to being a host to conferences. The calibre of Netherlands' participation in the framing of the international law of aviation was also important. In this regard, he referred to the Netherlands' participation in the preparation of the Hague Protocol to amend the Warsaw Convention (1955). The Dutch had made a pioneering contribution to the development of avlation law.

6. The beautifbl Congresgebouw was effectively run and he wished to thank the organisers of the Conference for having paid attention to so many details.

7- The subject for consideration of the Conference was a vital one and the entire aviation community wanted to find solutions for the problem of unlawful interference. Unlawful seizure of aircraft had been a serious threat to the safety and efficiency of international civil aviation which was a vitd element in our civilization. The subject of unlawful seizure of aircraft had been under active study in ICAO since December 1968. There had been two meetings of a Subcommittee on this subject and a draft Convention had been prepared in March 1970 by the ICAO Legal Committee. The draft was now before the Conference for consideration with a view to its approval.

8. The draft Convention had been specifically commended in a Resolution of the Seventeenth (Extraordinary) Session of the Assembly which had met in June 1970. In that Resolution the Assembly had called upon States to make every reasonable effort at the Conference to agree on a Convention based on the draft Convention prepared by the Legal Committee.

9. A week ago, the General Assembly of the United Nations had adopted by 105 votes, with no opposition and 8 abstentions, a Resolution on what was called aerial hijacking or interference with civil air travel. Inauaural Meetim

In that Resolution the General Assembly had called upon States "to make every possible effort to achieve a successful result at the diplomatic conference which has been convened in The Hague in December 1970 for the purpose of the adoption of a convention on the unlawful seizure of aircraft, so that an effective convention may be brought into force at an early date."

10. The time available was short and he appealed to all Delegates to concentrate on the subject and not to use the time on side issues or secondary issues and to achieve a universally acceptable solution to the problem.

11. He wished the Conference every success in its deliberations.

h he meeting adjourned at 1130 hours ) FIRST PLENARY. MEETING

(~uesda~,1 December 1970 at 1200 hours)

Acting President: Mr. W. Binaghi, President of the ICAO Council

President: Professor W. Riphagen

AGENI1A. ITEM NO. 2: ADOPTION OF THE AGmA

1. The Delemte of Switzerland, seconded by the Delegates of Brazil and the Federal Republic of Germany, proposed that the provisional agenda be adopted. The agenda was adopted unanimously.

AGENDA ITEM NO. 3: ADOFTION OF IME RULES OF PROCEDURE

2. The Acting President recalled- --- that at the informal preliminary meeting held that morning, two matters had been raibed in connexion with the provisional Rules of Procedure contained in SA Doc -No. 3. First, it had been asked whether persons whose credentials had been duly issued as specified in Rule 2 (1) could extend their credentials to advisers, observers or other persons assisting their delegations. It was decided that they could do so, on the understanding that a formal paper in that regard would be pzlt to the Conference for final action.

3 Secondly, it had been suggested that the words "Subject to the provisions of Rule 17, .. ." be added to the beginnin$ of Rule 26 in order to avoid conflict with Rules 11 - 16. The suggestion was accepted.

4. On the proposal of the Delegate of Switzerland, seconded by the Delegates of the Federal Republic of Germany and Mexico, the Rules of Procedure were adopted.

AGEMZA ITRvf NO. 4: ESTABLISHMENT OF CREDENTIALS COMMITTEE

5. The Acting President,pursuant to Rule (2) of the Rules of Procedures, appointed as members of the Credentials Camnittee one member frm each of the f ollaring countries : Belgium, Brazil, Hungary, Japan and Uganda.

AGERIA ITm NO, 5: ELEGTION OF THE PRESIDENT OF THE CONFERENCE

6. The President of the ICAO Council said that at the preliminary informal meeting held that morning it had been agreed that if a Commission of the Whole were established, the President of the Conference would also be its Chairman. First Plenary Meetinq

7 The Delegate of Canada, seconded by the Delegates of Brazil and France, proposed that Professor Riphagen of the Netherlands be elected President of the Conference. With his long practical experience of legal matters and his services to the United Nations, he would certainly promote the success of the Conference.

8. Professor Riphagen was elected President of the Conference.

9 The President of the Conference thanked participants for the honour they had done to his country and to himself by electing him. Although the reasons behind the Conference were deplorable, its convening reflected an encouraging common awareness of the need to protect civil aviation in the interests of all States. The duty of the Conference was to translate that awareness into the legal terms of a multilateral treaty.

he meeting adjourned at 1215 hours) SECOND PLENARY MEETING

(~uesda~,1 December 1970 at 1505 hours)

President: : Professor W . Riphagen

AGEKM ITEM NO. 6: ELECTION OF VXE-PRESIDERCS OF THE CONFFRENCE

1. The President observed that consultations concerning those elections had not been completed, and suggested that consideration of the item be postponed.

2. It was so decided.

AGEKDA ITEN NO. 7: REPORT OF THE CREDENTIAIS COMMITTEE 3 The Delegate of Belaium, Chairman of the Credentials Committee, comprising the Delegates of Belgium, Brazil, Hungarian People's Republic, Japan and Uganda, presented its preliminary report. Of the 67 Delegations registered by midday on 1 December 1970, 58 had submitted credentials.

4. With the exception of credentials submitted for three Delegations in the form of telegrams, all the credentials submitted had been found in order. The Committee had requested those Delegations whose credentials had not been found in order or had yet to be submitted to take the necessary action as rapidly as possible. 5 One member of the Committee, the Delegate of the Hungarian People's Republic, had stated that his Government reserved its position concerning the participation in the Conference of the Republic of China, believing that reserve to be shared by other Socialist countries.

6. The Committee requested the conference to approve its preliminary report and to authorize all Delegations to participate in i6s work, pending the submission of all credentials, after which a final report would be prepared as a document for the Conference.

7 0 The Delegate of Algeria expressed his Government's reserve concerning the pasticipation of the Republic of China.

8. The Delegate of France wished to place on record his Governmentrs view that the seat of China should be occupied by representatives of the People's Republic of China, and not of the Taipeh authorities. Second Plenary Meeting

9 The Delegate of the Republic of China deplored the introduction of issues irrelevant to the objectives of the Conference. He felt constrained, however, to observe that his own Delegation's position had been repeated frequently during international conferences: namely that the Government of the Republic of China was the only legally constituted representative of that country. Moreover, his Government was a founder member of ICAO, and the credentials submitted at the opening of the present Conference had been found in order by the Credentials Committee. He believed that any challenge to the authority of that body should be considered out of order, and urged the Conference to adopt its report without delay.

10. The Delegate of Korea called attention to Rule 1 (1) of the Rules of Procedure. The Republic of China had been invited by the Council of ICAO to attend the Conference, and the credentials of its Delegation had been found in order by the Credentials Committee.

11. The Delegates of the Socialist Republic of Yugoslavia, the United Arab Republic and Tanzania expressed reserves concerning the credentials of the Delegation of the Republic of China. The Delegate of Tunisia said that his approval of the report of the Credentials Committee in no way implied recognition of all the political entities present at the Conference. The Delegate of the United States of America rewetted that a political issue had been raised, and urged the Conference to proceed with its substantive task as expeditiously as possible. The Delegate of Romania expressed his Government's view that the Government of the Peoplet s Republic of China was the only true representative of that country, that the Provisional Revolutionary ~overnm&t of So~thViet-Nam was the only true representative of that country, and that the Royal Government of National Union was the only true representative of Cambodia.

12. The President assured those speakers that their remarks would be included in the minutes of the meeting.

AGmITEN NO. 8: ORGAKE@"I'ONOF WORK:

(a) Procedure for the consideration of the draft Convention on Unlawful Seizure of Aircraft

(b) Establishment of Commission of the Whole and of Committees as necessary

13 The Conference decided to establish a Commission of the Whole. 14. The Conference Wther decided, subject to consultation3 to establish a Drafting Committee and a Committee on Final Clauses. 1-5 In reply to a question by the Deleate of the Uuited States of America, the President observed that under Rule 6 of the Rules of Procedure, the Conference sitting in Commission of the Whole could decide whether meetings of that body should be open to the public. Second Plenary Meeting

16. The Conference decided to proceed to an introductory General Debate.

AGENDA ITEM NO. 2: CONSIDERATION OF TBE DRAFT CONVENTION General debate 17- The United Nations Observer recalled the resolution of the twenty- fifth session of the United Nations General Assembly, adopted at the 1914th Plenary Meeting on 25 November 1970 (SA Doc No. 21), and called particular attention to paragraphs 9 and 10. The Secretary General's preoccupation with the urgent need to adopt and implement a convention on the unlawful seizure of aircraft was reflected in the introduction to his report on the work of the Uhited Nations Organization, dated lk September 1970 (~/8001I~dd,l). The grave dangers inherent in the strange a tisocial phenauenon of hijacking, whose effects reached across national frontier-,P - must--- be _eli@nated through repressive international legislation. As the Under-Secretary General, Legal counsel of the United Nations Organisation, had stated during the seventeenth session of the Legal Committee of ICAO, the international character of the crime derived not only from the serious problems of international law which it raised, but also from the fact that its prevention was being urgently sought on the universal level. To preserve civil aviation, it was imperative that wrongful acts which endangered it and innocent lives were given a legal status which would ensure as far as possible the prevention of such acts and effective punishment in any cases which occurred. 18. The Delegate of the United States of America said that the threat to life and property inherent in the hijackhg of civil aircraft must be countered by an effective multilateral convention serving as a deterrent to offenders, and ensuring that such offenders would be severely punished. His Government believed that the Convention before the Conference required certain strengthening amendments.

19 The Convention should serve notice that hijacking for whatever motive was universally considered as a serious crime, and not as a mere political offence. It should provide that the State where a hijacker was found must either extradite the offender to another State for prosecution, or prosecute the offender itself. Finally, it should recognize that extradition to the State of registry of the aircraft was a more effective deterrent than extradition to any other State or prosecution where the hijacker was found. Although those provisions might raise sensitive political and legal issues, he was convinced that recent eve~tsdemanded agreement on solutions which might not have been generally acceptable in the past.

20. Although Articles 7 and 8 of the draft Convention were the key to punishment of offenders and thus to its deterrent effect, and should result in the extradition or prosecution of hijackers, the present draft offered considerable discretion to States, and, in certain cases, did not ensure that any action would be taken. The proposals which his Delegption had submitted were intended to accord priority to extradition of hijackers to the State of registration of the hijacked aircraft, and thus to create what it believed would be an effective deterrent. In that connexfon, he supported the proposal that the Convention itself be considered as a multilateral extradition treaty for purposes of extradition to the State of registration by a State which made extradition subject to the existence of such a treaty. Second Plenary Meeting;

21. Although local law or treaty obligations might set certain limitations on extradition, and mandatory extradition to the State of registration might not be possible for some States in all cases, the objective should be to reduce exceptions to a strict minimum.

22. His Delegation would propose that the Convent ion prohibit, the refusal of extradition on the ground that the offence of hijacking was a political one. The draft should contain an unequivocal statement that hijaaking was not considered to be a political offence and should be treated as any other grave, common and criminal offence.

23 Article 7 should be strengthened to specify the obligation to prosecute, and the determination that hijacking was not to be considered a political act would also apply to prosecution. That proposal would not impinge on judicial disposition of a case brought to prosecution; it would require that executive and administrative authorities should tee all steps within their competence to prosecute. In that connexion, his Delegation supported the proposals by Switzerland and other countries for universal jurisdiction, which would require States to establish competence to try hijackers for the offence wherever committed.

24. The Delegate of Greece endorsed the remarks by the previous speaker. It was in the same spirit that his own Delegation would submit a proposal for the amendment of Article 7 of the draft Convention. The purpose of that amendment was to increase the deterrent effect of its provisions. Even if States in which hijacked aircraft landed generally did all that was possible to facilitate the return of passengers, crew and aircraft to their countries of origin, they often failed to tee legal action against the hijacker when the letter claimed the right of political asylum. There were certainly occasions when an individual could justifiably claim such asylum, but his Delegation considered that the hijacker, who endangered lives and property of passengers and of the crew and scorned the international camunity by undermining confidence in the safety of air travel, should under no circumstances be allowed to avail himself of that right.

25 For that reason, the Delegation of Greece proposed that Article 7 of the draft Convention be amended by the addition of a final phrase, to read: "Toutefois, rw es$ absolument intedit dtaccorder asile politique 6, l'auteur de ltinfraction".

26. The Delegate of Japan expressed his Government's preoccupation with the continued acts of hiJacking, despite the strenuous efforts of governments and international organizations to eradicate such crimes. His Delegation considered that whilst the draft Convention was a satisfactory working basis for the elaboration of an effective legal instrument, it.left room for certain improvements. In the first place, it considered that the present definition of the offence of hijacking was not sufficiently comprehensive, and should be amended to take account of unlawful seizure by means other than those mentioned in the draft as well as the actions of accomplices who might not be on board the aircraft involved. Further, the Convention should ensure that no offender would escape fYom justice, by providing either for procedures of prosecution in the State in which he was found, or for extradition to a State which would bring the offender to justice. In that connexion, the draft appeared to embody a basically sound and balanced approach. Second Plenary Meeting

27- Hijacking was a crime generally committed across frontiers, and its effective suppression should therefore be ensured thro@ international co- operation on a global basis. His Delegation believed that the Convention should be open for particiption by all States, and hoped that on the basis of certain precedents the Conference would work out an appropriate formula for that purpo se . 28. The Delegate of Les'otho said his Government believed that international arrangements must be agreed upon for the prosecution and extradition of persons guilty of the unlawful seizure of aircraft. In Lesotho the law provided for prison sentences of varying length to be imposed on those responsible for illegally taking over the control of an aircraft, preventing the crew From carrying out their work or endangering air safety, and extradition arrangements were being considered. His Government supported the principles of the draft Convention and intended to ratify it at the appropriate time.

29 The Delegate of India said his Government was ready to support any measures likely to prevent the hijacking of aircraft and welcomed the preparation of the draft Convention. It believed, however, that the text proposed would not provide a complete solution to the problem and that, as the Indian delegation had proposed on an earlier occasion, the whole question should be the subject of further study with a view to encouraging States to enact supporting national legislation.

30 The Delegate of Guatemala expressed his Government's deep concern over the question and its firm intention to continue to take preventive and punitive action within the framework of national and internat ional legislation. It found the draft Convention generally acceptable and hoped its adoption would lead to a greater respect for the rule of law.

31 The Delegate of Indonesia said that his Government was also most disturbed by the acts of piracy which hindered the operation of air transport and jeopardized air safety. It supported the draft Convention and wished to ivge the States represented at the present Conference to make every effort to reach agreement on a final text likely to act as an effective deterrent to hijacking and to ensure the prosecution and punishment of offenders.

32 The Delegate of the Union of Soviet Socialist Republics expressed his Governmentts appreciation of the spirit of co-operation prevailing in international consideration of the question of hijacking. It could safely be said that air transport contributed to the promotion of social progress and the developnent of international understanding and consequently to the establishment of world peace. His Government therefore welcomed the preparation of the mft Convention and the action taken by ICAO to deal with the threat of hijacking which not only affected air safety and the smooth running of civil airlines but could also imperil world security. Second Plenary Meeting

33 International co-operation in action to prevent hijacking was of political as well as practical importance as was shown by the interest displayed in the question during the current year by the Security Council and the General Assembly. It was to be hoped that all States would respond to the appeal made by the latter to work out a truly universal convention, for only then could action against hijacking be truly effective. 34 In that connexion, his Government regretted that the German Democratic Republic, a country situated at the centre of many air routes, had not been invited to attend the present Conference. According to the principle of !miversality all Sovereign States should be granted the right to participate in international meetings.

35 His Delegation intended to take into account all aspects of the unlawful seizure of aircraft during consideration of the draft Convention, but attached particular importance to the need to ensure that offenders could not escape punishment. Hijacking must be considered as a serious criminal offence and hijackers extradited to the State of registration of the aircraft involved for criminal prosecution. The Convention must also cover the unlawful seizure and diverting of aircraft on domestic as well as international flights. Furthermore, hijacking should be considered as an offence in itself and no account should be taken of any political motives behind it. The offence could not be condoned on any account and political considerations could not take away from its gravity. The party most directly concerned was the State of registration and the Convention must provide for the extradition of hijackers to such States. Article 3 of the draft Convention should be strenghthened in that respect.

36 The International Transport Workers* Federation Observer, speaking on the invitation of the Chairman, said his Organization sincerely hoped that the following points would be brought out clearly in the onv vent ion: first of all, that hijacking would be defined as an international crime and States Parties to the Convention obliged to punish it severely, preferably by long prison sentences; secondly, that hijacking would be considered solely as a criminal offence threatening air safety and endangering human lives and that political motivations could on no account either mitigate or excuse it, and lastly, on the grounds that extradition provided the most powerful deterrent to potential hijackers, that offenders should be extradited to the State of registration or that a State which did not extradite a hijacker should itself take criminal proceedings against the offender. No sanctuary should be given to hijackers.

37. The Delegate of Hungary said his Government believed that air safety could only be re-established if all States imposed severe sanctions on hijackers. It supported the draft Convention in general but, believing that no international instrument could be really effective unless universally ratified and implemented, hoped that every effort would be made to encourage all States to adhere to it. Second Plenary Meeting

38 The Delegate of Finland said that although his Government had submitted no detailed comments on the draft Convention, it had taken an active part in the preparatory work and continued to give the subject a most careful consideration. In particular, it had examined the legal difficulties which might be involved with regard to national legislations when the Convention came into effect, and had asked itself whether the text as drafted was firm enough to be effective, and at the same time flexible enough to take account of all the problems inmlved. Its conclusion had been that although it would be necessary to work out a number of arrangements for the satisfaction of +he first consideration, and although the draft represented minimum standards which might require greater detail for effectiveness and strength, the basic aim should be a fairly-general approach to the issue which would make adoption of an instrument easier and- secure the greatest possible consensus. His Delegation, therefore, adopted a positive attitude to the present draft, and reserved its right to speak again when the text was examined in detail.

39 The Delegate of Jamaica commended the convening of the Conference as a further step towards the solution of an issue which was of supreme importance. Further difficulties would &ubtless lie ahead but recent experience showed the need for courageous action in the elaboration of measures which would accord no sanctuary to those guilty of the offence of hijacking. In that connexion, participation in the Convention should be open to all States without except ion.

40. The State of registration was obviously of considerable importance in any provisions which might be adopted, but account should also be taken of the practice sometimes adopted in civil aviation of registering aircraft in States other than those of the operator concerned. In such cases the State of the operator was of vital interest, and should be assimilated - in Article 4 of the draft Convention in particular - to the State of registration. 41. Steps should be taken to create the necessary machinery for the expeditious ratification of the Convention and to ensure that it became effective as rapidly as possible.

42. The Delegate of the Bulgarian People's Republic, whose country had been among the first to experience an act of unlawful seizure of an aircraft, in 1948, shared the anxiety of other speakers concerning the recent increase in such incidents, some of which had been of extreme gravity. The Conference was more than timely; safety in flight was a primordial issue, and the Convention must be universally applicable and open to participation by all States, without exception. He thought particularly of the German Democratic Republic and the People s Republic of China.

43 His Delegation had already had the occasion, during the seventeenth session of the ICAO Legal Committee and the Seventeenth (~xtraordinar~)Session of the Assembly, to express its views concerning such questions as the compulsory extradition of offenders to the State of registration and the non-applicability of the right of political asylum.

h he meeting adjourned at 1645 hours) THIS PAGE INTENTIONALLY LEFT BLANK THIRD PLENARY MEETING

(~ednesda~,2 December 1970 at 1000 hours)

President: Professor W. Riphagen

AGENllA ITEM NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

General Debate (con't) 1. The Delegate of Malaysia said that his Government believed that the only effective deterrent against unlawful seizure of aircraft would be to recognize it as an international crime punishable with maximum severity.

2. The Tokyo Convention provided' only a partial solution to the * problem, and the draft Convention prepared by the Legal Ccamnittee would, if approved, establish the first set of international rules applying specifically to the unlawful seizure of aircraft.

3. His Government considered tfat draft to be generally acceptable, but the question of jurisdiction in Article 4 needed clearer definition to avoid possible conflict. Moreover, because severity of punishment might vary frm country to country, Article 3 should specify the penalties applicable.

4. The Delegate of France considered that any international machinery must be acceptable to a large majority of States. Such acceptance might mean sacrificing individual legal traditions. A perfect text could not be expected, but a balance had to be struck, and some of the proposals already made might disturb that balance. However, his delegation was not against changes, only against destructive ones. It would return to that matter during the detailed discussion of the text.

5. The Delegate of the Polish People's Republic said that it was necessary to create conditions in which unlawful seizure, regardless of motivation or circumstances, would beccane unprofitable. Every such act should be considered as a grave ccamnon crime punishable by mandatory unconditional extradition to the State of registration and by severe penalties.

6. It was very important to ensure the widest territorial application of the Convention, and to give all States, including the German Democratic Republic, a sovereign State situated in the very heart of Europe, the possibility of becoming parties to it.

7. The Delegate of Costa Rica said that hijacking was a grave danger to peace and that Governments giving asylum to hijackers were contravening all the principles of international law. Third Plenary Meeting

8. He recalled the various resolutions condemning aerial hijacking adopted by the General Assembly and Security Council of the United Nations, which his own country had sponsored. In its recently-prmulgated penal code, Costa Rica had already taken the necessary steps to punish hijacking severely. It was essential that the Convention should provide for the extradition or prosecution of offenders, and action by all States in that connexion was vital. It was also important to deal with the cmplicity of States, since hijackers were encouraged by the idea that they would remain unpunished or even be treated as heroes. Such treatment was a crime against the State in which the aircraft was registered, and Governments granting asylum should be penalized.

9. His Delegation reserved the right to submit amendments at a later stage.

10. The Delegate of Rwanda said that his country was anxious to ensure the safety of air travellers, and hoped that the Convention would be adopted so as to dissuade potential hijackers frm acts of violence.

11. His Government had recently introduced a bill to punish hijacking and intended to ratify the Convention under discussion as early as possible.

12. The Delegate of Spain said that his country was resolved to collaborate in adopting measures to safeguard air transport. Its awn laws incorporated provisions dating back several years which prescribed severe penalties for the unlawful seizure of aircraft and hence would need little amendment to enable the new Convention to be applied. Spain was a party to the Tokyo Convention, had co- operated in zafting the textsubmitted by the Legal C-ittee and considered that text an acceptable basis for arriving at a new Convention.

13. Concern to perfect thinstrument was less important than the decision to implement it. A perfectly drafted Convention which failed to obtain general acceptance would be useless, Consequently, every potential amendment should be inspired by the likelihood of achieving a consensus.

14. The Delegate of Tanzania said that his Government shared the deep general concern and would willingly join in any concerted action to eliminate the unlawful seizure of aircraft. In co-operation with its partners in the East African Canmunity, it was drafting legislation to implement the Tokyo Convention.

15. It considered, however, that any multilateral efforts to conclude a convention on the unlawful seizure of aircraft must take account of the political nature of such acts, which should not be considered as criminal offences per se. Each case of hijacking should be considered on its own merits and in accordance with national laws governing the status of political refugees.

16. The Delegate of Yugoslavia said his country had welcomed the Tokyo Convention and considered that the new convention would be an important step forward. It did, however, realize that the problem had political as well as legal aspects. A clear internation&l instrument was needed, and since the resolution recently adopted by the twenty-fifth Gneral Assembly of the United Nations had already condemned the hijacking, it only remained for the present Conference to decide upon the effective necessary legal machinery. Third Plenary Meeting

17. His Government considered that the draft Convention was a sound basis for the work of the Conference. It attached great importance to the universal application of the Convention, which could be effective ~nlyif all countries, including those which had not been invited to take part in the present Conference, became parties to it.

18. The IFALPA Observer said his Organization'; fifty thousand members had a more than average interest in the outcane of the Conference. His delegation was encouraged by the statements already made, which indicated the possibility of a strengthened Convention. That had seeded unlikely six months before.

19. IFALPA was in favour of the strongest measms, and indeed considered that any State failing to take appropriate action should be deprived of the services of civil aviation. It would submit pr~potalsin that connexion in due course.

20. The Delegate of Canada said that his Government found the basic -provisions of the draft Convention acceptable- but felt that further consideration should go to the matters of prosecution and extradition. Since the Tokyo Convention applied to offences on aircraft in general, the present Conference represented a second stage of effort to evolve an international legal framework meeting the new threat to civil aviation. His delegation would do its utmost to help strengthen the draft through provisions increasing the likelihood of prosecution and extradition for unlawful seizure of aircraft and to strike the necessary balance between universal acceptance and legalistic perfection.

21. The Delegate of the People's Republic of the-congo said his country was anxious to do all it could to prevent hijacking. The treatment, however, had to be measured to the ailment and-what was needed-was a realistic,~balanced~~onvention winning universal acceptance and tzking account of the deep-down causes of the evil.

22. He therefore feared that, with the mass of amendments proposed, the Convention might follow the fate of the Tokyo Convention and long remain a treaty of limited range and application.

23. The Delegate of the Federal Republic of Germany felt that though many potentially useful ideas had been put forward, the Conference ran the risk of departing from the cmpramise reached in the Legal Commission. Resolution A17-3 of the ICAO Assembly had, he pointed out, called upon the States attending the present diplomatic conference to agree on a convention based on the draft Convention prepared by the Legal Committee. His remarks were not intended to imply that there might not be certain details meriting improvement.

24. The Delegate of Uganda said his delegation felt that in seeking the ideal the Conference should not forsake the expedient by hastily adopting decisions of no practical value. He regretfully discerned a number of problems standing in the way of ratification of the Convention arid pertaining to apprehension of the criminals, definition of the crime, prosecution, punishment and - perhaps the biggest problem - extradition. He agreed with the Delegate of Tanzania in that connexion and reserved the right to submit detailed ccmments at a later stage. Third Plenary Meetinn

25. The Delegate of Israel said that in the two years since ICAO had applied itself to the problem of unlawful seizure, events had occurred warranting a-reappraisal of certain provisions of the draft to make it more effective without forgoing such safeguards as were provided within the normal working of the law.

26. In view of certain wanton violent acts of hijacking, malicious destruction of aircraft and detention of passengers and crews under most trying conditions, his Delegation urged close examination of the draft before the Conference so as to ensure that the final Convention reflected the resolution adopted by the United Nations General Assembly on 25 November 1970, with special reference to Articles 2 and 3 of that Resolution, with which Articles 7 and 8 of the Convention should be brought into line so that there should be a clear provision for the prosecution and punishment of hijackers in a manner cmensurate with the gravity of the international crime; failing that, they should be extradited for the purpose of prosecution and punishment.

27. In view of the urgent need to implement the Convention, his Delegation urged the consideration of special procedures and the adoption by the Conference of appropriate resolutions to hasten ratification of the Convention and the enactment of national legislation. In that connexion, the Government of Israel had introduced a new bill of law: The Aviation (offences and Juris- diction) Law, introduced by the Minister of Transport on 16 September 1970. It had been approved by the Knesset on its first reading and was due for final adoption during December 1970.

28. He expressed the hope that concerted action by the Conference would help prmote an atmosphere outlawing perpetrators of all kinds of unlawful interference with air transport and thus preserve the safety of and public confidence in international civil aviation, in much the same spirit of international concern in which piracy at sea had once been eliminated.

29. The Delegate of the United Kingdcm said that his country was most anxious to see hijacking made an unprofitable activity by means of a universally accepted Convention, which should be strengthened to the greatest possible extent canpatible with acceptability to a very substantial number of countries. His Delegation would be making proposals accordingly, while taking full account of all other views.

30. The Delegate of Cambodia declared the principle of the Convention acceptable to his country, which was anxious to see it applied for the sake of rapid prosecution, punishment or extradition, and protection of persons, goods and equipment. The draft as it stood was a bare minimum requirement and needed strengthening with due regard for the importance of gaining very wide acceptance. 31. The Delegate of Thailand said it was fitting and gratifying that his Delegation should be speaking just after that of Cambodia now that diplomatic relations had been restored between Cambodia and Thailand. In that connexion, he wished to express his country's gratitude to ICAO for helping to re-establish civil aviation relations even before diplamatic links had been renewed. Third Plenary Meeting

32. He wished to reserve further camnents on the draft Convention, which should be as widely acceptable as possible and reflect a collective political will to apply a camnon standard for the benefit of all. Hijackers should be regarded as enemies of the human kind and consequently be punishable by all. One of the Conference's main tasks was to provide for the priority of jurisdiction and the right to demand ext.raditior?.

33. The Delegate of Tunisia said that his country associated itself with the whole international camnunity in its recognition- of the need for a concerted solution to the problem of unlawful seizure. There had, however, been references the previous day to specific cases of hijacking and not others. Categories of aircraft capture could not be admitted, nor should political considerations or passions override the technical requirements of safety. Hasty, extreme measures would thwart a realistic and balanced solution. 34. Therefore the draft Convention as it stood, having been drawn up coolly and outside any political arena, would constitute the most realistic and finally most effective remedy. 35. The Delegate of Ireland said that an important as-pect was the fact that many countries represented at the Conference were already parties to extradition agreem~ntswhich they could not alter unilaterally. That did not need to be an insuperable problem, however, if hijacking was made an intermtional offence. New legislation in his country went further than the Tokyo Convention to provide for extradition under municipal law, and his Delegation would be making proposals for amendments to strengthen the conventi.cn while making it universally acceptable.

36. The International Law Association Observer reminded participants that an ILA resolution (SA Doc No. 19) was ore of the documents for consideration by the Conference, in whose urgent work his Association was grateful to be taking part and would co-operate to the utmost.

37. The International Air Transport Association Observer said his Association particularly welccxned suggestions made regarding provisions for the prosecution of hijackers as cannon criminals regardless of political considerations and their extradition, together with the extension of jurisdiction even to the country of registration of the aircraft. They would certainly strengthen the deterrent factor in the Convention, for which world-wide acceptance was also very important.

38. The Delegate ofthe Czechoslovak Socialist Republic said that the basic requirement for efficacity of the Convention was its universality from the outset. He therefore regretted that sane countries, including the German Democratic Republic in the very heart of Europe, had been prevented frm attending the Conference. A further prerequisite for efficacity was acceptance in the Convention of the principle of extradition to the country of registration of the aircraft.

h he meeting adjourned at 1230 ho~lrs) THIS PAGE INTENTIONALLY LEFT BLANK FOURTH PLENARY MEETING

(~ednesda~,2 December 1970 at 1440 hours)

President: Professor W. Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF THE DRAFT COMlENTION

General Debate (con't)

1. The Delegate of Colmbia expressed his Government's sincere hope that the Conference would adopt a Convention which would meet with general acceptance and constitute an effective deterreat to hijacking. His Government was deeply concerned by the question and his Delegation would make every effort to assist in reaching the successful conclusion of a convention.

2. The Delegate of Argentina said he had been interested to note the agreement expressed on certain points by the Delegatione..of the United States of America and the Union of Soviet Socialist Republics, but hoped that neither would insist on drastic alterations to the text of the draft Convention. His Government considered it to be a very suitable text which struck a satisfactory balance between legal theory and practical possibilities. It shared the view that hijacking should be considered as an offence. It believed, however, that the Conference should not confine itself to elaborating a legal definition of the offence but owed it to the international cmunity to adopt a convention likely to improve air safety and to meet with universal acceptance.

3. The Delegate of Italy said his Government considered that the draft Convention provided a very satisfactory and realistic basis for a generally acceptable international instrument which could becme operational rapidly. It would welcme the strengthening of certain clauses with a view to ensuring that offenders were brought to trial and punished, but had reservations about same of the amendments proposed up to the present. His Delegation agreed with the views expressed by the Delegatiorsof France, the Peoplets Republic of the Congo and Argentins.

4. The Delegate of Romania said his Government believed that the offence of hijacking must be considered in the light of the negative effects it could have on international understanding, and, consequently, that participation in the Conference and accession to the Convention must be truly universal. The sphere of application of the Convention should also be widened. It was desirable to arrange for &11States to be represented at the Conference, and particularly regrettable that invitations to attend it had not been extended to the People's Republic of China, the German Democratic Republic, the Democratic Republic of Viet-Nam and the Democratic Republic of Korea.

The President declared the closure of the general debate.

(The meeting adjourned at 1455 hours) THIS PAGE INTENTIONALLY LEFT BLANK FIRST MEETING OF THE COMMISSION OF THE WHOLE

(~ednesda~,2 December 1970 at 1455 houm)

Chairman; Professor W. Riphagen

AGENIlA ITEM NO. 8: ORGANIZATION OF WORK

1. The Delegate of France requested the Chairman to remind the Commission of the implications of the decision to work in commission rather than in plenary, particularly as regards voting on the draft Convention.

2. The Chairman explained that proposals. could be adopted by a simple majority in tk Commission of the Whole but required a two-thirds majorit3 to be adopted by the Conference in plenary meeting. Decisions taken by the Commission were not binding on the Conference but gave a general indication of the attitude of participants to given points. Such decisions were subsequently put to the vote in plenary for a formal decision by the Conference.

3. He called for comments on the suggestion that meetings of the Commission be held. in public.

4. The Delegate of Costa Rica, supported the suggestion.

5 It was agreed that the meetings of the Commission be held in public.

- Article 1 (SA Doc Nos. 7, 8, 15, 16, 18, 19 and 23)

6. The Delegate of the Union of Soyiet Socialist Republics and the Observer of the International Federation of Airline Pilots ' Association said they had submitted proposals to the Secretariat.

7 The Delegate of The Netherlands introduced document SA No. 23. The purpose of the proposed- - amendment it contained was b ensure that accomplices on the ground would also 5e considered guilty of an offence.

The Dele gate of Swit zerland supported the Nether1and.s proposal.

9 The Delegate of Yugoslavia supported the Netherlands proposal in principle, but considered that further amendment of Article 1 might be desirable. First Meeting Commission of the Whole

10. He believed that the Conference would have derived great benefit f'rom the participation of the International Association of Penal Law and regretted that it had not been invited to attend it. Referring to the Preamble to the draft Convention, he believed that it added nothing to the Convention and that the last paragraph might lead to delays in ratification. It might be preferable to delete it. FinaLly he proposed the creation of three working groups to consider respectively Articles 1, 2 and 3, Article 6 and Article 8.

11. The Chairman suggested that the Commission deal with the Preamble after completing its consideration of the Articles of the Convention.

12. The Delegate of Cameroon said that the text proposed by The Netherlands in SA Doc No. 23 was very similar to that which he himself had intended to submit. He therefore supported the former.

13 The Delegate of Costa Rica welcomed the proposal by The Netherlands, which sought to broaden the scope of the Convention.

14. The Delegate of the United Kingdom favoured the principle of the proposal by The Netherlands, but believed that a clearer distinct ion should be made between actual or attempted hijacking carried out on board an aircraft in flight, and complicity in that offence, whether on board the aircraft or on the ground. If called upon to choose between the wording of the Netherlands proposal and that of paragraph 3 (i) in the resolution submitted by the International Law Association (SA Doc No. 19) , he would prefer the latter; perhaps both texts could be referred to the Drafting Committee. 15 The Delegate of Japan said that his Delegation had prepared a proposal identical to the Netherlands proposal concerning Article 1. He therefore endorsed the latter.

16. The Delegate of New Zealand observed that in SA Doc No. 24 The Netherlands proposed an amendment to Article 2 concerning the definition of the term "in flighttt. If that amendment were rejected., he believed that the Drafting Committee should be invited, when it examined Article 1, to address itself to the question of determining that the offence was a continuing offence until such time as control of the aircraft was restored to those lawfully authorized to exercise such control. Unless that point were made perfectly clear, the extradition of an offender could be refused on the grounds that the offence had been committed before the aircraft was in flight, even if as a consequence of that offence the aircraft had actually taken off and landed.

The Delegate of Ireland feared that Article 1, which could be the 179 most vital article of the Convention, might become "a paradise for lawyers" unless it clearly defined the problem and the intentions of those who sought its eradication. He therefore believed that it should contain. a specific definition of the offence, and agreed with the relevant proposal by the Delegation of Ghana (SA Doc NO. 8). The text should also specify that the First Meeting Commission of the Whole

offence was an international one, which could be tried in any jurisdiction and made extraditable in accordance with the extradition laws in force in the countries concerned. Further, the time might come when - by means of electronic or other devices - the offence could be committed outside as well as on board the aircraft, and in that connexion he favoured the amendment suggested by the International Law Association concerning the deletion from the first phrase of Article 1 of the words "on board an aircraft in flight".

18. Observing that the interpretation of the word "unlawfully" could give rise to difficulties when States wrote the Convention into their national legislations, he said that he would prefer it to be replaced by "without lawful authority", and believed that similar problems of interpret~tion concerning such terms as "force", "threat" and "intimidation" could be avoided if Article 1 were drafted in such a way as to make it clear that the offence was committed by any person who without lawful authorfty seized or attempted to seize an aircraft.

19. In the light of the above preoccupations, he welcomed the suggestion by the Delegate of Yugoslavia that small working groups be established to consider the crucial articles of the Convention, together with any proposals or suggestions for the amendment of the draft text.

20. The Delegate of Spain observed that the draft Convention in its present form constituted a system built on a number of basic premises. Amendments to any part of that draft could have repercussions on the systern as a whole; in the present instance, the Commission should consider the possible impact of the Netherlands proposal for the amendment of Article 1 on other articles of the Convention. Whereas the original draft was confined to events taking place on board an aircraft in flight, that proposal introduced the new consideration of acts committed outside the aircraft.

21. The same consideration was introduced in the amendment suggested by the International Law Association, which he himself preferred.

22. The Delegate of Switzerland said that four fundamental questions had been raised so far in the discussion. They concerned the specific naming of the offence; the issue of determining that it was an international offence; the location of the act which constituted the offence and the scope of the Convention in that respect; and the means by which the act was committed. He believed that it would be impossible to examine all those quest ions simultaneously, and requested clarification concerning the procedure to be followed.

23 The Chairman explained that his intention had been to give the floor to any delegation wishing to explain its proposals for the amendment of Article 1, and that the list of speakers was being drawn up on that basis. He was, however, prepared to entertain any other suggestions concerning procedure. First Meeting Commission of the Whole

24. The Delegate of the People's Republic of the Congo recalled that a Convent ion on Unlawful Interference was also being prepared, and suggested that attempted seizures or complicity in such acts might be dealt with in that instrument. He believed that the present Convention should be confined to actual unlawful seizure. He approved the suggest ion concerning the establishment of a working group to examine the proposals by The Netherlands and the International Law Association, and hoped that the group would bear his observation in mind.

25 The Delegate of the Czechoslovak Socialist Republic considered the Netherlands proposal to be a useful one. He further suggested that in view of the gravity of unlawful seizure, the offence should be referred to in the Convention as "a serious crime".

26. The Delegate of India expressed sympathy for the Netherlands proposal, but agreed with the Delegate of Spain that its possible impact on other articles should be consid.ered. He favoured the establishment of a working group to look into the question.

27 The Delegate of Jamaica also believed that a working group should be set up to compare the original draft of Article 1 with the proposal by The Netherlands. The former located the offender on board an aircraft, while the latter distinguished between offenders on board an aircraft and those on the ground. The Conference would have to select one of those concepts, and a working group could assist it in resolving the dilemna.

28. The Delegate of Thailand said he would be in favour of the widest possible definition of the offence. The Netherlands amendment was an improvement on the original text and he supported it, but he would be ready to support other proposals leading to a further widening of the definition, and looked forward to hearing the comments of the International Law Association Observer. There was no doubt that the offence was an international crime but there was no need to give it a name.

29 The Delegate of France said he would be in fawur of the original text of Article 1 which represented a synthesis of the long preparatory work already undertaken. He was opposed to the suggestion made by the Inter- national Law Association to delete the words "on board an aircraft in flightt1 from the first line - the text must include an indication of the principal offender. He had more sympathy for the Netherlands proposal but considered that it needed further clarification, and possibly some redrafting. Was sub-paragraph (b) intended to cover a person who attempted "to perform such an act" whether on board an aircraft or on the ground? The text must be absolutely clear and precise and no room must be left for misinterpretation. He hoped the Netherlands proposal would be put to the vote and that the Commission would be invited. to vote on Article 1 as a whole as soon as possible. He saw no point in setting up a working group to discuss it. First Meeting Commission of the Whole

300 The Delegate of the United Arab Republic regretted he was unable to support the Netherlands aim to consider accomplices on the ground as offenders under the Convention. The whole point of negotiating the Convention was to provide for the prosecution of offenders out of reach of national jurisdiction by virtue of the fact that they were on board aircraft in flight. Accomplices on the ground were subject to prosecution according to the law of the land.

31 The Delegate of Sweden supported the suggestion concerning the establishment of a working group, which could provide valuable assistance in ensuring that the Convention contained as few loopholes as possible. He believed that particulax consideration should be given to the necessity of maintaining the term "in flight" in the text of the Convention.

32 The Delegate of Romania supported the Netherlands proposal in principle, but believed that sub-paragraph (b) should refer to "instigators" as well as "accomplices", since the penal laws of many countries accorded different treatment to offenders in each category. He also believed that the text of the Convention should contain a clearer definition of attempted acts.

33 The Delegate of the Union of Soviet Socialist Republics proposed that the final phrase of Article 1 be amended to read " .. . commits a grave crime {hereinafter referred to as 'the crime ') ." 34 The Delegate of Australia said that he was generally satisfied with the text of Article 1 as drafted, and would oppose any changes on the lines proposed by The Netherlands and tk International Law Association. The Preamble to the draft Convention clearly determined its scope, and he urged the Commission to remain within those terms of reference. Attempted seizure or complicity on the ground should be covered by the domestic criminal law of the State concerned, and required no international provisions.

35 The Delegate of Zambia was aware that the draft text was the product of much hard work and considerable compromise, and that it probably constituted the text most likely to secure a maximum consensus of approval. Nevertheless, he believed that a working group might be set up to examine the proposals for amendment, and particularly those submitted by the International Law Association, which retained the concept of an aircraft in flight but at the same time took account of offences which might be committed against that aircraft by persons not actually on board. As other speakers had observed, such offences could be committed in the future, and the Convention should provide for that eventuality.

he meeting adjourned at 1715 hours) THIS PAGE INTENTIONALLY LEFT BLANK SECOND MEETING OF THE COMMISSION OF THE WHOLE

(~hursday, 3 December 1970 at 0335 hours)

Chairman: Professor W. Riphagen

ArnDA ITrn NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 1 (continued)

1. The Delegate of Tunisia pointed out that in its two sessions the legal Subcommittee had already decided to exclude acts on the ground from Article 1 because of the urgent need to deal with the essential question of seizure in flight, with its special threat to safety.

2. He feared that a diluted Article 1 would lose in efficacity and felt that the Conference should not attempt to transform itself into a new legal committee or subcommittee.

3 The Delegate of Kuwait expressed doubts about the Ghana I>elegatets suggested use orthe term "air piracy", not as yet defined in international law. "Aerial hijacking" might be suitable.

4. Incidentally, he agreed with those speakers who on the previous afternoon had felt it preferable to retain paragraph 2 of Article 4 for the sake of unanimity.

5 The Delegate of Austria said his Delegation favoured extension of the scope of Article 1 to some offences on the ground; they clearly came under the jurisdiction of the country in which they occurred, and all the necessary evidence should be readily available. Punishment would be obligatory under Article 3.

6. He feared that an attempt to introduce a strict obligation to extradite hijackers to the country of registration of the aircraft would raise difficulties.

7. The Delegate of Greece, in view of the amendments proposed by several speakers to the draft text prepared in Montreal, called for a precise definition of the purpose of the Conference. The ICAO draft concerned hijacking alone, while the London draft covered acts on the ground, in an aircraft outside the actual flight period and other acts on board not constituting piracy. It should be decided forthwith whether the present Convention was to embody the London provisions or confine itself to unlawful seizure in flight, in which case only the Montreal draft should be studied. Second Meeting Commission of the Whole -

8. The Delegate of Mexico considered that the structure of the Convention would not be affected by extension to cover acts outside the actual flight period. Hijacking should be considered as a whole since the hijacker on board might not be the only person responsible. The Convention would be incomplete without provision for the punishment of accomplices. The whole problem of hijacking might be dealt with under domestic legislation, with the international obligation to punish offenders. Hijacking would, he hoped, be recognized universally as a crime, just as murder was, so that there would be no need for a distinction between "national" and "international" offence.

9 - The Delegate of Ghana had two comments to make: first, in order not to duplicate the work of the Legal Committee, care should be taken not to propose controversial amendments; if working groups were established they should be given restricted terms of reference so as not to destroy the present draft.

10. As Ghana's proposal regasding Article 1, embodied in SA Doc No. 8, sought to identify the offence and was not controversial, he trusted that it would be adopted.

11. The Delegate of Iran considered the ICAO draft acceptable and as balanced as possible. Since there was to be a second draft on other offences, the Convention should cover only hijacking during flight and he hoped that the Conference would give greater weight to what the Legal Committee had decided.

12. The Delegate of the Federal Republic of Germany said that while in sympathy with the Netherlands proposal, he felt that the draft should be left in its present f om.

13 The Delegate of Brazil said he would vote for the Netherlands proposal, though the draft as it stood was acceptable. The International Law Association proposal could perhaps also be taken into account.

' 14. He supported the USSR proposal to make unlawful seizure a "grave crime". 1.5 With regard to Ghana's proposal to name the offence, he felt it important to find a term acceptable in the three languages. "Hijacking", being scarcely translatable, might not be appropriate.

16. The Delegate of Costa Rica, speaking on a point of order under Rule 11 of the Rules of Procedure, called for closure of the list of speakers on Article 1 and said that his Delegytion could not agree to the suggestion to set up wor~inggroups.

1.7. After a short discussion in which the Chairman and the Delegates of the United States of America and Switzerland took part, it was decided to close the list of speakers on the Netherlands and International Law Association amendments, and to vote on those amendments.

18. The Delegate of Malaysia said that his Delegation had no objection in principle to extending the scope of the Convention, but ~elt.that conflicting claims might arise regarding jurisdiction. Other articles would need amendvent, which would either mean setting up a new group or regtiesi,ing the Legs1 Corrmittee to revise the text. It was preferable to keep :he prasc:ct draft, which could be more quickly ratified and 120re widely accepted. Second Meeting Commission of the Whole

19. The Delegate of the Netherlands explained that his delegation wished to respect the Legal Committee's decisions, but also to try to improve the Convention with regard to points not discussed by the Legal Committee, which had only had eight days for its drafting.

20, Some delegations had asked whether the words "on board" and "in flight" in Article 1 could not be deleted, but since the Legal Committee had discussed that matter thoroughly, his delegation did not want to question its decision.

21. Even if the Netherlands amendment were adopted, the main offence would remain the unlawful seizure of an aircraft in flight by a person on board that aircraft. In his delegation's view an attempt should be covered only if it were directed to that main offence. A distinction had to be drawn between "attempt" and "complicity" and between "on board" and "in flight". It was obviously possible to be an accomplice without being on board an aircraft, but an attempt by a person not on board was theoretical and would seldom happen. Concerning the words "in flighttt, he pointed out that there was always some time between embarkation and take-off. The importance of covering attempts made while the aircraft was not in flight depended on the definition of the motion of "in flight". His delegation had submiited a definition of "in flight" in a further amendment (SA Doc No. 24); if that amendment were adopted there would be no particular need to cover the case of attempted hijacking by persons on board an aircraft in flight or on the ground which had been mentioned by the Delegate of the United Kingdom. He agreed with the Delegate of Spain that since all the parts of the Converntion were inter- connected, some re-drafting would be needed.

22. The ILA Observer said that the purpose of the ILA amendment was the same as that of the Netherlands proposal, i.e., to improve rather than to alter fundamentally the Legal Committee draft. It sought to implement more faithfully than the draft the notion of aircraft in flight contained in the Preamble by gringing within the scope of the Convention all persons jeopardizing the safety of an aircraft in flight, wherever they happened to be, for it was now quite possible for persons outside an aircraft unlawfully to seize control of it, for instance, by threats against a person on the ground. With regard to the camment by the Delegate of Australia, he pointed out that if an aircraft were seized by persons on the ground, its safety would be jeopardized just as much as that of an aircraft in flight.

23 The effects of the proposed amendment on other provisions of the Convention would be minimal, and no structural changes would be required.

24. After a discussion in which the Delegates of Spain, Italy and the People's Republic of the Congo took part, -the Chairman confirmed that the ~nglish- text of the draft convention was the original, and suggested that a vote be taken on the ILA amendment first, since it was the furthest removed from the text of the Legal Committee.

25. It was so decided.

26. The Observer for the International Transport Workerst Federation (ITF) said he supported the principle of the amendmeats proposed by the ~etherlandsy by the International Law Association and by IFALPA, since all loop-holes should be plugged. In recent incidents hijackers had been assisted with impunity. He considered that effectiveness was just as important as universality and that the Conference should work for both.

27. The Chairman announced that the International Law Association and the Netherlands amendments would be put to the vote forthwith. Other amendments to Article 1 would then be discussed. Second Meeting Comnission of the Whole

28. The Delegate of France, speaking on a point of order, asked whether there were any other proposals in order concerning Article 1.

29 The Chairman replied that all the proposals were before the Conference, though they could of course be withdrawn.

30- The Delegate of Thailand, speaking on a point of order, said he agreed with the Delegate of Spain that the ILA proposal should be put to the vote first . but his delegation was in favour both of the ILA amendment and of that proposed by the Netherlands. Should the ILA proposal be adopted there would be ,no need to vote on that of the Netherlands.

31- The Chairman confirmed that that was the case.

Vote on SA Doe 19o. 12

32 The resolution of the International Law Association (SA Doc No. 19) was rejected by 35 votes to 15, with 14 abstentions.

Vote on SA Doc No. 23 33 The resolution of the Netherlands (SA Doc No. 23) was rejected by 35 votes to 24, with 11 abstentions.

34 The Delegate of India, explaining his vote, said that though in sympathy with the Netherlands proposal, he had abstained in view of the difficulties and complications it would raise for the other parts of the Convention.

35. The Delegate of the Union of Soviet Socialist Republics, explaining his vote, said his delegation was not against the punishment of criminals operating from outside the aircraft, but in such cases national legislation could be applied and ICAO was anyway preparing another draft to cover such cases. He had therefore voted against both proposals.

36 The Delegate of Greece, explaining his vote, said he had abstained because his delegation had been awaiting clarification as to whether there was to be one Convention or two. It ought to be decided clearly whether to retain the present tex$ or incorporate certain provisions of the London draft. 37. The Chairman replied that the Conference had to prepare a Convention on unlawful seizure and not on other acts such as sabotage. The amendments proposed by ILA and the Netherlands had still been within the scope of the Conference

38 There remained three proposals for amendment of Article 1: SA Doc No. 16 of Japan; SA Doc No. 15 of Mexico; and SA Doc No. 18 of Ireland. 39 The Delegate of Japan said that if other delegations thought that his delegation's proposal would not strengthen the Convention, he would not press for a vote on it.

40. The Delegate of Mexico pointed out that there were discrepancies in the three language versions of Article 1 of the Convention and that only the English text, being the original, was authentic. It was clear that in the final document there should be a reference to force and the threat of force. He also thought that provision should be made for "any other form of intimidation", which covered such other forms of moral violence as blackmail. Second Meeting Commission of the Whole

41 The Chairman observed that it would be for the Drafting Committee to ensure that the three versions tallied.

42. The Delegate of Ireland considered that the words "by force or threat thereof, or by any other form of intimidation" were superfluous in Article 1 since they referred to additional elements which had to be proved and would therefore place an extra burden on the prosecution. It would be sufficient to retain "unlawfully seizes or exercises control ..". 43- In reply to a question bythe Chairman, he said he felt that his suggestion should be referred to the Drafting Committee rather than be put to the vote.

44. The Delegate of France regarded the problem raised by the Delegate of Ireland as a matter of substance. The word "unlawfulljr" was a reference to national laws. The essential element was force or the threat of force, and that, in French usage at least, covered other forms of intimidation. Such matters were beyond the scope of a Drafting Committee.

45 The Delegate of Ireland withdrew his proposal.

h he meeting adjourned at 1235 hours ) THIS PAGE INTENTIONALLY LEFT BLANK PLENARY MEETING

December 1970 at 1440 hours)

President: Professor W . Riphagen

AGENDA ITEM NO. 6: ELECTION OF VICE-PRESIDENTS OF THE CONFERENCE

1. The Delegate of Costa Rica proposed the election of H.E. Mr. P. Beb-A-Don, Ambassador of Cameroon, to the office of vice-President of the Conference.

2. H.E. Mr. P. Beb-A-Don was elected by acclamation.

3 The Delegate of India proposed the election of Mr. V.J. Delascio, Venezuela, to the office of Vice-President of the Conference.

4. Mr. V.J. Delascio was elected by acclamation. 5 The Delegate of the People's Republic of the Congo _proposed the election of H.E. Mr. V. Mali, Ambasshaor of the Czechoslovak Socialist Republic, to the off ice of Vice-President of the Conference.

6. H.E. Mr. V. Mali was elected by acclamation.

7 The Delegate of the Kingdom of the Netherlands proposed the election of Mr. Soesanto, Indonesia, to the office of Vice-President of the Conference.

8. Mr. Soesanto was elected by acclamation.

(The meeting adjourned at 1450 hours) THIS PAGE INTENTIONALLY LEFT BLANK .THIRD MEETING OF TKE COMMISSION OF THE WHOLE

(Thursday, 3 December 1970 at 1450 hours)

Chairman: Professor W. Riphagen

AGENlYl ITEM NO. 9: CONSIDERATION OF TRE IlRAFT CONVENTION

Article 1 (~ont'd)

Proposal by Ghana (SA Doc No. 8)

1. The Delegate of Ghana introduced the proposal. Considering that it would be convenient if the offence with which the Convention was concerned were identified by name, his Delegation had originally proposed "air piracy" or "aircraft hijacking" in that connexion. Further ref lexion on the matter and informal consultations with other members of the Conference had revealed that there might be some difficulty in adopting those terms. The Delegation wished therefore to propose "unlawful seizure of aircraft" as a further alternative.

2. The Delegate of Spain, supported by the Delegate of Costa Rica, agreed that the offence should be named in the strongest terms acceptable, and expressed a preference for the third of the alternatives proposed by Ghana.

3 The Delegate of Colombia favoured the term "piracy" as indicating more exactly the nature and gravity of the offence.

4. The Delegate of the People's Republic of the Congo said that after reflecting on the question, he wondered whether the identification of the offence by name was really necessary, in view of the fact that a generally acceptable name of the desired simplicity might be difficult to find. If, however, it were decided to include &ch identification, he would suggest the term "capture illicite et violente des a6ronefsW.

5 The Delegate of France, although his preoccupation was with the efficacity of the Convention rather than its title, preferred the term suggested by the previous speaker. If, however, examination of all possible terms revealed that it would be difficult to arrive at a generally acceptable name, the wisest course might be to leave the original draft unaltered.

6. The Delegate of Canada said that precision in the terms employed in the Convention would assist national legislators in being equally precise. One of the advantages of the proposal by Ghana was that identification of the offence by name would give the Convention greater publicity. His own Third Meeting Commission of the Whole

suggestion was that the text of Article 1 be left unchanged, and that, if deemed necessary, the name of the offence be included in the title of the Convent ion, although the latter, whatever its title, would doubtless be referred to by the public as the "Hijacking Convention".

7. The Delegate of the United Kingdom said that use of the term "piracy" could cause confusion with the term "piracy jure gentium". He believed that if the adoption of any name for the offence would interfere with the ratification of the Convention by any State, it would be preferable to avoid such identification.

8. The Delegate of Uwda suggested that as practically all acts of hijacking involved the diversion of aircraft from their course, the name of the offence might include the term "diversion".

9 The Delegate of the Socialist Republic of Yugoslavia urged the Commission not to spend excessive time on the issue. He observed that Chapter TV, Article 11 of the Tokyo Convention referred to "seizure" of an aircraft, and agreed with earlier speakers that use of the term "piracy" could give rise to difficulties. He believed that the Drafting Committee should be invited to examine the question.

10. The Delegate of Kenya preferred the title "Convention on Unlawful Seizure of Aircraft", and said that the term "offence" in the text might be expanded by the addition of the phrase "popularly referred to as hijacking".

11. The Delegate of New Zealmd said that legal difficulties concerning the interpretation of Article 1 might be avoided if the original draft were left unchanged; the desired publicity might be given to the Convention if its Preamble included the words "acts of aerial hijacking", which were employed in the resolution of the Twenty-Fifth Session of the United Nations General Assembly.

12. The Delegate of Switzerland suggested that the debate be closed and the matter referred to the Drafting Committee.

The Chairman suggested that the Commission might usefully 130 determine in the first instance whether or not it desired the offence to be identified by name in Article 1 of the Convention. 3.4. The Delegate of the Byelorussian Soviet Socialist Republic believed that the question of the title of the Convention should be left until all its articles had been examined and adopted.

15 The Delegate of Tunisia considered that the term employed by the United Nations might be acceptable.

16. The Chairman recalled that the Commission had deferred consideration of the title of the Convention and of the Preamble until it had completed its discussion of the Articles. Third Meeting Commission of the Whole

17'- The Delegate of India believed that the offence should be named, but was opposed to the use of the term "air piracy".

18. The Chairman called for a vote on the Ghanaian proposal to add in the last line of Article 1 after the word "offence" the words "unlawful seizure of aircraft".

19 The proposal was rejected by 21 votes to 17, with 14 abstentions.

20. It was agreed that the offence should not be named in Article 1.

Proposal by the Union of Soviet Socialist Republics (SA Doc No. 32)

21. The Delegate of the Union of Soviet Socialist Republics introduced the proposal which called for thE replacement of the word "offence" by the words "grave crime".

22. The Delegate of Yugoslavia believed it more in line with customary penal provisions to allow the gravity of the act to be determined according to the penalty imposed. The terms of Article 3 already made the seriousness of hijacking clear.

23 The Delegate of Bulgaria fully supported the proposal. The offence was an extremely serious one and deserved to be severely penalized. Unfortunately, some offenders were not punished as they should be. The strengthening of Article 1 on the lines suggested would have the advantage of bringing out the exceptional gravity of the crime and the obligation of States Parties to the Convention t6 impose severe penalties on offenders.

-\ 24. The Delegate of Hungary also supported the proposal for the reasons described by the previous speaker.

25 The Delegate of Lebanon believed it would be unsuitable for the Conference to make an appreciation of the gravity of the act in Article 1, but suggested that such mention might be included in the Preamble.

26. The Delegate of Tunisia shared the views expressed by the Delegates of Yugoslavia and Lebanon.

27. The Delegate of India, while understanding the purpose of the amendment, thought it might be preferable to find some other means of bringing out the point. The Commission might request the Drafting Committee to consider the matter and put forward alternative suggestions. Article 3 might be brought forward to become Article 2.

28. The Delegate of Brazil agreed with the replacement of the word "offence" by the word "crime" but not with the inclusion of the word "grave". The gravity of the acts committed by different offenders must be judged according to the circumstances. Third Meeting Commission of the Whole

29 The Delerntes of Romania, Costa Rica, Czechoslovakia and Poland supported the proposal.. The gravity of the act must be stressed to discourage potential offenders and render the Convention more effecsive. 30- The Delegate of Frrrace fully understood the purpose of the proposal but believed it preferable not to amend Article 1 on the lines suggested. The seriousness of any criminal act was judged according to the penalty inflicted, and Article 3 already covered that point.

31 The Dele~ateof the People's Republic of the Congo also agreed with the purpose of the proposal but found it preferable to avoid amending Article 1 as suggested. The main point, that of ensuring that offenders were severely punished, was covered by Article 3.

32 The Delegate of Spain agreed that the offence should be severely punished, but believed it would be a mistake to amend Article 1 on the lines suggested. The same distinction between crimes and offences was not drawn in all penal. codes and pcissible trslcslation problems should be avoided.

33 The Delegate of Austria did not support the proposal although he agreed that penalties should be severe. Referring to legal terminology in general, he pointed out that the current trend was to abolish distinctions between various types of offences, and that it would therefore probably be wiser to use a general term to cover the act of hijacking. 34 The Delegate of the United States of America said he could agree with the use of either word, "offence" or "crime". 35 The Delegate of Sweden said there would be no difficulty in translating either word into Swedish. He did not, however, favour qualifying the act by the inclusion of the word "grave", since the various persons involved in any single act of hijacking would not all be guilty of offences of equal gravity.

36 The Delegate of Yugoslavia suggested that the text of Article 3 might be added to the end of the text of Article 1.

37. The Delegate of Venezuela said that the gravity of the offence, as reflected in the proposal, was generally recognized. Nevertheless, he agreed with the Delegate of Spain that to employ the term "grave crime" in Article 1 would cause terminological difficulties in connexion with the domestic legislation of various States.

38 The Chairman put to the vote the proposal by the Union of Soviet Socialist Republics.

39 That proposal was rejected by 27 votes to 15, with 25 abstentions. Third Meeting Commission of the Whole

40. The Delegate of India recalled the large measure of agreement with the sentiment which had inspired the proposal. Observing that Article 3 as drafted underlined the gravity of the offence by calling for the imposition of severe penalties, he expressed the hope that its seriousness might also be reflected, for purposes of publicity, in the Preamble to the Convention.

41. The Chairman concurred with the Delegate of France that the question of presenting the approved texts in a manner which reflected most accurately the importance attached by the Conference to the various issues should be left to the Drafting Committee, which would then submit its proposals for final adopt ion.

42. It was so agreed.

Question whether Article 1 of the Convention should expressly state whether the aircraft should be those registered in a contract in^: State or registered in any State whatever (Report of the Legal Committee (Seventeenth Session1 on the subject of Unlawful Seizure of Aircraft1

43 The Chairman called attention to paragraph 8.2 of that Report, contained in ~ow~:/161,page 3, which stated that the question had been referred to the present Conference. The Delegation of Japan had commented on the matter in SA Doc No. 16.

44. The Delegate of Austria believed that in view of the gravity of the crime, which, by endangering international traffic, constituted a violation of human rights, it should be made clear that the terms of Article 1 applied to offences committed against all aircraft, registered in any State whatever, whether used in international or national traffic.

45 The Delegate of New Zealand, supported by the Delegate of the United States of America and Japan, proposed that the Convention apply to all civil aircraft registered in any States whatever, whether they were Contracting or non-Contracting States.

46. It was so decided.

Proposal by Japan (SA Doc No. 36)

47. The Delegate of Japan presented the proposed amendment contained in sub-paragraph (b) of the document.

48. The Delegate of Trinidad and Tobago seconded the proposal.

49 It was agreed to defer consideration of the proposal until the following meeting and, on the suggestion of the Delegate of France, supported by the Delegate of the Peoplets Republic of the Congo, to vote subsequently on Article 1 as a whole.

(!The meeting adjourned at 1725 hours) THIS PAGE INTENTIONALLY LEFT BLANK SIXTH PLENARY MEETING

(~rihy,4 December 1970 at 0940 hours)

President: Professor W. Riphagen

AGENU ITEM NO. 8: ORGANEXTION OF WORK

(b) Establishment of Commission of the Whole and of Committees as necessary

1. The President suggested that; the meeting leave him to appoint the members of the Drafting Committee and the Committee on Final Clauses. Both Committees would consist of representatives from France, %he United Kingdom, the United States of America, the Union of Soviet Socialist Republics and four or five other members chosen in accordance with the usual principle of balanced geographical distribution.

2. It was so decided.

h he meeting adjourned at 0945 hours) THIS PAGE INTENTIONALLY LEFT BLANK FOURTH MEE!TING OF TKE COMMISSION OF THE WHOLF:

(~rida~,4 Decanber 1970 at 0945 hours)

Chairman: Professor W . Riphagen

AGmITEM NO. 4: CONSIDERATION OF THE DRAFT CONVEN!l'ION

Article 1 (~ont'd)

1. The Delegate of Japan said that he would withdraw his proposal in order to expedite the work of the Conference.

2. The Chairman called for a vote on Article 1 as it stood in the text of the Legal Committee. 3 - Article 1 was adopted by 46 votes to none, with 8 abstentions.

4. The Chairman recalled that documents SA 18, 24, 29 and 37 contained amendments to Article 2, submitted by Ireland, the Netherlands, IFALPA and the United Kingdom respectively. 5 The Delegate of the Netherlands pointed out that there was a typing error in SA Iloc No. 24; the word "all" should be inserted between "at the moment when" and "its external doors", to bring the text into line with that of the Tokyo Convention. His Delegation, while prepared to accept the United Kingdom amendment, nevertheless wished to maintain its own.

6. The Delegate of Tanzania supprted the idea of extending the definition of "in flight" as set out in the Netherlands amendment.

7- The Delegate of the United Kingdom said that the correction made by the Netherlands delegation to its amendment meant that the substance of the first part of his own amendment was now the same as theirs. At a recent meeting, the Legal Committee had agreed that the "cut-off" point should be the closing of the external doors of the aircraft, and his Delegation agreed with that interpretation. The United Kingdom amendment was intended to make the Convention apply in cases when an aircraft was forced to land in circumstances where there were no competent authorities on hand to deal with the situation. The expression "forced landing" was intended to cover technical as well as human emergencies. It might, however, be possible to express the idea better, and his Delegation was willing to leave the matter to the Drafting Committee. Fourth Meetinq Commission of the Whole

8. The Delewte of Australia agreed with the Delegates of the Netherlands and the United Kingdom concerning the need to extend the scope of the Convention, but felt that their proposals did not go far enough.

9 At the London meeting of the Legal Cornittee it had been pointed out that hijacking could take place during pre-flight handling, refuelling or taxiing, and not only during the period when the external doors were closed or open. That was why the concept of "in service" rather than =in flightw had been adopted at the hndon meeting. He proposed that that definition be adopted for Article 2, which would then read:

"For the purposes of this Convention an aircraft is considered to be in flight from the moment of the beginning of its pre-flight handling until final parking at its ultimate destination in its home country."

10. Domestic law would normally be applicable in such cases, but successful acts of seizure had in fact taken place during refuelling, before, during or at the end of a flight; the aircraft had been flown away and the domestic authorities had had no opportunity to take action. An international convention was therefore needed in addition to the domestic lw covering those circumstances.

11. The Delegate of the Socialist Republic of Yugoslavia supported the proposal of the United Kingdom.

12. The Delegate of Tunisia thought that the Legal Committee's text was closer to reality, whereas the suggestions of the Netherlands and United Kingdom Delegations involved a legal fiction. A legal instrment did not need to go into such detail; if the amendments were adopted he saw no reason not to include a requirement that windows, holds etc. had to be closed before an aircraft could be considered as being in flight.

1-3 The Delegate of the United States of America fully supported the United Kingdom and Netherlands proposals. He had some doubts concerning the Australian amendment. The question of an aircraft in service was a matter perhaps better covered by the Convention on unlawful interference.

14. The Delegate of Spain said that his Delegation could agree to extending the notion of "in flight" but found it hard to accept the amendment of the United Kingdom Delegation, which would lead to difficulties in applying the two Conventions. Moreover, the second part of the amendment rewred the "offences committed on board", which was unsatisfactory .

15 The Delegate of France pointed out that when the doors of an aircraft were closed the sovereignty of a State was lessened and the Convent.ion would apply. The Australian amendment was in contradiction with Article 1, which concerned aircraft in flight only, and the expression "in service" was aabiguous. Fourth Meeting Commission of the Whole

16. IFne Delegate of Guatemala felt that problems of jurisdiction would arise if the United Kingdom and the Netherlands amendments were accepted, and preferred the original text. 17- The Delegate of Austria believed that the scope of the Convention should be as wide as possible and fully supported the United Kingdom and Netherlands -proposals. -While sympathizing with the Australian amendment, he would have the same difficulties as the French Delegation in accepting it. 18. The Delegate of the People's Republic of the Congo pointed out that illicit seizure of an aircraft could take place when the doors were not closed but the engines had been switched on. Such cases would not be covered by the Convention if the amendments were adopted. Moreover, the Australian amendment took no account of the fact that Article 1 had already been adopted.

190 The Delegate of Colombia could not agree to restrict the term "in flight" to the period when the doors of an aircraft had been closed, for hijackings had taken place before doors had been closed or engines switched on.

20. The Delegate of Jamaica said he was in sympathy with the amendments proposed by the Netherlands and by the United Kingdom, both of which sought to extend the juridical fiction already implied by paragraph 1 of Article 2 since to be in flight the aircraft did not have to be airborne. Hijacking was a continuing offence and the practical effect of the amendments would be to extend jurisdiction to cover that part of the journey during which the aircraft was on the ground. Deletion of paragraph 3 of Article 2 would, he observed, still further extend the scope of the United Kingdom amendment.

21. Since an abortive hijack attempt might cease before take-off, it was important to provide for the protection of passengers and crew from the time the aircraft was sealed off.

22. The Delegate of Greece ,drew attention to the need for uniform basic terms. He supported the Netherlands and United Kingdom amendments, particularly the latter since it also reflected that part of the Tokyo Convention which concerned forced iandings and it covered all foreseeable cases.

23 The Delegate of India supported the Netherlands and United Kingdom amendments. Care should be taken, however, not to extend the scope of the Convention beyond the in-flight period. The second part of the United Kingdom proposal was also worthwhile but needed rwiew by the Drafting Committee.

24. The Delegate of the United Kingdom acknowledged that the terms "forced landing" and "offences" were not entirely satisfactory and needed reviewing by the Drafting Committee.

25 The Delegate of the Union of Soviet Socialist Republics supported the Netherlands amendment as it helped to provide a better definition of the beginning and end of the flight, which was important because the Convention covered only the in-flight situation. Fourth Meeting Commission of the Whole

26. The Delegate of the Federal Republic of Germany said his Delegation could support either the Netherlands or the United Kingdom amendment, though he preferred the latter because it was closer to practical needs and more complete.

27- The Delegate of Sweden sald that during the consideration of Article 1, his Delegation had suggested that the words "in-flight" should be examined in connexion with Article 2. But the matter had never been discussed. In any case, it was not too late to change Article 1 since decisions could be reviewed in plenary. He hoped therefore that the Australian amendment would not be rejected on formal grounds. It might be possible to alter the Australia amendment to cover acts on board the aircraft - which was the essential requirement - but before flight. 28. The Delegate of Malaysia supported the Netherlands rather than the United Kingdom amendment since the second sentence of the latter should be in paragraph 3 of Article 2. Paragraph 1 simply provided a definition of "in flight".

29 The Delegate of Barbados supported the United Kingdom proposal but suggested a slight amendment to it: since the doors of aircraft were sometimes opened for other than disembarkation, the words "for disembarkation" should be replaced by "after the aircraft has landed".

30 The Delegate of Tunisia observed that paragraph 1 of Article 2 corresponded to the definition of take-off in the technical annexes to the Tokyo Convention. Since some aircraft could fly with open doors, a hijacker might oblige the crew to open a single door and so avoid punishment. It might therefore be as well to consult technical experts before any decision was taken on the amendments.

31 The Delegate of Japan said he could support both the Netherlands and the United Kingdom amendments. He saw no need, however, for the second sentence of the latter since the situation would be covered by Article 1.

32 The Observer for the International Transport workers' Federation (ITF) supported the eminently practical proposals made by the Netherlands and United Kingdom Delegations and by IFALPA. Civil aviation employees were more interested in human safety than in questions of legal fiction. He was particularly in favour of the second sentence of the United Kingdom amendment and suggested that in order to clarify respnsibilities it might be preferable to add the words "as provided in Article 9 of the Convention", subject of course to adoption of that Article as it stood. In his opinion, account should be taken of the fact that planning of the crime and the assistance the offenders may receive fran accanplices on the ground or on board an aircraft was an important and integral feature of hijacking.

33. The Delegate of the United Kingdm said he could not accept the suggestion made by the Delegate of Barbados. The Convention should continue to imply until the passengers had disembarked. A door might previously be opened for some other purpose, such as to admit an accomplice. Fourth Meeting Commission of the '&ole

34 In reply to a question by the Delegate of Japan, he said tI-?t, the Convention as a whole, including Article 9, would apply until competer', aurkdx2ies of a State took over the respons~bilityfor the aircraft and for persons and property on board. Such a situation mi&t occur if an aircraft had to land for technical reasons or was forced down by a hijacker in a place where such authorities were not on hand.

35 The Delegate of Indonesia said that much as he appreciated the Netherlands and United Kingdom amendments, he could not support them in view of the difficulty of encroaching on national jurisdiction.

36 The Delegate of Canada considered that until an aircraft's power was applied the control of the national authorities could be retained without a threat to safety. If the Convention applied the closed-doors criterion, a flight had, for the purposes of the Convention, taken place if the doors were re-opened. The Tokyo Convention used that criterion in connexion with the powers of the commander, who was responsible for safety once the plane had been sealed off but presumably did not have exclusive powers.

379 If the United Kingdom amendment included the deletion of paragraph 3, all domestic flights would be subject to the Convention.

38 The Delegate of Switzerland, referring to the point made by the Canadian delegate, agreed that if the aircraft did not take off the offender would be subject to domestic laws; however, what would happen if the offender escaped to another country? The extradition clause should then apply, and there lay the usefulness of the Netherlands and United Kingdom proposals.

39 The Delegate of Guatemala agreed with the last speaker. Care must be taken in drafting definitions since, as the Delegate of Tunisia had pointed out, many types of aircraft could fly with doors open.

40. The Delegate of Uganda sympathized with the United Kingdom proposal, which he found realistic and practical. However, he could not support it fully because the wording left something to be desired. It did not recognize that it was possible for an aircraft to be hijacked even before the doors were opened or cover cases when a pirbte seized the aircraft and did not close the doors.

41. His Delegation felt that the second part of the amendment was beyond the scope of the Convention. The words "the offence of unlawful seizure of aircraft" should be used instead of "offences committed on board", for such offences would be dealt with in another convention.

42. The Delegate of Ceylon wondered whether the amendment was necessary, for either the aircraft took off, and Article 2 would apply, or the take-off was aborted and domestic jurisdiction was applicable.

43 If the "doors closed after embarkation" concept were adopted, difficulties of interpretation would arise when a hijacker concealed himself and seized the aircraft before embarkation. It would therefore be better to leave Article 2 as it stood. Fourth Meeting Comission of the Whole -

44. !L'he Delegate of the United Kingdom, replying to the Delegate of Canada, confirmed that his Delegation was proposing to delete paragraph 3 of Article 2; it would speak on that proposal in due course.

45 He suggested that the Drafting Committee be asked to review the expression "offences committed on board" . 46. The Delegate of Ireland pointed out that difficulties might arise if a distinction were not drawn between the time an aircraft began its flight and the time it ended it. It might therefore be necessary to use different terminology for the end of the flight. His Delegation could accept the United Kingdom amendment if the expression "offences on board" were changed.

47- Concerning the words "until competent national authorities of a State take over", which was copied from the Tokyo Convention, he pointed out that it was not necessary to follow that precedent; it should be made clear that the State in question was the State of the forced landing.

48. The Australian amendment dealt with the question of an aircraft in service, which had been defined in the draft London Convention; it was a separate matter and required a seprate decision.

49 The Delegate of Brazil observed that the Conference was trying to determine the exact point when domestic legislation ceased to apply and an international convention could be invoked. His own Delegation favoured the definition in the Tokyo Convention, which had already been ratified by the necessary number of States including Brazil. Confusion might arise if a different rule were adopted, but nevertheless if the Netherlands and United Kingdom amendments were accepted his Delegation would agree to them since the new rule would be more objective.

50 Once the Convention had been adopted it would in any case be subject to the Vienna Convention on the Law of Treaties, Article 31 which provided that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". 51 He requested that the two parts of the United Kingdom amendment should be voted upon separately in accordance with the provisions of Rule 22 of the Rules of Procedure.

52 The Delegate of Greece said that he could support the United Kingdom proposal, which he felt covered the objections of the Tunisian Delegate; for even if a hijacker forced an air hostess '.0 pen the doors, the period of flight would still be covered.

53 The Chairman announced that the members ~f the Committee on Final Clauses would be Brazil, Pe@plersRepublic of the Cclngo, Frarice, Jspn, Spair, Switzerland, the United Kingdom, the United States ? America and the Union of Soviet Socialist Republics, aid that th- members r.' the Dl-afting Comitke: would be France, Mexico, Spain, Thailand, Uganda. ,112United Kingc%m, the United States of America: the IJnlnn of Soviet t;lis: Republics adke Socialist Fitpublic of Y-im- i.av lr , Fourth Meeting Commission of the Whole

54 The Chairman suggested that a vote be taken on the principle of the Australian proposal, after which the United Kingdom amendment would be put to the vote. If the Netherlands amendment were subsequently voted on, it would not be necessary to vote on each part of the United Kingdom amendment separately. 55 The Delegate of Australia read out his amendment to pragraph 1 of Article 2: "For the purposes of this Convention, an aircraft is considered to be in flight from the moment of the beginning of its pre-flight handling until final parking at its ultimate destination in its home country". Article 1 would not have to be redrafted since his proposal was just another amendment to the in-flight criterion.

Vote on the amendment proposed by the Australian Delegation

56 The -tnn&herst; -propsett by -tihe Australian Iklegation was rejected by 58 votes to 4, with 6 abstentions.

Vote on the amendments proposed by the United Kingdom Delegation (SA Doc No. 37)

579 Tne amendments proposed by the United Kinadom Delegation were adopted by 24 votes to 18, with 25 abstentions.

(The meeting adjourned at 1235 hours) THIS PAGE INTENTIONALLY LEFT BLANK FIFTH MEETING OF THE CWSSION OF THE WHOLE

(~aturda~,5 December 1970 at 0935 hours)

Chairman: Professor W . Riphagen

AGENDA ITEM NO. 8: ORGANTZATTOFT OF WORK

Comwsition of the Committee on Final Clauses

1. The Chairman announced the appointment of the Representative of Poland to the Canmittee on Final Clauses.

Composition of the Drafting Committee

2. On the proposal of the Delegate of Yugoslavia, it was agreed to nominate Mr. P.K. Roy, Secretary General of the Conference, to the Drafting Cammittee and to recanmend to that body that it elect him as its Chairman.

AGENM ITEM NO., 9: CONSIDERATION OF THE DRAFT CCNVENTION

Article 2 (cont'd)

Paragraph 2 (sA Doc No. 11) (cont'd)

3. The Delegate of the United Arab Republic withdrew his Delegation's proposal contained in SA Doc No. 11.

4. The Delegate of Italy proposed the insertion of the word "exclusively" (or alternatively "essentially") between the words "aircraft used" and the words "in military".

5. The Delegates of Lesotho and Greece supported the proposal. 6. The Delegate of Colmbia proposed that the paragraph be amended to refer to "staten aircraft. 7. The Delegates of the People's Republic of the Congo and Venezuela supported that proposal.

8. The Delegate of Yugoslavia disagreed with the proposal. A high proportion of civil aircraft were State-owned in certain countries. The introduction of the word "state" would therefore mean that, contrary to the intentions of the Conference, such aircraft would not be covered by the Convention.

9. The Delegate of Lesotho agreed with the previous speaker. He would not wish to see aircraft belonging to the "flying doctor" service, for example, excluded from the Convention. Fifth Meeting Commission of the Whole

10. The Delegate of the United Kingdcan, supported by the Delegates of the Union of Soviet Socialist Republics, France, the United States of America, India and Poland, believed the Colcmbian proposal might lead to misinterpretation and, while sympathizing with the aim of the Italian proposa1,thought it preferable to maintain the wording used in the Tokyo Convention and reproduced in the draft Convention under discussion.

11. The Delegate of Uganda proposed the insertion between the word "aircraft" and the word "used" of the words "which at the time of unlawful seizure are".

12. There was no support for the proposal. 13. The Delegates of Italy and Colcmbia withdrew their proposed amendments.

14. There were no further camments on paragraph 2.

Paragraph 3 (SA Doc Nos. 15, 37, 32, 9, 16 29) 15. The Delegate of Mexico announced the withdrawal of his Delegation's camments on paragraph 3 contained in SA Doc No. 15.

16. The Delegate of Korea agreed with the proposal by the United Kingdom (SA Doc No. 37) that paragraphs 3 and 4 of Article 2 should be deleted. It was self-evident that acts of hijacking which occurred within a purely domestic context would fall under the national law of the State concerned; and States Parties to the Convention should have no difficulty in agreeing to make such acts punishable by severe penalties. But he feared that the inclusion in the Convention of clauses which attempted to delimit a phenomenon which could manifest itself in very cmplex fashions might lead to loopholes through which offenders could escape justice.

17. As an example, members of the Cammission might reflect on the fact that if paragraph 3 were retained in the article, an offence committed by a hijacker of nationality A against an aircraft whose State of registry was A, which took off in the State of B and landed in A would be covered by the Convention; but an offence committed by a hijacker of nationality B against an aircraft whose State of registry was A and which took off and landed in that State would not be covered, although its connotations were more international.

18. The purpose of the Convention was to ensure as completely as possible that cases of hijacking would be brought to justice. He firmly opposed the exclusion of acts of so-called domestic hijacking from its provisions.

19. The Delegate of Austria concurred with the observations by the previous speaker and supported the proposals by the United Kingdom and by the Union of Soviet Socialist Republics (SA Doc No. 32)) the intention of which was to include national flights within the field of application of the Convention. Fifth Meeting Commission of the Whole

20. The Delegate of Barbados introduced the comments submitted by his Government in SA Doc No. 9, together with its proposal for the amendment of paragraph 3 of Article 2. The argument of the Delegate of Korea was that the deletion of that paragraph would bring "domestic" hijacking under the provisions of the Convention. Under Article 4, however, jurisdiction over the offence would belong only to the State of registration or the State of landing, and although in many cases of dmestic flights those States would be identical, it was increasingly current practice in civil aviation to lease aircraftwhich are registered in States other than the State of operation. Moreover, there several multinational airlines (SAS and East African Airways, for example) whose aircraft were frequently engaged on dmestic flights within one of the partner States, which was not necessarily the State of registration. He submitted that the deletion of paragraph 3 would not be of assistance in resolving many of the issues which could arise. His Delegation believed that a far better solution would be to reword that paragraph to ensure that the Convention would apply only if the place of take-off and the place of landing of the aircraft on board which the offence was canmitted were not situated within the territory of the same Contracting State.

21. The Delegate of the United Kingdm maintained the proposal to delete the paragraph. There was no intention of derogating from the sovereign right of States to exercise jurisdiction in cases which fell entirely within their competence. It was conceivable, however, that after an act of dmestic hijacking the offender could escape across a national frontier; the effect of the United Kingdom proposal would be to ensure his extradition so that he might be brought to justice by the authorities against whose law the offender had been canmitted. The nature of the act of hijacking was such that it was impossible to determine in advance where an aircraft subjected to such acts would eventually land. He therefore believed that the Convention should impose certain responsibilities on Contracting States which would not be conditioned by the place of landing of a hijacked aircraft.

22. The Delegate of France opposed the deletion of paragraph 3. The unlawful diversion of aircraft within a given State should fall under the jurisdiction of that State, and the recovery of offenders who had escaped across its frontier could be ensured through normal extradition arrangements. Moreover, other provisions of the Convention would impose certain responsibilities on Contracting States if they were involved in cases of domestic hijacking. He observed further that the inclusion of provisions which brought domestic hijacking under the Convention could inhibit the process of justice, for example when acts of hijacking took place in aircraft which were technically "in flight" for purposes of the Convention, but which did not actually leave the ground.

23. Pleading for the retention of paragraph 3, he said that he would, however, be willing to accept the amendment proposed by the Union of Soviet Socialist Republics in SA Doc No. 32, which clarified its terms.

24. The Delegate of Tunisia favoured the retention of the paragraph. The effect of the Convention should be to close loopholes and to complement, where necessary, national legislations; it should under no circumstances lead to the infringement of national sovereignty. There was no intention in the Fifth Meeting Cmmission of the Whole

paragraph as drafted to exclude dcmestic flights diverted to foreign destinations frm the provisions of the Convention. Its purpose was rather to ensure that acts which occurred frm start to finish in a dmestic context remained under the jurisdiction of the State concerned.

25. The Delegate of the People's Republic of the Congo said that one of the purposes of the Convention was to clarify issues where competence was unclear. He submitted that there could be no doubt concerning the competence of the State of registration when acts of hijacking were accomplished ,on its territory. He opposed the deletion of the paragraph, and favoured the clarification which would be brought by adoption of the USSR amendment.

26. The Delegate of Norway supported the proposal for the deletion of paragraph 3. Agreeing with the arguments put forward by the Delegates of the United Kingdcm and Korea, she observed that their intention was to ensure that the provisions of Articles 6, 7 and 8 would apply in cases where the offender in an act of domestic hijacking escaped from the injured States. She recalled that a similar issue had been thoroughly discussed by the Legal Camnittee in connexion wlth the draft Convention on Unlawful Interference, and that it had been decided not to include therein a provision analogous to that contained in the paragraph now being examined by the Cammission.

27. The Delegate of Australia understood that the retention of paragraph 5 would exclude from the provisions of the Convention any completely domestic act of hijacking canmitied against an aircraft of a contracting State, regardless of the nationality of the passengers involved. But he believed the competence of that State in such cases to be self-evident. Moreover, if difficulties arose concerning the recovery of an offender who had el.uded the normal process of criminal law in that State by fleeing to a neighbour, such difficulties should be resolved through a review of their extradition treaties or arrangements.

28. He supported the view expressed by the Delegate of Barbados wnich had justified the retention of the clause in an amended form. He also referred to the proposal of the Delegation of the Union of Soviet Socialists Republic, submitting an amendment designed to strengthen and clarify the provisions of the paragraph. His own suggestion was that the paragraph as initially drafted might be clearer if it referred to "the actual place of landingu. Perhaps the Drafting Ccanmittee should be invited to examine the whole matter.

29. The Delegate of the Czechoslovak Socialist Republic supported the proposal submitted by the Union of Soviet Socialist Republics. The Convention must, of course, cover international flights but it must also cover scheduled danestic flights diverted out of national territory into another country. He could not agree with the United Kingdom proposal to delete paragraph 3.

30. The Delegate of India felt sure it was generally agreed that the Convention should not apply to acts of hijacking involving purely domestic elements frm start to finish, but that it should apply to hij~ckingacts carried out on dmestic flights in cases in which an international element was involved, for example if one or more of the of fenders fled to another country or if the aircraft landed outside the national territory. He suggested that the Drafting Committee be invited to work out a new version of the paragraph designed to bring out that point clearly. Fifth Meeting Commission of the Whole

31. The Delegate of the Union of Soviet Socialist Republics pointed out that the General Assembly Resolution, reproduced in SA Doc No. 21, which condemned all acts of hijacking "whether originaliy national or international" favoured his Delegation's proposed amendment. International co-operation was required in both cases. He could not in any case agree to the deletion of paragraph 3.

32. The Delegate of the United Kingdom withdrew his proposal to delete paragraph 3, and proposed the addition of the following sentence at the end of that paragraph:

everthe he less, Articles 6, 7 and 8 shall apply whatever the place of take-off or the place of landing, if the offender is found in the territory of a State other than the State of registration."

33. He supported the proposal of the Union of Soviet Socialist Republics and suggested that the Drafting Committee be invited to decide on where it should be inserted into the paragraph.

34. He further suggested that the Commission might prefer to postpone voting on his most recent proposed amendment until the following meeting.

35. The Delegate of Spain suggested postponing the vote on the United Kingdom proposed amendment until the Commission had completed its discussion of the Articles referred to in it.

36. The Delegate of Greece proposed the insertion of the word "actual" between the words "place of" and the word "landing". He fully agreed that reference should be made to cases in which an international element was introduced into acts of hijacking committed on domestic flights.

37. The Delegate of India suggested that the Chairman call for a tentative vote on the substance of the United Kingdm and the Union of Soviet Socialist Republics proposals and, if the result was positive, submit the texts of the amendments to the Drafting Camnittee.

38. The Delegate of Jamaica suggested that the Drafting Committee should also be invited to consider whether or not there was an inconsistency between the reference in paragraph 1 to the time when aircraft should be considered as "in flight" and the reference in paragraph 3 to the place of take-off.

39. The Delegate of the Socialist Republic of Yugoslavia was satisfied with the text of the paragraph as originally drafted. The new amendment proposed by the United Kingdom Delegation might be considered separately, when the Commission had completed its examination of Articles 6, 7 and 8.

The Delegate of Korea favoured postponement of the discussion.

41. The Delegate of France could not agree with the Delegate of Jamaica concerning interdependence between paragraphs 3 and 1 of Article 2. He believed those paragraphs to be entirely autonomous. Fifth Meeting Ccnmnission of the Whole

42. The International Law Association Observer suggested that some of the problems raised by speakers might be resolved if th? amendment proposed by the Barbados Delegation were further amended to make the Convention applicable only if the place of take-off, the place of landing of the aircraft -and the location of the offender were not in the same Contracting State.

43. The Delegate of Ceylon assumed that the result of the vote on the USSR proposal would not prejudice further discussion of the paragraph, and in particular of the new amendment proposed by the United Kingdan. His own feeling was that the latter might be envisaged for inclusion as a new paragraph.

44. The Delegate of Malaysia suggested that the Cmission should examine more closely the implications of the fact that the State of registration of an aircraft was not necessarily the State of its operator. That fact had been inadequately reflected so far during the discussion of paragraph 3. He recalled the thoughtful submission by the Delegate of Barbados in that connexion, and the suggestion by the International Law Association Observer, both of which met with his approval.

45. The Delegate of the People's Republic of the Congo formally moved the adjournment of the debate on the United Kingdom proposal, in accordance with Rule 14 of the Rules of Procedure.

46. That proposal was adopted.

47. The Delegate of Canada said that he would not be in a position to vote on the USSR proposal until the expression ndomestic flight" contained therein was clarified.

48. After a procedural discussion between the Delegates of the Kingdom of the Netherlands, France, Tanzania, Brazil, Zambia and Poland, concerning the order in which the various other proposals should be considered, the Chairman invited the Commission to agree to the suggestion by the Delegate of India that further discussion of those proposals be deferred until their texts had been circulated in writing.

49. It was so decided.

50. The Delegate of the United States of America deeply regretted the lack of progress made during the meeting. His own Delegation had refrained from intervening in the discussion because of its desire to expedite the Commission's work.

51. The Chairman announced his intention of exercising more strictly his prerogative of closing the list of speakers. In response to a suggestion by the Delegate of France he said that he would indeed ensure, whenever he deemed it appropriate, that proposed amendments were submitted and distributed ir written form before being accepted for discussion.

h he meeting adjourned at 1245 hours) SIXTH MEXTING OF 'ME COMMISSION OF THE WHOLE

(~onda~,7 December 1970 at 0940 hours)

Chairman: Professor W. Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 2, paragraph 3

1. The Delegate of Switzerland suggested that the Conference deal first with the most contentious issues, which were: universal jurisdiction, concerning Articles 4 and 7 (SA Doc Nos. 13 and 42); extradition priority, affecting Articles 3 and 7 (SA Doc Nos. 28 and 33); admission of motivation, relating to Articles 7 and 8 (SA Doc Nos. 28 and 33); and the settlement of disputes, referred to in SA Doc No. 11.

2. The Delegate of the United States of America emended the suggestion of the Delegate of Switzerland and felt that the obligation to prosecute should be added to the list of contentious issues.

3. The Delegate of Italy supported the United Kingdm proposal, which covered an eventuality not; provided for in the present draft. Without that amendment there would have to be a whole series of bilateral agreements on extradition. The formulation was open to improvement, particularly in respect of reference to other Articles, but that was a matter for the Drafting Committee.

4. The Delegate of Indonesia supported the proposal of Barbados, Zambia and the International Law Association since it had not, he felt, been the general intention of Delegates to extend the scope of the Convention. The proposal of Greece was acceptable, and he agreed with that of India to alter the disposition and numbering so as to focus attention on the gravity of the offence.

5. He was opposed to the United Kingdom proposal. Nor could he support the USSR proposal since there had to be a clear boundary between the scope of the Convention and that of national legislation.

6. The Delegate of Barbados explained that according to the joint proposal of Barbados, Zambia and the International Law Association, in a case where the three elements - take-off, landing and apprehension of the offenders - all occurred in the same Contracting State, the Convention would not apply. If a single of those elements occurred elsewhere, it would. The proposal served the same purpose as that of the United Kingdom but was considerably shorter. Sixth Meeting Catmission of the Whole

7. The Delegate of France said he ms in sympathy with the United Kingdan proposal and agreed with the spirit behind the proposals of Greece and the USSR.

8. He was uneasy, however, about the joint proposal of Barbados, Zambia and the International Law Association. He did not wish the Convention to cover a purely danestic situation, but if that joint proposal were adopted, the Convention would not apply in the event of an aircraft being hijacked between two stops in a country other than that of its registration if the hijackers were apprehended in the country of the offence. He was also opposed to the joint proposal of Jamaica, the Netherlands and Trinidad and Tobago since it extended the Convention to cover an abortive attempt entirely within a State.

9. The Delegate of Spain supported the United Kingdan proposal, whose purpose was closely connected with that of the proposals of Greece and the USSR.

10. He agreed with the Delegate of France that if the aircraft was registered elsewhere than in the country of the offence, the Convention should autanatically apply. He was therefore opposed to the joint proposal of Barbados, Zambia and the International Law Association. He was also against the joint proposal of Jamaica, the Netherlands and Trinidad and Tobago since he felt that the paragraph should cover only actual instances of take-off and landing.

11. The Delegate of Zambia supported the joint proposal of Barbados, Zambia and the International Law Association, which covered the purpose of the United Kingdan proposal. His full support also went to the three other proposals listed in Information Paper No. 1.

12. The International Transport Workers' Federation Observer expressed his strong support of the United Kingdom proposal in view of the possibility of the offender's escaping to another country by blackmail or other means. It was particularly important to do away with loopholes since national legislation was not itself always uniform or consistent as between different regions of a country. 13. The Delegate of Jamaica introduced the joint proposal of Jamaica, the Netherlands and Trinidad and Tobago, which could be fully understood only in the light of the previous week's discussion on the definition of "in flightn and acceptance of the closed-doors criterion. It would therefore be inconsistent if paragraph 3 of Article 2 applied only if take-off had occurred. Without adoption of the proposed amendment, the Convention would not apply to a case in which an aircraft was hijacked between the closing of the doors and take-off and the offender escaped across a border. The proposal must be accepted in order not to violate what had been agreed on during the previous week.

14. The Delegate of Cameroon supported the adoption of Article 3 as it stood in the draft Convention. His Delegation could not support the United Kingdm amendment since it did not take account of other articles still to be considered by the Conference. It supported the ideas behind the Greek and USSR amendments, which should go to the Drafting Committee for examination. Sixth Meeting Commission of the Whole

15. The Delegate of the People's Republic of the Congo said he was unable to support the United Kingdom amendment because the Conference had not yet discussed Articles 6, 7 and 8.

16. In connexion with the Greek amendment he pointed out that a landing was always actual and not fictitious.

17. The USSR amendment would give point to paragraph 3. 18. He agreed with the arguments advanced by the French Delegate against the joint proposal by Barbados, Zambia and the International Law Association and could not see much point in the joint proposal of Jamaica, the Netherlands and Trinidad and Tobago. It would be better to leave the text as it stood.

19. The Delegate of Brazil thought the joint proposal of Barbados, Zambia and the International Law Association would limit the scope of the Convention. He was also opposed to the United Kingdom proposal and that of Jamaica, the Netherlands and Trinidad and Tobsgo.

20. He had no objection to the Greek and USSR proposals, but pointed out that if the latter were adopted it would be necessary to add a definition of a danestic flight. Article 3 as drafted already extended international legislation to danestic flights when an aircraft was forced to land in the territory of another State.

21. The Delegate of the Kingdom of the Netherlands, speaking on the joint proposal of Jamaica, the Netherlands and Trinidad and Tobago, said that Article 2, paragraph 3 was designed to exclude purely dmestic flights frm international legislation. The amendment, however, was intended to make the Convention cover cases of attempts at hijacking made on international flights when at the last minute the offender was overpowered. me pilot might be wounded, for example, and decide not to take off. Article 2, paragraph 3, as drafted spoke of the place of take-off or landing and was not consis it, with the wording of Article 1. The amendment was adequate provision fn; that discrepancy.

22. The Delegate of India supported the United Kingdom proposal.

23. The Delegate of Greece, replying to the point made by the Delegate of the People's Republic of the Congo, suggested that the French text might be more cmprehensible if it were amended to read "le lieu dsatterissage effectifn instead of "le lieu r&l d'atterissage".

Vote on the joint draft amendment 03 Brbados, Zambia and the International Law Association LInformation Paper No. 1)

The amendment was rejected by 5 votes to 33 with 28 abstentions.

Vote on the draft amendment of the United Kingdam (Information Paper No. 1)

The amendment was adopted by 35 votes to 7, with 21 abstentions. Sixth Meeting Ccanmission of the Whole

Vote on the draft amendment of Jamaica, the Netherlands and Trinidad and Tobago (Information Paper No. 1)

26. The amendment was rejected by 6 votes to 34, with 22 abstentions.

Vote on the digft amendment of the USSR (SA Doc No. 32)

27. The' amendment was adopted by 42 votes to 5, with 16 abstentions.

Vote on the draft amendment of Greece (~nformatimPaper No. 1) I

28. The amendment was adopted by 24 votes to 7, with 15 abstentions.

29. The Chairman said that the texts of Article 2, paragraph 3 and the amendments adopted would be examined by the Drafting Camnittee.

Article 2, paragraph 4

30. The Chairman announced that there was one amendment to Article 2, psragraph 4 (SA Doc No. 37). 31. The Delegate of the United Kingdan withdrew his amendment to delete paragraph 4 on the understanding that the Drafting Camittee would examine his proposal to review it in conjunction with the amended paragraph 3.

32. Subject to that understanding, paragraph 4 was adopted.

Vote on Article 2 as a whole

33. lW Chairman stated that the vote would be one of principle since the Drafting Camnittee had been requested to re-examine the wording.

34, Article 2, as amended, was adopted by 53 votes to none, with 12 abstentions,

Article 3 35. The Chairman recalled that amendments to Article 3 had been submitted by Poland and the Union of Soviet Socialist Republics SA Doc No. 33), Argentina (SA Doc No. 44), Ranania (SA Doc No. 48), and Austria t SA Doc No. 49). There were also sane remarks by Malaysia in SA Doc No. 14 which did not constitute a formal proposal, and a proposal by India (SA Doc No. 51) concerning the place of the article, which might best be left until the end of the discussion.

36. The Delegate of the Unites Arab Republic supported the present text of Article 3, which was precise and expressed the general feeling of the Conference that unlawful seizure should be severely punished. He was therefore opposed to all the amendments as they made the text unnecessarily expensive at the cost of encroaching on national legislation and reducing the chances of ths Convention's acceptance, He agreed with the Delegation of Finland that the general way in which the draft was already framer' would facilitate adoption of the Convention despite differences in nation?! legislations. Sixth Meeting Cammission of the Whole

37. The Delegate of Romania said that in order to expedite the work of the Conference he wished to withdraw the first paragraph of %he proposed amendment to Article 3 submitted by Ranania. The remaining paragraph would become paragraph 2 of Article 3.

38. The Conference had not wished to broaden the scope of Article 1, but did not mean that the various countries were unwilling to deter attempts before take-off under their national legislation. Indeed, the Conference should be more particularly attentive to that aspect as experience had sham that national provisions were at present inadequate. His Delegation had accordingly thought it preferable to introduce a formal camnitment for the country in which such attempts took place to punish the offenders. Without such a provision, the work of the Conference would be incanplete, and coverage by the forthcaning Convention on Unlawful Interferencz was not enough.

39. By virtue of a modification dated 17 July 1970, the Romanian Air Code provided for the prosecution and punishment of anyone attempting or even being indirectly involved in unlawful seizure.

40. The Delegate of Austria said he wished to replace the proposal of his Delegation submitted in SA Doc No. 49 by a new joint proposal of Italy and Austria whereby a second paragraph would be added to the present text of Article 3, reading:

"The penalty mentioned in paragraph 1 above shall be no less than the penalties ~rovidedfor attempted voluntary offences against the life of a person under the law of that state."

41. Since any hijacking was an attempt against life, he felt that the crime should be made equivalent under national legislation to attempted hanicide.

42. The Delegate of Mexico said he agreed with the Delegate of the United Arab Republic that Article 3 should be left in its present form. Indeed, severe punishment had already been provided for under Mexican Law since 1968. 43. He had abstained in the vote on the proposal of Poland and the USSR because he considered that the proper place for reference to the gravity of the crime was in the preamble. The threat of severe punishment in Article 3 should be a sufficient deterrent.

44. The Delegate of Argentina felt that Article 3 should be left in its ~resentform, with the insertion of the words "and effectiven between "severen and "penalties" to bring the provision into line with Article V of the 1948 United Natims Convention on Genocide.

45. The Delegate of the Poli-sh People's Republic, introducing the joint proposal of the Delegations of Poland and the USSR, said %h

46. He appealed to other Relegations to try to overcane their sanetimes considerable difficulties and join the sponsors in their efforts to make the Convention a truly effective instrument.

47. The Delegate of India said he agreed with the Delegations of Mexico and the United Arab Republic that the present text of Article 3 was acceptable. It did reflect the general feeling among'Delegations that unlawful seizure was a serious offence, and it was for each country to decide on specific penalties under its own legislation. The question of extradition would have 40 be considered in line with other articles. His Delegation had also proposed to place Article 3 immediately after Article 1, but that was purely a matter for the Drafting Committee.

48. The Delegate of Venezuela expressed his agreement with those Delegations that were in favour of retaining the present text of Article 3. 49. The Delegate of the Union of Soviet Socialist Republics said that the purpose of his Delegation's amendment was that a person cmitting an act of unlawful seizure of aircraft should be extradited to the State of registration of the aircraft regardless of his motives. People seeking territorial political asylum must not be allowed to endanger the lives of innocent passengers.

50. Any diversion of modern aircraft, which were swift and heavy, could lead to an accident. That was why to force a crew to divert an aircraft was an attempt on the lives of the passengers.

51. The national legislation of the majority of States had long recognized such an attempt as a grave crhinal offence and excluded such offenders from the benefit of territorial and political asylum.

52. Any attempt to divert an aircraft in flight was clearly an act of a criminal nature and a breach of the principles concerning the safety of lives laid dawn in many United Nations Resolutions, and should be recognized as a crime against humanity.

53. The Delegate of Costa Rica considered that it was up to each State to inflict the penalties it thought fit, and agreed with the Delegate of Mexico that there was no need to add anything to the text of the Legal Committee. 54. The Delegate of the Hungarian People's Republic supported the amendment of the Polish People" Republic and the Union of Soviet Socialist Republics. Compulsory extradition was the most effective deterrent to hijacking and the door would be left half open for hijackers if extradition were to be made dependent on political considerations.

55. Some Delegations had said that it would be difficult to include canpulsory extradition in their national legislation; but most laws had been passed in times when hijacking and indeed air transport were unknown; they could and should be amended when the need arose. The competent authorities of his own country were prepared to amend their legislation. Sixth Meeting Commission of the Whole

56. The Delegate of the Bulgarian People's Republic said that Article 3 needed redrafting to plug all loopholes. In additional to international legislation, States must adopt the necessary measures at the national level.

57. He supported the amendment of the Polish People's Republic and the Union of Soviet Socialist Republics which would oblige Contracting parties to recognize illegal seizure of aircraft as a grave crime.

58. Some Delegations wished to delete the words "whatever its motivation", but if that suggestion were adopted the Convention would give the impression that some acts of illegal seizure were good and others bad, whereas it had to make it clear that all such acts were bad and severely punishable.

59. The words "regardless of any specific agreement between the States concerned" was extremely important, since the only way to prevent such offences was to ensure the extradition of the offender to the State of registration. Hijacking was an international crime and punishments must not be dependent on damestic law alone.

60. The Delegate of Kuwait appreciated the spirit of the various amendments submitted but believed it was the prerogative of each State to prescribe penalties in accordance with its own national legislation. He was in sympathy with the Indian proposal to place the article elsewhere.

61. The Delegate of France observed that the French penal code provided for three kinds of punishment: fines, imprisonment and death. Article 3 of the Convention called for severe punishment, which would exclude fines; the penalties would therefore be imprisonment or death. His Delegation could not accept the Austrian proposal which would mean that in French law, under which murder carried the death penalty, hijackers would have to be executed.

62. His Delegation did not think that the Argentine proposal to bring the wording into line with that of the Treaty on Genocide would serve any useful purpose. It could not agree either with the Romanian amendment, which was in contradiction with Article.1, or accept the proposal of the Union of Soviet Socialist Republics and the Polish People's Republic. It was preferable to leave the text as it stood.

63. The Delegate of the People8s Republic of the Congo also thought it better to leave Article 3 as it stood.

h he meeting adjourned at 1245 hours) THIS PAGE INTENTIONALLY LEFT BLANK SEVENTH MEETING OF THE COMMISSION OF THE WHOLE

(~onda~,7 December 1970 at 1440 hours)

Chairman: Professor W. Riphagen

AGENIlA ITEM NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 3 (~ont'd) -0s. 33, 48, 60, 44)

1. The Delegate of Italy observed that the Delegate of Austria had already explained the purpose of their joint proposal (sA Doc No. 60). Sane members of the Caumission had opposed its adoption on the grounds that it would constitute an infringement of the prerogatives of national legislatures. He could not agree with that argument: the purpose of the proposed clause was to guarantee the efficacity of international co-operation for the repression of hijacking by ensuring that the offence would be assimilated to crimes acknowledged in the existing criminal law of all States. Appreciation of the penalties to be imposed for that offence would be left to the discretion of the State concerned.

2. The Delegate of Greece considered that the article as drafted was insufficiently precise, because different States would accord different juridical connotations to the term "severe penaltiesn. The Convention should ensure the suppression of hijacking. The joint p ~posalby the Delegations of Poland and the Union of Soviet Socialist Republic r (SA Doc No. 33) that the unlawful seizure of aircraft be formally recognized as 'a grave camnon crime" might well add to the deterrent effect of the Convention, but he feared that the tern might also give rise to difficulties of interpretation in differr;.nt States. His own preference was for the amendment submitted by Austria, bhich established an internationally acceptable caumon standard by relating the offence of hijacking to attempted intentional offences against the life of a perscn; consequently, the punishment would be applied under the law of the State concerned, while in no way impinging on the autonany of that law.

3. The Delegate of Malaysia had no objection to the text of the article as drafted, but called attention to his Delegation's camments in SA Doc No. 14 concerning the additional deterrent effect of specifying in the article the kind or kinds of punishment. He believed that at least a minimum degree of uniformity should be established for the treatment of offenders in all States, and suggested that a mandatory tern of imprisonment might be one of the types of punishment to be imposed. Seventh Meeting Cammission of the Whole

4. The Delegate of Ismel considered that the amendment proposed by Poland and the Union of Soviet Socialist Republics correctly stressed the gravity of the offence. If, however, that amendment was not generally acceptable, the proposal by Austria and Italy constituted an able draft fran the legal point of view, and could serve as a useful cmprmise, guiding national legislatures but not infringing on their sovereignty. 5. The Delegate of Japan agreed with the remarks by the Delegate of France, and favoured adoption of the original text of the article. I

6. The Delegate of the United Kingdan also favoured the original draft, believing that nothing would be gained by attempting to add to or embroider upon that text.

7. The Delegate of the United States of America shared that view. The character of the crime would be referred to in the Preamble to the Convention. Nevertheless, there was merit in the Austrian-Italian proposal, since the description "serious" could be interpreted in many different ways. It would be useful to establish an international standard for the guidance of national legislatures,' Subject to drafting, he supported that proposal.

8. The proposal by the Delegations of Poland and the Union of Soviet Socialist Republics that Article 3 should read as follows:

"~achContracting State shall provide for legislative and other measures to recognize the unlawful seizure of aircraft to be a grave camnon crime whatever its motivation and to make it punishable by severe criminal penalties."

was rejected by 34 votes to 14, with 15 abstentions.

9. The proposal by Rornania to add the following paragraph to Article 3: "Each Contracting State likewise undertakes to make provision in its national law for the attempt to camnit the offence under Article 1 as well as ccanplicity or instigation when they take place within its territory, to be punishable by severe penalties."

was rejected by 44 votes to 11, with 14 abstentions.

10. The proposal by Austria and Italy to add the following paragraph to Article 3:

"!The penalties mentioned in paragraph 1 above shall be no less than those provided for attempted voluntary offences against the life of a person under the law of that State."

was rejected by 33 votes to 9, with 25 abstentions.

11. The proposizl by Argentina that 4rticle 3 be anendel by ihe additloll of the words "and effective" betw?-n "severe" ar.d "penaltie.;" was --rejected by 55 votes to 5, with 26 abstentions. Seventh Meeting Commission of the Whole

12. Article 3 as-- drafted- in the original text (SA Doc No. 4) was adopted by 60 votes to none, with 8 abstentions.

13 The Chairman recalled the earlier suggestion by the Delegate of India that the position of the article in the Convention be altered, and said that the Drafting Committee would doubtless examine that matter.

CREDENTIALS CCMMITTEE

14. Intervening on a point of order, the Delegate of Cameroon observed that a number of important and far reaching decisions had already been taken, and expressed the hope that the Credentials Committee would submit its final report as soon as possible, so that the Conference might be sure that the credentials of those participating in its deliberations were valid.

15. The Delegate of Uganda supported the remarks by the previous speaker.

16. The Secretary General stated, without prejudice to the report of the Credentials Committee, which would be submitted very shortly, that all credentials had been kept under review by the Secretariat, whi& was of the opinion that all except one of those documents xere unlikely to meet with serious objections on the part of the Conference.

AGENDA ITEM NO. 9 : CONSIDERATION OF THE DRAFT CONVENTION

Article 4

17 The Chairman observed that the comments and proposals submitted in connection with the article fell into four categories.

18. The first concerned the limitation of obligations to establish jurisdiction, on which subject the following Delegations had submitted documents : Ghana (SA Doc No. 8); United Arab Republic ( SA Doc No. 11); Indonesia (SA Doc No. 22) and Poland and the Union of Soviet Socialist Republics (SA Doc No. 33). Comments by Ireland (SA Doc No. 18) and 3reece (SA Doc ~0.40)were also relevant.

19. The second category concerned the subject of the lessee of aircraft. Documents had been submitted by the rapporteurs of the Legal Committee at its seventeenth session (SA Doc No. 5), Mexico (SA Doc No. 38 which had subseq-lently been withdrawn) and by Argentina, Barbados, Cameroon, Costa Rica, India, Jamaica, People's Republic of the Congo, Trinidad and Tobago and Zambia (sA Doc No. 46).

20. The third category concerned the q~estionof the jurisdiction of the State in which the offender was found, and was the subject of documents by the United Arab Republic (SA Doc No. 11) Austria(SA Doc No. 42) and Switzerland (SA Doc. No. 58).

21. The final category comprised comments and proposals concerning the extension of the wording of the article to cover jurisdiction over murder, attempted murder or other acts of violence committed in connection with hi-jacking. Austria (SA Doc No. 39) and the United Yingdom (SA Doc No. 45) had submitted relevant documents . --Seventh Meeting Commission of the 'thole

22. He invited the Commission to examine each of those categories successively.

23- The Delegate of Spain said that his Delegation had also submitted a proposal to amend Article 4 to the Secretariat. He hoped it would be distributed shortly.

24. The Observer of the International Law Association drew attention to the suggested modification contained in document SA Doc No.19.

25. The Delegate of the United Kingdom said that he too had handed the text of an amendment to Article 4 to the Secretariat. Referring to the group oE amendments to Article 4 relating to the position of the lessee, he suggested that they be discussed separately together with other Articles referring to the position of the lessee, in other words that joint consideration be given to all problems relating to thC lessee.

26. The Delegate of Barbados disagreed with that suggestion.

27 The Chairman invited the sponsors of the draft amendments contained in documents 8, 11, 22 and 33 to introduce them.

28. The Delegate of Indonesia explained that the amendment proposed by his Delegation contained in document SA Doc No.22 was a drafting amendment and not an amendment of substance. He suggested that it be referred to the Drafting Committee.

It was so decided.

The Delegate of the United Arab Republic introduced the proposal contained SA Doc No. 11.

There was no support for the proposal.

The Delegate of the Union of Soviet Socialists Republics, seconded by the Delegate of Poland, withdrew: the proposal to delete sub-paragraph 1 (b) contained in document SA Doc No. 33 and proposed the addition of the following sentence after that sub-paragraph: I' However, in any case the State of registration has priority for exercising jurisdiction over persons who commit such crimes". Several States could claim the right to exercise jurisdiction over offenders in many cases of hijscking, but, since the State of registration was the State most concerned, reference to its priority claim should be included in the Convention.

33. The Delegate of Ghana introduced the proposal contained in document SA Doc No.8 which was substantially identical with that proposed by the previous speaker.

The Delegate of Ireland supported, the proposal.

35 On the proposal of the Delegate of Australia, it was agreed to discuss the substance of the proposals submitted by the Union of Soviet Socialists Republics and Ghana jointly .

$0 The International Transport WorkerslFederation Observer, speaking or^ the invitation of the Chairman, said his Organization strongly supported the substance of the two amendments. The establishment of the principle that the State of registration would have priority in exercising jurisdiction over offenders -dould provide the best possible deterrent to hijacking. Seventh Meeting Commission of the Whole

37 The Delegate of Switzerland suggested that the French version of the Ghanaian proposal required some revision.

38 The Delegate of the United Kingdom believed it impossible for such a system of priorities to be effective unless all States accepted the principle of compulsory extradition and acted upon it.

39 The Delegate of Mexico understood the intention of the sponsors of the two proposals but was unable to support the amendments in their present form.

40. The Delegate of Austria shared the view that the question was closely connected with that of compulsory extradition. Furthermore, if it was generally agreed to consider hijacking as an international crime, it seemed reasonable to argue that all States involved by any act of hijacking should claim the right to prosecute offenders.

41. The Delegate of France shared the views expressed by the Delegate of the United Kingdom concerning the relationship between the proposals and compulsory extradition. He understood the purpose of the amendments but believed their inclusion in the Convention would lead to considerable problems of implementation and was unable to support them.

42. The Delegate of Tunisia supported by the Delegate of Venezuela, believed it would be more realistic to retain the more general wording of the text contained in the draft Convention. Should a State in which a hijacked aircraft landed refuse to extradite an offender, the problem of taking legal action would be even more complicated than it was at present if different priorities were established.

43. The Delegate of the Kingdom of the Netherlands agreed with the -point made fry the Delegate of the United Kingdom concerning compulsory extradition.

44. The Delegate of Spain was against amending the original text. The two States concerned by any act of hijacking were the States described in sub-paragraphs 1 (a) and (b) and their claims to exercise jurisdiction should be considered as equal.

45 The Delegate of India expressed sympathy for the proposals by the Delegations of the Union of Soviet Socialist Republics and Ghana concerning the priority of the claim to jurisdiction of the State of registrat9.on. He feared, however, that an attempt to resolve conflicts of jarisdiction in the context of Article 4 might lead to conflict of a different kind between the provisions of that article and the broader framework of the Convention as a whole. It seemed likely that the Convention would provide for exceptional circumstances in which a State was unable to extradite an offender. Those who supported that provision would be unable to agree with the proposals by the Delegations he had mentioned.

46. The Delegate of the United States of America said that his Government's views concerning extradition had already been made clear. He believed that the proposals currently under discussion involved the question of competing claims for extradition, and that they should theref ore be considered when the Commission deliber- ated Articles 7 and 8. Se~enthMeeting d Canmission of the Whole - 72 -

47. The Delegate of New Zealand could not favou? the piwposed amend.ments. Priorities for jurisdiction could not be determined until jurisdiction itself was established, and that subject was inextricably related to the question of extradition. He, therefore, believed that the matter should be taken up again, when extradition was being discus ded.

48. The Delegate of Kuwait favoured the retention of the text of Article 4 as drafted,. . considering that the jurisdiction referred to in sub-paragraphs 1 (a) and 1 (b) was compulsory and concurrent, and observing that paragraph 2 provided fur-ther for optional jurisdiction.

( The meeting adjourned at 1620 hours ) EIGHTH MEETING OF THE COMMISSION OF THE WHOLE

(~onda~,7 December 1970 at 2000 hours)

Chairman: Professor W. Riphagen

AGETKA ITEM NO. 9: CONSIDERATION OF 'PIE DPm CONVENTION Article 4 (continued)

First cateaorv of D~ODOS~~amendments

1. The Chairnan annsunced that the first category of amendments for consideration was the proposal made orally by the Union of Soviet Socialist Republics and Poland at the Seventh Meeting of the Cammission of the Whole and that submitted by Ghana in SA Doc No.8.

2. The Delegate of Bulgaria regretted tkat most delegations had pronounced against the principle of jurisdictional priority for the State of registration of the aircraft. Without such a provision the Convention would lose much of its effectiveness and hijacking would not be eliminated if offenders could hope for impunity in the State in which the aircraft landed. The most effective deterrent would be the prospect of punishment in the most interested country, namely that of registration of the aircraft. His delegation therefore fully supported the proposal of the Union of Soviet Socialist Republics and Poland and that of Ghana, and would vote in favoilr of them.

3. The Delegate of Ghana said ais delegation appreciated the anxiety of certain other delegations about the need to create a system of priority of jurisdiction, but it was also necessary to appreciate the situation in which two or more Contracting States put forward claims for jurisdiction and none was willing to step down. Only then would primary jurisdiction of the State of registration be invoked. After discussion with the sponsors of the other proposal, however, his delegation had agreed that the two proposals snoul3 be voted on together and the actual joint text left to the Drafting Committee.

4. The Delegate of Uganda was opposed to the amendments under consideration. Tne interpretstion of " jurisdictio~"differed from State to State, and where in some countries the whole legal process star bed at a very early stsge, in others it began somewhat later. In Uganda a person was considered innocent until proved pilty; yet his being required to appear before a preliminary inquiry might be taken by some to amount to being subjected to the jurisdiction process. Therefore if the amendments were adopted, the system in his country might be in conflict with the Convention.

5 The Delegate of Ireland said that his main objection to Article 4, paragraph 1, as it stood was that it might, for instance, oblige his country to take jurisdiction over an aircraft landing in it after a hijacking attempt had been campleted and where the hijacker wss mder the control ?f the commander, when the Eighth Meeting Commission of the --'diale

aircraft was in fact proceeding to anoLher country. Provided it was perfect13 c1ea.r that in such a situation where the hijacking was not a continuing offence and the aircraft was not registered in the country of landing, it was nat necessary to ren..ve the hijacker from the aircraft and prosecute him, his delegation would be satisfied with the present text.

6. He had seconded the motion by Ghana simply because he had felt it ought to be discussed. However, in so far as it tried to establish a priority of jurisdiction, his delegation would be opposed to it.

7 The Chairman called for a vote on the proposed amendment of the Union of Soviet Socialist Republics and Poland together with that of Gnana, as a joint propossl.

8. The joint proposal of the Soviet Socialist Republics, Poland and Ghana was rejected bv 39 votes to 12. with 10 abstentions.

Second category of proposed amendments

9. The Chairman announced that the second category of proposed amendments concerned extension of jurisdiction to States other than thase mentioned in Article 4, paragraph 1 (a) and (b), with the exception of amendrnents relating to the question of the lessee, which would be taken up later. The proposals for consideration were contained in SA Doc Nos. 11 (submitted by the United Arab ~e~u~lic),58(~witzerland), 42 (~ustria),61 (spin), and 62 (united ~ingdom).

10. The Delegate of the United Arab Republic said that the proposal of his delegation- was intended to cover two cases: where the offender was present for any reason in a Contracting State which did not have jurisdiction and had no ex tradition treaty with any State having jurisdiction; and -&ere the offender was a national of a State naving jurisdiction which refrained from extraditing him on the strength of the principle of non-ex t radition of nationals.

11. The Delegate of Austria said that his country's proposed addition 2f a sub-paragraph (c) worded "when the alleged offender is present in its territory arld will not be extradited", would tend to create under national legislation a sxbsidiary criminal jxisdiction for what was regarded by all as an international crime. The jurisdiction should only be a subsidiary one because it should only be exercised in the absence of extradition so as to ensure the hijacker did not remain mpunished.

12. The proposed amendment was Sased on two very good models: Article 8, sub- paragraph (a), of the 1936th Convention for the Suppressi3n of Illicit Traffic in Dangerous Drags; and Article 14 of the Geneva Convention on the High Seas.

13- His proposal would, if adopted, entail amenhent of Article 7 since Article 4 was concerned only with the question of criminal jnrisdiction, and Article 7 would have to provide for the matter of prosecution. Eighth Meetinq Commission of the MI

14. There was n3 sn3stantial difference between his amendment and the proposal of Spin contained in SA Doc ~0.61. There had not been time that evening to seek a combined version, but he was sure that a joint proposal would be possible and, if the principle were accepted, the Drafting Committee could attend to the actual text.

15 The Delegate of Switzerland said that his country's amendment was not at variance with the proposal of Austria but was designed to replace the latter if the absolute obligation in it proved unacceptable. Like Austria, his country felt that the only way of obliging a State unable to extradite to punish an offender was to adopt universal jurisdiction. There might, however, be strong opposition from some States to plurality of jurisdictions. Hence the case for restricting the exercise of jurisdiction to instances where extradition was impossible.

16. His proposal should be voted on only in the event of rejection of the proposal of Austria.

17 The Delegate of Spain said that the Convention must ensure that the offence was punished in the very great majority of cases. The reason behind his proposal was that Article 7, which obliged States that did not concede extradition to submit the case to their canpetent authorities for their decision whether to prosecute, would be a dead letter provision if the States did not have jurisdiction under Article 4, paragraphs 1 or 2. Since no mandatory extradition existed under the Convention, it was essential in its absence for the offender to be punished by the courts of the State in which he was held. The Spanish proposal provided such a State with the basis of jurisdiction necessary for this purpose.

18. The Delegate of the United Kingdom said that normally his country dfd not accept the principle that the mere presence of an alleged offender within the jurisdiction of a State entitled that State to try him. In view, however, of the gravity of the offence and the loo@ole pointed out by the Delegates of Austria and Spain, he was prepared to support either or both proposals, and if either were adopted he would withdraw the United Kingdom proposal contained in SA Doc No.62. Where that proposal differed from the Austrian and Spanish amendments was in its non-mandatory nature.

19 In the first line of his proposal the word "exercise" should have read "establish" .

20. The Delegate of Costa Rica fully supported the Spanish proposal and felt that its form would help secure wide acceptance of the Convention, particularly since it did not run counter to the position in respect of extradition and the granting of political asylum in Latin America.

21. The Delegate of Mexico was in full agreement with the proposal of Spain as it appeared in SA Doc N0.61. The Drafting Committee would be able to introduce any reconciliation necessary. Eip;hth Meeting Commission of the Whole

22. Ihe Delegate of Jamaica said he would like to examine the various proposals for amendment of Article 4 in relation to the overall purpose of the Convention. As the preamble clearly stated, it was necessary to provide for appropriate measures to facilitate the prosecution and extradition of offenders; care had accordingly to be taken to ensure that the Convention did in fact contain such appropriate measures. Article 4 as it stood provided for compulso=y jurisdictior for the State of registration of the aircraft and the State in which it landed with the alleged offender still on board. Some of the proposals made had attractive iea'tures, but one trait common to all was that they sought to avoid the real problem of compulsory jurisdiction by providing that where there was no extradition the State in question should be obliged to prosecute. He feared that if the tommission adopted the Spanish proposal, it would be avoiding the jurisdictional problems posed by Article 4.

23. The concept of compulsory jurisdiction -,?as designed to provide for jurisdiction in those States most vitally connected with the offence. It was not enough to say that where there was no obligation to prosecute, or where there was no obligation to assume compulsory jurisdiction, and where extradition was impossible it would be necessary for the State to prosecute. The Commission should adopt a more positive role in dealing with the inadeq~aciesof the compulsory jurisdiction provisions of Article 4 in itself rather than side-stepping the problem, as in the various proposals.

24. His delegation wished to ensure that the offender was pi-osecuted in the States most vitally affected, namely that in which the offender was present, the State of registration of the aircraft and the State of the operator.

25 The Delegate of Venezuela observed that his country had suffered hijacking~and was acutely aware of the need to punish the offenders. Like other Wtin-American countries, Venezuela encountered various difficulties with regard to acceptance of certain Articles as draf tea. Tne Delegation of Spain had done much to clarify the problem covered by Article 4 and his full support went to its proposal in SA Doc No.61.

26. The I.L.A. Observer remarked that the Austrian and Spani* proposals - -- entailed ccaipulsory universal jurisdiction and meant that each State would have to establish the relevant jurisdiction. The Swiss proposal, with its permissive universal jurisdiction, came closer to I.L.Afs proposal which was based on what the Association at its 54th Conference in the summer of 1970 believed was then politically feasible. Much had happened since. He was prepared to support the L former proposals in that they went further towards 1.L.A's ideal of making it legally impossible for a hijacker to escape punishment.

27. The Delegate of Zambia expressed his full support of the United Kingdom

proposal contained in SA Doc No. 62, which, he believed, represented the =it-- to which States would at present go in accepting a provision of the sort. Although he sympathized with the Spanish and Austrian amendments, he felt that if universal jurisdiction was to be provided for in Article 4, it should be of a permissive character. - 77 - Eighth Meeting Commission of the Whole

28. The Delegate of the People's Republic of the Congo felt that the Spanish proposal added nathing to what was already provided for in Article 4, and indeed with its replacement of Article 7 it introduced an element of confusion between the various stages of establishing jurisdiction since in some countries prosecution did not start with initial arrest for inquiry or on a presumption of guilt. Only subsequently would the alleged offender be prosecuted if not extradited. His delegation considered the distinction to be very well made in the draft Convention as it stood.

29 With regard to the proposalhy the United Arab Republic contained in SA Doc No.11, he considered that the expression "with the alleged offender still on board" was preferable to any mention of arrest since it was not clear by whom the offender might be arrested.

30- Universal jurisdiction would give rise to a further provision in the Convention, of the non bis in idem kind,because there would certainly be instances of two or more countries declaringthemselves competent in respect of the same case. A sufficient change to Article 4 would be the extension of jurisdiction to the States in which a leased aircraft was operated.

31. The Delegate of Australia considered that the small number of cases intended to be covered by the present group of proposals did not justify the practical difficulties and needless complication of legal provisions in countries that were not the most vitally affected. He would, therefore, be satisfied with the wide measure of jurisdiction already provided for in the draft Convention as it stood.

32 The Delegate of Austria announced that following contacts between the Spanish and Austrian delegations, an agreement had been reached enabling Austria to withdraw its proposal contained in SA Doc No.&. The Spanish proposal in SA Doc No.61 would read:

"Each Contracting State shall likewise establish its jurisdiction over the offence in cases where the alleged offender is present in its territory and where he will not be extradited in accordance with Article 8 to one of the States mentioned in paragraph 1 3f this Article".

33. The Delegate of Spain thanked the Delegate of Austria for withdrawing his proposal in favour of what was in effect a joint Austrian and Spanish proposal. Drafting details would be left to the Drafting Committee.

34 The Delegate of Norwsy said she supported the principle underlying the present joint proposal, which would close a very important loophole in the Con- vention. She also favoured the United Kingdom amendment and would support it if the joint proposal was rejected.

35 The Delegate of the United States of ~hericafavoured the joint proposal, an important change closing a loophole in the Convention.

36 Tne Delegate of the Netherlands said that neither the Swiss nor the United Kingdom proposal would close the gap existing in the Convention, tnough Eiath Meeting Commission of the Whole - they might make it narrower. On the other hand, he believed that "compulsory extension of jurisdiction" was a distinct improvement and he therefore supported the joint proposal.

37 The Delegate of France considered the joint proposal a marked departure from the present text of the Convention. France's view was that the problem of establishment of jurisdictions should not be bound up with the actual machinery of extradition; and the obligation to extradite should be dealt with under the proper Article. Like the Delegate of Australia, he was disturbed by that oblique method of associating the attribution of jurisdiction with the implementation of extradition in order subsequently to request automatic extradition.

38- The United Kingdom proposal did not satisfy him entirely, but it had the merit of being more flexible and not running counter to national sovereignty. Theref ore his delegation might, if compromise proved expedient, support the United Kingdom proposal.

39 Tne Delegate of Panama said it was important to broaden the scope of the Convention to ensure that anyone committing an offence covered by Article 1 could be punished under domestic jurisdiction where the law of the Contracting State in question did not concede extradition. He therefore fully supported the joint proposal.

40. The Delegate of Indonesia said his &legation could not accept extension of jurisdiction, particularly to the State where tne alleged offender was ?resent. That State could only detain him for a preliminary 'inquiry and extradite him to the State entitled to jurisdiction under Article 4 of the Convention. He therefore preferred the text of Article 4 as it stood in the draft Convention.

41. The Delegate of Italy fully supported the joint proposal since it represented the widest assurance that all offenders would be prosecuted and so filled a loophole in the present Convention. If the joint proposai were rejected, his delegation would supprt the proposal of Switzerland.

42. The -a felt that no further compulsory jurisdiction needed adding to Article 4. The States chiefly concerned were the State of registl.ation of the aircraft and the State in which it landed with the alleged offender on board. If any other jurisdiction was to be specified, it should be under the permissive terms of paragra* 2 of Article 4. Tne proposal might well, if adopted, open the door to other amendments that would violate the spirit of the kind of Convention intended. His delegation therefore could not support the joint proposal of Austria and Spin.

43 Tne IFALPA Observer, also speaking on behalf of his colleagues in the International Transport Workers' Federation, said he favoured the joint proposal of Spain and Austria and that his second choice would be the United Kingdom proposal. From the outset of deliberations IFALPA had advocated the strongest possible Conven- tion with the widest application in order to outlaw the hijacker and ensure that he was punished. He recognized, in common with the Delegate of Jamaica and the ILA Eighth Meeting Commission of the Whcl-

Observer, that there were certain negative aspects to those proposals and that they did not go as far as IFALPA would ideally like them to go. In practice, however, the praposal of the Spanish and Austrian delegations represented the most that could be done at present and he thanked them for their contribution.

4h. The Chairman annaunced that the Delegates of Spain, Austria and the United Kingdam would now, as the proposers, have the last word before their amendments xere put to the vote.

4-5. The Delegate of Tunisia, speaking on a point of order, said he had difficult~at that late hour in following- a serious discussion on a text revised at the last minute in the meeting and dictated, but not circulated in writing in accordance with the Rules of Procedure. He therefore had regretfully to oppose the procedure announced by the Chairman with regard to the joint proposal of Spain and Austria.

lc6. T%e Delegate of Austria, speaking on a point of order, said that though formally the Delegate of Tunisia was right, the Spanish and Austrian delegations had thougkt that a hasty combination of their proposals was the only way of taking into account the evening's discussion. In order to facilitate the proceedings, he thought that the Spanish delegation would agree with his own to withdraw the orally submitted proposal and maintain the Spnish proposal in SA Doc No.61, which would have the full support of Austria. He was sure that the Drafting Committee would take amount of the ideas expressed in the oral amendment.

47 The Chairman stated that only the proposal contained in SA Doc No.61 was now under consideration.

48. The Delegate of Spain regretted the decision of the Delegate of Tunisia and felt that the objection might have been raised earlier. However, the Austrian amendment did n3t subs tantially alter the principle' of the need to establish a basis of jurisdiction to fill a gap in the Convention pointed out by many delegations.

49- The Delegations of Australia and France had objected to the multiplicity of jurisdictions provided for in the Spanish proposal. Yet the present text of the Convention already provided for plurality of jurisdictio .s arid the effect of the Spanish proposal would be simply to fill a specific gap and establish a principle of jxisdiction in domestic law; and the United Kingdom proposal introduced an even qreater multiplicity of jurisdictions.

50- The Delegate of the United Kingdom suggested thbt the Drafting Comn. ;ee ou&t to be asked to consider omitting the referense to Article 8 because there might be extradition under some other provisions such as the Tokyo Convention.

51- The Chairman, in reply to a point of order raised by the Delegate of the -Netherlands, confirmed that s vote wauld be taken on the text of the amendment to Article 4 proposed in SA Doc ~0.61as it stood. He could not ask the Delegate of Spain to accept an oral amendment, and in any case the Delegate of the United Kingdom had simply made a suggestion for the Drafting Committee.

52 The Delegate of Switzerland observed that the rule regarding proposals -Eighth Meeting - Commission of the Whole in writing was a sound one, but care shu~ldbe taken in applyin3 it to any amendnent since o-iherwise it mimt result in an intolerable limitatioo of ai:tion. 53. The span is':^ proposal regarding Article 4 in SA Doc ~0.61was adopzed by 33 votes to 17, with 17 abstenti3ns.

h he meeting adjourned at 2200 hours) NINTH MEETING OF THE COMMISSION OF THE WHOLE

(~uesd.a~,8 December 1970 at 0940 hours)

Chairman: Professor W. Riphagen

AGENDA ITEN NO. 9 : CONSIDERATION OF THE DFWT CONVE~ION

Article 4 (~ont'd)

1. The Chairman announced that there were still two batches of amendments to be considered, one dealing with the definition of jurisdiction and the other with the question of leased. aircraft. The meeting would deal. first with the amendments on jurisdiction.

2. The Delegate of Austria presented his Delegation's proposal to amend the first sentence of Article 4, paragraph 1, by add.ing the w0rd.s "and any other act of violence committed in connexion with the offence against passengers and crew". The United. Kingdom Delegation had made a similar amendment (SA Doc No. 45), but that d.id not go so far as the Austrian proposal since it provided for jurisdiction only in cases of murder and. attempted. murder committed. in the course of the commission of the offence.

3 The Tokyo Convention would not be helpful in all cases, for und.er the provisions of that instrument an act of grievous 'bodily harm to crew or passengers might well remain unpunished. The Austrian proposal was designed to ensure that punishment of all offences co,nnected. with hijacking should be covered by the present Convent ion.

4. The Delegate of the United Kingdom said that to facilitate the discussion his Delegat ion would withdraw its amendment.

5. The International Transport Workers ' Federation Observer expressed his organization' s appreciation of the Austrian amendment, which sought to deal with the ever-present threat of violence to crew members.

6. The Delegate of Switzerland supported the Austrian proposal. It would be regrettable if certain acts of violence committed in the course of hijacking were not covered by the Convention.

7 The Delegate of Korea supported the Austrian proposal. Ninth Meeting Commission of the Whole

8. The Delegate of France said that to extend the co~apetenceof the resent Convention would involve a risk of confusion with the draft Convention on Unlawful Interference. Complications would arise if the Austrian amendment were included in a text whose original intention was limited.

9- , The Delegate of Austria said that in his Delegation's view the right place for dealing with the various acts of violence that might be committed in the course of hijacking was the present Convention, which was specifically applicable to that offence. It would be useful to extend jurisdiction for that offence, otherwise certain acts of violence might remain unpunished.

10. In reply to a question by the Delegate of Spain, he said that his Delegation had had in mind above all the acts mentioned in the United Kingdom proposal. -

Vote on- the.Austriq amen-hent to Article 4, ~agraph-1 (SA Doc No. 39)

11. The amendment was ado~tedbs 25 wtes to 11, with 30 abstentions.

12. The Chairman said that the meeting would now deal with the two amendments to ~rmwhich concerned leased aircraft, one contained in the Report on the Subject of Aircraft Registered in a State Different from the State of the Operation, presented by Dr. Honig etherla lands) and Miss White (united ~ingdom)to the seventeenth session of the Legal Committee (SA Doc No. the other submitted by the De&gat ions of Argentina, BarSados , Cameroon, ,Costa Rica, India, Jamaica, People's Republic of the Congo, Pinidad and Tobago and Zambia (SA Doc No. 46). The amendments were similar except thak the first sought to make the jurisdiction permissive whereas the second was designed to make it mandatory.

13 The Delegate of the Kingdom of the Netherlands_ explained that the provisions of the draft Convention relating to jurisdiction and extradition did not take into account cases where an airline operated aircraft not owned by that airline and not registered in the State where that airline had its headquarters.

14. Article 4 of the draft Convention named the State of registration of the aircraft and the State of landing as States which should take measures to establish jurisdiction over the offence, and Article 8 enabled those States to ensure extradition. Those two States were generally in the best position to prosecute, but in cases where an aircraft was leased without a crew to an operator out side the State of registration, that State might have little reason to procesure an alleged offender, or might even be unable to do so; hence there was a gap in the provisions of the draft Convention.

15 The most important thing was that the State which had a real taterest in prosecuting should establish its jurisdiction. In the zase of leased aircraft, that State was often the State of the lessee; under the present text that State had an opportunity to prosecute but not to secure Ninth Meeting Commission of the Whole

extradition. The amendment submitted by several Delegations in SA Doc No. 46 .las designed to enable the State of the lessee to secure extradition. He agreed that the Convention should provide for that situation, but thought that jurisdiction should be provided on a permissive basis rather than a mandatory one, since, as stated in paragraph 1.0 of the Report (SA Doc No. 5) a number of States had indicated that they could not accept an obligation to establish jurisdiction in such a case.

16. It should be borne in mind that an interest of the State of registration remained even in cases of leases without crew. It was not proposed to substitute the State of the lessee for the State of registration but to put both States in a position to exercise jurisdiction.

17. The Delegate of Barbados presented the draft amendment in SA Doc No. 46. He stated that the Report of the two Rapporteurs on Aircraft Registered in a State Different frm the State of the Operator had argued for permissive jurisdiction since a number of States had indicated that they could not accept a mandatory obligation. However, the records of the Seventeenth Session of the Legal Camittee showed that, in fact, only three States had so indicated. Since that session, two things had happened.

18. Firstly, the ICAO Assembly at its Seventeenth Session had unanimously adopted Resolution A17-5 which enunciated the principle that where an aircraft was leased to, and operated by a carrier of a State other than the State of registration, the State of the carrier should have the same rights and responsibilities recommended in that resolution for the State of registration.

13. Secondly, the Commission of the Whole had found it desirable, in order to plug a loophole, to impose mandatory jurisdiction On any State where the alleged offender happened to be present. The offender need not be a national of the State nor have committed the offence in an aircraft registered in that State, and the aircraft need not have landed in that State.

20. The State of the operator had the greatest interest in bringing an offender to justice, for in many cases its nationals would be involved; moreover, it would be in the best position to ensure conviction because the principal witnesses to the offence would be readily available.

21. All the objections raised in the Legal Committee had already been re5utted, and the sponsors of the draft amendment in SA Doc 46 considered that it was clearly necessary for the State of the operator to have jurisdiction over the of fence and that that jurisdiction should. be mandatory.

22. The Delegate of Costa Rica observed that Article 4 had been based on the assumption that the carrier was in every case the owner of the aircraft. The new practice of leasing without crew had since become widespread, however, and it was essential that the Convention give the State of the operator mandatory jurisdiction. Ninth Meeting Comission of the Whole

23. The Delegate of France expressed fundamental disagreement with the Delegate of Barbados and felt that the Conference was taking a disturbing course towards a proliferation of obligations where adequate basic provision already existed .

24. The Delegate of Indonesia congratulated the Rapporteurs on their work and commended their criteria. The State of the lessee would indeed be in a better position to prosecure for various practical reasons such as the availability of witnesses. However, he felt that jurisdiction should be mandatory and he therefore supported the joint proposal in SA Doc No. 46.

25. The Delegate of the United States of America thanked the Rapporteurs for their work and stated his preference for permissive jurisdiction. Since leasing sometimes lasted only a few hours, he would hesitate to impose on the country of the lessee the need to draw up special legislation. Nevertheless, his preference for permissive legislation in that respect did not signify a reject ion of mandatory legislation.

26. The Observer for the International Air Transport Association (TATA) said it was important that the Convention cover the problem of leasing and remove any loopholes since the practice had become so frequent on account of the cost of modern aircraft.

27. The objection raised by the Delegate of France regarding the proliferation of obligations was more academic than practical. The fact was that leased aircraft were often very far away from the country of registry and needed adequate protective legislation. The Delegate of the United States of America had. objected that leasing was sometimes only for a few hours, but it had. to be remembered that the operation was subject to frequent repetition.

28. He supported the proposal in either fom but preferred the jurisdiction to be mandatory.

29. The Observer for the International Federation of Air Line Pilots Association (PALPA) congratulated the Rapporteurs on having out lined the problem, but stated his support of the proposal contained in SA Doc No. 46, since permissive legislation gave no assurance that the offender would be dealt with appropriately. The country of the operator would generally be far more interested in prosecuting, and failure by the Conference to close the gap in the coverage of the Convention would amount to negligence.

30- The Delegate of Spain felt that the nationality of t be operator was not a significant factor in international order. On tnc other hand, the personality of an aircraft was derived from its flag or na- ionality. A further drawback to the proposal contained in SA Doc No. 46 was tk3 dtfficult,;. of obliging Contracting States to lay down special provisi r n f'or extradi t-on in their domestic legislation. He accordingly supported i,ke proposal contained in SA Doc No. 5. Ninth Meeting Commission of the Whole

31. The Delegate of Thailand said he favoured extension of mandatory jurisdiction to the State of the operator in accordance with SA Doc No. 46.

32. The Delegate of Japan said that though he preferred mandatory, he was willing to accept permissive jurisdiction if there was firm opposition to the former alternative. In any case, the competence of the State of the lessee had to be clearly stated in the Convention.

33. The Delegate of Guatemala suppurted SA Doc No. 5, with its provision for permissive jurisdiction.

34. The Delegate of Austria supported SA Doc No. 46 as he felt it essential to stop up all loopholes.

35. The Delegate of Jamaica commended SA Doc No. 46 to the Conference. There was a loophole in the present text of the Convention and it was important that the State of the operator be given mandatory jurisdiction.

36. The Delegate of Zambia said he wished to associate his Delegation with the reply of the Observer for MA. He disagreed with the importance given by the Delegate of Spain to the personality of the aircraft and drew the analogy of flags of convenience in the case of ships.

37. On the background to the proposal, he explained that the original proposal of the Delegate of Barbados had been adopted by 13 votes to 12 at the thirty-third meeting of the Seventeenth Session of the Legal Committee and rejected by 20 votes to 9 when taken up again at the thirty-fifth meeting, when the Committee had rejected by 20 votes to 9 the Canadian proposal to give each Contracting State permissive jurisdiction over the offence when it was committed on board an aircraft operated, but not owned by, a carrier having its head office in that State.

38. The Delegate of Trinidad and Tobago expressed full support for what the representatives of IATA and Zambia had said.

39. The Delegate of New Zealand supported mand.atory jurisdiction. The practice of leasing without crew might well become increasingly widespread in the larger countries too, particularly pending the delivery of new aircraft, and it was essential to make adequate provision in the Convention. Most of the arguments against mandatory jurisdiction were based on the sovereignty of States, a time-worn principle not always compatible with the new industry of civil aviation.

40. The Secretary General of thesonf erence observed that whether under SA Doc No. 5 or No. 46, the lessee was described as a businessman with no place of business and with no nationality. Ninth Meetinq Commission of the Whole

41. The Delegate of Barbados, in reply to the various objections expressed 04 the subject of mandatory jurisdiction, observed that the point raised by the Delegate of France concerning the rejection of mandatory jurisdiction by the Legal Committee had been explained by the Delegate of Zambia. The decision of that Committee should not have even a persuasive effect on the decisions of the present Conference.

42. In reply to the point made by the Delegate of the United States of America that aircraft were often leased for short periods, it was his own understanding that most if not all such leases were concluded between operators registered in the same State. In any case the question under discussion dealt with the case of a lessee in one State and an operator in another. In many short leases, moreover, the. aircraft was leased with its crew and the present amendments dealt with aircraft leased without crew.

43. Concerning the fragmentation of jurisdiction, he agreed with the Delegate of Jamaica that mandatory jurisdiction must be given to the State of the operator, which had a direct interest in apprehending the offender .

44. To the objection of the Delegate of Spain that the nationality of the operator had not yet been defined in international law, he would put forward the argument for progress made by the Delegate of New Zealand.

45. He emphasized that in giving mandatory jurisdiction to the State of the operator, the Convention would not take it away from the State of registration, for the two jurisdictions were concurrent.

46. The Delegate of the United Kingdom, replying to the point raised by the Secretary-General concerning the nationality of the lessee, said that though leases were most often concluded with airlines, individuals were also involved. The report in SA Doc No. 5 had avoided the criterion of nationality, because an individual could have two or more nationalities and could carry on his business or live in a State other than that of his nationality. The Rapporteurs had, therefore, adopted the criterion of the principal place of business or the permanent residence . 47. As regards the question of permissive or mandatory jurisdiction, the report had been drafted in the light of tk discussions of the Legal Committee's Seventeenth Session, at which three States had said that they could not accept a convention which provided for jurisdiction of the State of the operator on a mandatory basis, and others had expressed misgivings about it. The Rapporteurs had not wanted to suggest a solution that would make the Convention unacceptable to any State that woula otherwise have been in a position to accept it. Ninth Meeting Camnission of the Whole

48. The United Kingdan could have accepted the provision for mandatory jurisdiction, since Article 4 called for establishment and not for exercise of jurisdiction. However, since it was very important that as many States as possible should be enabled to accept the Convention, her Delegation would vote for the jurisdiction on a permissive basis.

The amendment was adopted by 43 votes to 6, with 25 abstentions.

Vote on Article 4 as a whole as amended

IS a whole as amended was adopted by 55 votes to ;ions, on the understanding that it would go to the Draftina Ccnrmittee for examination.

Article 5 51. Article 5 was adopted on the understanding that it would go to the Drafting Ccamnittee for examination.

Articles 6, 7 and 8

52. It was decided to defer discussion of Articles 6, 7 and 8 until the report of the working group set up to consider those Articles was available.

Article 9

53. The Chairman announced that there were various amendments to and camnents on Article 9. They were SA Doc No. 7 (~nternationalChamber of ~amneroe),SA Doc No. 19 (~esolutionof the International Law Association), SA Doc No. 32 amendment by the Union of Soviet Socialist ~epublics), SA Doc No. 47 t amendment by Barbados, India, Jamaica and ~ambia),SA Doc No. 54 (amendment by the People's Republic of the congo), SA Doc No. 57 (amenctnent by ~ustria).

54. The Delegate of the Union of Soviet Socialist Republics explained that the proposal contained in paragraph 8 of SA Doc No. 32 was simply intended to clarify the obligation to return the aircraft and its cargo as soon as possible to the persons lawfully entitled to possession.

55. The Delegate of Jamaica said that the purpose of the proposal contained in SA Doc No. 47 was to extend the obligation to permit passengers and crew to continue their journey, to any Contracting State in which they happened to be. Ninth Weting; Commission of the Whole

Article 9 had origihally been drafted to alleviate the consequences of unlawful seizure ~ndit followed the principles of Article 11 of the Tokyo Convention. Experience had shown, however, that an aircraft might be kfjagked Q sne country and its passengers and crew diverted to another. He accordfngly urged th@Conference to adopt the simple amendment proposed so as to extend the humanitarian principle of mutual assistance already embodied in ArtiCle 9.

56. The Delegate of Austria said that in view of paragraph 5 of the operative part of the UN General Assembly Resolution of 25 November 1970, he felt that the Convention should be strengthened to oblige Contracting States to provide for the welfare of pasaengers ~ndcrew and to return the aircraft and its cargo. His proposal partly reflected that of the USSR in SA Doc No. 32. The joint proposal in SA Doc No. 47 was compatible with his, and his Delegation was prepared to accept the essential part of it in view of the possible situation in which passengers and crew might be diverted to a country other than that in which the aircraft landed.

57. The Observer for the International Air Transport Association (m~) stressed the importance of ensuring that cargo was returned promtply.

58. Paragraph 1 of Article 9 was adopted.

Article 9, parawaph 2

59. The Delegate of India urged the Conference to adopt the proposal in SA Doc No. 47 for the reasons given by the Delegate of Jamaica. The proposal filled a gap and was compatible with those of the USSR and Austria.

60. The Delegate of Barbados supported SA Doc No. 47 for the reasons given by the Delegate of Jamaica. The proposal was a provision for circumstances not originally contemplated.

61. The Delegate of Canada observed that his Delegation had put an identical proposal before tk Legal Subcommittee, which had rejected it on the grounds of its general decision that where subjects in the new hijacking Convention come spanded to items covered by the Tokyo Convent ion, the same wording should be retained. Since that restraint had now been abandoned in the interests of strengthening the Convention, he firmly supported the Austrian proposal in SA Doc No. 57. He also had no difficulty in accepting the joint proposal in SA Doc No. 47.

62. The Delegate of Tunisia feared that determination to reform might bring about a situation in which countries ratifying both the Tokyo and the new convention would commit themselves to contradictory measures. He therefore felt it desirable to follow the wording of the Tokyo Convention whenever possible and was in favour of retaining the present text of Article 9, paragraph 2. Ninth Meeting Commission of the Whole

53 . The Delegate of the United Kingdom said he could support the proposals of Barbados, Austria and the USSR, but that he had difficulty with those of the International Chamber of Commerce and the People's Republic of the Congo on account of the implied conflict with obligations already accepted by his country under the Tokyo Convention, which specified that cargo must be returned to the person lawfully entitled to possession. He preferred the existing text of Article 9, paragraph 2.

en he meeting adjourned at 1245 hours) THIS PAGE INTENTIONALLY LEFT BLANK TENTH MEETING OF THE COMMISSION OF THE WHO= (~uesda~,8 December 1970 at 1435 hours)

Chairman: Professor W. Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 9 , par&rap.h 2 (continued) (SA Doc Nos. 19, 32, 47, 54)

1. The Delegate of the People's Republic of the Congo introduced the proposal contained in SA Doc No. 54. His Delegation believed that Convention should inclde reference 'to the need for Contracting States to allow the onward transmission of cargo carried on hijacked aircraft landing on its territory. In submitting its amendment it had in mind the problem of holding up the dispatch of perishable goods and of mail in particular.

2. The Delegate of Guatemala thought it appropriate to retain a reference to cargo in paragraph 2.

3 The Delegate of Cameroon supported the proposal contained in SA Doc No.' 47. He believed that the question df the onward dispatch of cargo deserved to be taken into account, but hoped that' reference to it might be included, not in the original text, but in the revised text proposed in SA Doc No. 47.

4. The Delegate of France, while recognizing that the draft Convention was naturally open to amendment, reminded the Commission of the advantages of retaining as much as possible of tk wording of the Tokyo Convention, where appropriate, to facilitate the ratification of the Convention under discussion. He considered for example, that the insertion of the words "without delay" as proposed in SA 'Doc No. 32 might lead to some misinterpretation and .. consequently to delays in ratification or implementation, and carried the additional risk that, if they followed the letter of the Convention, States in which hijacked aircraft landed might lose the opportunity of taking statements and collecting evidence from first-hand witnesses.

5 He supported the proposal contained in SA Doc No. 47, and considered that the purpose of that contained in SA Doc No. 54 might be taken into account though some redrafting of paragraph 2 so long as dis- proportionate importance was not accorded to cargo as against passengers and crew. Tenth Meeting Commission of the Whole

6. The Delegate of Zambia supported the proposals contained in SA Doc Nos. 32 and 57. He believed the amended wording did not conflict with that employed in the Tokyo Convention but simply extended the scope of the Article in question. He understood the aim of the proposal concerning the forwarding of cargo, but believed that it might lead to practical difficulties. He welcomed the suggestion contained in SA Doc _NO. 19, paragraph 5.

7 The Delegate of the Union of Soviet Socialist Republics, replying to a point raised by the Delegate of Denmark concerning a slight discrepancy in the wording of the English and fiepch translations of his Delegation's amendment, said he believed the words "without delay" might well be inserted in the same place in the paragraph as in the Austrian proposal. 8. The Delegate of Spain pointed out that the word "de inmediato" should be replaced by the words "sin retraso" or "sin demora" in that proposal.

9 The Delegate of the United States of America sympathized with the purpose of all the amendments submitted, particularly those contained in SA Doc Nos. 32 md 57which he supported. He understood the need to provide for cargo to be forwarded but believed that care should be taken to avoid altering the obligations already laid on States under the Tokyo Conven- tion, bearing in mind the need to encourage as many States as possible to ratify the Convention on hijacking. In any case the obligations laid on States under both Conventions must be compatible. He would be glad of a further explanation of the situations to be covered by the amendmnt proposed in SA Boc No. 47.

10. The International Law Association Observer, speaking on the invitation of the Chairman, explained that his Association had wished to draw attention to the relevance of a well-known rule of maritime law according to which a ship, its cargo and the persons on board, entering a foreign port in distress were afforded a degree of immunity frcm local jurisdiction. Among other things, that meant that no legal action could be taken against them in respect of their involuntary entry into and presence in the country, even though the crew and passengers must otherwise comply with local law. Recognition in the Convention of the application of that rule to aircraft in distress - a reference might appropi-iately be included in paragraph 9 - would be desirable, and would also do away with the possibility of a discrepancy being found between the texts of the Convention and that of the Tokyo Convention.

11. The Delegate of Ireland supported all the proposals submitted.

12. The Delegate of Norway believed there was absolutely no conflict between the text of the Tokyo Convention, Article 11, paragraph 2, and the proposed amended text of the paragraph under discussion contained in SA Doc No. 47. Tenth Meeting Commission of the Whole

13- The Delegate of Greece was in favour of enlarging the scope of paragraph 2 as proposed in SA Doc No. 47.

14. The International Transport Workers 'Fkderation Observer, speaking on the invitation of the Chairman, expressed his support for the proposals contained in SA Doc Nos. 47 and 57. They met real needs arising after the hijacking of an aircraft.

15. The International Federation of Air Line Pilots Association Observer, speaking on the invitation of the Chairman, supported the proposals contained in SA Doc Nos.'32, 47 and 57.

16. The Delegate of Israel pointed out that the proposals contained in SA Doc Nos. 32 and 57 were perfectly in line with the operative part of Resolution A17-5 adopted by the ICAO Assembly at its Extraordinary Meeting held the previous June. They should consequently be given serious cons ideration by the Conference. He supported them as well as that contained in SA Doc No. 47. He personally considered that the amendments pmposed to paragraph 2 added to the substance of the Tokyo Convention, Article 11, paragraph 2, and in no way conflicted with it. 17. The Delegate of the Byelorussian Soviet Socialist Republics welcomed all amendments to -~araaraph -- 2 which could lead to a strengthenilig of the original text. He suggested that the positive elements of the proposals contained in SA Doc Nos. 54 and 57 might be cmbined.

18. The Delegate of the Poeplers Republic of the Congo said that althou6 a number of speakers had invoked the Tolryo Convention, many earlier ICAO meetings had shown that it was inadequate for purposes of dealing with the specific problem of hijacking, which had only recently become a particularly serious matter.

19. As far as the present discussion was concerned, the remarks by other Delegates made it superfluous for him to observe that some degree of co-ordina- tion might be effected between the various proposals for amendment. He merely wished to question the Delegate of Cameroon's comparison of the joint proposal contained in SA Doc No. 47 with the Congo prpposal in SA Doc No. 54. Each treated the matter of cargo differently; and he believed that each could be put separately to the vote, without prejudice to either.

X). The Delegate of Argentina said that the Spanish text of the proposal by the Union of Soviet Socialist Republics, contained in paragraph 8 of SA Doc No. 32 shculd be brought into line with the other language versions.

21. The Delegate of Canada suggested that the drafting of the proposals contained in SA Doc Nos. 47 and 54 might be reworded to avoid the impression that the word "its" referred to the Contracting State. Tenth Meeting Commission of the Whole

22. The Delegate of India welcomed the support accorded to the proposal in SA Doc No. 47, whose terms - as the Delegate of Norway had pointed out - were not contradictory with the provisions of the Tokyo Convention. He trusted that the proposal would be adopted unanimously . 23 He believed that the proposals by the Union of Soviet Socialist Republics, the People's Republic of the Congo and Austria were compatible, ana could be amalgamated by the Drafting Committee in a text which - he hoped - would not give the impression that aircraft and cargo were somewhat more important than the human victims of acts of hijacking.

24. The Delegate of Austria thanked those Delegates who had refuted the argument that his proposal was incompatible with the Tokyo Convention. He believed that there would be no diffimlty in accepting that proposal.

25 After an exchange of views between the Chairman, the Delegate of Spain, and the Delegate of France concerning procedure, the Chairman put to the vote the proposal, contained in SA Doc No. 47, tending to replace the words "in which the aircraft lands" in paragraph 2 of Article 9 by the words "in whose territory the aircraft or passengers or crew are located".

26. The proposal was adopted by 53 votes to none, with 3 abstentions.

27. The Chairman put to the vote the proposal contained in SA Doc No. 47, with the understanding that the result of the vote would in no way prejudice consideration of the proposal by the People's Republic of the-Congo concerning the treatment of cargo. The proposal was adopted by 59 votes to none, with 3 abstentions.

29 The Chairman observed that the result of the vote precluded the necessity of voting on the USSR proposal in SA Doc No. 32, which had automatically been accommodated.

After a discussion between the Secretary General, the Delegate of the the Delegate of Trinidad and Tobago, the Delegate- 'of ed States of 'America and the Chairman, concerning clarification of the proposal submitted in SA Doc No. 54 and the manner in which it would be put to the vote, the Chairman put to the vote the proposal by the Delegate of the People's Republic of the congo that in the first part of paragraph 2 of Article 9 the words "and cargo" be inserted after the words "its passengers and crew".

31 There were 20 vo-ces in favour smd 20 against, with 15 abstentions.

32 On a proposal by the Delegate of Switzerland, and in accordance with Rule 25 of the Rules of Procedure, the Comission decided that a second vote should be taken during the meeting. Meeting C- C-

33 The Delegate of Tunisia proposed the suspension of the meeting, under Rule 14 of the Rules of Procedure.

34 There being no opposition to that proposal, it was so decided.

35. After a brief suspension, a second vote was taken on the pro- ~osalcontained in SA Doc No. 54.

The proposal was rejected by 30 votes to 10, with 19 abstentions.

37 The Chairman put to the vote paragraph 2 of Article 9, as amended. 38 Paragraph 2 of Article 9, as amended, was adopted by 60 votes to none, with 2 abstentions.

Article 10 (SA Doc NO. 13)

39. The Delegate of Switzerland introduced the proposal to amend Article 10 contained in SA Doc No. 13.

h he meeting adjourned at 1645 hours) THIS PAGE INTENTIONALLY LEFT BLANK ELEVENTH mECING OF !IRE CCMMISSION OF THE WOLF:

('Tuesday, 8 December 1970 at 2000 hours)

Chairman: Professor W. Riphagen

AGENDA ITEM NO. 9 : CONSIDERATION OF THE DRAFT CONVENTION

Article 10 (sA Doc No. 13) (conttd)

1. The Delegate of Costa Rica supported the amendments submitted by the delegation of Switzerland. The inclusim of the additional ~oints- referred to in them-should strengthen the Convention considerably.

2. The Delegate of Austria welcomed the greater precisian and amplification of Article 10 provided by the Swiss proposal and the fact that it would bring the text into line with accepted international practice. He believed, however, that the English and French versions did not tally exactly.

3- The Delegate of Spain hoped the Delegate of Switzerland would explain the purpose of the proposal. While not opposed to it, he wondered if the amendment to the reference to applicable law might not be superfluous. The listing of certain types of material evidence might be misinterpreted as restrictive, and the additional paragraph suggested might also be considered as limitative.

4. The Delegate of Venezuela believed that the Swiss proposal clarified the intention of Article 10 satisfactorily, and was ready to vote in favour of it.

5 The Delegate of the United States of America shared the views expressed by the Delegate of Spain. The original text of Article 10 seemed complete in itself and specified quite clearly that States should provide assistance on request in accordance with applicable law.

6. The Delegate of the United Kingdom supported the first amendment to the o~iginaltext. He would, however, welcome a clarification of the purpose of the proposed additional pragraph.

7. The Delegate of France was not against the Swiss amendment but did not consider it a real improvement on the original text which he found quite satisfactory. He pointed out that the words "acte dtinstruction" in the French version of the amendment had a wider meaning than the term "preliminary investigation" in the English, and conversely that the term "pi&ce & conviction" was more restrictive than "evidenne mater iall'.

8. The Delegate of Guatemala supported the original text. Eleventh Meeting Conmission of the Whole

9. The Delegate of Switzerland explained that the amended reference to "applicable law" had jeen drafted in such a way as to meet the requirements of legal systems, such as his Dwn countryr s, which were based on Roman law. He fully understood that countries naving the Anglo-American zommon law system might find it diffiwlt to see the need for such an amendment, but its ad3ptioo wmld facilitate matters for many States. Furthermore, his delegatim believe it useful to include a reference to material evidenze in Article 10.

10. Replying to a question put by the Delegate of Kenya, he added that the purpose of the additional paragraph proposed was to clarify relations with other international bilateral or multilateral conventions, and that the wording had been drawn from the texts of conventions relating to criminal law prepared by the Council of Europe.

He requested the Chairman to put the two amendments to the vote separately.

The Delegate of Canada supported that request.

The proposal to amend the original text of Article 10 as submitted in document SA Doc No. 13, paragraph (2), first sub-paragraph, was approved by 25 votes to 5, with 30 abstentions.

The proposal to add a second paragraph to Article 10 as submitted in document SA Doc No. 13, paragraph (2), second sub-paragraph, was approved by 18 votes to 1, with 42 abstentions.

Article 10, as amended, was approved for submission to the Conference in plenary session, by 31 votes to none, with 27 abstentions.

~ewArticle (SA Doc No. 68) 16. The Chairman informed the Commission that the Drafting Cmmittee would be invited to suggest the most appropriate place to insert the new article contained in document SA Doc No. 68, if approved. 17- The Delegate of the United States of America, introducing the proposed new article, indicated first that the phrase appearing in square brackets in szb- paragraph (b) had been included for information only during the debate, and did not constitute part of the proposed text. The new article itself had been prepared in response to the invitation to the present Conference extended by the ICAO Assembly in its Resolution A17-4 to include provision in the convention requiring Contracting States to communicate information relevant to hijacking incidents to the ICAO Council.

18. The Delegate of France, a co-sponsor of the propoml, expressed the hape that it would be widely acceptable. He pointed 3u-t that the French translation of the term "legal proceedings" in sub-paragraph (c) should be amended to read "proc&ure judiciaire" . Eleventh Meeting Commission of the Whole

19 The Delegate of Yugoslavia found the proposal both wise t:.riZ. reasonable. ICAO should naturally be kept informed of facts regarding hijacking incidents. He would be ready to support the proposed text, with some drafting modifications.

20. The Delegate of Venezue*, a co-sponsor of the proposal, expressed the hope that the Cmission would approve the new article.

21. The Delegate of Denmark, while supporting the proposal, said he would have preferred the wording submitted on a previous occasion by the Sub-committee of the Legal Committee containing no reference to "applicable national law". He hoped it was clearly understood that the information on the three seprate items specified in the sub-paragraphs could and should be submitted at different times. For example, information would 3e available more rapidly on sub-paragraphs (a) and (b) and the first part of sub-paragraph (c) than on the extradition or other legal proceedings referred to in the latter part of sub-paragraph (c). ICAO must be given the opportunity of analysing the effectiveness of air safety measures in the event of hijacking, but the value of information on such cases would be seriously diminished if it were not submitted as soon as it became available.

22. The Delegate of Tunisia considered the new article would serve the useful purpose of obliging States to forward information to ICAO. He did, however, believe that it snould indicate precisely which State or States should report to ICAO. In a state of anarchy, for example, conflicting versims of the facts might be submitted, and States which ought to send in reports might not do so.

23. The Delegate of Korea fully supported the proposal.

24. The Delegate of China also supported the proposal.

25 'Ithe Delegate of Australia was in favour of inserting the new proposed article in the Convention. However, he noted that nothing was said as what ICAO was to do with the information supplied. He hoped that ICAO would analyse the relevant reports and make the facts available to Member States in some form. He did not understand what was intended by the reference to napplicable national law". Believing that few, if any,countries would have any legal provisions regarding the transmission of reports to ICAO (his own had none), he suggested the deletion of the reference to applicable national law.

26. The Delegate of Czechoslovakia recalled that the Legal Committee had already noted that the exchange of infomation among States concerned in a hijacking act might raise problems for some States. He had some d~ubtsconcerningthe advis- ability of inserting the new proposed article in the Convention, since it might to some extent make it more difficult to reach universal acceptance of the Convention.

27 The Delegate of Guatemala observed that the inclusion of the new article might complicate the task of the ICAO Council's Committee on Unlawful Interference.

28. The Delegate of India, a co-sponsor of the pmposl, remarked that in spite of the nigh number of hijacking acts very little was known of their circumstances or of their conseqJences to the passengers, crew and cargo and the aircraft itself. It would be useful fmr States to accept the obligation to report to ICAO as proposed. There would, of course, be a time lag between the time when information Eleventh Meetinn- Commission of the Whole - 100 -

- would be available on the various items specified in the three subpragra@s, but there was no doubt that reports ought to be transmitted to ICAO as soon as possi le and no doubt as to theil- usefulness.

29 The Delegate of the United States of America, replying to the De1r:ate of Australia, explained that it had appeared necessary to include the reference to "national law" to take into account the difficulties encountered by some States in complying with an unequivocal obligation to transmit information.

Article 6

31. The Cnairman presented a preliminary report on Article 6 prepared by the Working Group on Articles 6,7 and 8. In all, 10 delegations had submitted comments and proposals relating to Article 6. Tney were contained in SA Documents No.11 (united Arab Republic), 15 (~exico),18 re land), 22 (~ndonesia),32 (union of Soviet Socialist Republics), 43 (~razil),44 (~r~entina),52 (costa ~ica), 66 (~arbados,Jamaica and Trinidad and ~oba~o)and 67 (~omania). The proposal contained in document SA Doc No.22 had been withdrawn. There were no specific proposals in documents SA Doc No.15 and 18. He understood that all the proposals were supported.

32 After a short procedural debate, the Delegate of Spain proposed that after hearing the presentation of the various proposals by their sponsors the Commission proceed to the vote without holding any debate on them.

33 The Delegate of Austria said he could agree to that proposal, on the understanding that the procedure be considered as exceptional.

34- It was agreed to follow the procedure proposed by the Delegate of Spain as an exceptional measure.

Paragraph 1 (SA Doc Nos. 15, 32, 43, 44 and 52)

35 The Delegate of Mexico withdrew the comments contained in SA Doc NO. 15

36 The Delegate of the Union of Soviet Socialist Republics-- said that the aim of the proposal contained in SA Document No.32 was closely related to Articles 7 and 8. He therefore withdrew that proposal, and requested that it be referred to the Drafting Committee for consideration in connection with Articles 7 and 8.

37 It was so decided. 38 The Delegates of Argentina-- and Brazil introduced the proposal to delete the words "upon being satisfied that the circumstan-es so wsrrant" contained in SA Documents No.43 and 44. The retention of that phrase could Eleventh Meeting Cqmmission of the Whole

lead to an arbitrary decision on the part of a State having an alleged offender in its territory. The phrase in itself was in any case somewhat ambiguous; it weakened the text and its deletion would not change the meaning of Article 6.

39 The Delegate of Costa Rica introduced the proposal contained in SA Doc No.52 calling for the replacement of the same plrase by the words "having regard to the circumstances". The mere deletion of the phrase would mean that States would be obliged to take proceedings whatever the circumstances and might possibly affect the sovereignty of the States concerned. The text should not be too rigid, but at the same time States should take the circumstances surrounding the crime into account.

40. The Delegate of Argentina observed that the amendment proposed by the Delegate of Costa Rica coula be considered as a conciliatory amendment. His Delegation and that of Brazil considered it unnecessary and unadvisable to make any reference to the circumstances in which the crime was committed. Any action taken would in any case be taken in the light of the circumstances.

41. The Delegate of Brazil introduced the second amendment to paragra* 1 contained in document SA Doc No.G3.

42. The proposal to delete the words "upon being satisfied that the circumstances so warrant" contained in SA Documents No.43 and 44 wzs rejected by 29 votes to 23, with 5 abstentions.

43. The proposal contained in SA Doc No.52 was rejected by 36 votes to 9, with 12 abstentions.

44. The proposal concerning the second sentence contained in SA Doc No. 43 was rejected by 36 votes to 9, with 13 abstentions.

45 Article 6, pragraph 1, was approved for submission to the Conference in plenary session by 56 votes to none, with 10 abstentions.

Paragraph 2

46. There were no proposals to amend paragrapl 2 and no comments.

47 Article 6, paragra* 2, was approved for submission to the Conference in plenary session by 67 votes to none, with 1 abstention.

Paragraph 3 (SA Doc Nos. 44 and 67)

48. The Delegate of Argentina, introducing the proposal contained in SA Doc No.44 calling for the insertion of the words "in accordance with local law" it3 the text believed the amendment to be self-explanatory. Its purpose wss simply to ensure that the right of a person taken into custody to communicate with the nearest representative of his State should not be considered as over-riding local law. Eleventh Meeting Commission of the Whole

49. The Delegate of Romania introduced Gie proposal to replace the word "imediately" by the word "urgently" contained in SA Doc No.67. Such an amendment would bring the text into line with the wonling of the Vienna Convention. The ri&ts of offenders to communicate with the representatives of their governments would still be safeguarded if that amendment met with approval, as they woul4 be if the Argentinian amendment-which he supported- were adopted.

50. The proposal contained in SA Doc No.44 was rejected by 29 votes to 14, with 17 abstentions.

51. The proposal contained in SA Doc ~0.67was rejected by 25 votes to 18, with 17 abstentions.

52 Article 6, paragraph 3, was approved for submission to the Conference in plenary session by 58 votes to none, with 3 abstentions.

Paragraph 4 (SA Doc Nos. 11, 32 and 66) 53. The Delegate of the United Arab Republic withdrew the comments on paragraph 4 contained in SA Doc No.11.

5 40 The Delegate of the Union of Soviet Socialist Republics introduced the proposal to delete the words "and shall indicate whether it intends to exercise jurisdiction" contained in SA Doc No.%. The retention of that phrase implied that the State in which a hijacked aircraft landed enjoyed priority of jurisdiction. The Commission had already agreed that none of the States concerned by an act of hijacking should have such priority and the phrase therefore appeared to contradict the decision it had taken on Article 4. 55 The proposal contained in SA Doc No.32 was rejected by 32 votes to 15, with 15 abstentions.

56 The Delegate of Trinidad and Tobago explained that the proposal contained in SA Doc ~0.66contained an amendment consequential to the approval by a large majority of the proposal to amend Article 4, paragraph 1, by including a reference to the State of the lessee of the aircraft as one of the States exercising jurisdiction in the event of an act of hijacking, thus increasing the number of such States from 2 to 3. The wording might require some modification by the Drafting Cammittee.

The proposal to insert a reference to the State of lessee of the aircraft contained in SA Doc No.66 was approved by 5!-c votes to 1, with 5 ------absteations.

On the proposal of the Delegate of France, it was agreed to request the Drafting Committee to bring the text of the amendment into line with the approved amended wording of Article 4, (sub-paragraph (c) ).

Article 6, paragraph 4, as amended, was approved by 54 votes to- none, with 11 abstentions.

Article 6 as a whole, as amended, was approved for submission to the Conference in plenary session.

h he meeting adjourned at 2225 hours) TWELFTH MEZTING OF THE COMMISSION OF THE WHOLE

(~ednesda~,9 December 1970 at 0945 hours)

Chairman : Professor W . Riphagen

AGENDA mTEM NO. 9 : CONSIDERATION OF THE DRAFT CONVENTION

Procedure

1. The Delegate of Kenya asked whether the Final Clauses Committee or the Drafting Committee would insert a clause on arbitration and the settlement of disputes.

2. The Secretary General of the Conference replied that the matter had not as yet been touched on in the ma1Clauses Committee, but that he assumed the subject would have to be raised.

Vote on order of discussion 3- After a brief exchange of views it was decided, by 44 votes to 9, with 9 abstentions, to discuss Article 8 before Article 7.

4. The Delegate of New Zealand, speaking as Chairman of the Working Group on Articles 7 and 8, enumerated and grouped according to affinities the various proposals still before the Conference regarding each paragraph or pro- jected new paragraph of Article 8, with full particulars of sponsors and document references.

5. The Chairman then systematically ensured that each proposal not withdrawn was duly seconded.

6. The Delegate of the United Kingdom said that in the last line of the English version of SA Doc No. 72 the word "ordinary" should be inserted between "other" and "offence1'. The name of France should be removed from the list of co-sponsors and that of Paraguay added since it had withdrawn SA Doc No. 75 in favour of SA Doc No. 72 as corrected.

7. The Delegate of France stated that his Delegation's decision on whether or not to co-sponsor SA Doc No. 72 would depend on the outcome of discussion on Article 8. He therefore reserved his position.

8. The Chairman announced that SA Doc No. 72 was at present also co-sponsored by Colmbia, Costa Rica, Greece, Mexico, Panama and Venezuela. Twelfth Mee= Commission of the Whole

Article 8 9 The Chairman announced that discussion was open on two amendments, me by Senegal to Article 8, paragraph 1 (SA Doc NO.^), the oj~herby Tan- zania to Article 8, paragraph 2 (SA Doc No.64). Since bo-th proposals contained a permissive formula they could conveniently be discussed together.

10. In the absence of the Delegate of Senegal, the Delegate of tne United Arab Republic seconded the Senegalese proposal which would cause no embarrassment to any State, respected the sovereignty of States, and merely asked Contracting States to consider the of fence as extraditable.

11. The Delegate of Tanzania explained that the purpose of his Delegationfs amendment was to ensure that the Convention did not replace national lsws governing extradition by introducing explicitly or implicitly the concept of automatic extradition. His Delegation felt that extradition should be permissive in nature, so that States should have the possibility of granting asylum in cases of political hijackings.

12. The Delegate of France said that his Delegation thougnt the Senegalese proposal unnecessary since tle text drafted by the Legal Committee had the same meaning, i.e. that the offence should be considered as extraditable. It would be nard for his Delegation to accept the Tanzanian amendme'" which would weaken the scope of the Convention.

13- The Delegate of the People's Republic of the Congo supported both amendments. His Delegation was against automatic extradition and did not wish to introduce any conflict between Article 8 and the treaties on refugees concluded by the African States.

14. The Delegate of Kenya supported the Tanzanisn proposal. The Delegate of Uganda supported both amendments .

16. The Delegate of the United States of America pointed oat that the first and second paragraphs of Article 8 simply stated that the offence shomld be considered as extraditable, b>~tdid not deal with whether extradition should be mandatory or permissive. His Delegation opposed the Tanzanian amendment and supported the original draft. Twelfth Meeting Com!ission of the Whole

17 The Delegate of Tunisia supported both amendments. The Senegalese proposal would introduce a greater degree of flexibility into the text. Extradition treaties covered a series of crimes varying from one treaty to another in accordance with the relations that existed between the countries concerned. A country might wish to include hijacking in one treaty but not in another. The merit of the Senegalese proposal was "tat it respected the sovereignty of States and would enable the Convention to find greater degree of acceptance. The Convention would be worthless if on)y, say, 20 countries were ableto ratify it.

18. His Delegation also supported the Tanzanian proposal. 19 The Delegate of Rwanda supported the Senegalese and Tanzanian amendments.

20. The Delegate of India agreed l~iththe idea behind the amendments of Senegal and Tanzania, but thought both might be improved by the Drafting Committee. He pointed out that the permissive nature of the extradition was implicit in the Convention, which did not provide for mandatory extradition in all circumstances.

21. The International Federation of Air Lines Pilots Association Observer opposed the concept of permissive provision for extradition, which would destroy the very heart of the Convention. Moreover, to produce a Convention which conveniently corresponded to all existing national considerations would only involve the need for a further Convention on the same subject.

22. The Delegate of kenezuela said that hijacking had Seen universally condemned in the resolution of the General Assembly of the United Nations. The Tokyo Convention also condemned hijacking, but even though that Convention did not go very far, few countries had so far ratified it. It was therefore essential to secure wider acceptance of the new Convention and his Delegation therefore supported the amendments of Senegal and Tanzania, which would make the Convention widely acceptable while enabling all countries to take into account their national legislation.

23. The Delegate of Ceylon said that if extradition was permissive there was no problem for States which wished it to be mandatory, for they could always introduce mandatory extradition into their own extradition treaties, whereas there would be difficulties in making the extradition mandatory for those that wished it to be permissive. lkelFth Meetinq COlllPiagrLon of the Whole

24. The meeting was in danger of forgetting the primary purpose of the Convention, wtlich was to punish the hijacker; was it important for him to be punished in one State rather than another ? Because a hijacker was not extradited it did not mean he would escape punishment. Article 3, which had already been approved, provided for severe penalties; but if Article 8 made extradition mandatory and many States were consequently unable to ratify the Con- vention, the offender might escape punishment altogether. His Delegation, therefore, supported the amendments of Senegal and Tanzania.

25 The Delegate of Kuwait supported the Senegalese and Tanzanian amendments. His Delegation believed that automatic extradition conflicted with the sovereign right of States. Moreover, the resolution of the Twenty-Fifth Session of the General Assembly of the United Nations called upon States to take all appropriate measures "without prejudice to the rights and obligations of States under existing international instruments relating to the matter, for the extradition of such persons for the purpose of their prosecution and plnishment".

26. The International Air Transport Association Observer pointed out that a misunderstariding had arisen. Article 8 did not make extradition itself mandatory, but only the obligation to include the offence as an extraditable one in extradition treaties. The Tanzanian and Senegalese amendments were designed to remove that element of compulsion from the Convention, but by so doing the Con- ference would be weakening the Convention.

27 Speaking on a point of order in accordance with Rule 14 of the Rules of Procedure, the Delegate of Australia moved the closure of the debate on the two amendments . 28. The Delemte of Kenya argued that Article 8 was the most important part of the Convention and that if the motion were adopted other Delegations would be prevented from giving their views on the amendments.

290 The motion to close the debate on the two amendments was adopted by 29 votes to 14, with 20 abstentions.

~o3eQ# the amendment of Senegal to Article 8, paragraph 1 (SA Doc. No. 6) 30- The amendment was rejected by 23 votes to 40, with 8 abstentions. Vote on the amendment of Tanzania to Article 8, paragra* 2, (SA Doc No. 64)

The amendment was rejected by 16 votes to 42, with 13 abstentions.

32 The Chairman said that the meeting would now consider the amendments of Mexico (SA Doc. No. 15) and New Zealand (SA Doc. No. 73). Twelfth Meetinq Commission of the Whole

33- The Delegate of Mexico said that his proposal was to add the words "or with a non-Contracting stateff at the end of Article 8, paragram 1. There was no real difference between that proposal and those of New Zealand and Ireland. The Drafting Committee might merely be asked to revise the wording. 34. The Delegate of New Zealand agreed that the difference between the New Zealand and Mexican proposals was merely one of language. The New Zealand amendment consisted in the omission of the words " as an extraditable offence" after "offence" in the third line of Article 8, paragraph 1, and the substitut- ion of "between them" by "by them" in the fourth line. The Legal Committee's draft imposed an oblj gation on Co.ntracting States to include 3ijackin~as an extraditable offence in treaties to be concluded between Contracting States, whereas his Delegation felt Lhat, the intention was to ensure that Contracting States undertake in all future treaties, whether with Contracting States or other countries, to include hijacking as an extraaitable offence. The wo:ding could be settled by the Drafting Committee.

h he meeting adjourned at 1230 hours) THIS PAGE INTENTIONALLY LEFT BLANK THIRTEENTH MEETING OF THE COMMISSION OF THE WHOLE

(~ednesda~,9 December 1970 at 1445 hours )

Chairman: Professor W. Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 8 (~ont'd)

Paragraph I (contfd)

1. The Delegate of Venezuela supported the Mexican proposal contained in SA Doc No. 15, which, he believed, might be referred together with the New Zealand proposal in SA Doc No. 73 to the Drafting Committee for final wording.

2. The Delegate of Barbados observed that the effect of the Mexican and New Zealand proposal would be to inhibit States in the conclusion of bilateral extradition treaties. Moreover, States not Parties to the Convention might not agree to the inclusion of hijacking as an extraditable offence in treaties with Contracting States, and the latter could not be expected to oblige them to do so. He could only favour the proposals for amendment if they were "softened" by calling upon Contracting States to endeavour to ensure that hijacking would be included as an extraditable offence in treaties to be concluded with non-Contracting States.

3. The Delegate of Iran said that extradii ion treaties were generally based on one of two systems. The first involved tke establishment of extraditable offences on the basis of the penalties impo:-?d in the States Parties to such treaties. The second involved the preparation of a jointly agreed list of offences to be deemed extraditable.

4. The text of the Convention as drafted would cover the situat* as far as Contracting States were concerned. Article 3 would ensure that ! - jacking became an extraditable offence under the first system, by virtue of the penalties imposed; and paragraph 1 of Article 8 would ensure that it would be listed as extraditable in cases where the second system was applied.

5. The problem to be resolved concerned future extradition treaties between Contracting and non-Contracting States. Desirable though the principle might be, it was inconceivable under international 18w as well as under the provisions of the 1969 Vienna Convention on the Law of Treaties that States Parties to 2 Convention on the unlawfdl seizure of aircraft should bind and obligate themselves to ensure that the offence of hi jacking would be included ir, extrailition treaties which they concluded with .hates which were not Parties to that Convention. Thirteenth Meeting Commission of the Whole

6. For that reason, he could not accept the proposed amendment and expressed satisfaction with the text of the paragraph as drafted.

7. The Delegate of Sweden feared that the effect of the proposed amendments might be the opposite of that intended by their authors. The conclusion of bilateral arrangements for co-operation in the suppression of hijacking could be hampered rather than facilitated by the obligation which was proposed. He could only consider supporting the amendments if they were transformed in such a way that Contracting States would be called upon to endeavour to ensure the inclusion of the offence as extraditable in future extradition treaties with non-Contracting States.

8. The Delegate of Guatemala supported the Mexican proposal., which would ensure that the offence of hijacking would be included as extraditable in the greatest possible number of extradition treaties.

9 The Delegate of Spain observed that the Mexican proposal might have been inspired at least in part by the fact that the words "between them" had been omitted from the Spanish text of the paragraph as originally drafted by the Legal Committee.

10. Previous speakers had pointed to the difficulty of making the obligation envisaged in the Mexican proposal mandatory. He himself considered that it could be accepted if it were considered as a recommendation to Contracting States in so far as their extradition treaties with non-Contracting Aes were concerned.

11. The Delegate of Tunisia agreed with the arguments put forward in opposition to the proposed amendments. The Convention should under no circumstances be allowed to hamper the development of the judicial systems of States and of bilateral arrangements between them.

12. The Delegate of the United Kingdom fully agreed with the Delegate of Barbados. A non-Contracting State might not necessarily make hijacking an offence under its law, and that could lead to grave difficulties in the implementation of the proposed provision.

13- The Delegate of Uganda also agreed with the Delegate of Barbados. Moreover, the adoption of the proposed amendments could jeopardize the success of any Convention which the Conference might adopt.

14. He further observed that the resolution of the Twenty-fifth Session of the United Nations General Assembly (contained in SA Doc No. 21), whilst calling for the adoption of a convention on the unlawful seizure of aircraft, also referred to Resolution 2551 (XXIV) of the General Assembly and Resolution 286 (1970) of the Security Council, and stated that the suppression of hijacking should be "without prejudice to the rights and obligations of States under existing international instruments relating to the matter". In so far as those instm~ntsconcerned the questions of asylum, the status refugees and stateless persons, it might not always be possible to make the extradition of hijackers mandatory. Thirteenth Meeting Commission of the Whole

15. The Delegate of the Socialist Federal Republic of Yugoslavia sympathized with the ends envisaged in the Mexican and New Zedand proposals, but was doubt- ful with regard to the means. He feared that their effect would be to hamper rat.hes than facilitate the conclusion of extradition treaties, by impinging on the liberty of States in that connexion.

16. The Delegate of Costa Rica firmly supported the Mexican proposal as being entirely comensurate with the gravity of the crime of hijacking.

17 The Delegate of the United States of America supported the proposed amendments as further modest efforts to close the loopholes in international law through wnich those guilty of hijacking might escape. Contracting States should feel strongly enough about the issue to make certain sacrifices and undertake certain initiatives. There was nothing in the proposals which set hijacking apart from other serious common criminal acts quite normally included as extraditable in extradition treaties.

18. Whatever the decision on the matter, the Government of the United States would insist that the offence be included as extraditable in the fifteen or so treaties which it Was currently negotiating.

19. The Delegate of Ceylon agreed with the axeents of those who had spoken against the amendments. The domestic law and order of a State might depend upon the recovery of fugitive criminals from another State, and thus on the conclusion of an extradition treaty between them. The conclusion of such a treaty could be obstructed or even prevented if one of the parties, as a Contracting State in the Convention under discussion, was obliged to insist on the inclusion of hijacking as an extraditable offence .

20. The Delegate of the United Arab Republic firmly opposed any attempt to make the obligations of the Convention more rigorous.

21. He wished to place on record that his Delegation had agreed to participate in the Conference because it favoured the aims of the proposed Convention and agreed in general with the draft prepared for consideration. In a spirit of compromise it had accepted proposals for amendment which ran counter to its own views, and which went beyond the mere details of drafting which it had expected. Articles 7 and 8 were crucial ones, and his Delegation's goodwill would be sorely tried if those articles were subjected to a multiplicity of complex and sophisticated amendments to texts which it found adequate. It would oppose such amendments most strongly, but wished at the same time to state that as in the past the United Arab Republic would continue to collaborate with other States, on the basis of its national laws, in the struggle against the crime of hijacking.

22. The Delegate of New Zealand confirmed that the purpose of the amendment propose~toensure that Contracting States would not conclude extradition treaties unless hijacking was specified therein as an extraditable offence. Thirteenth Meeting Commission of the Whole

23- Observing that the proposal contained no obligations upon third States, he found it diffigilt to understand the objections to the assimilation of hijacking - which had been recognized as a most serious offence - to other crimes normally considered as extraditable in extradition treaties.

24. The Chairman put to the vote the Mexican proposal contained in paragraph 8 of SA Doc No. 15.

25. That proposal was rejected by 33 votes to 18, with 10 abstentions.

26. The Chairman opined that the result of the vote made it unnecessary to vote on the New Zealand proposal contained in paragraph 1 of SA Doc No. 73.

27. It was so agreed. SA Documents Nos. 71 and 28

28. The Delegate of Deland, introducing SA Doc No. 71, explained that the purpose of the proposed alternative wording for paragraph 1 was to ensure that the offence of hijacking would become an extraditable offence under the European Convention on Extradition to which his country was a Party. Since it appeased to be cleaxly understood that such was the case, he withdrew the proposal contained in SA Doc No. 71.

29 The Delegate of the United States of America introduced the amendment Co paragraph 1 contained in SA Doc No. 28 (with a related proposal in 6.) which consisted in introducing provision for a State holding the offender of a hijacking act to give priority to a request for extradition submitted by the State of registration of the hijacked aircraft (unless bound by the requirements of other extradition treaties concluded with non-Contracting States).

30. The Delegate of Jamaica fully agreed that a system for the extradition of offenders must be established, but did not believe it appropriate or desirable to establish a system of priorities. A number of situations might

arise in which the State of registration was not the State most closely ' concerned with a hijacking act, and requests for the extradition of a single hijacker guilty of several offences might be submitted to the State in which he was held by several States of registration according to the number of offences committed. The State to which a hijacker should be extradited should be determined according to the circumstances.

31 The Delegate of Barbados fully agreed with the view expressed by the previous speaker.

32 The Delegate of Ethiopia believed it preferable to agree on a Convention likely to constitute a strong deterrent to potential hijackers than, in the interests of wider ratification, settle for a text meeting with the widest acceptance. He was therefore in favour of the United States proposd which he believed would strengthen the Convention by providing a deterrent stronger than the threat of prosecution by the State of landing of a hijacked aircraft. Thirteenth Meeting Commission of the Whole

33 The Delegate of Romania believed that the obligation to extradite offenders should be mandatory on all Contracting States if the Convention were to constitute the effective deterrent which participants were seeking. He consequently supportea the United States amendment which should strengthen the deterrent value of the threat of extradition. The efficacity of the Convention should not be sacrificed to the aim of reaching the widest possible acceptance of the Convention. 34- -The Delegate of Brazil supported the United States proposal.

35- The Delegate of Tanzania was against the proposal. The choice of State to which an offender should be extradited in the event of more than one request for extradition being submitted should be determined according to individual cases.

36- The Delegate of France pointed out that Article 4 already specified which States were entitled to take action against offenders. The State of registration was not the only State concerned, and there seemed no reason why it should be given priority as suggested in the United States amendment. His Delegation believed (1) that the offence should be extraditable as stated in paragraph 1 of the draft Convention, (2) that extradition should not be consi- deredas automatic since the offender could be prosecuted by the State in which the hijacked aircraft landed and (3) that the response to requests for extradition should be decided not on the basis of fixed priorities but according to the circumstances in individual cases. The priorities suggested by the United States amendment seemed to be contrary to the provisions of Article 17 of the European Convention on Extradition.

37- The Delegate of the United States of America said that since the amendment raised problems for several delegations he would not press his -point. He withdrew the proposals contained in SA Doc No. 28, paragraph-l and the consequential proposal contained in paragraph 6 of the same document.

38 The Delegate of New Zealand wLthdrew a similar proposal contained in SA Doc No. 73, paragraph '(.

Document SA No. 64

39. The Delegate of Tanzania introduced the proposal to replace paragraph 1 by the text contained in the first paragraph of SA Doc No. 64 Its purpose was to avoid the implication that extradition should be resorted to automatically and to safeguaxd the validity of existing treaties. In substance it called for Contracting Parties to co-operate fully in respect of extradition proceedings.

40. The Delegate of New Zealand said he could not vote in favour of the amendment if the paxagraph were to replace paragraph 1 of the original, but would support it as an additional paragraph following Article 1.

41. The Delegate of Australia believed that the purpose of the amendment was already covered by Article 10. Thirteenth Meeting Commission of the Whole - 114 -

;ent ions.

43 Paragraph 1 of Article 8 was adopted by 75 votes to none, and 3 abstentions.

44. In accordance with Rule 14 of the Rules of Procedure, the Delegate of Spain, supported by the Delegate of Argentina, moved the adjournment of the meeting, believing that the Commission's deliberations would be facilitated and expedited by further private discussions and by the meeting of the Drafting Committee.

he meeting adjourned at 1755 hours) FOURTEENTH MEETING OF THE COMMISSION OF THE WHOLE

(Thursday, 10 December 1970 Ect 0940 hours)

Chairman: Prof essor W. Riphagen

AGENDA ITEN NO. 9: CONSIDERATION OF THE DRAFT CONVENTION

1. On the proposal of the Delegate of Costa Rica, it was agreed to discuss the Preamble pending the distribution of the revised proposds to Article 8.

Preamble (SA Doc Nos. 7, 16, 32, 51 and 61)

2. The Delegate of Japan, introducing SA Doe No. 16, said that the amendment contained therein was a tentative suggestion and that his Delegation would not insist on its discussion if there were no support for it.

3 There being no support for it, the proposal was withdrawn. 4. The Delegate of the Union of Soviet Socialist Republics introduced the amendments contained in a Doc No. 32, paragraphs 1 and 2, the purpose of which was to ensure that the Preamble reflected the substance of the provisions contained in the Articles of the Convention.

5 The Delegate of India introduced the proposed amendment to the Preamble contained in SA Doc No. 51, sub-paragraph (I). The Indian Delegation had not proposed any wording, but felt that it might be left to the Drafting Committee and the Commission to decide on the best wording likely to bring out the point that hijacking must be punished. The third paragraph of the Preamble might, for example, be replaced by the following:

"Considering that for the purpose of deterring such acts, there is an urgent need to provide for appropriate measures for punishing offenders."

6. The Delegate of Spain said that his Delegation's main concern in submitting the proposed amendment to the Preamble contained in SA Doc No. 61 was to state that the offence must be punished, whatever the motivation might be for the act of hijacking, implying that States which did not extradite offenders should punish them themselves. There seemed to be general agreement with that view and it might not therefore be absolutely necessary to include the addition to the Preamble which his Delegation proposed, but he believed that it would strengthen the Preamble nonetheless. Fourteenth Meeting Commission of the Whole

- 7- The Lnternational Wansport Workers rederation Observer supported

- the- .- proposal -- submitted by ?pain, ;the amendment to the third preambulpas ppasagraph submitted by the Union of Soviet socialist Republics and the views expressed by the Delegat; of India. His Organization would be strongly opposed to any attempt to take away from the gravity of the offence of hijacking on the grounds of political motivation. Its Resolution on Airline Security, which appeared in SA Doc No. 56 and which bore out that point, had been adopted by its associated organizations in most of the States represented at the present Conference. Recent Resolutions passed during the current year by the United Nations General Assembly and the ICAO Assembly also supported that point of view. There could be no possible justification for reducing penalties for an offence which included the crimes on kidnapping, attempted murder and murder. He wondered whether any such reduction of penalties was possible on the grounds of political motivation in any country. He suggested that the representatives of some States which expressed reservatiocs on that point were concerned not with political motivation --per se but with particular types of political motivation. There would be no possibility of preventing hijacking if all States adopted such an approach. States which allowed certain hijackers to escape punishment on account of the political motivation underlying their particular acts of hijacking might not appreciate it if other States took a similar view concerning acts colamitted for other political motives.

8. He hoped that the prime concern of the participants at the present Conference would be to adopt a Convention providing an effective deterrent to hijacking, and that they muld reject the idea that the offence could ever be attenuated on the grounds of political motivation.

9 He alsa wished to draw attention to the public relations aspect of the question. It was common knowledge that the public and the press were well aware of all aspects of the problem of hiJacking and knew that some offenders in recent cases had escaped punishment and were now free citizens. The press and the public would be quick to seize on any weakness in the Convention and his Organization, for a start, would feel itself obliged to point it out. A weak Convention was neither desirable, likely to be more widely ratified than a strong Convention nor likely to provide an effective deterrent.

10. He had been somewhat astonished to note from the statement by the Delegate of the United Arab Republic at the previous meeting that that particular Delegation would be opposed to any amendment aimed at strengthening Articles 7 and 8. Civil aviation workers would find that attitude most regrettable and would be disappointed by it. The Delegate of the United Arab Republic might have misjudged the mood of the Conference - he had certainly misjudged the attitude of civil aviation workers.

11. The Delegate of the United Arab Republic, evoking the right of reply,- -. believed the International Transport Workere' Federation Observer had misunderstood his intervention. His ~eie~ationhad decided to attend the present Conference because it agreed with its aims. It also supported the principles incorporated in the draft Convention and found the text prepared by the Legal Committee very well balanced and likely to meet with the agreement of Fourteenth Meeting Commission of the Whole

the largest number .of States. Such wide agreement would assist in attaining the aims all pmticipants were agreed upon. There was no question of his Delegation being opposed to the possible strengthening of the text. It aid believe, however, that wide ratification was desirable. He refused to be intimidated by the possibility of an unfavourable press reaction. His Delegation was well aware of who was responsible for running the interna-bional press and acted accordingly.

12. Referring to the Spanish amendment, he believed it preferable to omit any reference to motivation since such a reference raised problems for certain countries on account of their particular legal systems and practices. He recalled that the sponsors of the original text of the Resolu- tion of the Unite.. Nations General Assembly reproduced in SA Doc No. 21, after hearing the explanations put forward by a number of delegations, had agreed to replace the term "whatever the motivation" by the term "without exception whatsoever".

13 Referring to the last line of the third paragraph, he suggested that it would be appropriate to replace the words "prosecution and extradition" by the words "prosecution -or extradition". 14. The Delegate of Costa Rica expressed his support for the Spanish proposal. He believed that since the Commission had rejected a proposal to amend Article 1 similar to the proposal now put forward by the Union of Soviet Socialist Republics to amend the third preambular paragraph, that proposal should be considered as out of order.

15 The Delegate of the People's Republic of the Congo, speaking on a point of order, believed that the Observer of the International Transport workerslFederation was subject to the same Rules of Procedure as the participants. He should therefore have refrained from commenting on Articles 7 and 8 during the present discussion.

16. He found the original text of the Preamble perfectly satisfactory, but could not agree to the replacement of the word "and" by the word "or" in the last line of the third preambular paragraph.

17 The Delegate of Tunisia regretted that the Observer of the Inter- national Transport WorkerslFederation should have seen fit to voice an unfavourable c&nent on a Member State participating in a diplomatic Conference. Be had refrained from replying to similar comments in the same vein made by that Observer, believing that it was the duty of delegations to speak to the substance of the matter under discussion. On the present occasion however, in spite of his respect for the Organization the Observer represented, he felt himself obliged to speak. Participants had been informed that the International Transport WorkersgFederation had a very large membership and that its point of view was of some importance, but he would wish to remind the Observer of that Organization that each Delegation participating in the Conference represented a sovereign State and consequently its millions of citizens. He found the comments made highly regrettable and most unlikely to assist in reaching any sort of agreement. Fourteenth Meeting Commission of the Whole

18. The Delegate of Auetria, speaking on a point of order, requested the Chairman to make a ruling. Was the Commission discussing the Preamble or the1 positi~n~~ofthe Observer of the International Transport workers' Federation?

19 The Chairman invited all Delegates and Observers to proceed with the discussion on the Beamble.

20. The Delegate of the People's Republic of the Congo welcomed the Chair- man's ruling. He had, however, hoped that the Chairman might have reminded the International Transport workers' Federation Observer that there wa$ no reason for him to speak of Articles 7 and 8 during the discussion on the Preamble and particularly that he should not allude to the position of some States.

21. The Delegate of Tunisia supported the original wording of the Preamble.

22. The Delegate of Austria agreed in general with all the amendments submitted, although he had some problem with the proposed amendment to the paragraph submitted by the Union of Soviet Socialist Republics similar to that described by the Delegate of Costa Rica. That proposal might perhaps be referred to the Wafting Committee. He found the oral amendment submitted by the Delegate of India particularly useful and would vote in favour of it, if it were possible to take a vote on a proposal submitted orally.

23 The Chairman observed that the Commission might refer the oral amendment submitted by the Delegate of India to the Drafting Committee. The intention of the United Arab Republic proposed amendment to the final paragraph would be covered by it.

24. The Delegate of India re-read the text of his proposed amendment.

25. He understood the purpose of the amendment put forward by the Spanish Delegation but considered that it would be preferable to omit any allusion to motivation.

26. The Delegate of the Union of Soviet Socialist Republics said that the deliberations of the Commission had revealed the desire of Delegates to ensure that those guilty of the offence of hijacking would not go unpunished. For that reason, he maintained his proposed amendment, but agreed that the text might be submitted to the Drafting Committee for final wording, to take account of the views expressed during the discussion.

27 The Delegate of Spain said that his proposal was in no way intended to pass judgment on the motives for hijacking, but rather to ensure that the offence would not go unpunished on grounds of motivation. He would not press for a vote on that proposal, but earnestly hoped that a mmpromise solution would be found, since the Convention must be a document of real and effective value, and of at least minimum strength and seriousness.

28. The Delegates of Austria and Costa Rica %greed with those remarks. Fourteenth Meeting Commission of the Whole

29 The Commission decided that the proposal by the Union of Soviet So~ialistRepublics concerning the first preambular paragraph and contained in paragraph 1 of SA Doc No. 32 should be referred to the Drafting Committee.

30. The Chairman put to the vote the USSR proposal concerning the third preambulas paragraph and contained in paragraph 2 of SA Doc No. 32.

31 That proposal was rejecte:'i by 18 votes to 12, + with 34 abstentions.

32. The oral proposal by the Delegate of India for a rewording of the third preambular paragraph was adopted bv 56 votes to 1, with 34 abstentions.

33 The Chairmarl observed that the result of the vote rendered superfluous the proposal by the Delegate of the United Arab Republic concerning the replacement of the word "and" in the find phrase of the original draf't by "or".

Fourth preambular paragraph

34- The Delegate of the People's Republic of the Congo questioned the necessity of retaining a reference t~ the Tokyo Convention in that paxagraph; such a reference might indeed be a source of embarrassment to States which were not Parties to that Convention.

35 The Delegate of the Union of Soviet Socialist Republics concurred with those remarks. The majority of States participating in the present Conference had not yet acceded to the Tokyo convention. Moreover, the latter had been prepared before the issue of hijacking had become one of such gravity, and its provisions did not cover that issue adequately. He submitted that the Convention currently under discussion would enjoy greater importance and independence if the reference to the Tokyo Convention were deleted from its Preamble.

36. The Delegate of the United Arab Republic said that his Government, which had completed the constitutiond procedures necessary for adhesion to the Tokyo Convention, would have no difficulty in accepting the text of the paragraph as drafted. Nevertheless, that Convention, as an international agreement in force, was included by implication in the first sentence of the paragraph, so that the find three lines might be deleted without difficulty.

37. The Delegate of Trinidad and Tobago wondered whether the Committee on Final Clauses had examined the paxagraph, in view of the fact that it might be invoked as an interpretative clause by virtue of its reference to other international agreements.

38. The Delegate of Brazil, Chairman of the Committee on Final Clauses, informed that speaker that the question had not been raised during its deliberations. Fourteenth Meeting Commission of the Whole

39 The Delegate of the People's Republic of the Congo stated that in view of the support for his suggestion, which had in no way been intended to detract from the importance of the Tokyo Convention, he would formally propose the deletion of the reference to that instrument from the fourth preambulax paragraph.

40. The Delegate of France, supported by the Delegates of Canada and New Zealand, observed that if the final past of the pasagraph were deleted, the paragraph as a whole might be removed from the Preamble without, adverse effects.

41. The Delegate of Tunisia expressed satisfaction with the text as originally drafted, but would have no difficulty in accepting the proposal by the Delegate of the Boplets Republic of the Congo.

k . The Delegate of the Kingdom of the Netherlands favoured retention of the original text. The terms of Article 11 of the Tokyo Convention had been taken up in the present draft, and whilst he could see no difficulty for States not Parties to that Convention as a result of a reference thereto in the Preamble under discussion, such a reference might be of use as a reassurance to States Wties to both Conventions that there was no conflict between them.

43 The Delegate of Finland believed that a decision on the matter should be deferred until the Conference had completed its consideration of the Articles and Final Clauses of the Convention.

44. The Delegate of Brazil had no objection to the deletion proposed by the Delegate of the People's Republic of the Congo. As an international instrument in force, the Tokyo Convention would be included by implication in the provisions of the first part of the paragraph. 45. The Delegate of Tanzania formally proposed the deletion of the whole paragraph. 46. The Delegate of Venezuela was not unsympathetic to that proposal, but believed that the retention of the paragraph as drafted would have the merit of clearly relating the Convention to other international instruments, thereby establishing a useful point of reference for those more deeply involved in questions of international law. 47- The Delegate of Trinidad and Tobago reiterated the point he had made in his previous intervention.

48. The Chairman recalled that the Commission had two proposals before it, a proposal to delete the fourth paragraph and a proposal to delete the last four lines of the fourth paragraph.

49 The proposal to delete the fourth preambular paragraph was adopted by 34 votes to 17, and 23 abstentions.

50 The meamble as a whole, as amended, was adopted by 67 votes to none. and 4 abstentions.

(The meeting adjourned at 1200 hours) SEVENTH PLENARY MEETING

(Thursday, 10 December 1970 at 1200 hours)

President: Professor W. Riphagen

AGENIlA ITEM NO. 7: WORT OF THE CREDENTIALS COMMImEE (SA Doc No. 76)

1. The Delegate of Belgium (Chairman of the Credentials camittee) introduced the report of the Credentials Ccsnmittee to the Meeting.

2. The Delegate of Bulgaria requested that his country's title be amended to read "the People's Republic of ~ulgaria". R 3. The President indicated that a corrigendum would be issued. 4. The Delegate of the People's Republic of the Congo said his Delegation shared the reservations expressed by the Representative of Hungary reproduced in the report concerning the representation of China. The only Government cmpetent to represent the Chinese people was that of the People's Republic of China.

5. He also fully supported the views expressed by the Representative of Uganda in the Credentials Camnittee concerning the participation of South Africa in the Conference. He recalled that by a special resolution the General Assembly of the United Nations had at its recent session refused the credentials of that State. It was impossible to accept the participation of a State proclaiming the racist policy of apartheid, a policy prmoting race discrimination, as the only viable policy possible for it in international affairs. The present Conference should take the saane attitude.

6. The Delegate of the United Kingdm requested that his country's title should also be corrected to read "the United Kingdm of Great Britain and Northern rel land".

7. The Delegate of Ireland expressed reservations about the intervention made by the previous speaker.

8. The Delegate of Ramania recalled that he had outlined his country's position concerning the representation of certain States at international meetings at the outset. He re-affirmed his Government's belief that the Government of the People's Republic of China was the only one entitled to represent the Chinese people. His Government also had reservations concerning the representation of Cambodia, believing that it could only be represented by the Royal Government for National Unity. Seventh Plenary Meeting

9. The Delegate of Cameroon associated his Delegation with the position taken by the Delegate of Uganda, as recorded in the Report of the Credentials Ccamnittee. In view of the racist policies of South Africa with regard to the African peoples, there should be no place for representatives of that regime in an organization as democratic as ICAO. Recalling that the General Assembly of the United Nations had recently adopted a resolution concerning the credentials of such representatives, he stated that in the present Conference his Delegation could recognize neither the credentials submitted nor the votes cast on behalf of that State.

10. The Delegate of the Czechoslovak Socialist Republic asked that his State be correctly named in the report of the Credentials Camnittee.

U. The Delegate of the Socialist Republic of Yugoslavia expressed the hope that the list of States represented at the Conference would contain the f& and proper names of those states.

12. The President gave the assurance that steps would be taken to that effect. - r,

13. The Delegate of Kenya shared the views of the Delegates of Uganda and Cameroon concerning the participation of South Africa in the Conference. Because of the racist policies of that State, its representatives could not be considered as acting on behalf of all the peoples of South Africa, and their credentials must therefore be seriously called in question.

14. The Delegate of the Hungarian People's Republic reiterated the reservations ex~ressedon behalf of his Deleaation and those of other socialist countrtes regarding the participation of the-~e~ublicof China. Approval of the report of the Credentials Camnittee was in no way a departure frm their belief that the only trne represent^ ive of the Chinese people was the Government of the People's Republic of China.

15. The Delegate of France said that the position of his Government had already been made clear. It believed that the seat accorded to China should be occupied by representatives of the People's Republic of China and not of the Taipeh authorities. 16. The Delegate of the Republic of China regretted that the question of the representation of his country had once again been raised. The matter was a plitical one which had no place in a nonipolitical body such as ICAO which - he felt sure - would continue to exclude such issues fran its deliberations. Moreover, the credentials of his Delegation had been found to be in good and proper order by the Credentials Cormnittee of the Conference which, he urged, should proceed as rapidly as possible to the urgent questions which it must resolve. 17. The Delegate of the United Arab Republic said that approval of the report of the Credentials Camnittee in no way implied recognition by his ~overientof States or Govermnts which it diC r,ot, in fact, recognize. He wished to associate his Delegation with the remarks by the Delegates of the People's Republic of the Congo, Uganda and Cameroon concerning the participation of South Africa. Seventh Plenary Meeting

18. - The Delegate of Ethiopia associated his Delegation with those speakers who had questioned the credentials of the representatives of South Africa. The racial discrimination practised by the Government of South Africa, whose exclusion frm United Nations activities had only been prevented by legal technicalities, disproved all claims which it might make to be representative of all the nations of that country.

19. The Delegate of Tanzania associated his Delegation with the reservations expressed by the Delegate of the Hungarian People's Republic concerning the representation of China and by the Delegate of Uganda concerning South Africa.

20. The Delegate of Zambia associated his Delegation with those reservations. For obvious reasons, he endorsed the caments of those speakers who had referred .o the criminal practice of apartheid followed by a government which represented neither the peoples nor the aspirations of South Africa.

21. The Delegate of Algeria associated his Delegation with the reservations expressed concerning the participation in the Conference of representatives of the South African regime which practised racism and discrimination. ,

22. He further believed that the only true representative of the ~hinese people was the Government of the People's Republic of China.

23. The Delegate of Uganda deeply appreciated the overwhelming support for the stand taken by his Delegation concerning the prticipation of South Africa in the Conference. In order that his position might be perfectly clear, he requested the inclusion in-the sunnnary record of the following statement:

"~gandareserves her position with regard to the participation of South Africa at this Conference. It is true that under the Rules of Procedure, the power to invite States to participate at this Conference was vested in the Council of ICAO; nevertheless, Uganda wishes to place on record her view that it was not prudent of the Council to extend an invitation to South Africa having regard to her well-known racist policies and in view of the mounting opposition to her continued participation in the existing international organizations.

All States opposed to South Africa's racist policies will, undoubtedly, find it difficult to co-operate with South Africa in matters relating to the success of the instrument which we hope will emerge from our present endeavours. It is therefore a matter for grave concern that such a situation should arise, particularly in view of the need, indeed the absolute necessity, for concerted world- wide action against acts of unlawful seizure of aircraft. But problems of the magnitude of unlawful seizure like most other international problems, can only be solved by countries which respect and uphold basic human rights. Seventh Plenary Meeting

Although Uganda will take all appropriate measures necessary to combat all acts of unlawful seizure of aircraft and is prepared and anxious to co-operate with practically all States in solving world problems, she nevertheless regrets that she will - , be unable to extend that co-operation to the racist r6ghe of South Africa. "

24. The Delegate of Lesotho questioned the propriety of making such an issue of the participation of States whose Delegations had cane to the Conference at the invitation of the appropriate authorities. He submitted that the Conference had no authority to pronounce upon the sovereignty of States.

25. The Delegate of Cambodia said that his Delegation represented the legitimate Government of his country and had come to the Conference in order to participate in international action against the scourge of hijacking.

26. He associated his Delegation with the position taken by the Delegate of Uganda and others concerning the participation of South Africa in the Conference.

27. The Delegate of Tunisia reiterated his statement at the beginning of the Conference that approval of any repart* the Credentials Camnittee in no way constituted a recognition of all the countries or political entities present. He associated his Delegation with the remarks of other speakers who had questioned the participation of South Africa in the Conference.

28. The Delegate of India said that his Delegation in approving the report of the Credentials Camittee would associate itself with the reservatians expressed in paragraph 3.1 of that report. Indeed, that approval would in no way derogate fran India1@ well-known position concerning the right of certain States to be representeq. Moreover, his Delegation unequivocally condemned the racist and oppressive policies of apartheid practised by the Government of South Africa, which were in negation of the principles of human equality, decency anit justice.

29. The President invited the Conference to adopt the report of the Credentials Camittee, with the understanding that observations made during the discussion would be reflected in the record of proceedings.

30. The Conference adopted the report of the Credentials Cammittee.

ca he meeting adjourned at 1235 hours) FIFT-1 MEETIW Oil' THE CCM4ISSION 03 THE &OLE

A 1. - (~hwsda~,LO December 1970 at 1440 hours)

Chairman: Professor V. Riphagen

----

Article 8 (~ont'd)

1. The Delegate of the Kingdm of the Netherlands introduced SA Doc No. 25 Revised, which replaced SA Doc Nos 26, 28 and 73.

2. Paragraph 1 of SA Doc No. 25 Revised WAS identical with the text in the draft Canvention, which had already been adopted. Paraga* 2 contained a nevr text; paragraphs 3 and 4 were the old paragraphs 2 a+ 3 with the adlition of a new parhgraph 4 (c), as a consequenze ofvthe decision taken on Article 4 cancerning leased aircraft . 3. The reason for int~oducinga new paragraph 2 was that a loo&ale exisbed in the draft text of the Legal Committee. Two kinds of system for extradition existed: that of countries which needed an extradition treaty before they could extradite, and that of countries xhhich Aid not need an extradition treaty. In the text of the Legal Cmmittee, paragraph 2 provided the possibility of extending extradition by saying thst "the Contracting States vrhich do not make extradition on the existen'ze of a treaty shall recognize the offence as an extra- ditsble offence between themselves.. ." . But if the Convention went n3 further, the States which needed an extradition treaty could not extradite to cmntries with which they had no treaty even if they so wished. For that reason the sponsors had included the words "shall recognize the present Convention as Lhe legal basis for extradition". The Convention muld become a kind of extradition treaty.

4. Such treaties no mally cmtained '1 list of provisions to wliich extradition vas subject. In the text of SA Doc No. 26 Revised, Fifteenth Meetinq Commission of the Whole -

those conditions were replaced by the rules of national law existing or to be concluded when the Convention was created. Since sederal texts'had been combined it might be advisable to send the new text to 'he Drafting Committee.

5. He stressed that the amendment would affect only those States which needed an extradition treaty to extradite.

6. It was not the intention of the amendment to make extradition automatically applicable, for the conditions governing extradition might involve all kinds of restrictions; hut once it was adopted no country could argue that it wss unable to extradite just because it had no extradition treaty.

7. The Delegate of Uganda said his Delegation had grave difficulties with paragra* 2 of the proposed new .Article 8 in SA Doc No, 26 Revised, for there was a serious contradiction in the wording of paragraph 2 itself and between that paragraph and the national laws of his country.

8. The first sentence of paraga$ 2 stated that "The Contracting States which make extradition conditional on the existence of a treaty shall recognize the present Convention as the legal bssis for extradition ". However, the legal basis for extradition in his country was an Extradition Act of Parliament setting out all the criminal offences which were extraditable. That Act was also the basis for the conclusion of any treaties between Uganda andother f3tateS. In the - absence of an extradition treaty between Uganda and another State, the C6rivehKion could not posbibly be the basis for extradition; that basis must be the law itself supplemented by a treaty. 9. There was an element of contradiction between the first and second sentences of SA Doc No.26 Revised. The second sentence made the extradition su3ject to the condition? established by the law of the State requested to extradite, whereas the first sentence said that the Convention itself should form the legal basis for extradition.

10. The Delegate of the -Polish Peoplefs Republic, introd-~cingthe amead- ment in SA Doc No.33 Rev. 2, said that the proposal was to make the perpetrators of hijacking subject to extradition to the State of registration regardless of any specific agreements between the States concerned.

11. In the sponsod view there could be only one exception to that principle: a requested State would not be obliged to extradite its own nationals.

12. Only the principle of obligatory extradition could be truly effective in ending hijacking, and in reply to the argument that the principle would encroach upon the right of States to grant political asylum, we said that anyone engaged in truly political activities would hardly commit the crime of hijacking, thereby gravely endangering the lives of innxent people.

1-39 The %legate of Canada said that the gap concerning extradition between Contracting States which required a treaty to extradite but did not have one would be largely closed by the amenhent in SA Doc. ~0.26. Commission of the Whole

14. His Delegation recognized tjnat that text mignt require sme amendment of domestic laws but if the international community wanted an effective system of pre~entinghijscking, it must be prepred to amend its laws.

15. The Delegate of Kenya said that his Delegation could not support the text of the second paragraw of SA Doc No. 26 Revised which implied that the Convention would replace an extradition treaty.

16. The Delegate of the Czec!oslovak Socialist Republic supported the amendment in SA Doc No. 33 Rev.2 without which the Convention would not be effective.

17 The Delegate of the Unioa of Soviet Socialist Remblics said that many delegations had accepted -the notion that unlawful seizure, as a threat to life, was a serious offence and they had called for effective measures. IATA and IFALPA, being directly concerned with the interests of passengers and crew, had been particularly insistent in that respect. The obligation to extradite to the c~untry of registry, as the prty most directly affected and therefore the most interested in pzosecutio-n, would be the best deterrent. He therefore noped that delegations really interested in adopting an effective Convention woiild support SA Doc No. 33 Rev. 2.

18. The Delegate of Tunisia said that the laudable spirit of compromise underlying SA Doc No. 26 Rev. had unfortunately made the amendment contradictory and am>iguous, and that he snared the hesitations of the Delegate of Uganda about the new paragraph 2. c, 19 The Delegate of Zambia said that in order to adopt an effective Convention. his Delegation was prepared to stretch compromise to the full. However, barring a satisfactory explanation or redrafting of the new paragraph 2 proposed in SA Doc No. 26 Rev., he could not support that joint proposal since the last part of the second sentence seemingly amounted to an escape clause.

20. With regard to SA Doc No. 33 Rev.2, he felt that the effectiveness of the Convention depended not so much on the obligation to extradite as 3n the cer-tainty of punishment. He agreed, however, that a State should not be o5liged to extradite its own nationals.

21. The Delegate of Romania comnended SA Doc ~0.26Rev., which f illed a gap in the draft Convention, but considered that SA Doc No. 33 Rev. 2 offered the best solution.

22. The Delegate of Hungary said his full support went to SA Doc No.33 Rev.2. On the previous day the Observer for IATA had called for the insertion of an extradition provision, and indeed the Convention could not be effective without one. The principle of national sovereignty raised by many delegations did not mean that countries could not agree to deal jointly with universal problems. Rather than a loss of sovereignty, adoption of that proposal would mean the assumption of certain rights stemming from nakional sovereignty. Fifteehth Meeting Commission of the 'fie

23. The Delegate of India said that as much as he adnired the sin~erity, skill and spirit of compromise underlying SA Doc No. 26 RW., he felt t'nst the amendment was more or less self-defeating since it allowed each Stste to introduce whatever conditions suited it best at the particular time instead of following standard practices in international law.

24. The Delegate of the United Kingdom said he agreed with the Delegates of Poland and the Union of Soviet Socialist Republics that it was desirable TO strengthen the possibility of bringing offenders to justice. Wnere he disagreed. however, was the exclusion frcan extradition being limited to the State's own nationals. In a canmunity of sovereign States account had to be taken of individual legal systems.

25 He did not share the alarm of the Delegate of India over paragraph 2 of SA Doc No. 26 Rev. since it would simply enable States to take account of their 'own policies. The Convention mld only be strengthened to the limits imposed by the need for wide acceptability, and sovereign States haa to preserve their own concepts of justice and standards of behaviour. ,

26. The Delegate of Ethiopia supported SA Doc No. 26 Rev. and agreed with the Delegake of Canada that all Contracting' States had a responsibility to bring their national laws into line with the provisions of the Convention.

27 The Delegate of Ceylon was uncertain about t'ne precise effect of the new paragraph 2 proposed in SA Doc ~0.26Rev., and therefore suggested the following wording:

"Where a Contracting State makes extradition conditional on the existence of a treaty and receives a request from another Contracting State with which it has no extradition treaty to extradite an alleged offender, it shall recognize the present Convention as the legal basis for extradition. Tne request for extradition in sum s case shall be considered in accordance with the provisions of the extradition law of the State requested to extradite."

28. The Delegate of Tanzania shared the doubts of the Delegates of Uganda and India over the paragraph 2 proposed in SA Doc No. 26 Rev. His country could not accept the first sentence, and the second sentence was similar to paragra* 3 and therefore superfluous.

29 = Nor could his country accept the principle of mandatory extradition thst SA Doc No. 33 Rev.?. sought to introduce, Fifteenth Meeting - 129 - Cotnmission 3f the 'Whole

30 Tne Delegate of Greece said he was not hostile to SA Doc No. 33 Rev. 2 out that he would support in preference SA Doc No. 26 Rev. for its Setter structure and clearer fornulation of the same principles. It also filled a gap in respect of States, like his own, making extradition conditional on the existence of'a treaty.

31. The Delegate of the Kingdom of the Netherlands, replying to the Delegate of Uganda,- said that many other countries needed Acts of Parliament concerning extradition matters and, if the Convention were adopted, would have to change their laws. The same situation had arisen at the time of the Tokyo Convention nhen many countries nad nad to change their existing legislation. It was true, as the Delegate of India had said, that the new pl,ovision still contained many loopholes, but the sponsors realised that their proposal wss not ideal. The reference to national laws was not, however, a new element, since it was already in the text of the Legal Committee.

32. He was very grateful to the Delegate of Ceylon for his suggestion, which he thought should be sent together with the text of SA Doc No. 26 Revised to the Drafting Committee.

33 The proposal in SA Doc No.33 Rev. 2 would of course be more effective than his own proposal, but would be even more inconvenient to those Delegations hich would have difficulties in accepting SA Doc No. 26 Revised. Vote on SA Doc No. 33 Rev. 2

34. The amendment was rejected by 10 votes to 47, with 8 abstentions.

Vote on SA Doc No. 26 Revised 35 The amendment was adopted by 42 votes to 9, with 19 abstentions.

36 The Delegate of Uganda exphined *at h-is uelegation hah+&l against the amendment and would continue to oppose its inclusion. His nountry could not sign a Convention also signed by South Africa in which it wauld in effect be signing an extradition treaty with that country.

37 The Chairman said that there were no amendments to Article 8, pa graph 2, now renumbered as paragraph 3.

38 The Delegate of Canada had some slight concern regarding new paragraph 3. The wording in SA Doc No. 26 Revised would operate only as between Contracting States which did not make extradition dependent on the existence of a treaty, the case of a Contracting State which did need one remained untouched. The case might be covered by changing the last sentence to read " subject to the conditions established by the law of the Contracting State requested to extradite", and thz Drafting Camittee should be asked to lmk into that point. Fifteenth Meeting Cammission 3f the Whole

39 Article 8, new paragraph 3 wss adop-ted.

40. Article 8, new paragraph 4 was adopted.

Article 8 aa a whole as amended in SA Doc No. 26 Revised was adopted by 56 votes to 4, with 3 abstentions.

Article 7

42. The Cnairman annsunced that there were two proposals to amend Article 7, one in SA Doc No. 32, the other in SA Doc No. 72 Revised. The name of Ethiopia should be added to the list of sponsors of the latter proposal.

43. . The Delegate of the Union of Soviet Socialist Repu73lics withdrew SA Doc No. 32.

44. The Delegate of Italy introduced the amendnent in SA Doc No. 72 Revised. which added two elements to the Lena1- Cammitteels text. It made it obligatory for the Contracting State on the territol-y of whii& the alleged offender was found to submit the case to its competent authorities for -the purpose of prosecution, whatever the motive for the offence, and whether or not the offence ms committed outside the territory of that State. It also provided that the decisions of the competent authorities should be taken in the same manner as in the case of any other ordinary offence of a serious nature under the law of that State.

45. The Delegate of Kenya said he could support the a[. -dment but he proposed deletion of the words Mwhatever the motive for the offt .cef' from the first sentence.

46. The Delegate of the United Arab Republic supported the proposal of the Delegate of Kenya since he felt that the matter of motivation came within the competence of the judge rather than of the legislator.

47 The Delegate of Tanzania supported the Delegates of Kenya 2nd the United Arab Republic.

48. The Delegate of the People's Republic of the Congo said he too was opposed to the words "whatever the motive for the offence". The reference in the last sentence to "ordinary offence of a serious naturet' was somewhat vague, at least in the French text, and he felt that a standard expression should be used throu&out the Convention. 49 The Delegate of Argentina said that the aim of the sponsors was to limit the powers of the administrative authority and +&ereby increase those of the legal authority, which would take account of the motive. Fifteenth Meetinq Commission of the Whole

50- The Delegate of the United Kingdom said that the solution referred to by the Delegate of Argentina might well be adequate for legal systems derived from Roman Law. The concern expressed by the Delegate of the United Arab Republic was unfounded since, as the Delegate of Argentina had said, the legal authority would be able to take the motive into account.

51- The Delegate of Zambia agreed with those who found the words "whatever the motive for the offence" superfluous. In addition, there had been no satisfactory explanation of the need to include the word "ordinary" in the last sentence.

52 The Delegate of Cameroon said he could not support the amendment with the words %whatever the motive for the offence" in the first sentence and "ordinary" in the second.

53. The Delegate of the United Arab Republic said that reference should not be made in the Article to the motive since that might prejudice the course of justice. If the intention of the sponsors was to punish all cases of hijacking, he would propose replacing the expression "whatever the motive for the offence" by some such words as "without any exception". Only if the text were so modified could he support it.

(The meeting adjourned at 1730 hours) THIS PAGE INTENTIONALLY LEFT BLANK SIXTEENTH MEETING OF THE CCP4MISSION OF THE WHOLE

(Friday, 11 December 1970 at 0940 hours)

Chairman: Professor W. Ri&agen

AGENDA ITEM NO. 9: CONSnEBATIOl? OF lCHE DRAFT C0MTE;NTION

Article 7 (~ont'd)

1. The Commission continued its consideration of SA Doc No. 72 Revised.

2. The Delegate of the People's Republic of the Congo proposed the deletion. from the final &rase. of the words "de droit commun" ("ordinary" in the ~fi~lishtext).

3. The Delegate of Malaysia was unablh to support the proposal contained in SA Doc No. 72 Revised, believing that tine Convention should not impose an obligation to prosecute. The legal systems of States provided for varying degrees of discretion with regard to prosecution. His awn country could not accept the obligation contained in the proposal without t3mendment of its Supreme Law, and that was a complicated step which it could not envisage in the present context. Unless the proposal were modified to take account of that difficulty, he would oppose its adoption, and favour the original draft of Article 7.

4. The Delegate of Kenya recalled his earlier proposal for modification of the amendment under consideration bv the deletion of the &rase "whatever the motive for the offence".

5. The Delegate of France said that Article 7 should ensure that punishment of the desired severity would be inflicted on offenders who escaped extradition. In that conrnction, his own country's Parliament had already taken steps to ensure that hijackers would 3e brought to justice either throu* public prosecution or through private suits brou&t by victims of their acts.

6. He considered that the proposed new drafting of *Article 7 had resulted in what resembled a declaration of intent rather than a legal text. Moreover, it contained accessory material whose utility was open to questiGn, althou* he could not press for the deletion of those @rases. It was important that the text should be as precise as possfble, and he observed that the terms "ordinary offence", "infrac%ion de droi t cmn" and "10s dm6s delitos cmnes" did not Sixteenth Meeting Commission of the Whole

have exactly the same conn3tations in all the countries where they were employed. Again, he would not press for their deletion if the general feeling of the Commission was that they could be retained, and would merely make nis acceptance of the draft subject to the minor detail of removing the word "autre" from the final @rase.

7 The Delegate of Ceylon endorsed mu& of what the previous speaker had said. The proposed new text contained additions whose utility might be questioned and which, indeed, might give rise to ambiguities. As a matter of principle, the Convention should not employ more than the minimum number of words and phrases necessary to express its purpose, and as far as the Article under consideration was concerned, he favoured the -text as originally drafted.

8. The Delegate of Kuwait said that the purpose of the proposed amendment was to create an obligation to prosecute. He had favoured the original proposal submitted by New Zealand in that connection (SA Doc No.73) as a clear and compact text. The new draft contained phrases which he found extraneous and he con~ideredthat it would be much more satisfactory if the words "whatever the 'motive for the offence and whether or not the offence wae committed in its territory" were deleted, and the final sentence restored in the form in which it appeared in the origins; draft of the Article.

9 The Delegate of Kenya, recalling his own proposal, supported both amendments suggested by the Delegate of Kuwait.

10. The ~?le~;te,of Uganda, as a co-sponsor of the text befc-e the Commission, said that he would naturally hope for its adoption without change. If its wording caused difficulties for a number of Delegations, he would not object to the deletion of the &rase "whatever the motive for the offence and .ðer or not the offence was committed in its territory", and of the word "o-dinary" from the final sentence.

11. The Delegate of the Socialist Republic of Yugoslavia, recalling the remarks by the Delegate of France, observed that the expression "infraction de droit commun" was well established in the juridical language of extradition treaties and of the European Convention on Extradition. Re further observed that the main intent of Article 7 was to ensure that prosecution of hijsckers would not be inhibited by any political aspects of their offence, and suggested that there might be an unnecessary element of repetition in the text 3s submitted, which spoke both of prosecution "whatever the motive for the offence" and of a decision by the competent authorities to be taken "in the same manner as in the case of any other ordinary offence of a serious nature".

12. The Delegate of the People's RepuSlic of the Congo said that the previous speaker had most arc-drately indicated the intent of Article 7. It wss essential to ensure that offenders would be proseczted, even jf they escaped extradition. That was why he himself had proposed the replacement of Sixteenth Meeti. : Commission of the Whole

the term "infraction de droit commun" (covered, as the Delegate of Yugoslavia had said, by extradition treaties), by the term "infraction".

13- The Delegate of Canada felt that there was not a great discrepancy between the views of the two previous speakers. The purpose of extradition was to assist a State in which an offence had been committed in bringing the offender to justice. The purpose of Article 7 was to provide for prosecution of the offender in the State in which he was found.

14. States often made a distinction between political and criminal offences, and that distinction could serve to bar the P--,radition of an offender. But the same distinction could also influence the manner of prosecution and - in some cases - lead to non-prosecution.

15 His understanding of Article 7 was that it should ensure the maximum possibility of prosecution in the State where the offender was found, and that the decision to prosecute would be governed by exactly the same considerations as those invoked in connection with any other ordinary criminal offence. He supported the proposed text in principle, subject to further drafting to take account of comments made during the discussion and to resolve most of the difficulties mentioned.

16. The Delegate of Italp appreciated the support given to the proposed amendment, and believed that most of the doubts expressed during the discussion had been dispelled by other speakers. !rhe text as su3mitted would ensure that international co-operation in the repression of hijacking would be more effective, but only if the phrases "whatever the motive for the offence and whether or not the offence was committed in its territory" and "any other ordinary offence of a serious nature" were retained. In consequence, he could not agree to their deletion.

17. The Delegate of the People's Republic of the Congo suggested that as at least two of the co-sponsors of the amendment appeared to disagree, it might be well to suspend the meeting to permit further co&ultstions between all its authors.

18. The Delegate of Uganda believed that he had made it clear that, he preferred the text of which he was a co-sponsor, and said that his position wzs in no way contradictory with that of the Delegate of Italy. He agreed, however, that a suspension of the meeting might be useful.

19. The Delegate of the Socialist Republic of Yugoslavia said that the author of a "political" offenze would be considered differently in different countries. He repeated that the purpose of Article 7 should be to remove all possibility of ambiguity by ensuring that those who had committed the act of hijacking would be uniformly treated as criminals. Sixteenth Meeting Commission of the Whole

20. The Delegpte of France explained that hijacking could be prosecuted as an "ordinary" offence in the same way as other serious offences such as assassinstion.

Result of the vote on SA Doc No. 72, Rev-

21. The proposal to delete the words "whatever the motive.-- for the offence" was rejected by 43 votes to 16, and 10 abstentions.-

22. The proposal to delete the words "whether 01- no-t the offence was comitted in its territory" was rejected Sy 45 votes to 2 and 18 abstentions.

23- The proposal to replace the second sentence by the second sentence of Article 7 as it appeared in the draft Convention was rejected by 46 votes to 17, and 6 abstentions.

24. The proposal to delete the word "ordinary" from the second sentence was rejected by 45 votes to 14, and 11 abstentions.

25 The proposed revised text of Article 7, as submitted in SA Doc No. 72 (Revised) was adopted by 45 votes to 10, and 13 abstentions.

26. The Delegate of the United Arab Republic regretted that the co-sponsors of SA Doc No.72 (Revised) had not taken into account the reservations expressed by some African and Asian delegates co~c-riling the technical difficulties arising for their countries concerning .me inclusion of a reference to motives for the offence. He believed that the sugb-;tion that he had put forward in that connection night have provided an acceptable solution. He regretted that no account appeared to be tsken of proposals put forward 3y his Delegation, with a view to facilitating more general acceptance, 2nd reserved the position his Delegation would take when the final vote was taken on the text of the Convention.

27 The Delegate of France explained that he had abstained from the ;rote since he wished to await the drafting improvements which might be put fo-rwzrd 5y the Drafting Committee.

28. The Delegate of Costa Rica wished to make a brief statement regarding SA Doc No. 74 submitted by his Delegation. His Delegation had originally - wished to propose the inclusion of a new article, the text of which vss reproduced on the first page of the document, laying sanctions on States which failed to comply with the provisions of the Tokyo Con~reritionand Article 7 of the present Convention. The crime of hijacking was so seriolls and the draft Convention s3 important that the possibility of laying sanctions on States .dhich acted as accomplices to hijackers merited serious consideration. It seemed extraordinsry that States which to all extents and purposes afforded sanctuary to hijackers Sixteenth Meeting Comm.ission of the Xnole

should not be penalized in one way or another. His Delegation had consulted o-:her Delegations on thst poin-'; and the result of its consultations had been positive. In view of the importance of the new rrticle it had drafted and of the short time left, however, his Delegation had decided to sdbmit the p:oposal to the ICAO Legal Committee with a recc)mmendation that it study it with a view to incx-poi-atins it in a draft Convention on sanctions for s-tudy oa 3 su3sequeiit occasion.

( me meeting adjcx~rnedat 1130 hours ) THIS PAGE INTENTIONALLY LEFT BLANK EIGHTH PLENARY MEETING

(P'riday, 11 December 1970 at 1130 hours)

President: Professor W. Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF' TRE DRAFP COI(TVENT1ON

Report of the Committee on Final Clauses (SA Doc No. en' 1. The hlegate of Brazil (chairman of the Camnittee on Final clauses) introduced the report of the Ccnnuittee to the meeting. He explained that on the basis of the general statements maae and in view of the general feeling of Delegations the Canmittee had decided to adopt the "all-states" formula for accession to the Convention. In the light of that decision it had subsequently agreed that the system of three depositaries such as that used for the Non-Proliferation Treaty would be the most desirable. It proposed the same provisions regarding the settlement of differences as those agreed on in respect of the Tokyo Convention with sane small changes. The whole of the text of the draft Final Clauses represented a canpromise text agreed on by the Canmittee after a considerable discussion to reconcile the divergent opinions put forward regarding many points. The Camnittee had finally adopted it unanimously. All parts of the text were very closely linked and interdependent and he therefore suggested it would be advieable to vote on the text of the draft Final Clauses as a whole.

2. The Delegate of the People's Republic of the Congo supported the suggestion to vote on the text as a whole. 3. The Delegate of Lebanon believed the procedure for the settlement of differences might prove ineffective and would have preferred the more complex but vigorous system used in respect of the law of treaties. He was also concerned by the fact that no limit had been imposed on the number of reservations a government might make and hoped that mission would not lead to a situation similar to the highly unfortunate situation prevailing in t5e United Nations where it was easy to lose sight of the principles involved regarding the crime of genocide, for example, in the maze of reservations and counter-reservations put forward by different States. Contracting States to the Convention should not be given too much latitude in that respect.

4. The Delegate of Kuwait ccxnmended the Chairman and khe Canmittee on Final Clauses on their work, Seferring to Article B, paragraph 1, he suggested that it would have Ljer 2 ?ferable to indicate that the Convention would "remain open" to States for signature after 31 December 1970 rather than it would "be open" for signature at that time. In addition, accession to the Convention might have been the subject of a separate Article. Eighth Plenary Meeting

5. It would have been appropriate to include a reference in Article B, paragraph 2, to the fact that ratification would be carried out "in accordance with the constitutional procedures" of States. The reference to Article 102 of the United Nations Charter and to Article 83 of the Chicago Convention might not be absolutely necessary.

6. The Delegate of Brazil (Chairman of the Committee on Final clauses), referring to the suggested dates for signature of the Convention, explained that the intervening period between 16 December and 31 December 1970 had been allowed to enable the competent authorities of States not participating in the present Conference and wishing to sign the Convention to prepare the necessary instruments. After the latter date the Convention would remain open for signature. The Canmittee had considered the possibility of drafting a separate Article on accession to the Convention but had preferred to follow the precedent set in the NPT and link the idea of accession with that of signature in the same Article.

7. He believed it would be redundant to include a reference to the fact that States should ratify the Convention "in accordance with their constitutional proceduresn. The references to the Articles of the UN Charter and the Chicago Convention kd been included in the light of similar references in international conventions, but the latter might be anitted.

8. The Delegate of Korea regretted that the Commit -2 had decided to adopt the "all Statesn formula for accession to the Conven~lon. It could lead to considerable political difficulties and misunderstandings. He would have preferred the more precise "~ienna"formula which left no roam for doubt concerning States' eligibility to accede to the Convention and consequently would have facilitated wider accession.

9. The Delegate of Uganda joined in the canpliments paid to the Canmittee on Final Clauses, but observed in the light of the remarks by the Delegate of Lebanon that it might well have given more attention to the question of a reservations clause. He believed that in the absence of such a clause, its work might not be fully appreciated by many States throughout the world, sane of which might consequently abstain fran participation in the Convention. To secure the widest possible support for that instrument, provision should be made for States to register their reservations when becoming Parties to the Convention as a whole.

10. The Delegate of Zambia welcaned the attitude adopted by the Committee to the principle of universality, a principle which had inspired delegations fran his country to many international conferences.

11. Like the previous speaker, he was somewhat concerned at the absence of a reservations clause; although, as a further matt r of principle, he objected to such reservations as detracting fran the inherent value of an international instrument, the realities of international life often rendered them necessary.

12. The Delegate of RQnania particularly appreciated the Committee's formulation of Article B, embodying as it did the principle of universality to which his Delegation whole-heartedly subscribed. Eighth Plenary Meeting

13. The Delegate of Kenya, also camended the Camittee, but echoed the concern of other speakers concerning the absence of a reservations clause.

14. The Delegate of the Republic of China shared the views of the Delegate ofXorea concerning the "all-States" formula. While appreciating the impo?$Eltwe -of -secur_ing as many adhesions as possible 'to the Convention, he considered thqt Jt would be more advisable to IpaRe admission subject to provisions similar to those contained in2Articles 19, 20 ant3 22 of the Toky~Convention, For that reasq, be, would not be able to support all the provisions of,the first sragraph o? Article 3, Bnd would have difficulty in aceegting the second paragraph. ,

1-5. ,,The Delega$e of Ethiopia asked why Article A did not provide more guidance concerning arbitration procedure. He further observed that there was rt slight discrepancy between the Ehglish and French texts of paragraph 2 of &tic19 ,B, ip which the name of the d 'hpositary kvernment was preceded., respectiveljr, by the words

16. The Delegate of the Socialist Republic of ~ugoslaviaapproved the formulation of Article B, which corresponded to the principle o? universality. He observed t$at the opinions expressed by the Delegates of Korea adthe RepubZjc of China were at variance with the terms of the resolution adopted by the United Nations General Assembly at its 1914th Plenary Meeting and contained in SA Doc No, 21.

17'. The Delegate of the United Arab Republic also endorsed the principle of un+versality embodied tn the C!agnitteeVs draft. Successive Governments of his country had, since 1947, firmly supported that principle in international conferences. . 18. The Delegate of Brazil (@airman of the Cumittee on Final clauses), replying to the questions concerning the incorporation of a reservations cbuse, said tbt there c~qdbe little doubt that, in future, questions related to reservations, interpretations and successive treaties on the same subject would-be referred to the Vienna Convention on the Law of Treaties which, although it had not yet caw into force, spelt out the consensus of delegations to the 1969 Conference, many of which were now participating in the present Conference,.and seemed representative of actual internaticma1,law. That was the consideration which had governed the attitude of the Cannittee to the matter. With regard to the serious objection raised by the Delegate of Lebanon, he exprlssea the belief that the objection would be lessened if that Delegate recalledthe proulsims of the Vienna Convention, and more specifically its incorporation of the ruling by the International Court of Justice with regard to the Genocide Convention that reservations must be ccmpatible with the object and purpose of the treaty. He submitted that that ruling would be a guide and safeguard for the present Convention.

19. As far as the question of arbitration was concerned, the Camnittee had felt that it would be wisest to adopt the formula employed in the Tokyo Convention. Eighth Plenary Meeting

20. He agreed that the discrepancy in the language of the French and English texts referred to by the Delegate of Ethiopia should be corrected by bringing the former into line with the latter.

21. The Camittee was quite aware that the modified "all-statesn formula would be unacceptable to sane delegates, but had sought a cmprmise solution destined to accaumodate the greatest possible number of opinions.

22. The Delegate of !Tanzania shared the views expressed by the Delegate of Uganaa on the need for a gelieral reservations clause. He regretted that the International Court of Justice had been selected as the arbiter of disputes - he would have preferred the President of the ICAO Council and two other arbitrators to be entrusted with that task.

23. %e Delegate cf,Tunisia suggested replacing, in the French text of Article 2, paragraph 2, the word 'etn appearing between the title nRoyaume-Uni de Grande Bretagne et dgIrlande du ~6rd"and the title nunion , des R6publbques Socialistee ~ovi~ti~ues"by the words "ainsi que". & The Delegate of Jamaica expressed his appreeiatibn of the draf't Final Clauses in general. He welcaned- the fact that a system of arbitration had been provided for, but beliema that sane problem might arise in its application in respect of States not members of the United Nations or Parties to the Statute of the International ':art of Justice.

25. The Delegate- of Kdt.rehuested the Chairman of the Camnittee on Final Clauses to refer his camne~rtson Article B, paragraphs 2 and 6 to the Drafting Camittee.

26. The Delegate of Brazil (chairman of the Committee on Final clauses), replying to cauments concerning the reserva'tioni clause, explained that the draft suggested by the Camnittee had been agreed upon with a view to facilitating wider accession to the Convention. The alternative arbitration procedure mentio~dby the Delegate'of Tanzania might be acceptable to those who did not accept the arbitration of the International Court.

27. The drafting amendment proposed by the Delegate of Tunisia would indeed improve the style of the French text, but the Camnittee had agreed after a very long discussion that it would be! unadvisable to depart fran the wording used in the Treaties having the same system of depositaries.

28. He took the point made by the Delegate of Korea concerning the "all-states" formula, but reminded him that it worked reasonably well in practice although it might appear to be the sort of formula which might lead to confusion.

29. The point raised by the Delegate of Jamaica was a very interesting point, but States not directly covered by the International Court would be able to resort to arbitration through other channels. Eighth Plenary Meeting

30. The Convention and the Final Clauses constituted a compromise solution and the successful attainment of their objectives would depend in large measure on the goodwill and good faith with which they were interpreted by the Governments of the Contracting States.

31- The draft Final Clauses appearing in SA Doc No. 80, Attachment. were ado~tedbv 61 votes to none, and 7 abstentions.

32. The Delegate of Denmark said he had voted in favour of the text in the light of the explanations provided by the Chairman of the Committee. His vote did not, however, imply that he did not favour the Vienna formula in general.

33. The Delegate of Korea said he had abstained fr~nthe vote since he firmly believed that the "~ienna"formula provided the most practical and kquitable method of assessing States '-eligibility to accede to international conventions. In that connexion, he recalled that his Government was the only Government entitled to represent the whole Korean people.

34. The Delegate of Austria said that in view of the specific nature of the Convention under consideration, whose chief purpose was to guarantee the punishment of hijackers wherever they were found, he had voted in favour of the proposed clauses, and consequently of the "all-states" formula. That vote did not, however, prejudice the position of his Government concerning the question of the "~ienna" formula.

35. The Delegate of Tunisia suggested that time might be saved if Delegates wishing to explain their votes were requested to do so in writing rather than orally.

36. The hresident observed that the suggestion would be difficult to accept, in so far as a number of explanations had already been made orally.

37. The Delegate of the United Kingdm proposed that Delegates wishing to explain their votes should do so at the end of the Conference, when the text of the Convention as a whole had been adopted.

38. The Delegate of the Federal Republic of Germany supported that proposal.

ki he meeting adjourned at 1240 hours) THIS PAGE INTENTIONALLY LEFT BLANK SEVENTEZRTH MEETING OF THE COMMISSION OF THE WHOLE

(~riday,11 December 1970 at 1700 hours)

Chairman: Professor W. Rlphagen

AGENDA ITEN NO. 11 : ADOPTION OF THE FINAL ACT OF THE CONFERENCE

SA Doc No. 81: Draft Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviatioh Organization at The Hague in December 192

1. The Delegates of France, Brazil, Spain, the United Kingdom, Switzerland, the Kingdm of the Netherlands and Tunisia, and the Observer for the International Transport Workerst Federation, speaking in that order, proposed various minor drafiing corrections and amendments to the English, French and Spanish texts of SA Doc No. 81.

2. The Delegate of the People's Republic of the Congo observed that there was a regrettable linguistic imbalance in the Drafting Committee to the detriment of French, the official language and common heritage of many non-French peoples.

3. The Delegate of Yugoslavia felt that at the beginning of the second paragraph there should be some reference to the report of the Credentials Committee and proposed the insertion between brackets after the words "represented at the conference" of "see report of the Credentials ~ommittee". 4. The Delegate of Uganda suggested that to satisfy the Delegate of Yugoslavia it might be preferable to add a paragraph after the list of countries worded:

"The Conference noted that reservations had been registered by the representatives of Hungary and Uganda regarding the representation of the Republic of China and of South ~frica." 5. The Blegate of Brazil disagreed with the previous speaker and felt that no references with a political connotation should be included. The simplest solution would be to alter paragraph 2 to read: "The Governments of the following 77 States, whose credentials were accepted, were represented at the Conference : . . .'I. Seventeenth Meeting Commission of the Whole

6. The Delegate of the United Kingdom said he preferred the text as it stood. The States participating in the Conference would in due course receive the summary records, with the various statements on the report of the Credentials Committee.

7 The Delegate of Yugoslavia withdrew his proposal.

8. The Delegate of Canada proposed that the Conference record its gratitude to the Government and people of the Kingdom of the Netherlands by inserting a new antepenultimate paragraph worded:-

an he International Conference on Air Law, having adopted a Convention on Unlawful Seizure of Aircraft, expresses its sincere appreciation to the Government and to the people of the Kingdom of the Netherlands for making possible the holding of the Conference at The Hague and for their generous hospitality which contributed to the successf'ul completion of the work of the Conference".

9 The Delegates of Brazil and Tanzania supported that proposal.

10. The Delegate of the People's Republic of the Congo called on the Conference to adopt the proposal by acclamation.

It was so decided.

11. The Delegate of Romania recorded his disagreement with the statement that morning by the representative of Southern Korea, who had claimed that he representated the whole of Korea at the Conference and was therefore speaking for the Republic of Korea.

h he meeting adjourned at 1805 hours) EfGHTEZWTH MEEZING OF TBE COMMISSION OF THE WHOLE:

(~aturda~,12 December 1970 at 0930 hours)

Chairman: Professor W . Riphagen

AGENDA ITEM NO. 9: CONSIDERATION OF DRA.ET CONVENTION

Title of the Convention

1. The Chairman observed that neither the Legal Committee nor the Drafting Committee had submitted proposals for the title of the instrument, and invited the Commission to consider that matter.

2. The Delegate of France said that although the title "Convention on the Unlawful Seizure of Aircraft" corresponded with legal accuracy to the contents of the instrument, a more eloquent title might be preferable for bringing the Convention to the attention of the public. He therefore suggested that its title be: "Convention sur la lutte contre les detournements d1a6mnefs".

3 The Delegate of the People% Republic of the Congo, appreciating the point made by the previous speaker, believed that the purpose of the Convention would be even more eloquently expressed if its-title referred to "la repression des detournements d 'aeronef s" . 4. The Delegate of Kenya favoured the title "Convention on the Unlawful Seizue of Aircraft" as lnost appropriate. 5 The Delegate of Frame agreed with the suggestion by the Delegate of the People's Republic of the Congo. The word "r6pression1' appeared in the titles of other conventions.

6. The Delegate of Spain observed that both the Tokyo Convention (in Article 11) and the preparatory work on the present instrument had established precedents for the term "unlawful seizure". He believed that the introduction in the title of the word "d&ournementW would create a contradiction. Indeed,

an aircraft could be unlawfully seized without deviation from its course. +

7 He had no objection to the introduction of the terms "lutte" or %pression", as suggested by the Delegates of France and the People's Republic of the Congo. Eiateenth Meeting Commission of the Whole

8. The Delegate of Tunisia agreed with the remarks by the previous speaker. Observing that the French and Congolese proposals omitted to mention the "unlawful" nature of the offence, he said that his own suggestion for the title would be: "Convention sur la lutte contre le rapt des a6ronefsV.

9 The Delegate of Canada, appealing to the Commission not to lose excessive time in considering the matter, suggested that a generally acceptable title might be: "Convention for the Suppression and Punishment of the Crime of Unlawful Seizure of Aircraft".

10. The Delegate of the Peoplets Republic of the Congo suggested that "suppression and ~unishment"constituted a tautology, and said that after further reflection he would prefer the title "Convention pour la repression de la capture illicite des a6ronefsn.

11. The Delegate of France could accept that title.

12. The Delegate of Cameroon also agreed with that title.

13 The Delegate of the United Kingdom believed that the term "r6pression" could best be rendered in the English version by "suppression", and suggested as the English equivalent of the latest proposal: "Convention for the Suppression of Aircraft Hijacking".

14. The Delegate of Spain agreed with the French and Congolese proposal, and submitted that the term "repression", which included the concept of both punishment and dissuasion, was broader and more appropriate than "suppression". Moreover, he was not sure that the English term "hijacking" would be a strictly accurate rendering of "capture illicite" . 15 Afier further discussion between the Delegates of Cameroon, the Socialist Republic of Yugoslavia, Mexico, Ireland, Tunisia and Uganda, the Chairman put to the vote the proposed title, for the French version of the Convention, of: "Convention pour la repression de la capture illicite dta6ronef s" . 16. That proposal was adopted by 38 votes to 1, with 1 abstention. 17- The Delegate of Jamaica said that he had not taken part in the vote, because he was uncertain of the wording which would be employed for the English version of the text.

18. The Chairman said that the vote had indeed been on the French text, but that his understanding was that it would be rendered by "Convention on the Suppression of Unlawful Seizure of Aircraft" in English.

19 The Delegate of Spain said that his understanding was that the Spanish rendering of the title would be "Convenio para el apoderamiento ilicito de aeronaves" . Eimteenth Meeting Commission of the Whole

Preamble and Articles (sA Doc No. 83 and ~ddendum)

20. After a procedural discussion between the Delegates of France, Mexico and the Peoplets Republic of the Congo, the Chairman suggested that the texts of the Preamble and Articles submitted by the Drafting Committee be presented and discussed consecutively. Texts approved by the Commission would be transmitted to the Conference for adoption in Plenary meeting. Texts which did not meet with satisfaction would be referred again to the Drafting Committee, which, for reasons of expediency, would submit its conclusions to the Plenary meeting. In making that suggestion, he observed that the Commission's task at the present time was to consider the form rather than the substance of the texts.

21. The suggestion was adopted.

Preamble (SA Doc No. 83 ~ddendum)

22. The Delegate of Spain, Chairman of the Drafting Committee, said that the instrdctions given to the Drafting Committee with regard to the Preamble had been very clear and had given rise to no difficulties. With a minor correction in the language of the Spanish version only, where the reference to punishment in the third considerandm should be rendered by a verb, he moved the adoption of the text submitted.

23 The Preamble was adopted for transmission to the Conference.

Article 1 (SA Doc No. 83)

First phrase and sub-paragraph (a)

24. _Thelegate of Spain, Chairman of the Drafting Committee, said that the English and French texts-were identical with those of the draft prepared by the Legal Committee. The Spanish version had been modified to bring it into line with the other versions.

25 It would be noted that there was some difference in the English and French wordings of the original draft, but the Drafting Committee had decided to allow that difference to remain, on the basis of assurances by the Delegate of France that it was of no substantial consequence.

26. The Delegate of Australia agreed that the wording of the original English draft of sub-paragraph (a) had not been changed, but observed that two commas had been inserted, before the phrase: "or exercises control of". He believed that the insertion could give rise to difficulties of interpretation.

27- --The -Dele@jate - of Spain, Chairman of the Drafting Committee, said that the intention of the committee, in making that insertion, had been to clarify the English text. The draft by the Legal Committee inferred that seizure of control was the action in question, whereas it was the understanding of the Drafting Committee that the wish of the Conference was to refer to seizure of an aircraft. Eighteenth Meetinq Commission of the Whole

28. The Delegate of Australia appreciated that explanation but maintained his observation concerning possible ambiguities. Perhaps the text would be clearer if it were amended, albeit inelegantly, to read ".. . seizes coflCrol of that aircraft or exercises control of that aircraft".

29 The Delegate of the United Kingdom approved the technical accuracy of the remarks by the previous speaker, but did not believe that the text as submitted by the Drafting Cammittee was ambiguous. It seemed perfectly cleax that the words "unlawfully, by force or threat thereof, or by any other form of intimidation" qualified the exercise of control as well as the seizure of the aircraft.

Sub-paragraph (b)' and final phrase

30- The Delegate of Brazil observed that while both the French and English texts referred to the accomplice of "a" person, the Spanish mentioned "the" person. Perhaps the latter version should be brought into line. -. 31. The, Delemte of -&hi- Chairman of the Drafting Committee, believed that the matter was not of consequence. It was clear in all the texts that the person in question was that referred to in sub-paragraph (a).

32 The Delegate of the Union of Soviet Socialist Republics said that the Russian equivalent of the English tep "offence"' and the French "infraction p8nale1' should be " prestupleni jen rather than -npravonarushenije", which had broader connotations.

33 The Deleate of Ireland observed that the language of the French text referred consistentlv in the Article to the "committinn"- of an act. whereas the English versi;>n spoke both of "performing1' and "committingn: He wondereBwhBther there was any reason for that discrepancy. -- -__ 34 me - 1)eleriiii;e of Spain, Chairman of the Drafting Committee, said that the question had not been raised during its meetings.

35 The Delegate of the United Kingdom said that he was satisfied with the text as submitted by the Drafting Committee.

36 The Delegate of the People's Republic of the Congo favoured uniformity in the text and observed that in other articles the Ehglish version used the word 1( committed". 37. The Delegate of Trinidad and Tobago favoured the text submitted by the Draf4-'committee, and observed that the notion of "committing an offence" was only relevant when the act involved - up to that time merely "performed" - was actually deemed to be an offence. 38 Article lwas adopted for transmission to the Conference. Eighteenth Meeting Commission of the Whole - 151 -

Article 2

39 The Delegate of Spain, Chairman of the Drafting Committee, explained that the text of Article 2 in SA Doc No. 83 had miginally appeared under Article 3 of the draft Convention. 40. The klegate'of Brazil, pointing out that the tern "States Partiesn to the Convention had been used in the Preamble and "Contracting States" in the Articles, recalled that a definition of both terms had been decided on in respect of the Vienna Conventfon. He wondered if the Drafting Committee had considered which term would be most appropriate in the Convention under discussion.

41. The Delegatei of Spain, Chairman of the Drafting Cogittee, replied that the Committee had not considered that point, and that he did not consider it necessary to alter the relevant references.

42. It was agreed to refer Article 2 to the ConTerence.

Article 3, paragraph 1 43 - The Delegate of Spain, Chairman of the Drafting Conbittee, pointed out the new definition given to "in flight" time and the inclusion of the reference to flight time in the event of a forced landing. In the latter respect the Committee had agreed that the term "forced landing" included forced landing made following the hijacking of an aircraft.

44. The Delegate of the United Arab Republic, supported by the Delegate of Tunisia, proposed the replacanent in the second sentence of the words "of a State" by the words "the State in which the forced landing occurred".

45 The Delegate of Malaysia proposed the replacement in the second sentence of the words- 'the,flight shall be deemed to continue" by the words "the aircraft shal.1 be deemed to be still in flight".

46. The Iklegate .of the United Kingdom agreed with the United Arab Republic proposal but suggested including a reference to the "territory1' of the State involved in it.

47- The Delegate of Tanzania, supported by the Delegate of Lebanon, pointed out that the United Arab Republic proposal, with the United Kingdom addition, would not cover the case of forced landings on the 'high seas.

48. The Delegate of Spain, Chairman of the Drafting cdmmittee, added that it would not cover the Artic and Antartic regions either.

49 The Delegate of Barbados suggested that reference might be made to the "territory of a Contracting State".

50 The Delegate of the Pecjplers Republic of the Gobgo suggested that paragraph 1 be referred to the Drafting Cammittee for consideration with a view to bringing out the points raised in the discussion with which,he felt sure, all participants agreed. Eighteenth Weetine Commission a9 the Whole

51 The Chairman suggested that the deletion of the words "of a State" might meet the aims of the sponsors of the various amendments put forward.

52 The Delegate of Ireland strongly supported that proposal. 53 The Delegate of India proposed the following revised wording for the first two lines of the second paragraph: "In the case of a forced landing in the territory of a State the flight shall be deemed to continue until competent authorities of that State take over" and the addition of the following sentence inmediately after the second sentence: "In the case of a forced landing outside the territory of any State the flight shall be deemed to continue until competent authorities take over the responsibility for the aircraft and for persons and propexty on board".

54 The Delegates of Lebanon and Tanzania supported the Chairmanes suggestion.

55 The Delegate of the People's Republic of the Congo supported the Indian proposal.

56 The Delegate of Canada moved the closure of the debate.

57. The Delegate bf Tanzania suggested that reference be included in the Indian proposal to "the high seas, the &tic and Antartic". 58 After a short discussion, the Delegate of India re-read the text of his proposed amendment.

59 The proposal was rejected by 21 votes to, 15, and 17 abstentions.

It was word "until" and

61. It was decided to submit paragraph 1, as amended, to the ~ohfkrence.

Article 3, paraqraph 2

62. Paramaph 2 was adopted without comment for transmission to the Conference.

Article 3, paragraph 3 63 The Delegate of Spain, Chairman of the Drafting Committee, observed that the text submitted by the Committee contained two additions to the original draft. The word "actual" had been inserted between "place of" and "landing"; and a final phrase had been added to incorporate the proposal by the USSR Delegation in paragraph 4 of SA DOC No. 32, as requested by the Commission. Eighteenth Meeting Commission of the Whole

64. The Delegate of Barbados suggested that the USSR amendment might be more simply incorporated if the semi-colon in the Drafting Committee's text were replaced by a comma, and the final phrase replaced by "whether or not the aircraft is engaged in an international or domestic flight".

65 The Delegate of Tunisia understood that it had been decided to render the English word "actual" by "effectif", rather than "r4el" in the French. He further suggested that the French text of the paragraph would be more accurate if the words "en vol" were replaced by "effectuant un volt*.

66. The Delegate of Barbados withdrew his suggestion.

67- The Delegate of Spain, Chairman of the Drafting Committee, replying to Lhe Delegate of Colombia, agreed that the Spanish text of the last clause contained some repetition, but recalled that it was sometimes necessary to sacrifice points of style in order to achieve harmonious texts in all the working languages.

68. The Delegate of the People's Republic of the Congo regretted that French speaking deleetions had not been better represented on the Drafting Committee. He proposed the replacement in the French text of the words "atterrissage rBel" by the words "atterrissage effectif".

69 The Delegates of France and Greece supported that proposal. 70 The proposal was adopted. n* The Delegate of the Union of Soviet Socialist Republics indicated that the last clause of the Russian translation was satisfactory.

72 It was decided to refer paragraph 3,as amended, to the Conference .

h he meeting adjourned at 1240 hours) THIS PAGE INTENTIONALLY LEFT BLANK NINETEENTH MEETING OF THE COMMISSION OF THE WHOU (~aturda~,12 December 1970 at 1445 hours)

Chairman: Professor W. Ri@agen

AGENDA ITIN NO. 9: CONSIDERATION OF TRE DRAFT CONVENTION

Article 3 (SA DOC NO. 83) Paragraph 4

1. Paragraph 4 was adopted for transmission to the Conference.

2. The Deleate of Spain,- Chairman of the Drafting Committee, explained that the Drafting Committee had thought it necessary to include a reference to Article 10.

3 The Delegates of Switzerland and New Zealand agreed that mention should be made of Article 10. 4. The Delegate of Cameroon also agreed that mention shoulfi be made of Article 10, and proposed that the word "effectif" should replace the word %el" in the French text, to make it correspond to the text of paragraph 3 of Article 3. 5 The paragraph was adopted for transmission to the Conference, with the deletion of the square brackets and the word "r6eln amended to read "effectif" in the French text.

Article 4 (SA Doc No. 83)

Paragraph 1

6. -The Delegate of Spain, Chairman of the Drafting Committee, Nineteenth Meeting Commission of the 'Vhole - 156 - recalled that the Conference had agreed that jurisdiction should be extended to cover "any other act of violence committed in ~onnectionvith the offence." The Drafting Committee had understood that the Allstrian amendment to paragraph 1, which the Commission had not had time to debate, referred to such acts and not to any other act of violence not comnitted by the offender or offenders.

7 A new paragraph 1 (c) had also been added -in include the reference to aircraft leased without crew.

8. The Delegate of the People1s Republic of the Congo, in the interest of economy of language, thought it might be better to say "loud sans $quipage" instead of "don& en location sans Bquipage".

9. The Delegate of France agreed that the suggestion -as stylistically desirable but pointed out that the proper legal term was "donnB en location sans Bquipage" .

10. The Delepte of the Kingdom of the Netherlands, seconded by the Delegate of Barbados, suggested that, since sub-paragraphs (a) and (c) dealt with related matters, it might be better to invert the order of sub-paragraphs (b) and (c).

11. The Delegate of Spain, Chairman of the Drafting Committee, explained that the French and Spanish versions had been'drafted to avoid ambiguity, and concurred with the point made by the Delegate of France.

12. He had no strong feelings regarding the order of the sub-paragrapls.

13. The Delegate af France proposed that the word "est" should replace "a 6G1' in sub-paragraph (b; to align the French text with the Spanish and English ones.

14. The Delegate of Ar~entinasaw no need to change the order of the sub- paragraNs and proposed to keep it as it stood.

It was so decided.

16, The paragra-pl as amended was adopted for transmission to the Conference.

17 The legate of Spain, Chairman of the Drafting Committee, said that paragraph 2 reflected the spanish proposal in SA Doc ~0.61which had been approved by the Commission of the Whole. The Commission's only remaining task was to choose between the words "it has no obligation to grant extradition" and "it does not extradite him". Nineteenth- Meeting Commission of the Whole

18. The International Air Transport Association Observer pointed out that while paragraph 1 laid it down that "Each Contracting State shall take such measures as ma-J! be necessary to establish its jurisdiction over the offence and any other act of violence against passengers ,; crew ccmitted by the alleged offender in connection with the offence", that provision was* not repeated in paragraph 2, perhaps by design.

19 P.aragrapl 2 made the extension of jurisdiction to some extent conditional upon the non-extradition of an offender. That condition could be equally applicable to paragraph 4 1 (b) and (c).

20. The Delegate of Austria explained that the words "and any other act of violence against passengers or crew" should in fact be repeated in paragraph 2.

21. However, the possibility of extradition needed to be mentioned only in paragrapl 2 because that paragraph dealt with subsidiary competence,

22. As regards the choice of the wording open to the Commission, he preferred the second formula, i.e. the words "does not extradite him".

23. The Deleptes of the Federal Republic of Germany, Italy and Greece were also in favour of that wording.

24. The Delegate of the United Kingdom said he could support the Austrian suggestion if the last part of the sentence beginning "pursuant to Article 8" were deleted.

25 . It was decided to adopt the second formula. 26. The Chairman called for comments on the point raised by Austria that paragraph 2 should contain the words "and any other acts of violence against passengers or crew".

27. The Delegates of Canada and Jamaica preferred to leave the text as it stood.

28. The Delegates of the Kingdom of the Netherlands and Barbados were in favour of the change.

29 The Delegate of Austria said that the matter was merely one of drafting and that he would not press the point.

30. The Delegate of New Zealand wondered if the problem could not be solved by deleting the first sentence of paragraph 2 and including paragraph 2 as paragraph 1 (d),starting with the words "Where the alleged offender", Nineteenth Meetin Commission of theLole

31- After a discussion between the pelegates of the United Kingdom, Spain Venezuela, Trinidad and Tobago and Ireland concerning the nature of the paragraph and the significance of including or deleting the final phrase, the Chairman observed that as same Delegates considered the matter to be one of substance, the paragraph should be referred to the Conference in Plenary meeting for a decision.

32. It was so decided. Paragraph 3

33- The Delegate of the People's Republic of the Congo suggested that the text of the paragraph should begin with the phrase "Sous rdserve des dis~ositions du -paragraphe 1 de ifarticle 4,-la prgsente Convention.. .. ."

34- The Deleate of Spain, Chairman of the Drafting Committee, believed the text as submitted to be self-explanatory. Cri~iiinaljurisdiction exercised in accordance with national law which, according to that text, the Convention would not exclude, did not benefit by the principles of Article 8, paragraphs 3 and 4.

35 The Delegate of the People's Republic of the Congo said that the reply did not satisfy the question in his mind.

36 It was agreed to refer the paragraph to the Conference. Article 5

37 The Secretary General said that the text as submitted, which had been drafted in its entirety by the Legal Committee, deliberately referred to "Contract- ing states" in the first phrase, since that was the term customarily employed in ICAO when referring to States which were Parties to the Chicago Convention.

38- Article 5 was adopted for transmission to the Conference.

Article 6 39 Paragra*~ 1-3 were adopted without comment for transmission to the Conference.

Paragraph 4

40. The Deleate of Spain, Chairman of the Drafting Committee, obser~red that the original draft of the paragraph had been modified by the addition, as requested, of a reference to the State of the lessee.

41. The Delegate of the People's Republic of the Congo, referring to Article 11 of the draft Convention, proposed that the word "promptement" in -the final sentence of the paragrapl under discussion be replaced by "rapidement". 42. After some discussion of that propossl, it was adopted for the French text, with the understanding that the renderings in the English, Spanish and Russian versions would be "promptly", "sin dilacibn" and "bystro" respectively.

43- Article 6, as amendt8, was adopted for transmission to the Conference.

Article 7 (SA Doc No. 83 ~ddendwn)

44. The Dele~teof the United Kingdom observed that the word "these" should read "those", at the beginning of the final sentence.

45 The Delegate of France favoured the deletion of the word "autre" frum that sentence, believing that it was not only superfluous, but might also give rise to ambiguity.

46. The Delegate of .the United States of America recalled that the question of including or excluding that word had caused difficulty in the Drafting Committee; a number of Delegations, including his own believed that the matter was one of substance.

47 The Delegate of the Union of Soviet Sociamt Republics agreed with the previous speaker and said that his Delegation,- too, believed the matter to be one of substance.

48. The Delegate of Argentina supported the Delegate of France. In the Spanish text, the word was superfluous.

49. After further discussion, between the Delegates of France, the Kingdom of the Netherlands, the United Arab Republic and the Union of Soviet Socialist Republics, the Chairman observed that a number of Delegations believed that the question of deleting or retaining the word "other" to be one of substance, and suggested that the matter be referred in consequence to the Plenary.

50. It W~SSO decided. Article 8

51. Paragraph 1 was adopted without comment for transmission to the Conference.

Paragraph 2 52 The Deleate of Spain, Chairman of the Drafting Committee, said that the text submitted constituted the Committee's attempt to incorporate in Nineteenth Meetin Commission of thegnole- - 160 -

as satisfactory a manner as possible the proposal by the Delegation of the Kingdom of the Netherlands (SA Doc N0.26 Revised) and the oral proposal by the Delegzte of Thailand, both of which had been adopted by the Cmissiou.

5 3. The Delegate of Canada observed that in the second line of the English text the word "receivedn should read "receives".

54. The Delegate of the Kingdom of the Netherlands expressed appi-oval of the manner in which the Committee had handled his proposal, and merely wished to suggest that the text might be further impzoved if the words "in respect of the offence" were moved higher in the paragraph, and inserted after the words "receives".

55 The Delegate of Kenya, comparing the Drafting Committee's text with that of SA Doc ~0.26Revised, wondered whether the phrase "as constituting an exbradition treaty in respect of the offence" was not, in fact, substantively different from "as the legal basis for extradition".

56. The Delegate of the United States of America believed that in the English text the cmma after the word "treaty" in the second line should 3e removed.

57. In reply to the previous speaker, he said thet the Drafting Committee had debated the matter at length, and had concluded that the language of its own draft was a faithful rendering of what it understood to be the decision of the Commission.

58 9 He said that he coold not accept the trans?osition suggested by the Delegate of the Kingdom of the Netherlands.

The Delegate of the United Kingdom fully suppor-ted those remarks.

60. The Delegate of Switzerland suggested that to bring the French text of paragraph 2 into line with the English it shmld be amended to read "avec lequel il nlest pas li6 par un trait6 dlextradition."

61. The Delegate of the Union of the Soviet Socialist Repu'alics supported by the Delegate; of Australia, Uganda snd Ireland proposed that the word "other" in "Extradition shall be subject to the other conditions provided by the law of the requested State" should be deketed.

62. The Delegate of Prance, suppo-rted by the Delegate of Italy, thougit tlnat the word "other" involved a matter of suSstance: sinzthe convention was valid as an extradition treaty the req:~estedState must be able to lay down all the conditions it required.

63- The Deleate of Spain , Chairman of the Draft-ing Committee, cmld not agree to the Netherlands 'suggestion.

64. He pointed mt to the Delegate of Kenya that with the drafting now ado$ed, the Convention constituted an extradition treaty and removed the obstacle constituted by the reqnirement for a treaty under aational laws. Nineteenth Meeting Commission of the T.nole

65. He explained that the word "other" had been included to avoid the coil-tradiction of stating that extradition should be subject to a11 the conditions provided by law of -the requested State, when it had already been made clear than an extradordinary treaty was not included.

66. After a discussion in -$hi& the Delegates of Ireland, the Kingdom of the Netherlands, Uganda, the Union of Soviet Socialist Republics and the Chaiman of tie Drafting Committee took part, the Delegate of the Union of Soviet socialist Republics dthdrew his proposal.

67- Paragraph 2 was adopted for transmission to the Conference.

( The .meeting adjourned at 1700 hours ) THIS PAGE INTENTIONALLY LEFT BLANK TWENTIETH MEETING OF THE COMMISSION OF THE WHOLE

(~aturda~,12 December 1970 at 2015 hours)

Chairman: Professor W. Riphagen

AGENDA ITEM No. 9: CONSIDERATION OF THE DRAFT CONVENTION

Article 8 (SA Doc No. 83 Addendum)

Paragraph 2 (continued)

1. The Chairman recalled that the Delegate of Switzerland had proposed to reword the first sentence of the French text.

2. The Delegate of France agreed that the Swiss proposal improved the text and proposed to amend it even further as follows: ".. . Si un Mat contractant qui subordonne ltextradition & ltexistence dtun trait6 est saisi d'une demande dtextradition par un autre Etat contractant avec lequel il n'est pas li6 par un trait6 dtextradition, il considkre la pr6sente Convention cornme valant trait6 dtextradition en ce qui concerne ltinfraction."

3. The amendment was adopted.

4. The French text as amended was adopted for transmission to the plenary.

Paragraph 3

5. The Delegate of Spain, Chairman of the Drafting Committee, said that the Drafting Committee had changed "between themselves1' in the third line of the original amendment (SA Doc No. 26) to "between Contracting States1', to take account of the Canadian proposal.

6. Paragraph 3 as amended was approved for transmission to the plenary.

Paragraph 4

7 The Delegate of Spain, Chairman of the Drafting Committee, said that in the interests of concision the Drafting Committee had not repeated sub-paragraphs (a), (b) and (c) in full as in SA Doc No. 26 revised, but had merely made a reference to Article 4, paragraph 1.

8. The Delegate of Barbados proposed to change "territories" to "territory" in ".. . committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction...". Twentieth Meeting Commission of the Whole

9 The amendment was adopted.

10. The paragraph as amended was adopted for transmission to the plenary.

Article 9 (SA Doc No. 83)

Paragraph 1

11. The paragraph was adopted for transmission to the plenary.

Paragraph 2

12. The Delegate of Spain, Chairman of the Drafting Committee, said that, in accordance with the decision of the Plenary, the Drafting Committee had added the words "without delaytt in the fourth line after "shall".

13 The Delegate of the Xingdom of the Netherlands remarked that there seemed to be a slight diffkrence in meaning between the English text, which read "the Contracting State in which the aircraft, its passengers or crew are present", and the French text, which read "tout Etat contractant.. .". 14. The Delegate of Spain, Chairman of the Drafting Committee, observed that the third line of the Spanish- text should be amended to read "o 10s pasajeros o la tripulaci6n".

15 The Delegate of Jamaica said that paragraph 2 provided for an obligation on the Contracting State in which the aircraft, its passengers or crew were present. That could be interpreted to mean that the obligation would only apply when the aircraft, the passengers and the crew were all present in the same Contracting State. It might be better to reword the paxagraph to read "... any Contracting State in which the aircraft, its passengers or crew are presen ttt. 16. The Delegate of Tanzania said he would prefer to substitute "hand over" for "return", which might be interpreted to mean physical return cf the aircraft and hence involve considerable expense. 179 The Delegate of the United Kingdom agreed with the proposed amendment of the Delegate of Jamaica, since "any" would be a better translation of the French "tout"; moreover, it would be preferable to delete the comma after "present" in the third line of the English text.

18. He explained to the Delegate of Tanzania that "return" was the language used in the Tokyo Convention and would be interpreted as returning the aircraft in the country where it was found.

19 After a short discussion in which the Delegate of Spain, Chairman of the Drafting Committee, the Delegates of the Kingdom of the Netherlands and Austria took part, the Delegate of Barbados suggested that the point might be met by inserting "or" after "aircraftt1, so that the sentence would read 'I... the aircraft or its passengers or crew", which was the wording used in the original amendment (SA Doc No. 47). Twentieth Meetinq Commission of the Whole

20. It was decided to amend paragraph 2 of the English text to read "any Contracting State in which the aircraft or its passengers or crew are present" and to omit the comma after "present", but to make no change in the French text.

21. Paragraph 2 as amended was adopted for transmission to the plenary.

Article 10

Paragraph 1

22. The Delegate of Spain, Chairman of the Drafting Committee, said that the new drafting reflected the decision of the plenary to include the Swiss proposal that the Convention sbauld provide for assistance in connection with criminal proceedings brought in respect of the offence.

23 The Swiss proposal, which had been made in French, used the words "entraide judiciaire". The English and Spanish speaking Delegates on the Drafting Committee had considered that although the English and Spanish texts had not originally included the word "judicial", it should be included.

24. The Delegate of Switzerland said that the drafting of Article 10 reflected his delegation's intention but that he would prefer to have the word "mutual" included.

25 The Dele~ateof Tunisia pointed out that the English and French texts did not correspond and should be aligned. It would, moreover, be simpler to amend the French text to read "notamment en vue de ltexercice de l1instruc- t ion".

26. The Delegate of Costa Rica failed to understand what "judicial assistance" meant. Contracting States should be required merely to assist each other, and "judicial" should be deleted.

27- The Delegate of Ireland pointed out that "mutual" would not be needed in English, since the idea was already implicit in "afford one another the greatest measure of judicial assistancef1.

28. The Delegate of the United Kingdom thought the English text would correspond more closely to the French if "one another" were deleted and "mutual" included.

29 "Judicial assistance" had no specific meaning in English, and since it was not in the original proposal in Spanish or English, the Drafting Committee had perhaps made a change of substance. In the European Conventinn on Mutual Assistance in Criminal Matters, the French expression "entraide judiciaire" was translated simply by "assistance", which might be sufficient in the present case.

30- After a discussion in which the Delegates of Colombia, New Zealand, India, Venezuela and Barbados took part, the Delegate of France explained that "entraide judiciaire" had a precise connotation in French which was lacking in English and Spanish, and therefore proposed to leave the French text as it stood but to delete the word "judicial" in the other two languages. Twentieth Meeting Commission of the Whole

31 The Delegate of Canada proposed that the words "... in transmitting articles to be produced in evidence, records'or documents" be deleted and replaced by "shall assist in the procuring of evidence and in the transmission thereof to the requesting State".

32 The Delegate of Costa Rica, supported by the Delegate of India, said that if the listing were omitted the parsgraph would gain in concision and unnecessary discussion on translation could be avoided.

33 The Delegate of Argentina agreed that "judicial" should be deleted and concurred with the Delegate of Canada that the article should not be too restrictive. "Contracting States shall afford one another the greatest assistance" might be a better form of words.

34 The Delegate of Ireland suggested rewording the paragraph to read "Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence and other acts mentioned in Article 4," or putting "entraide judiciaire" in brackets after "greatest measure of assistance" in the Ehglish text, for which there had been precedents in previous conventions.

35 The Delegate of Switzerland agreed to delete the listing from "in particular" to hdocuments", but stressed the need to keep the words "entraide judiciaire" in the French text, as well as the last sentence, which might read "dans tous les cas la loi applicable pour ltex6cution dtune demande dtentraide est celle de 1Qtat requis".

36 The Chairman,, summing up the discussion, said there seemed to be agreement to retain "entraide judiciaire" in the French text, to reword the English to read "afford one another the greatest measure of assistance", and to delete all the words following "Article 4" in the fourth line to the end of the first sentence.

37. The Swiss proposal was a consequential amendment to the deletion of the words before it in French, but the English text required no change.

38 The paragraph as amended was adopted for transmission to the plenary.

Paragraph 2

39 The Deleate of Canada proposed that the word "convention", which was too restrictive, be replaced by "agreement". Moreover, he did not think it necessary to say "will govern" in "The provisions of paragraph 1 of this Article shall not affect obligations under any other international convention, bilateral or multilateral, which governs or will govern in whole or in part mutual assistance in criminal matters". If the words were retained the question might arise as to whether or not contemplated agreements or those which existed or were not yet in effect were also meant to govern. He proposed to rnplace "which governs or will govern" by "governing, in whole or in part". Twentieth Meeting Commission of the Whole

40. The Delegate of Costa Rica thought that in view of the amendments made to paragraph 1, paragraph 2 was redundant.

41. The Chairman pointed out that a proposal to delete paragraph 2 was out of order at that time.

42. The Delegate of Tunisia endorsed the first proposal of the Delegate of Canada, but thought that to delete "will govern" would be an amendment of substance. All parties to future agreements would not necessarily be parties to the Convention.

43 The Delegate of the United Arab Republic supported the Cmadian proposal to replace "will govern" by "governing".

44. The Delegate of Colombia proposed to delete the words relating to mutual assistance and to speak of "any other valid convention", omitting "international".

45 The Chairman suggested that "treaty" might be better than "convention" since the Vienna Convention defined a treaty as including exchanges of notes, etc. It would then be possible to drop "international".

46. It was not superfluous to say "or will govern". Treaties were separate instruments and did not necessarily bind the same parties.

47 The Delegate of Guatemala agreed with the Chairmants suggestion and proposed to delete the words "bilateral or multilateraln, since the Vienna Convention laid it down that a treaty was an international agreement between States.

48. The Delegate of Ireland said his own delegation would prefer to retain the words "bilateral or multilateral", since it interpreted the extradition treaty mentioned in the first paragraph of Article 8 as not being a multilateral one and would be unable to maintain that interpretation if Article 10, paragraph 2 were changed.

49 In view of the Chairman's explanation the Delegate of Canada withdrew his proposal to replace "will govern" by "governing".

50 It was decided to replace the words"internationa1 convention" by "treatyn.

51 The paragraph as amended was adopted for transmission to the plenary.

Article 11 (SA Doc NO. 83)

52 The Delegate of Guatanala, supported by the Delegate of Yugoslavia, pointed out that since Contracting States would report to the ICAO Secretariat and not to the Council, the words "the Council of" should be deleted. Commission of the Whole

53 The Delegate of the United Kingdom suggested that the word "rapidly" in the third line of the English text should be changed to "promptlytt to bring the drafting into line with Article 6, paragraph 4.

54. The Delegate of the Kingdom of the Netherlands proposed to delete the word "applicable" in the expression "in accordance with its applicable national law".

55 The Delegate of the United Arab Republic supported that proposal. The deletion of the word "Council" was, however, a question of substance and could no longer be discussed.

56- The Delegate of Ireland pointed out that the word "to" in the second line of sub-paragraph (c) was redundant.

57- The Delegate of the United States of America agreed that deletion of the word "Council" was a matter of substance. Material sent for the attention of the Council would normally be sent to the Secretary General but it could not be left to his discretion to do with it what he wished. With the drafting as it stood, the material would go to the Council, which,had a special committee to deal with the subject of unlawful seizure. 58 It was agreed to delete the words "to" and "applicable" and to change "rapidlf to "prompt".

59 Article 11 as amended was adopted for transmi-,lon to the plenary. 60. The Delegate of Uganda observed that the Commission had been dealing with articles in isolation, and some of them, including Article 8, needed re- examination, since there had been doubts as to whether the amendments were of substance or of drafting. It was not too late for the Commission to take another look at the text by acting as a Drafting Committee of the Whole.

61. The Chairman pointed out that the Commission had already referred the articles to the plenary.

('The meeting adjourned at 2300 hours) NINTH PLENARY MEETING

(~onda~,14 December 1970 at 1005 hours)

President :' Professor W. Riphagen

AGENDA ITEM NO. 9 : CONS IDERATION OF TRFI DRAFT CONVENTION

Printed text of the draft-Convention for the suppression of unlawful seizure of aircraft

1. The Secretariat pointed out a number of printing errors in the English and French texts.

2. ointed out printing errors in the Spanish text.

3 The Delegate of the Union of Soviet Socialist Republics said that the title of the Convention required revision in the Russian text.

4. The President reminded the Conference that voting on the adoption of the draft Convention would be carried out in accordance with Rule 20 of the Rules of Rocedure.

It was agreed to vote first on the Articles in the order in which they appeexed and subsequently on the Preamble.

Article 1

5 0 There were no comments.

6. Article 1 was adopted by 68 votes to none, and 1 abstention.

Article 2

7 There were no comments.

8. Article 2 was adopted by 71 votes to none, and 2 abstentions.

Article 3, .paragraph 1

9 There were no comments. 10 . Paragraph 1 was adopted by 67 votes to none, and 6 abstentions. Ninth Plenary Meeting

Article 3, paxagraph 2 9 11. There were no comments.

12. Paragraph 2 was adopted by 72 votes to none, and 2 abstentions.

Article 3, paragraph 3 13. The Delegate -of Trinidad and Tobago asked if the words "the place of actual landing" included the place of forced landing.

14. The President said he understood that to be the case.

1.5 The Delegate of New Zealand believed that the purpose of the inclusion of the word "actual" had been to make it clear that the Convention covered cases in which domestic flights were prevented from landing in their place of scheduled landing (within the territory of the State from which the flight had taken off) and forced to land in another State.

16. The Deleate of the United Kingdom also understood the place of "actual landingdedlanding.

17 There were no further comments. 18. Paragraph 3 was adopted by 67 votes to none, and 6 abstentions.

Article 3, paxawaph 4

19 There were no comments. 20. Paragraph 4 was adopted by 73 votes to none, and 2 abstentions.

Article 3, paxagraph 2

21. The Delegate of Spain, supported by the Delegate of Costa Rica, proposed that the order of wording in the fifth line of the Spanish text be re-arranged to read as follows: "aeronave, si el delincuente se encuentra en". That was merely a stylistic amendment to bring the Spanish text into line with the English and French texts.

22. The Delegate of the People's Republic of the Congo proposed the insertion of the word "alleged1' before the word "offender".

23 The Delegate of Argentina supported the two amendments proposed. 24. The Delegate of Chile supported the Spanish amendment.

25 The Spanish proposal was adopted. Ninth Plenary Meeting

26. The Delegates of Cmeroan and Austria supported the Congolese amendment.

270 The Delegate of Trinidad and Tobago also supported that proposal. 28. He proposed a further anendment to the paragraph, the inclusion of a reference to Article 1 in the second line which would then read "this Article, Articles 1, 6, 7, 8 and 10 shall".

29 0 The Delegate of Spain, Chairman of the Drafting Committee, explained that the word "alleged" had not been introduced to qualify the offender since reference was made to Articles covering the alleged offender and the known of fender. He did not believe it necessary to include a reference to Article 1.

30 The Delegate of France swested replacing the words "the offender" by the words "the offender or the alleged offender".

31 The Delegates of the United States of America and India supported the Congolese proposal.

32 The Delegate of Italy supported the amendment proposed by the Delegate of France.

33 The Delegate of Costa Rica agreed with the suggestions put forward by the Congolese and French Delegates to _include a reference to the "alleged" offender .

34 0 The Delegate of the Peoplers Republic of the Congo withdrew his proposal in favour of the French proposal.

35 The Delegate of Canada supported the French proposal. He suggested that reference should be made not to "the offender" but to "an offender".

36 The Delegate of Mexico supported the French proposal.

37. The Delegate of Spain supported the French and Canadian proposals. 38 The Delegate of Venezuela agreed with the French proposal.

39 The Delegate of the Kingdom of the Netherlands said he could have accepted the text as drafted, and the original suggestion by the Delegate of the People's Republic of the Congo, but could not accept the French proposal . 40. The Deleppte of the United Kingdom believed that it would be preferable to refer only to "the alleged offender".

41.. The Delegate of the Union of Soviet Socialist Republics favoured the ~re~chproposal.

42. The Delegates of Argentina and Spain made a grammatical correction to the Spanish text. Ninth Plenary Meeting

43 The Delegate of Ceylon favoured the inclusion of a reference to "the alleged offender". 44. The Canadian sub-amendment tending to replace the word "the" in the French amendment by "an" was rejected by 31 votes to 2, with 30 abstentions.

45 The French amendment tending to insert, after the word "ltauteur", the words "ou ltauteur pr&umd" was adopted by 50 votes to 5, with 15 abstentions. 46. Paragraph 5, as amended, was adopted by 67 votes to none, with 4 abstentions. 47 Article 3 as a whole, as amended, was adopted by 68 votes to none, with 4 abstentions.

Article 4, paragraph 1 48. The Delegate of Guatemala corrected a grammatical error in the Spanish text of paragraph 1 (c) .

49 The Delegates of New Zealand, the United State of America and the United Kingdom agreed that in the English text, the coma in the fourth line of paragraph 1 (c) should be moved and inserted after the word "or".

50 It was so decided. 51 The Delegate of Spain proposed an alteration, merely for purposes of clarity, in the Spanish text of paragraph 1 (a), where "si se comete" should read "si el delito se comete".

That proposal was adopted. 53 Paragraph 1, with those linguistic corrections, was adopted by 70 votes to none, with one abstention.

Article 4, paxamaph 2

54. Paragraph 2 was adopted by 73 votes to none, with one abstention.

Paragraph 3 was adopted by 73 votes to none, with one abstention.

56 Article 4 as a whole was adopted by 73 votes to none, with one abstention. Ninth Plenary Meeting

Article 5

57- The Delegate of Australia suggested that the comma be deleted from the third line of the English text, and the word "and" inserted at that point.

58 After some discussion between the Delegates of the United Kingdom and Australia concerning its significance, the Delegate of Australia reluctantly withdrew that suggestion.

59 Article 5 was adopted by 72 votes to none, with one abstention.

Article 6, paragraph 1

60. The Delegate of Greece suggested that the word "raisonnablement" be inserted after "d61ain in the French text, to bring it into line with the other language versions.

61. The Delegate of the United States of America, recalling the amendment adopted in connexion with paragraph 5 of Article 3 proposed in the interests of consistency that the words "the offender or" be inserted before "the alleged offender" in the first sentence of the present paragraph.

62. The Delegate of France agreed with that proposal. As far as the term "reasonably" was concerned, he observed that the discrepancy mentioned by the Delegate of Greece was also to be found in Article 13 of the Tokyo Convention, and expressed a preference for the French text as drafted therein.

63 The Delegate of Aust~iaagreed with the United States proposal, and also favoured the deletion of the word "reasonably" from the English text of the paragraph,

64. The Delegate of Brazil, referring to the text submitted by the Drafting Committee for Article 7, and to the forthcoming discussion of that Article, proposed a separate vote on the initial phrase of the present paragraph: "Upon being satisfied that the circumstances so warrant". In his opinion, the retention of that phrase would seriously weaken the Convention, by permitting any Contracting State to invoke what it considered to be warranted circumstances as a reason for not complying with the provisions of Article 6. Moreover, the retention of that phrase would make it almost impossible to consider favourably the tabled motion for the deletion of the phrase "whatever the motive for the offence" from Article 7. The result, he feared, would be a large loophole in the provisions of the Convent ion. /' 65 - The Delegate of the Union of Soviet Socialist Republics supported the United States proposal, and agreed that the word "reasonably1' should be deleted from the text of the paragraph. Ninth Plenary Meeting

t, 66. The Delegate of Argentina also supported those proposals. With regard to the proposal by the Delegate of Brazil, he recalled his own Delegation's arguments in favour of the deletion of the initial phrase of the paragraph, so that Contracting States would be under an unequivocal obligation in connexion with Article 6. He agreed that the retention of that phrase would give rise to undesirable ambiguity.

67- The Delegate of the People's Republic of the Congo expressed surprise that the argument put forward by the Delegate of Brazil was based on presumptions concerning the decision on Article 7, which was not yet before the Conference.

68. The Delegate of the United Kingdom said that he would not object to the deletion of the word "reasonably", with the understanding that the word "necessary" would be interpreted as "reasonably necessary".

69 Turning to the question of the first phrase of the pwagraph, he observed that its deletion would have the result of obliging Contracting States to arrest any person against whom the allegation of hijacking had been made, even if that allegation were not supported by evidence. That was an obligation which, he submitted, no State could accept. 70- The Delegate of Mexico agreed with the United States proposal. no He could not agree to the deletion of the first phrase of the paragraph, for the reason given by the previous speaker. It was inconceivable that a person should be taken into custody if the circumstances did not so warrant.

72 Nor could he agree to the deletion of the word "reasonably", which perhaps lacked precision, but nevertheless provided some sort of norm to guide national authorities in determining the period of custody necessary to permit the preparation of criminal or extradition proceedings.

73 The Delegate of Brazil codd not agree with the Delegate of the People's Republic of the Congo that his argument had been based on a presumption. He reitereted his belief that retention of the initial phrase of the paragraph would allow Contracting States to claim that they had no duty to undertake the measures established in Article 6. He appreciated, however, the point made by the Delegate of the United Kingdom, and said that he would have preferred the text to refer only to measures for ensuring the presence of the offender or alleged offender.

74 As far as the argument by the Delegate of Mexico was concerned, he believed that the question of reasonableness was already incorporated in the phrase "for such time as is necessary".

75 The Delegate of the United States of America fa~~redthe deletion of the word "reasonably".

76 For the reason put forward by the Delegate of the United Kingdom, he could not agree to the deletion of the initial phrase of the paragraph. Ninth Plenary Meeting

- 175 -

77 The Delegate of India also favoured the retention of the initial phrase.

78 He agreed with the United States proposal for the addition of the words "the offender or".

79 He would not object to the deletion of the word "reasonably".

80. The Delegate of Barbados, recalling the lengthy discussion on the subject in Montreal, said that the argument advanced by the Delegate of the United Kingdom in favour of retaining the initial phrase of the paragraph was fallacious. Its deletion would not impose an unequivocal obligation to take into custody. The text made it quite clear that the State in question could "take other measures" to ensure the presence of the alleged offender.

81. The Delegate of Greece concurred with the observation by the previous speaker. The obligation merely to ensure that the alleged offender did not leave the State concerned was not, he submitted, unacceptable, especially when it was compared with the dangerous implication of the initial phrase, that a Contracting State on the basis of a subjective judgment could ignore all the provisions of the Article.

82. With the support of the Delegate of Argentina, he suggested that a compromise solution might be found. The initial phrase could be deleted, and the phrase "shall take him into custody or take other measures to ensure his presence" could be amended to read: "shall take measures to ensure his presence".

83 He favoured the inclusion of the words "the offender or" and the deletion of the word "reasonably" in the text of the paragraph.

84. The Delegate of Colombia also favoured the inclusion of the words "the offender or" and the deletion of the word "reasonablyt'.

85 On the matter of the retention or deletion of the initial phrase, he concurred with the remarks by the Delegate of Barbados.

86. The Delegate of Spain also favoured the inclusion of the words "the offender ortf and the deletion of the word "reasonably".

87- He believed that retention of the initial phrase would, as other speakers had remarked, weaken the Convention, and therefore favoured its deletion.

88. The proposal that the words "the offender or" be inserted before "the alleged offender" in the first sentence was adopted by 64 votes to 2, with 4 abstentions.

89 The proposal to delete the word "reasonablytf or its equivalent from the English, Spanish and Russian texts of the parasaph was adopted by 50 votes to 3, with 13 abstentions. Ninth Plenary Meeting

90. After a ~roceduraldiscussion between the Delemtes of s .. - ' Greece, Ceylon,Spain, Brazil. India., the Peo~le'sRemblic - ofA?e Congo and the United Arab Republic, the President put to the vote the motion for a separate vote on the phrase "upon being satisfied that the circumstances so warrant".

91 The motion was adopted by 27 votes to 9, with 18 abstentions.

92 The President put to the vote the retention of the phrase "Upon being satisfied that the circumstances so warrant".

93 It was decided to retain that phrase by 49 votes to 11, with 2 abstentions.

94 The F'rssident invited the Conference to vote on the retention of the words "shall take him into custody or".

95 The Delegate of Spain believed that the Conference should be invited to pronounce on the deletion of those words.

96 The Delegate of Greece expressed surprise that the Conference had been invited to vote on the retention of the initial phrase as drafted, i.e. on the text before it, rather than on a proposal for the deletion of that phrase. His own proposal had been in the form of a further amendment, consequent to such a deletion. Under the circumstances, he would withdraw that proposal.

97 Paragraph 1, as amended, was adopted by 65 votes to none, with 7 abstentions.

h he meeting adjourned at 1315 hours) TENTH PLENARY MEETING

(Idonday, 14 December 1970 at 1440 hours)

President: Professor W. Riphagen

AG- ITEN NO. 9: CONSIDERATION OF !PHI3 DRAFT COIVVENTION

Article 6, paragraph 2

1. The paragraph was adopted by 72 vdtes to none, with no abstentions.

Article 6, paragraph 3

2. The paragraph was adopted by 72 votes to none, with no abstentions.

Article 6, paragraph 4

3. The Delegate of the United States of America called attention to the fact that the word "nationality" in the fifth line should be divided after and not before the second "n".

4. The Delegate of Yugoslavia called attention to the fact that in the seventh line the,,French text should read: ". . . l'article 1, paragraphe 1, alinda c) . 5. The pamgrapi was adopted by 72 votes to none, with no abstentions.

6. Article 6 as a whole was adopted by 72 votes to none, with 2 abstentions.

Article 7

7 The Delegate of Kenya said that the language used caused his Delegation some difficulties; it seemed to imply that neither the judge and the Director of Public Prosecutions wodd have a chance to prove the motive for the offence since it would already be established under Article 7.

8. So as to avoid difficulties of interpretation, his Delegation proposed to delete the words "whatever the motive for the offence" and substitute "without exception". Tenth Plenary Meeting

9. The Delegate of Cameroon supported the amendment which would enable a larger number of countries to agree to the text.

10. The Delegate of France proposed to take a separate vote on the word "other" in the penultimate line of the article, which served no useful purpose. The intention was that the competent authorities should take their decisions in the same way as in the case of any ordinary of fence, and "any" theref ore sufficed.

11. If the present text were adopted, those countries which had different jurisdictions for ordinary and political offences would have difficulties. All ambiguity should be banished, and he stressed that the deletion would have no effect on Article 8.

12. The Delegate of the United Kingdom supported the Kenyan proposal, which would make the text of the Convention more widely acceptable.

13. He recalled that a similar change had been made in the United Nations General Assembly resolution on the matter. Nothing would be lost by adopting the Kenyan amendment, for the new wording would be as comprehensive as the one it was designed to replace and would, moreover, exclude not only all considerations of motive, but also any considerations of nationality or ethnic origin.

14. Either text would be acceptable to the United Kingdom, but his Delegation would support the change proposed in the hope that it would help to make the Convention more widely acceptable.

15. The Delegate of the United States of America supported the Kenyan amendment to change the wording to "without exception whatsoevern, and agreed with the comments of the United Kingdom Delegation.

16. His Delegation would, however, be opposed to deleting the word "other" in the penultimate line.

17. The Delegates of Venezuela and Costa Rica supported the Kenyan amendment, but could not agree to the French proposal.

18. The Delegate of Spain fully supported the Kenyan amendment.

19. The International Transport workers' Federation Observer supported the Kenyan amendment.

20. The Delegate of Canada supported the Kenyan amendment and associated his Delegation with the remarks made by the Delegate of the United Kingdom. 21. The Delegate of the Union of Soviet Socialist Republics said that his Delegation was prepared to accept the Kenyan amendment only if it repeated the exact wording of the United Nations resolution, which read "without exception whatsoever", for otherwise the Convention would be even weaker than the resolution adopted in the wider forum of the United Nations. Tenth Plenarv Meeting

22. His Delegation opposed the French proposal.

23. The Delegate of Switzerland fully supported the Kenyan amendment es amended by the Delegate of the Union of Soviet Socialist Republics, and also the French proposal, which would improve the text.

24. The Delegate of the Kingdom of the Netherlands seconded the proposal of the Delegate of the Union of Soviet Socialist Republics.

25 - Since deletion of the word "other" would be useful to some countries but embarrassing to others, the French proposal should be treated as an amendment.

26. The Delegate of Italx supported the Kenyan amendment.

27. The Delegate of the United Kingdom agreed with the wording suggested by the Delegate of the Union of Soviet Socialist Republics.

28. The Delegate of Argentina supported the Kenyan amendment, further amended by the Delegate of the Union of Soviet Socialist Republics, and also the French proposal.

29- The Delegate of India supported the Kenyan amendment.

30. The Delegate of the People's Republic of the Congo supported the Kenyan amengment and the French proposal.

31. The Delegate of Greece supported the Kenyan and USSR proposals.

32. The Delegate of France supported the Kenyan amendment.

33. He pointed out that his own proposal was for a separate vote an3 was not an amendment.

34. The Delegate of Kenya was grateful for the support given his amendment but did not accept the word "whatsoever".

35. The idea behind his amendment was that offences should be submitted without exception to the competent authorities for their decision whether or not to prosecute. However, there was as yet no proposal to change the wording of the second sentence of Article 7, and he suggested that his amendment be debred before discussion on the second point continued

36. The &legate of Barbados proposed that, under Rule 24 of the Rules of Procedure a precautionary measure should be taken: the present Article 7 should be replaced by the original wording of the Legal Committee (SA Doc No. 4) if neither of the two amendments received the necessary majority.

37- The Delegate of Switzerland moved the suspension of the meeting under Rule 14 of the Rules of Procedure. Tenth Plenary Meeting

38. The motion for the suspension was adopted by 25 votes to 9 with 16 abstentions.

39. The meeting was suspended at 1525 hours and resumed at 1550 hours.

40. The Delegate of Malaysia supported the Kenyan and USSR proposals, but thought the words "for the purpose of prosecution" were ambiguous.

41. In the discussion of the Committee of the Whole, self- contradictory explanations had been given concerning that wording: some thought that it denoted mandatory, others discretionary prosecution. Since his own country's constitution required a discretionary formula, his Delegation would prefer the original draft of the Legal Committee, although that proposal was not a formal one and his Delegation could agree to the new text if it could be made clear that the discretionary formula was implicit.

42. The Delegate of Kenya announced that for the time being he would maintain his proposal, and that he could also accept the USSR amendment. He had no strong feelings concerning the second part of his proposal.

43. The Delegate of Chile proposed that the words "for purposes of prosecution" be deleted and replaced by "for their decision whether to prosecute him", as in the original draft of the Legal Committee.

44. The Delegate of Lebanon pointed out that a drafting change was needed in the French text to make it grammatical: It should read "... soumet l'affaire sans aucune exception et que l'infraction ait ou non CtC commise sur son territoire . . . " .

45. The Delegate of France supported by the Delegate of the People's Republic of the Congo pointed out that it would be better to say "dans tous les cas" instead of "sans exception".

46. The President observed that the conference had to vote on a particular form of words and could not change the wording any firther.

47. The Kenyan amendment was adopted by 61 votes to none, with 11 abstentions.

48. The Delegate of the People's Republic of the Congo said that it should be understood that the French text meant "dans tous les cas".

49 The President said that the meeting would vote on the Chilean amendment to replace the words "for the purpose of prosecution" by "for their decision whether to prosecute him".

50. The Delegate of Tanzania supported the Chilean amendment, and pointed to a contradiction in Article 7; that Article did not specify the grounds for refusal to extradite, which were, presumably, the usual Tenth Plenary Meeting

ones to be found in an extradition treaty. Article 7 made it obligatory for Contracting States which did not extradite an offender to submit the case to its competent authorities for the purpose of prosecution, but did not say whether the authorities should decide whether or not to prosecute. He therefore supported the proposal of the Delegate of Chile.

51- The Delegates of Malaysia and India supported the Chilean proposal.

52. Tile Delegate of the United Kingdom said that he was in favour of the existing text which he understood to mean that the case must be submitted to the competent authorities, who would decide whether or not to prosecute. He saw no advantage in changing the text, which had been drafted at the expense of considerable time and labour, and he would oppose the Chilean amendment.

53. The Delegate of the Union of Soviet Socialist Republics endorsed the remarks of the Delegate of the United Kingdom.

54. The International Fede-ation of Air Line Pilots Association Observer thought that the present wording should be retained.

55- The Delegate of Romania observed that it had been unanimously agreed that something must be done to stop the unlawful seizure of aircraft. The least that could be done was to bring the alleged offender to justice. It would be for the courts to take a decision.

56. The Chilean amendment was rejected by 22 votes to 41, with 11 abstentions.

57. The President exp!sined that under Rule 22 of the Rules of Procedure it was necessary to take a vote on whether the word "other" should be the subject of a separate vote.

58- By 26 votes to 22, with li abstentions it was decided to take a separate vote on the word "other".

59. By 26 votes to 28, with 10 abstentions, it was decided not to retain the word "other".

60. The Delegate of Spain felt that those delegations in favour of the amendment should have been called on to vote first, and that a two-thirds majority was required under Rule 20 (1) of the Rules of Procedure.

61. The President ruled thak the vote on whether to retain the word "other" was part of the separate vote and therefore a procedural matter requiring a simple majority of the Representatives present and voting, in accordance with Rule 20 (2) of the Rules of Procedure.

Vote on Article 7, as amended

62. At the request of the Representatives of Austria and Israel, the vote was taken by roll-call. Tenth Plenary Meeting

63. In favour: Afghanistan, Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Byelorussian SSR, Cameroon, Canada, Ceylon, Republic of China, People's Republic of the Congo, Costa Rica, Czechoslovak Socialist Republic, Denmark, Ethiopia, Finland, France, Gabon, Federal Republic of Gemany, Ghana, Greece, Guatemala, Holy See, Hungary, India, Iran, Ireland, Israel, Italy, Jamaica, Japan, Kuwait, Lebanon, Lesotho, Libya, Mexico, Kingdom of the Netherlands, New Zealand, Norway, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, Turkey, Ukrainian SSR, USSR, United Arab Republic, United Kingdom, United States of America, Venezuela, Yugoslavia.

Against : Algeria, Tanzania.

Abstaining: Barbados, Cambodia, Chile, Colombia, Indonesia, Kenya, Republic of Korea, Malaysia, Panama, Thailand, Tunisia, Uganda, Zambia.

64. Article 7, as amended, was adopted by 60 votes to 2, with 13 abstentions.

Vote on Article 8, paragraph 1

65. Article 8, paragraph 1, was adopted by 73 votes to none, with 1 abstention.

Article 8, paragraph 2

66. The Delegate of Zambia proposed that the words "constituting an extradition treaty" be replaced by "the necessary legal basis for extradition". Alternatively, if that proposal failed to obtain the appropriate majority, he proposed that the words "constituting an extradition treaty1' be replaced by "fblfilling this condition".

67 Those amendments, particularly the first, were a better reflection of what had been decided in the Conmission of the Whole. In SA Doc No. 26 Rev., the operative words in that connexion had been "shall recognize the present Convention as the legal basis for extradition". His intention was therefore to introduce those words into the document under consideration in order to facilitate acceptance by those States which might have difficulty in accepting the text as it stood.

68. The Delegate of the People's Republic of the Congo said that paragraph 2 as it stood denoted an utterly off-hand attitude towards those States making extradition conditional on the existence of a treaty since it presumed to hand them the necessary treaty in one sentence. His country was anxious to sign the Convention, and paragraph 2 was practically the only provision that would long prevent it from doing so. He therefore proposed that paragraph 2 be deleted. Tenth Plenary Meeting

69. The Delegate of India also felt that paragraph 2 should be deleted. It served no purpose and was self-defeating since it would force countries into treaty relations with others with which they would not normally wish to deal, and it would be used to make extradition impossible through a mass of new national provisions that would offend the concept of uniformity of laws.

70 The Delegate of Colombia considered that paragraph 2 would be a definite obstacle to ratification and proposed that it be deleted.

71 - The Delegate of Jamaica recalled the circumstances in which working documen-!,; 26 Rev. and 83 had been considered by the Commission of the Whole not on their substance but purely from the drafting point of view. In the interests of wide acceptance, those delegations that had supported working documents 26 Rev. and 83 should have no difficulty in backing the proposal under consideration.

72 He was therefore prepared to accept the Zambian amendment and could agree to the proposal of the French Delegation.

73. The Delegate of Uganda could not support the Zambian amendments. The proposed wording would have exactly the same binding effect, and he would support any proposal to delete paragraph 2.

74. The Delegate of the Kingdom of the Netherlands said that though it had not been the intention of the sponsors of working documents 26 Rev. and 83 to introduce any special obligations under ~rticie8, paragraph 2, other than those embodied in the Convention as a whole, he appreciated the difficulties the paragraph might raise for certain countries. He therefore supported the first alternative proposed by the Delegate of Zambia, the second also being acceptable to his Delegation.

75. The Delegate of Cameroon agreed with the Delegates of the People's Republic of the Congo and India that paragraph 2 should be deleted.

76. The Delegate of Tanzania also felt that paragraph 2 should be deleted as it implied automatic extradition, which would be contrary to the law of his country. In the interests of wide acceptance, the Convention should make it quite clear that extradition would also be subject to the municipal law of the State requested to extradite, and a request for extradition by a State with which the requested State had no extradition treaty should be considered in the same manner as a similar request to a State with which it did have such a treaty.

77- The Delegate of Tunisia said that many Delegations were under- standably hesitant about the mandatory nature of paragraph 2 since national parliaments would doubtless ask awkward questions about the nature of the implied extradition treaty in that paragraph. He therefore saw no objection to deleting such a provision but felt it would be simpler to await the vote. With at least one-third of the votes against it, paragraph 2 would be eliminated. Tenth Plenary Meeting

78- The Delegate of the United Kingdom supported the Zambian proposal It would be regrettable to delete paragraph 2 on a misunderstanding. The Zambian proposal would make it clear that there would be no extradition treaty but that the Convention would simply form the legal basis for extradition. From the drafting point of view, he preferred the second alternative proposed by the Delegate of Zambia.

79. The Delegate of Spain fully supported the Delegate of the United Kingdom. Paragraph 2 was needed to fill the gap in the original draft by the Legal Committee. The Zambian proposal admitted that need and was merely concerned with drafting. From the legal point of view, he PrePerred the second alternative because in the first the Convention was still being called the necessary legal basis for extradition. Those countries not wishing to see an extradition treaty in the Convention would not like to see the legal basis for extradition in it.

80. The Delegate of Canada moved the closure of the debate.

81. The Delegate of the Union of Soviet Socialist Republics opposed the motion.

82. The motion to close the debate was rejected by 28 votes to 17, with 15 abstentions.

83. The Delegate of France said that though his country was not directly concerned by paragraph 2, since it did not make extradition conditional on the existence of a treaty, he would be happy with any solution that satisfied the countries requiring such a treaty.

84. The Delegate of Kenya felt that the Zambian proposal offered no change in substance and that the entire paragraph should be deleted.

85- The Delegate of the Union of Soviet Socialist Republics said that the Convention had to serve as a firm deterrent and therefore had to contain paragraph 2. He appreciated the conciliatory nature of the Zambian proposal and felt that either alternative would be acceptable to most countries.

86. The Delegate of Argentina supported the second alternative contained in the Zambian proposal.

87- The Delegate of Italy said that as one of the sponsors of SA Doc No. 26 Rev., his Delegation could accept the Zambian proposal and preferred the second alternative.

88. He was opposed to deletion of paragraph 2 since that would leave a loophole in the Convention.

89. The Delegate of Gabon agreed with the Delegate of the People's Republic of the Congo that paragraph 2 should be deleted. Tenth Plenary Meeting

90- The Delegate of Chile said that retention of paragraph 2 would detract from the universality and efficacy held to be the ideal basis virtues of the Convention. The original draft of Article 8 by the Legal Committee satisfied his Delegation.

91. The Delegate of the People's Republic of the Congo said that paragraph 2 should be deleted since it was merely an indifferent amplification of paragraph 1.

92- He proposed that the vote on that issue should be taken by a roll-call.

93- The Delegate of Venezuela said that a compromise was needed for the sake of wide acceptance. It would be very difficult for his country to regard the Convention as an extradition treaty.

94 The Delegate of Trinidad and Tobago said that the present choice facing participants was whether they wanted a Convention which perhaps did not satisfy everybody, or whether they wished to exclude a number of countries from being Parties to the Convention. His Delegation would seek the utmost uniformity and universality, and would accordingly support those delegations that felt it impossible to ratify the Convention if it contained that offensive paragrzph .

95. The Delegate of Costa Rica said that in the event of marked opposition to deletion of paragraph 2, he would support the second alternative contained in the Zambian proposal.

96. The Delegate of Uganda considered it essential to retain paragraph 2 and produce a more acceptable text. He therefore proposed that the words "it shall consider this Convention as constituting an oxSradition treaty in respect of the offence" and the word "other" be deleted, so that paragraph 2 would read:

"If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, extradition shall be subject to the conditions provided by the law of the requested Statet'.

97. The Delegate of Switzerland supported the Ugandan proposal.

98. The Delegate zf the United States of America said that as one of the sponsors of working document 26 Rev., his Delegation could support either alternative contained in the Zambian proposal.

99. He was opposed to the Ugandan amendment since it destroyed the effect intended, and to deletion of the entire paragraph. Tenth Plenary Meeting

100. The Delegate of Lebanon was opposed to the Ugandan amendment, which turned the text into a contradiction.

101. The Delegate of Barbados said that the effect of the Ugandan amendment would be to render paragraph 2 meaningless. The aim of the Delegate of Uganda could, he felt, be achieved in a more outright manner through deletion of paragraph 2.

he meeting adjourned at 1800 hours ) ELEVENTH PLENARY MEETING

(~uesday,15 December 1970 at 0930 hours)

President: Professor W. Riphagen

Article 8 (cont'd), paragraph 2 (eont'd)

1. The Delegate of Ceylon said it was clear that the paragraph under consideration posed grave problems for a number of Delegations.

2. In a Convention such as that which the Conference was adopting, there should be sound and compelling reasons for the provisions. The sponsors of paragraph 2 had claimed that it was indeed necessary for closing an important loophole. He could not agree, in so far as the fundamental objective of the Convention was to ensure the punishment of tk?ose who unlawfully seized or attempted to seize an aircraft, wherever they might be found. That objective was, he submitted, secured in the Articles already adopted. Moreover, the rejection by the Conference of provisions for extradition in all cases, indicated that extradition was not considered to be a fundamental objective.

3. He believed that a far more serious loophole would be created if, as result of the inclusion of paragraph 2, a considerable number of States - whose arguments were by no means frivolous - found it impossible to ratify the Convention. In consequence he appealed to those who favoured its inclusion to reconsider the matter in a spirit of understanding for the position of those who wished 3.t to be deleted.

4. The Delegate of the People's Republic of the Congo was moved to protest most energetically against the aggressivity of some of the reactions to the position which he had taken at the previous meeting. His Delegation, he reiterated, had come to the Conference to assist in the creation of a generally acceptable instrument for the suppression of the scourge of hijacking. It had had objections of principle to the paragraph under discussion; despite the pressures exerted, it maintained those objections.

5. The record of the proceedings would reveal to the reader who, at the Conference, had been the true defenders of the Convention. At the present stage of the discussion, he wished to withdraw his earlier proposal, and requested all those who had supported his stand to express that support by opposing the inclusion of paragraph 2. Eleventh Plenary Meeting

6. The Delegate of Uganda recalled his earlier proposal - in the interest of compromise - concerning certain words which had given rise to objections. But the Chair had ruled that his motion for a separate vote was a proposal for amendment. In the light of that ruling he would withdraw the motion, reserving his Delegation's right to move if necessary at a later stage that a separate vote be taken on any proposed wording which it deemed objectionable.

7. The Delegate of Brazil, replying to the argument put forward by the Delegate of Ceylon, appealed to those who sought the deletion of the paragraph to understand the position of those who favoured its retention, and in particular of Delegations such as his own, for which the principle of universality was paramount. It had been argued that the provisions of the paragraph would enable certain States to impose extradition treaties on others. That was not the case. He called attention to the fact that paragraph 2, like paragraph 3, made it clear that the extradition provided for therein should be subject to the conditions provided by the law of the requested State. What was important was that a hijacker should be returned from the State to which he had escaped to the State in which he had committed the offence, even when the relations between those States precluded the existence of a normal extradition treaty.

8. The Delegate of Zambia said that in view of the fact that his earlier efforts to provide a compromise solution had been unsuccessful, he wished to withdraw his proposals, and substitute a new amendment on behalf of his Delegation, and those of India and other countries.

9. The new proposal was for the replacement, in paragraph 2, of the words "shall consider this Convention as constituting an extradition treaty in respect of the offencett by the words "may at its option consider this Convention as the legal basis for extradition in respect of the offence".

10. He wished it to be perfectly clear that at no time in the previous discussions had he in any way indicated ml support for the paragraph as drafted. Indeed, he would have been quite happy if such a paragraph had not been included at all.

11. The Delegates of Tunisia and France offered a French translation of that proposal.

12. The Delegate of Spain offered a Spanish translation.

13. The Delegate of India said that he, too, would have been happy if the paragraph had not been included, and observed that the latest proposal constituted an endeavour to effect a compromise between two sets of opinions which should not be allowed to crystallize into blocks. He urged its adoption in that sense, and said that if it were not adopted, he would oppose the inclusion of the paragraph in the text of the Article. Eleventh Plenary Meeting

14. The International Law Association Observer said that attainment of the primary objective of punishment depended on the securing of evidence. The principle of universality signified that evidence must be brought to the place in which the offender or alleged offender was found. The principle of extradition signified that the offender must be brought to the place where evidence existed. He observed that hijackers often travelled great distances.

15. The Delegate of Barbados fully shared the attitude of the Delegate of India.

16. The Delegate of the Union of Soviet Socialist Republics invoked some of the doctrinal aspects of extradition as reflected in the "Manual of Public International ~aw" a ax Sorensen, New York, 1968), and in particular an article by Shigeru Oda on h he Individual in International ~aw". That article stated that extradition was not a general legal obligation in the relations between various countries, but that offenders could and should be extradited under the formula forum delicti commissi. The main condition for extradition was that the offence must be acknowledged as a crime under the laws of both the States involved. The author showed f'urther that even though the State in which the offender was found might bring him to court, on the principle of forum conveniens, the State in which the offence was committed was better placed to collect evidence.

17 Common law countries usually accepted the principle that the offender must be tried in the place in which the offence had been committed.

18. In the light of those considerations, his Delegation would have difficulty in accepting the latest proposal for amendment.

19- The International Transport Workers ' Federation Observer favoured retention of the paragraph as drafted, but could have endorsed the initial Zambian proposal.

20. He submitted that it was time for the Conference to be realistic, and to recognize that in certain cases, and because of the relations existing between certain States, there could not be extradition fran one State to another. The reasons were often understandable, but a number of Delegations appeared to be taking-the excessively long step of invoking the particular in defence of the general.

21. In paragraph 2 as drafted, there was nothing which would oblige a State whose relations with another were bad to extradite an offender to the latter. The text merely sought to provide that States whose relations were normtilwould extradite offenders to each other.

22. The Delegate of Jamaica said that his Delegation had consistently supported efforts to make the Convention effective . But that effectiveness depended upon the accomodation of as many different views as possible. The proposal by the Delegate of Zambia was merely another effort in that sense. The text contained no element of compulsion, but merely sought to ensure that countries whose national legislation might provide that the Eleventh Plenary Meeting

Convention was not applicable in certain cases would be enabled to face the situation squarely and exercise the option of jurisdiction in connexion with hijacking offences.

23 The Delegate of the United Kingdom commended the distinguished contribution by the Delegate of Zambia to the solution of the problem. He himself believed that the matter was not as complicated as had been stated, but the latest proposal was certainly a welcome clarification of the situation, and would receive his support.

24. It should be borne in mind, moreover, that under the provisions already adopted, a State in which an offender was found would, if it so wished, be able to prosecute rather than extradite the offender.

25. The Delegate of the Union of Soviet Socialist Republics moved the suspension of the meeting, in accordance with Rule 14 of the Rules of Procedure, in order to prepare an alternative proposal for the consideration of the Conference.

26. There being no opposition to that motion, the meeting was suspended at 1010 hours and resumed at 1040 hours.

27 The Delegate of Poland proposed, as an amendment to the new Zambian amendment, that the words 'hay at its option" be replaced by "shallt'.

28. The Delegate of Tunisia regretted that counter-amendment which would either change the sense radically and upset an agreement reached with some difficulty or just cause confusion. For a rapid, satisfactory solution the new Zambian proposal should be adopted.

29- The Delegate of Uganda moved closure of the debate and an immediate vote on the Polish counter-amendment.

It was so decided. Vote on Polish counter-amendment to the Zambian proposal 31. At the request of the Representat,ives of Poland and Uganda, the vote was taken by roll-call.

32- In favour: Argentina, Brazil, Bulgaria, Byelorussian SSR, Czechoslovak Socialist Republic, Denmark, Ethiopia, Greece, Hungarian People's Republic, Israel, Mexico, Netherlands, New Zealand, Norway, Paraguay, Poland, Romania, South Africa, Ukrainian SSR, USSR, United States.

Against: Afghanistan, Algeria, Australia, Barbados, Belgium, Camemon, Ceylon, Chile, Colombia, People's Republic of the Congo, Costa Rica, Gabon, Ghana, India, Indonesia, Iran, Ireland, Jamaica, Kenya, Kuwait, Lesotho, Libya, Luxembourg, Malaysia, Panama, Rwanda, Tanzania, Trinidad and Tobago, Tunisia, Uganda, United Arab Republic, Venezuela, Zambia. Eleventh Plenary Meeting

Abstaining : Austria, Canibodia, Canada, Republic of China, Finland, France, Federal Republic of Germany, Guatemala, Holy See, Italy, Japan, Republic of Korea, Lebanon, Philippines, Portugal, Spain, Sweden, Switzerland, Thailand, Turkey, United Kingdom, Yugoslavia.

33 - The Polish counter-amendment was rejected by 33 votes to 21, with 22 abstentions.

Vote on the new Zambian proposal

34 The new Zambian proposal was adopted by 56 votes to none, with 17 abstentions.

Vote on Article 8, paragraph 2, as amended

35. At the request of the Representatives of the Conm md Italy, the vote was taken by roll-call.

36- In favour: Afghanistan, Argentina, Australia, Austria, Barbados, Belgium, Brazil, Byelorussian SSR, Cameroon, Canada, Ceylon, Ch:ie, Republic of China, Colombia, Costa Rica, Denmark, Ethiopia, Finland, France, Gabon, Federal Republic of Gemany, Ghana, Greece, Guatemala, Hungarian People's Republic, India, Indonesia, Iran, Ireland, Italy, Jamaica, Japan, Kenya, Republic of Korea, Kuwait, Lebanon, Lesotho, Libya, Luxembourg, Malaysia, Mexico, Netherlands, New Zealand, Norway, Panama, Portugal, Romania, Rwanda, South Africa, Spain, Sweden, Switzerland, Thailand, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Republic, United Kingdom, United States, Venezuela, Yugoslavia, Zambia.

Against : none.

Abstaining : Algeria, Bulgaria, Cambodia, People ' s Republic of the Congo, Czechoslovak Socialist Republic, Holy See, Israel, Paraguay, Philippines, Poland, Tanzania, Ukrainian SSR, USSR.

37. Article 8, paragraph 2, as amended, was adopted by 63 votes to none, with 13 abstentions.

Article 8, paragraph 3

38. The Delegate of Spainz supported by the Iklegates of Venezuela and France, proposed that as a logical consequence of acceptance of the Zambian amendment, the words "batween themselves" should be restored in replacement of "between Contracting Statest' since the obligation under the paragraph would be between countries not making extradition conditional on the existence of a treaty. Eleventh Plenary Meeting

39 The proposal of Spain was adopted by 60 votes to one, with 12 abstentions.

Vote on Article 8, paragraph 3, as amended

40. Article 8, paragraph 3, as amended, was adopted by 73 votes to none, with 2 abstentions.

Vote on Article 8, paragraph 4

41. Article 8, paragraph 4, was adopted by 74 votes to none, with one abstention.

42. The President suggested that a global vote be taken on Articles 8, 9, 10 and 11, the Preamble and the title.

43 The Delegate of the United Kingdom proposed that in Article 11 (c) the word "alleged", be deleted and the words "or alleged offender" be inserted after "offender".

44. It was so decided.

45 - The Delegate of Tunisia proposed that a separate vote be taken on Article 8 since it was the pivot of the Convention.

It was so decided.

Vote on Article 8, as amended

47- Article 8, as amended, was adopted by 62 votes to none, with 9 abstentions.

48. On the proposal of the Delegate of Spain, it was decided to delete the word "de" from the penultimate line of the Spanish text of Article 11 (c).

Vote on Articles 9 and 10. Article 11, as amended, the Preamble and the title

49. Articles 9 and 10, Article 11, as amended, the Preamble and the title were adopted unanimously.

Closing sentence

50- On the proposal of the Delegate of Canada, it was decided to delete from the first sentence, second line, the word "duly" appearing before the word "signed".

AGENDA ITEM NO- 10: ADOFTION OF A CONVENTION AND OTKER INSTR-

51 The Convention as a whole, as amended, was adopted by 74 votes to none, with 2 abstentions. Eleventh Plenary Meeting

AGENDA ITEM NO. 11: ADOPTION OF THE FINAL ACT OF THE CONFERENCE

52. Subject to minor drafting amendments, the Final Act was adopted by acclamation.

53 During the discussion on the Final Act, the Delegate of Chile made the following statement with reference to the vote on the adoption of the Convention:

"The Delegation of Chile does not wish that its abstention in this vote be given a wrong interpretation. Chile has condemned and will continue to condemn the offence of unlawful seizure of aircraft. It participated actively in the preparation of the draft of the ICAO Legal Committee and here we supported it in the discussions which have taken place; but amendments and new materials have been introduced into this Convention which require careful and serious study by our national authorities whom we have been unable to consult physically. We express the firm hope that very soon we shall be able to give our adherence to the Convention and be able to be together with you."

h he meeting adjourned at 1205 hours ) THIS PAGE INTENTIONALLY LEFT BLANK TWELFTH PLENARY MEETING

(wednestlay, 16 December 1970 at 1025 hours)

President: Professor W. Riphagen

AGENDA ITEM N0.10 : Adoption of the Convention and other instruments

1. The Delegate of Switzerland said that his vote in favour of Article 13, paragraph 1 had been made in the light of the psu'ticular nature of the Convention and did not in any way prejudge the attitude his country would take in the future.

2. The Delegate of Colombia made the following statement:

"Allow me to express the deep satisfaction of the Government of Colombia concerning the success of this Conference in approving the Convention, for the Suppression of Unlawful Seizure of Aircraft. Our country has suffered, with really unusual frequency, this new criminal activity which is so harmful for the safety and efficiency of civil aviation and for that reason it has always supported, through the international machinery of the Chicago Convention, the search for agreements which would lead to the curbing of this activity.

In this regard, we recall that Resolution ~16-37of the ICAO General Assembly which met at Buenos Aires in Septanber 1968, which resolution was the origin of the latest multilateral attempts underkken to suppress and punish the unlawful seizure of aircraft, was proposed by the Delegation of Colombia to that Assembly. Later, there was also Colombian participation in the activities of the Committee on Unlawful Interference established by the ICAO Council and in the work of the Legal Committee of the Organization.

We consider that the Convention is an adequate instrument to attain the objectives sought by the Conference, since it defines the offence as an international one and obliges States to suppress it and punish it at the same time as it respects the autonomy of States in regard to the granting of extradition. This last aspect corresponds to a lengthy Inter-American legal tradition to which the Government of Colombia assigns particular value. We axe confident that this balanced aspect of the Convention may permit it to achieve full efficiency. We refer to its general acceptance, to its universality.

We axe living in a divided world pressed by all kinds of negative conditions and therefore we understand that the greatest requirement of our time is the necessity to collaborate in order to unify and affirm. We believe that the common efforts carried out by the Conference constitute a positive contribution to such a noble cause." Twelfth Plenary Meeting

The Delegate of Thailand made the following statement:

"The Delegation of Thailand is pleased to be able to lend its support to the Convention for the Suppression of Unlawful Seizure of Aircraft, which yesterday received nothing short of the unanimous approval of participating countries.

The positive results of this Hague Conference constitute a step forward towards the restoration of peace and order in the air, The end product of our collective efforts reflects a welcome spirit of give and take and a reasonable measure of compromise.

While the Thai Delegation would have preferred a wider definition of the offence sought to be prevented and suppressed, the narrower definition adopted would appear primarily to cover most of the cases that occur in the normal intercourse of nations and affect the free flow of international air traffic. While certain delegations are not yet prepared at this stage to enlarge the scope of application of the present Hague Convention, it is our hope that the suppression of other forms of unlawful seizure of an aircraft by persons not on board that aircraft will also form the subject for future consideration.

On the other hand, it is gratifying to note that participating delegations have been persuaded and that the interests of developing countries, especially in the operation of air services have not been compl-etely neglected. By agreeing to elevate the status of the State of operation t that of the State of registration, the Conference has enabled my Delegation ,I subscribe to the contents of the Convention. The requirement of registration, although a necessary legal technicality in the application of international air law, should not in our view override the practical necessity of a safer operation of air services. As clearly evident from the Preamble, the countries here represented are seeking to preserve the freedom of the air, to facilitate the free and unhampered air travel and to ensure the safe and secure passage of aircraft in flight, rather than merely endeavouring to preserve the purely financial interests of aircraft owners. Large or small, rich or poor, we all have a stake in the safety and security of the air. Equality, Mr. President, is cherished even if it was equality in the sharing of burden, or only of the obligation to establish jurisdiction where none existed.

As for the Articles on extradition, it is the submission of my Delegation that the question is linked with the right of asylum, the two subjects having occupied the attention of States elsewhere for decades. The slow process of continuing evolution of international principles and practice regarding extradition and the granting of asylum will go on as previously notwithstanding new developments in the Air Law. No amount of time or effort spent in the present connection will affect radically or even substantially the course of progressive development of the law and practice of States on extradition and the right of asylum. In any given case, the reqsested State is always free without exception whatsoever to exercise its option to extradite a person provided that all other prerequisites are met. No treaty has yet been formulated which totally deprives the States of such freedom. Twelfth Plenary Meeting

Similarly, the time-honoured problem of priority or regulation of priority in the cases of concurrent jurisdictions will not be solved by a general convention even in the narrowest context of extradition of alleged offenders.

Nonetheless, it must be said that we have advanced a considerable distance in the right direction by adopting the present Convention. May I pay a personal respectful tribute not only to the patience and understanding of participating delegates but especially to the skilf'ul and judicious handling of the difficult and delibate problems by the Chair. Our sincere appreciation is also expressed for the untiring and rewarding efforts of the Secretariat serving this highly technical Conference.

4. The Delegate of Costa Rica expressed his general satisfaction with the results obtained by the Conference. The adoption of the Convention was a first step forward towards the suppression of air piracy. His country was extremely concerned by the problem of hijacking and found it inconceivable that any State could support such an act of sabotage by granting asylum to offenders. His Delegation had already expressed its view on the question of taking hostages. Blackmail and sabotage could not be condoned on any account. Without the complicity of such governments, however, the problem of hijacking might not exist. Potential hijackers would obviously be encouraged by the idea that they would be safe from prosecution and granted asylum instead of being penalized as they deserved. The granting of asylum might well be considered as an act of aggression in itself. If that point was not recognized other acts of hijacking would be committed involving the safety and possibly the lives of men and women all over the world. His Government had always supported any effort to suppress hijacking. It would support the Convention, which he would sign that afternoon, to the best of its ability and would support any future efforts to improve the situation still further.

5. The Delegate of Romania also expressed his satisfaction with the successTXl conclusion of the Convention. Throughout the Conference his Delegation had been guided by the idea that what was needed was action and not words. It had been very satisfied to note the spirit of international co-operation displayed throughout the Conference. That spirit was reflected in the Convention which clearly stated the obligation of Contracting States to adopt national. legislation on the lines agreed upon to suppress the crime of hijacking. Although the adopted version did not perhaps contain all the provisions participants might have wished for, it was, he believed, a very userul. instrument and was strengthened further by the fact that accession to it was open to all States. He felt sure all Delegates would wish to express their gratitude to ICAO, the Government and people of the Netherlands, the President of the Conference, the Secretary General and the Secretariat for the assistance they had provided. Twelfth Plenary Meeting

6. The Delegate of New Zealand believed it particularly noteworthy that participants coming from countries with different legal systems had reached agreement in a spirit of conciliation.and co-operation on a document which should be acceptable to all. He therefore paid a tribute on behalf of his country to his fellow Delegates. He ~lsowished to take the opportunity of publicly thanking the mabers of the Secretariat for the hard work and valuable support they had provided to the Conference. He associated his Delegation with the tributes paid to the President. In conclusion he expressed his support for the Convention, such support being without prejudice to his government*^ position regarding the status of divided States.

The Delegate of Greece made the following statement:

"The Greek Delegation has been very happy to vote in favour of this Convention. More precisely, it has associated itself with Article 13, paragraph 1, which opens the way to the greatest possible number of States to accede to this Convention.

In proceeding in this way, the Greek Delegation has been obedient to the imperious necessity of ensuring the universality of the application of the Convention on unlawful seizure of aircraft.

At the very moment when air communications are the object of criminal operations which endanger their very existence, this Convention could not remedy this situation if it were not applied by the majority of States. This is why Greece has voluntarily accepted the clause on universality.

However, the Greek Delegation considers that it is its duty to state that its vote in principle leading to the accession to the Convention of the greatest number of States and consequently to the universal application of the Convention, could in no way be interpreted as constituting an implied recognition of the States which Greece does not recognize at the moment of the signature of this convention."

8. The Delegate of the Union of Soviet Socialist Republics made the following statement:

"Yesterday we adopted a Convention for the suppression of unlawful seizure of aircraft. Unlawful seizure of aircraft and the resulting danger for people and material values constitutes a serious problem and hampers the normal functioning of air services which is so vital for the modern society.

Our Conference from the very beginning attracted the attention of the world community. People throughout the world worried about the recently increased number of acts of unlawful seizure of aircraft and they expected that the Conference would work out an international instrument which would put an end to such criminal acts, regardless of the pretence and the motive thereof, and would establish sever? punishment Twelf th Plenary Meeting

of the offenders and their accomplices and would define conditions for their extradition.

The Soviet Delegation, as we have already stated, firmly intended to work out an effective Convention which would create the necessary conditions for the safe f'unctioning of air transport all over the world.

The position of the USSR stems from the care for the lives and health of millions of people who use services of civil aviation.

The advantages of the Convention are as follows: it is a contribution to the cause of suppression of aircraft hijacking and it is based on the principle of universality, which enables every State either to ratify it or to adhere to it. The importance of the Convention, in the opinion of the Soviet Delegation, consists also in the fact that the majority of p&u%Icipants at the Conference recognize the possibility to sign it, that is that the Convention is acceptable for many countries, and hence it may become an effective international instrument.

Bearing in mind the advantages of the Convention and being fully decided to put an end to criminal acts of hijacking, the Soviet Delegation considers it possible to sign the Convention.

Once again I want to take this opportunity to speak to express gratitude to all Delegations which demonstrated understanding of the position of the USSR and rendered their support, together with which we tried to create our effective mechanism for the suppression of hijacking.

I would like also to thank the Government of the Kingdom of the Netherlands for creating good conditions for conduct of the Conference, the Residence of. the Conference chaired by Professor Riphagen, as well as the Secretariat, headed by Mr. Roy."

9 The Delegate of Indonesia associated himself with the tributes paid to the President and Secretariat.

Although his dele@;ationhad had some difficulties concerning certain of the provisions of the Convention, it had overcome them because of its desire to ensure the safety of passengers and provide a deterrent to the unlawful seizure of aircraft.

10. The Delegate of Bulgaria associated himself with the tributes paid to the Government of the Netherlands, the President and the Secretariat. He had recalled that the civil aviation of his own country had been one of the earliest victims of hijacking and his Delegation had therefore come to the Conference with the desire to adopt an effective and universally applicable instrument. The Convention represented a considerable step forward and in the hope that application by all governments would prove an effective deterrent to hijacking, his delegation would sign the instrument. Twelfth Plenary Meeting

11. The Delegate of the Czechoslovak Socialist Republic associated himself with the tributes paid to the President and the Secretariat.

Although the Convention was not perfect, his Delegation had voted in its favour because of its desire to end hijacking and make air travel safer.

12. The Delegate of the Federal Republic of Germany made the following statement :

"The German Delegation has voted for the acceptance of the Convention. They have done so, because they share the view of the other delegations here and of world public opinion that this Convention is called for by extraordinary circumstances.

Aerial piracy and the acts of violence connected with it endanger human lives which mankind must protect above everything. For this reason governments and authorities which exercise power in this world must be put into a position to meet this danger.

On the other hand, the German Delegation cannot approve the participation clauses in their present form.

The Federal Republic of Germany has always supported the Vienna formula. This formula excludes from a convention no State the participation of which in the convention is desired by the community of nations.

The Federal Republic of Germany will therefore continue to hold to the Vienna formula as the most suitable formula for participation in conventions.

As this convention is concerned, however, with a quite exceptional subject, the German Delegation did not raise a formal objection when this Conference chose another formula. At the same time they wish, however, to state that their consent to this convention is not to be regarded as a precedent. Furthermore, the German Delegation would point out explicitly that - in connection with the signature of or an accession to this convention - the Federal Government does not recognize in international law any region as a State or any regime as a Government which it has not already recognized."

13 The Delegate of Algeria recalled that his Delegation had co-operated in drawing up the text of the draft Convention placed before the Conference. During the course of the meeting the original text had been modified considerably and, although the letter of the original had not been submitted to serious alterations, its spirit did seem to have been altered to some extent. Some of the provisions as amended were in contradiction with the legal systems of certain countries although, fortunately, sovereignty had been left with Governments. His Government could not support the inclusion of a reference to motives for the act in the Convention, believing that governments must be left the responsibility of distinguishing between motives before making any decision to extradite an offender or alleged offender. He had therefore abstained from the vote. Twelfth Plenary Meeting

14. The Delegate of Australia wished to be associated with the expressions of gratitude made by previous speakers. He wished to place on record the fact that his support for the Convention did not imply any form of recognition of States not represented at the Conference which subsequently signed the Convention under the "all States" formula.

The Delegate of the United Kingdom made the following statement:

"The United Kingdom has always supported the Vienna formula for participation in multilateral Conventions and will continue to do so. However, in this case we are prepared to depart from this principle in view of the necessity to ensure that this Convention is as widely ratified as possible and that in order to avoid jeopardy to human life, the principles contained in the Convention are applied in all parts of the world. Our acceptance of the formula for participation in this Convention should not be taken to imply that we regard this as creating a precedent. Moreover, notwithstanding the deposit of instruments of ratification or accession, Her Majesty's Government will not regard themselves as in treaty relations with entities which they do not recognize as States ." The Delegate of the Philippines made the following statement:

"As this Conference comes to an end my Delegation would like to pay tribute to you, Mr. President, for the eminently able manner in which you have guided our deliberations so that the appointed task before us has been successfully accomplished and on schedule. I also wish to express our appreciation to our hard-working Secretariat which has patiently and efficiently served our needs. Last of all we owe a debt of gratitude to the Rosl Netherlands Government whose generous hospitality made all delegates feel so much at home.

From the very outset the Rlilippine Delegation followed all the discussions with the greatest of attention and interest. Having cons? dered the draft before the Conference as sufficient basis for our deliberations it took a positive stand towards the provisions of the Convention as drafted and all proposals for amendments especially those which would strengthen it but at the same time having in mind the need for compromise in order to arrive at agreed texts. In so doing my Delegation was guided principally by the urgent necessity of concluding, as soon as possible, a convention against aerial hijacking because it was obvious that international legal action on the part of the world community had been lagging behind the events of the past few months.

The Philippine Delegation is deeply gratified by the success of the Conference in producing the final Convention thus enabling States to implement legally part of the United Nations General Assembly resolution adopted at the 1914th Plenary Meeting last November 25th entitled "Aerial Hijacking or Inter- ference with Civil Air Travel". Motivated by purely humanitarian considerations, the Philippines took the initiative to have the world organization express itself in the strongest and clearest possible terms against air piracy and this was done by an overwhelming majority. By the present Convention the world community has now taken another significant and concrete step towards the eventual complete suppression of these unlawful acts. Twelfth Plenary Meeting

It is our fervent hope that the Convention will be signed and ratified by all States because its efficacity depends upon universality. We trust that the spirit of cooperation and urgency which animated all delegations at this Conference and resulted in the agreed text will manifest itself once more in the acts of signature and ratification which are far more important than attendance at this Conference. Otherwise the long and difficult work of the past two weeks will have been in vain."

1-7. The Delegate of Mexico made the following statement:

"I voted in favour of the Convention as a whole because it appears to the Delegation of Mexico that it will be a useful instrument, even though it is not perfect. This does not matter; law and politics are always efforts towards the ideal, but the lawyer and politician know that there is no frustration if they do not attain the best, nor the better, but only the good.

We have all travelled in a streetcar which, well conducted by you, has brought us to a building whose architecture, although somewhat defective, is undoubtedly functional. In this vehicle I have encountered old friends, but begun some few friendships which make me proud and I have travelled confortably with +%eothers during our ephemeral journey; I have appreciated every one, to a greater or lesser extent, especially those who have betimes with Attic wit, made us smile.

In any event, our streetcar has not been called: "Desire". In it we have reached a good destination. The new international law will be as effective as the governments and judges who will have to apply it desire it to be. After all, the Justinian Code was preceded by the very old pretorian law; the venerable legal institutions of Anglo-Saxon common law began many centuries ago in the King's Bench and the magnificent structure of French administrative law was gradual, having been customarily achieved by the Conseil dyEtat, with an old schematic law which had made no provision for administrative jurisdiction. Of course, I fervently desire that we shall never encounter a case of extradition or legal action, because, I hope, the offence will never be committed in the future.

To you, Mr. President, I offer my deep appreciation of your patience which, fortunately for us all, was unlimited and for your talent. To the Netherlands Government, I extend my profound thanks. To the Secretariat and the personnel I wish to show my admiration for their great physical and intellectual strength." 18. The Delegate of the United States of America made the following statement:

"The delegation of the United States of America wants to express its gratitude to the Government of the Kingdom of the Netherlands for the invitation to hold this important, and very succesc 1, diplomatic Conference at The Hague. Twelfth Plenary Meeting - 203 -

We would also like to express our appreciation: - to your, Mr. President, who served us all, well and wisely; and

- to Dr. Roy and other members of the Secretariat, who had the unenviable responsibility of making sure, under great pressure, that the mechanics of this large gathering did not fail.

We would like to n~tewith great satisfaction the very large number of countries ably represented here, and the fact that on final reading the text of the Convention for the Suppression of Unlawful Seizure of Aircraft was adopted without dissenting vote.

We have approved a Convention which, as many delegates noted earlier, will be called the "Hijacking Convention", regardless of its official name and the fact that many treaties are frequently identified by the name of the city where finally adopted.

This Conference had before it the task of preparing an effective, widely acceptable international convention; a convention designed to ensure that all hijackers, wherever found, will be subject to severe penalties for an act which endangers the safety and lives of all passengers and crew aboard, and possible damage to or destruction of the aircraft.

Our starting point was the draft convention prepared by the Legal Committee. Our task was to improve it to ensure that our objective would be achieved.

Our delegation believes this Diplomatic Conference has achieved its objective, and that this result will be ensured when States have ratified or acceded to the Convention and it has become widely accepted.

I will mention anly briefly the provisions we believe are vitally important.

First, the Convention provides that if a State does not extradite a hijacker, it will submit the case, without exception whatsoever, to its competent authorities for the purpose of prosecution. This obligation is emphatic, and applies whatever the motivation of the hijacker .

Second, the Convention provides hijacking will be subject tb severe penalties in all States. We think this is important and in keeping with the grave nature of the act. The Convention throughout recognizes hijacking as a serious crime, an important step forward in the development of conventional international law.

Third, the Convention provides for universal criminal jurisdiction over hijackers, wherever found, by obligating Contracting States to establish necessary criminal jurisdiction enabling each State to prosecute a hijacker if that State does not extradite him. This provision - akin to the response of States in prior years to the threat of piracy - is one of the most important features in the entire Convention, and was added at this Conference. For the Twelfth Plenary Meeting - 204 -

first time, hijackers will be subject to punishment regardless of where the hijacking took place.

Finally, the Convention will facilitate extrad'tion of hijackers between Contracting States. This feature of the Convention represents an important supplement to bi-lateral and multi-lateral extradition treaties, and national laws and policies dealing with extradition.

In brief, this Convention deprives hijackers of asylum from prosecution. A hijacker will either be extradited for purposes of prosecution -or proeecuted where found. 'i: will not refer to all the other features of the Convention at this time, but simply note two more amendments adopted at this Conference, which we believe important. The first is paragraph 2 of Article 9, which deals with the obligations of States with respect to a hijacked aircraft, its passengers, crew and cargo, presently contained in Article 11 of the Tokyo Convention. The second is Article 11 of the present Convention, which provides for reporting obligations by States to the ICAO Council, as recommended by the Seventeenth (Extraordinary) Assembly last June. We believe the importance of these provisions, which serve to establish a new international norm, will become apparent with the passage of time.

With respect to the final clauses, my government has strongly supported the Vienna formula in the past and will do so in the future. Our support for an all States formula in this Convention should not be regarded as a precedent . My delegation believes this Convention marks an important international reaction to lawless acts which, regardless of motivation, must be subject to punishment. Accordingly, I have been authorized to sign the Convention this afternoon on behalf of the United States of America. My delegation hopes that many others participating at this Conference will also sign, and that those who are not able to sign here at The Hague will sign early next year in Washington, London and Moscow.

In closing, my delegation hopes that States will ratify or accede to this important Convention, as soon as possible. We believe that the goal of those gathered here at The Hague should be to bring this Convention into effect at the earliest possible moment.

That is the next task of governments represented at this Con- ference. Our successful efforts here will not be fully realized until that is accomplished. "

19 The Delegate of Finland associated himself with the tributes paid to the Government of the Netherlands, the President and the Secretariat.

His Delegation was happy to have been able to support the Convention and his Government intended to sign it as soon as the necessary tachnical formalities had been concluded. Twelfth Plenary Meeting - 205 -

The Delepte of Ethiopia made the following statement:

"The Ethiopian Delegation would like to take this opportunity of thanking the Kingdom of the Netherlands for the hospitality extended which made the conclusion of this important work possible. Our delegation would also like to extend its warm appreciation to you, Mr. hesident, who so ably lead the conduct of the Conference as well as to the Secretariat as a whole, which has performed very efficiently. The following are some of the reasons underlying our support for the Convention.

The Ethiopian Delegation is of the opinion that the scope of the Convention just being negotiated could have a very important and healthy bearing on the future growth of aviation if widly adhered to. In our opinion it is not a document prepared for the delight of our public prosecutors. It is much more than that. We look at it as a document that carries with it a message which, we hope, everyone concerned will correctly interpret.

In the interest of those of us who may not have pondered sufficiently over the future effects, if air piracy is encouraged to spread, I would like to summarize the effects very briefly. The effect of hijacking, if continued at the same trend, will be far reaching. It will have, in oul- opinion, a disastrous effect on the economies of the entire world apart, of course, from its safety hazards. It will have a global effect of :- discouraging the growth of air travel; increased costs for providing security measures; sky-high insurance premiums; increased cost to cover increased charges by airport authorities who, in turn, need to take additional security measures.

The effect of all this is to drastically increase the fares for air transportation. Those of underdeveloped countries who depend or aspire to depend for. the developnent of tourism on air transportation will be amongst the hardest hit. In the continent I come from, air transportation, for the most past, is the only means of communication available. Our support to the Convention is in the hope of deterring this threat.

I do not claim, at this stage, to be able to forecast all the effects of discouraged air transportation, I merely wanted to point out what looks to me the obvious.

Finally, the Ethiopian Delegation would like to express its appreciation to all the distinguished delegates and observers at this Conference for the pleasant association it had with them during the course of the fruitful discussions we had."

The Delegate of Ireland made the following statement:

"On behalf of Ireland, the Irish Delegation wish to express their congratulations and gratitude to the Delegations of all the States assembled here for the Convention which has emerged from the deliberations of this Conference, a Conference which you, Mr. Chairman, have guided with consumate skill, incomparable courtesy and unfailing charm. Twelfth Plenary Meeting

We sincerely hope that the Convention will very quickly be brought into effect between the States represented here. The efficacy of the Convention will be enhanced by timely and widespread signature and ratification and we look forward to this result from the labours of the Conference. We would like to add our voice to that of other Delegations in paying tribute to the excellent work of the Secretary General and the members of the Secretariat. Finally, we should like to say how grateful we are for the efficiency and good humor of the various officers, both ladies and gentlemen, of the Netherlands Government who served us so well."

22. The Delegate of Italy associated himself with the tributes paid to the F'resident and the Secretariat. His Delegation had voted in favour of the Convention, including its final clauses, because it was convinced bf the need to create a universally applicable international instrument.

His Government was not, however, renouncing the Vienna formula, but merely making an exception to it because of the need to safeguard human life. The Delegate of Israel made the following statement:

"It is a real pleasure to the Delegation of Israel, at the close of this Conference, to express our sincere thanks and appreciation to your personally, Mr. Chairman, and to our hosts, the Government and the people of the Netherlands for their unsurpassed and good natured hospitality, commencing with the gentle courtesy of the people in every walk of life and concluding with the brilliant help and programs provided by the Government and by the city of the Hague.

When leaving the Hague, we shall carry with us recollections of great moments and of smaller ones of hard toil and tensions and of fine oratory and witticisms, of many pleasant meetings with old and new friends and I would add - in a way - of a sense of history in the making.

The Hague Convention on the Suppression of the Unlawful Seizure of Aircraft which we have concluded, belongs to the category of international instruments which may have their imprints not only in the annals of international law (or as our Yugoslav colleague would say - of criminal law). It al-so has a place in the expectations of people all over the world. If one bears in mind these expectations, we could point out that the Convention as finalized has considerably strengthened the draft prepared by the Legal Committee of ICAO. Some further improvements would be welcome but, on the whole, we hope that the new Convention would both voice the world's public opinion and serve as an effective deterrent.

Much would depend on its faithful implementation by States and in the first instance by States members of ICAO. If so implemented, the Convention would become a landmark in the common struggle of all nations for the suppression of piracy in the air.

I would like to point out at this stage the fact that the participation of States who have recently become members of ICAO in this Conference has considerably contributed towards reaching constructive results Twelfth Plenary Meeting

in respect of the aims of the Conference. And I wish to add that our vote is not a precedent as regards Article 13 of the Convention.

Finally, allow me to congratulate ICAO's Secretariat and the very able Secretary General and Deputy Secretary General of the Conference for the most efficient arrangements made by them for the Conference and to pay homage to ICAOts staff and to our interpreters for their able and devoted work."

24. The Delegate of Yugoslavia associated himself with the tributes paid to the Government of the Netherlands, the President and the Secretariat.

25. The Delegate of France associated his Delegation with the expressions of gratitude and appreciation already made. He intended to sign the Convention that afternoon. He then made the following statement:

"The French Delegation wishes to point out that its Government remains attached to the so-called "Vienna" formula and that its acceptance of the Final Clauses of the Convention for the Suppression of Unlawful Seizure of Aircraft shall not be considered as constituting a precedent ." 26. The Delegate of Canada wished to be associated with the expressions of appreciation made by previous speakers. He hoped that the overwhelming majority in favour of the adoption of the Convention would encourage all States to sign and ratify it. The present Conference could congratulate itself on its achievement. The adoption of the Convention was a major step towards the effective suppression of the illegal act of hijacking. It was to be hoped that unlawful acts other than hijacking might be the subject of future international conventions. He would sign the Convention and believed that the representatives of all other responsible States concerned with the problem of air safety would also do so.

27* The Delegate of the Polish People's Republic made the following statement :

"The Delegation of the Polish People's Republic wishes to express its satisfaction that the Convention for the Suppression of Unlawful Seizure of Aircraft has been adopted by our Conference with an overwhelming majority of the States represented here.

Although the Convention adopted by our Conference does not comprise all provisions, which in our opinion, would make it the most effective, the delegation of Poland will sign this Convention because it constitutes a progress in suppression of air piracy and because it will be an effective means for prevention of unlawful seizure of aircraft and for severe punishment of the perpetrators of such crimes and their persecution regardless of the place in which they would be found after committing the crime.

Poland is of the opinion that an application of the principle of extradition of the offenders to the State of registration of aircraft is the most effective means for prevention of unlawful seizure of aircraft. Twelfth Plenary Meeting - 208 -

In connection with this the Polish delegation expresses its conviction that all States Parties to this Convention will fully apply the principle of extradition provided for in Article 8 of the Convention.

The Polish delegation regrets that not all sovereign States were invited to participate in our Conference. However, it welcomes with a deep satisfaction that this Conference has adopted the principle of full universality of the Convention, i.e. opening it for signature and ratification by all States.

Finally, I wish to add that the Polish delegation appreciates very much the great contribution, made by you, Mr. President, to the success of our Conference.

I wish also to state that we appreciate very much the excellent work of the Secretariat of this Conference and the hospitality shown to all of us by the Government and the people of the Kingdom of the Netherlands ." The Delegate of Japan made the following statement:

"My delegation is satisfied with the success we have achieved under your leadership, Mr. President. The Convention we have adopted, though not a perfect one, will serve as effective deterrent to acts of hijacking. On the question of participation of States to this Convention, my delegation advocated the universal participation. We did so, because in the view of my Government the subject we are dealing with is of an exceptional nature and requires us to depart from our basic position on this question.

The Japanese Cabinet yesterday took a decision to sign the Convention. My delegation will, therefore, sign it this afternoon on behalf of the Japanese Government. My Government also intends to submit the Convention for approval to our Parliament which convenes its regular session towards the end of this month.

My delegation wishes to express our sincere appreciation and gratitude to you, Mr. President."

29 The Delegate of India associated himself with the tributes paid to the Government of the Netherlands, the President and the Secretariat, and thanked his fellow delegates for their spirit of goodwill.

His personal hope was that his own Government would sign the Convention as soon as possible.

30- The Delegate of Paraguay associated himself with the tributes paid to the Netherlands Government, the President and the Secretariat.

His Delegation had taken care to see that hijacking would be considered as an ordinary offence, for if the provision on that matter in Article 7 had been omitted, serious difficulties would have arisen for the Latin Amerlcan comtries. He thought that the other provisions of the Convention would be effective, and his delegation would sign the Convention. %elf th Plenary Meet in@;

31 The Delegate of Ceylon wished to associate himself with the tributes already paid to the Netherlands Govermmt and people, the President of the Conference, the Secretary General and the Secretariat. He expressed his appreciation of the spirit of cooperation displayed by a11 Delegations during the Conference which he hoped would be a happy augury for the successful future suppression of hijacking.

The Delegate of Argectina made the following statement:

"The Delegation of the Argentine Republic adopts as its own the expression of support and applause nanifested during this meeting with respect to the Convention achieved by this Conference and states that, on the express instructions of its Government, it shall have the satisfaction of signing the Convention today in the name of, and as the Representative of, the Argentine Republic.

This Delegation cannot and does not wish to omit expressing its gratitude to the people and government of the Kingdom of the Netherlands for the friendly reception extended to us. We also add our congratulations to you, Mr, President, for your capacity and benevolence in the conduct of our discussions, this being a certain and undeniable reason which facilitated the success on which we are congratulating ourselves today and which will permit the allaying of the uneasiness wh-ich disturbs international good order.

Our thanks are also extended to the ICAO Legal Committee which prepared a skillful draft, to the Secretary General of this Conference, to his immediate collaborators and to the anonymous group of administrative personnel that contributed, each one in his own sphere, to make our tasks easy and to make our action agreeable.

Thanks, many thanks, Mr. President, and distinguished Delegates which honoured this Assembly ."

33 The Delegate of Smbia associated his Delegation with the thanks sxpressed to the Netherlands Government and people, the President, the Secretary General and the Secretariat. It was to be hoped that hijacking would soon become a thing of the past and that the Convention would be considered as a step forward in strengthening the international community. The content of the Convention and the near certainty that penalties would be imposed on offenders should be as effective a deterrent in itself as its actual ratification. His Delegation welcomed the fact that the "all States" formula had been adopted, for it believed the Vienna formula to be outdated and out of harmony with the realities of international life.

34 0 The Delegate of Portugal associated himself wtth the tributes paid to the Government of the Netherlands, the President and the Secretariat.

His Delegation had been happy to approve the text of the Convention but its approval of Article 1j must be considered as an exception to his Government3s general acceptance of the Vienila formula, and should not be considered a precedent. The Portuguese Government will not consider itself as in treaty relations with entities which it does not recognize as States. Twelfth Plenary Meet in6

35 The Delegate of Spain also wished to be associated with the expressions of appreciation already made. He believed the Convention offered the best compromise solution possible. Referring to Article 13, his Delegation believed the "all States" formula was the logical one to decide on in view of the wish to observe the principle of universality which should be displayed in signing a Convention of that type, which, to be effective, should be ratified as widely as possible. His Delegation's acceptance of the formula did not in any way prejudge the position it might adopt regarding future treaties or other international instruments of a different nature. He would be signing the Final Act that afternoon and would enjoin his Government to expedite the processes of signing and ratifying the Convention to the maximum extent. 36 - The Delegate of Venezuela thanked the Government and people of the Netherlands, the President of the Conference, the Secretary General and Secretariat for their hospitality and valuable assistance. He felt sure the Governments of all States represented at the Conference would welcome the fact that so large a measure of agreement had been reached on the text of the Convention. He thanked fellow Delegates for the spirit of cooperation they had displayed. He would be signing the Convention that afternoon.

37. The Delegate of Panama wished to be associated with the expressions of appreciation made by previous speakers. He would be signing the Convention that afternaon.

38 The Delegate of Jamaica, speaking on behalf of the Caribbean countries, fully associated himself with the expressions of appreciation which had already been made. He had particularly welcomed the practical and realistic manner in which the problem of hijacking had been considered during the present Conference and hoped that many States would find it possible to apply the principles enshrined in the Convention even before ratification.

The Delegate of Gabon made the following statement:

"The Gabonese Delegation wishes, following the example of all the other Delegates, to express its gratitude to the Government and people of the Netherlands for their generous hospitality and to you, Mr. President, our warm congratulations for the skill with which you have brought this work to a conclusion. Our congratulations also go to the personnel of the Secre- tariat which, by its dynamism, showed itself able to carry out its task by furnishing us, in record time, the documents which permitted us to follow the discussions.

Mr. President, the Gabonese Delegation also wishes to render homage to all of the Delegates here who, thanks to their spirit of understanding, enabled this Convention to be approved by almost all of the Representatives. Thus, Mr. President, the Gabonese Delegation hopes that through this unanimity the Convention we have just adopted will be able toll serve as an arm to discourage the authors of unlawful seizure of aircraft. Twelfth Plenary Meeting

40. The International Transport Workers* Federation Observer, speaking on behalf of his own organization and on that of the International Federation of Airline Pilots Association, associated himself with the tributes paid to the Government of the Netherlands, the President and the Secretariat.

Civil aviation workers were very well satisfied with the text of the Convention, which although not perfect was stronger than had been expected. ITF and IFALPA hoped that it would be widely ratified and implemented at an early date.

41. The Secretary General of the Conference associated himself with the tributes paid to the competence, tact, and gooddill of the President, and thanked him for his cooperation in the management of the Conference. He would not fail to transmit the Conferencets expressions of thanks to the Secretariat of ICAO.

He thanked the Government of the Netherlands for having provided the facilities for the Conference and the officials seconded from the various Netherlands ministries for their loyalty to the cause of internationalism for which their country was famous.

The Delegate of the Netherlands made the following statement:

"After having had the first word, namely the opening statement by the Minister of Justice, Mr. Polak, it is a honour for the Netherlands delegation to have also the last word of this conference. We are satisfied and gratified that this Hague Conference has succeeded.. The distinguished Secretary General had just said that our country is famous for what he called its internationalism. For this very reason it is not surprising that we were in favour of a strong and an effective convention. The convention that this conference has achieved is perhaps not as good as we had hoped for, but it gives much more than we could have feared for.

As regards Article 13, I wish to declare that our delegation has accepted and supported the all States clause, because it is our view that it is very important that the convention will be applicable in all parts of the world, irrespective of the kind of authority exercised. However, this acceptance constitutes by no means any recognition of a State or any precedent whatsoever.

Our work has come to an end. This delegation will sign today the convention on behalf of the Kingdom of the Netherlands. We hope that many States will ratify the convention as soon as possible and we hope that we will be one of them. It will be possible that the different parts of the Kingdom of the Netherlands will ratify at different moments.

I wish to express our gratitude towaxds the work done by the Secretariat, especially the work done by these indispensable people at any international conference, the interpreters and further by the translators, the typists and the secretaries, but above all by the Secretary General, our friend Dr. P.K. Roy. They all have worked very hard and with great devotion and they have given a very important contribution to the success of this conference. Twelfth Plenary Meeting - 212 -

Allow me now, Mr. President, to address myself directly to all delegates. Ladies and Gentlemen, dear fellow delegates, dear friends, thank you very much for all the kind words which have been said to my Government, my country and my people. May I answer you that it was for us a great pleasure to have you here as our guests and that we are very grateful for your love of work, your cooperation and your friendship. I wish a good homeward journey to all of you and I hope that you will keep good souvenirs to this conference, to The Hague and to this country!'

(The meeting adjourned at 1255 hours) THIRTEENTH PLENARY MEET

(~ednesda~,16 December 1970 at 1655 hours

President: Professor W. Riphagen

AGENDA ITEM NO. 12: SIGNAm - OF THE FINAL ACT OF THE COWERENCE - OF THE CONVENTION AND OTHER INSTRUMENTS

1. The Delegate of El Salvador made the following statement:

"Mr. President,

I am glad that you gave me the floor because I wish to apologize for my absence for the last far days. This was due to the fact that I was seriously ill. For that reason I was absent yesterday when the Conference voted and adopted this Convention. If I had been present, I would have voted for adoption of the Convention. Thank you, Mr. President."

2. The Secretary General of the Conference noted that, at the time of signature of the Convention, some States might wish to deposit a reservation as to Article 12(2) . However, they could always do so when ratifying the Convention. He noted that the Delegation of Venezuela had already handed in the reservation concerning Article 12(2) .

3 The Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviation Organization at The Hague from 1 to 16 December 1970 was signed on 16 December on behalf of the seventy-six following States :

Afghanistan, The Kingdom of Czechoslovak Socialist Republic Algeria, the Democratic and Popular Republic of Denmark, the Kingdom of Argentine Republic, the El Salvador, the Republic of Australia, the Commonwealth of Ethiopia, the Fmpire of Austria, the Republic of Finland, the Republic of Barbados French Republic, the Belgium, the Kingdom of Gabonese Republic, the Brazil, the Federative Republic of Germany, the Federal Republic of Bulgaria, the Peoplet s Repblic of Ghana, the Republic of Byelorussian Soviet Socialist 3epublic Greece, the Kingdom of Cambodia, the Khmer Republic Guatemala, the Republic of Cameroon, the Federal Republic of Holy See, the Canada Hungarian People's Republic Ceylon India, the Republic of Chile, the Republic of Indonesia, the Republic of China, the Republic of Iran, the Empire of Colombia, the Republic of Ireland Congo, the People's Republic of the Israel, the State of Costa Rica, the Republic of Italian Republic, the Thirteenth Plenary Meeting

Jamaica South Africa, the Republic of Japan Spain Kenya, the Republic of Sweden, the Kingdom of Korea, the Republic of Swiss Confederation, the Kuwait, the State of Tanzania, the United Republic of Lebanon, the Republic of Thailand, the Kingdom of Lesotho, the Kingdom of Trinidad and Tobago Libyan Arab Republic Tunisia, the Republic of Luxembourg, the Grand Duchy of Turkey, the Republic of Malaysia Ukrainian Soviet Socialist Republic Mexican States, the United Uganda, the Republic of Netherlands, the Kingdom of the Union of Soviet Socialist Republics New Zealand United Arab Republic Norway, the Kingdom of United Kingdom of Great Britain and Panama, the Republic of Northern Ireland Philippines, the Republic of the United States of America Polish People's Republic Venezuela, the Republic of Portugal, the Republic of Yugoslavia, the Socialist Federal Romania, Socialist Republic of Republic of Rwandese Republic, the Zambia, the Republic of

4. The Convention for the Suppression of Unlawful Seizure of Aircraft was signed, on 16 December, on behalf of the fifty following States:

Afghanistan, the Kingdom of Italian Republic, the Argentine Republic, the Jamaica Barbados Japan Belgium, the Kingdom of Luxembourg, the Grand Duchy of Brazil, the Federative Republic of Malaysia Bulgaria, the People's Republic of Mexican States, the United Byelorussian Soviet Socialist Republic Netherlands, the Kingdom of the Cambodia, the Khmer Republic Panama, the Republic of Canada Philippines, the Republic of the China, the Republic of Polish People's Republic Colombia, the Republic of Portugal, the Republic of Costa Rica, the Republic of Rwandese Republic, the Czechoslovak Socialist Republic South Africa, the Republic of Denmark, the Kingdom of Sweden, the Kingdom of El Salvador, the Republic of Swiss Confederation, the Ethiopia, the Rnpire of Thailand, the Kingdom of French Republic, the Trinidad and Tobago Gabonese Republic, the Turkey, the Republic of Germany, the Federal Republic of Ukrainian Soviet Socialist Republic Ghana, the Republic of Union of Soviet Socialist Republics Greece, the Kingdom of United Kingdom of Great Britain and Guatemala, the Republic of Northern Ireland Hungarian Peoplers Republic United States of America Indonesia, the Republic of Venezuela, the Republic of Iran, the Ehpire of Yugoslavia, the Socialist Federal Israel, the State of Republic of Thirteenth Plenary Meeting

5 The States which signed subject to a reservation permitted under Article 12(2) were as follows:

Byelorussian Soviet Socialist Republic, the Republic of Guatemala, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics and Venezuela.

CLOSING OF m COl'EERENCE

6. The President referred to the hard work of the last few days, the bonds of friendship that had been formed, the feeling of sadness now that the time of parting had arrived and the sense of satisfaction since a Convention had been achieved.

79 Hijacking should not be used for any purpose whatsoever. The Convention was novel in three respects: (1) It covered even aircraft of non-signatory States and thus protected international civil aviation as a whole, whether or not aircraft were registered in a Contracting State. (2) All States were united in agreeing either to prosecute or extradite offenders. (3) The Convention provided for universality since it was possible for all States to become paxties to it. Hence, the Convention was rather a remarkable one.

8. Thanks were due to the ICAO Legal Committee which had provided the draft Convention as the basis for the discussions of the Conference. Thanks were also due to all of the Delegates who had participated in the Conference and had shown such a splendid spirit of co-operation and who had felt that something must be done in this field. He thanked the Vice-Presidents of the Conference, the Chairmen of the Drafting Committee, the Committee on Final Clauses and the Credentials Committee as well as the Working Group on Articles 6, 7 and 8 which had done so much to facilitate the discussion of these articles. He thanked the Secretary General and his staff, with prticular mention of the interpreters. He also thanked the Liaison Officer of the Netherlands Government, Mr. Crebas. In addition, he wished to mention the technical staff for their ability in remedying all of the difficulties which had arisen.

9 Once again, he thanked everyone for their co-operation, spirit of compromise and dedication to the international community.

(The meeting adjourned at 1815 hours) ICAO TECHNICAL PUBLICATIONS

The following summary gives the status, and also has invited Contracting States to notify any differences describes in general tmthe contents of the various between their national practices and the PANS when the series of technical publications issued by the Inter- knowledge of such differences is important for the safety national Civil Aviution Organization. It does not include of air navigation. specidizsd publications that do not fall specifically REGIONAL SUPPLEMENTAHY PROCEDURES within one of the series, such us the ICAO Aeronautical Chart Catalogue or the Meteorological Tables for (SUPPS)have a status similar to that of PANS in that they International Air Navigation. are approved by the Council, but only for application in the respective regions. They are prepared in consolidated INTERNATIONAL STANDARDS AND RECOM- form, since certain of the procedures apply to overlapping MENDED PRACTICES are adopted by the Council regions or are common to two or more regions. in accordance with Articles 54, 37 and 90 of the Con- vention on International Civil Aviation and are desig- nated, for cmvenience, as Annexes to the Conventiou. The unifonn application by Contracting States of the specifications comprised in the International Standards is recognized as necessary for the safety or regularity I'he follotcjing ~~ublicatiotuart: ~~reparedby autltority of international air navigation while the uniform agpli- of the Secretary General in mcordance with the principles cation of the specifications in the Recommended Prac- and policies approved by the Council. tices is regarded as desirable in the interest of safety, regularity or efficiency of international air navigation. ICAO FIELD MANUALS derive their status from the Knowledge of any differences between the national regu- International Standards, Recommended Practices and lations or practices of a State and those established by PANS from which they are ~~mpiled.They are prepared an International Standard is essential to the safety or primarily for the use of persohnel engaged in operations regularity of international air navigation. In the event in the field, as a service to those Contracting States of non-compliance with an International Standard, a who do not find it practicable, for various reasons, to State has, in fact, an obligation, 11nder Article 38 of prepare them for their own use. the Convention, to notify the Council of any differences. Z'ECIINICAL MANUALS provide guida~~ceand in- Knowledge of differences from Hecommended Practices formation in amplification of the Inten~ationalStandards, may also be important for the safety of air navigation Recommended Practices and PANS,the i~nplementation and, although the Convention does not impose my obli- of which they are designed to facilitatc.. gation with regard thereto, the Council has invited Con- tracting States to notify such differences in addition to AIR NAVIGATION PLANS detail require~ner~tsfor those relating to International Standards. facilities and services for international air nilvigation in the respective ICAO Air Navigation Regions. Thcy arc PROCEDURES FOR AIR NAVIGATION SERVlCES prepared on the authority of the Secretary General oil (PANS) are approved by the Council for world-wide the basis of rewmmendations of regional air navigation ;~pplication.They comprise, for the most part, operating meetings and of the Council action thereon. The plans procedures regarded as not yet having attained ;I suffi- are amended periodically to reflect changes in require- cient degree of maturity for adoption as Intenlational ments and in the status of implementatio~~of thc Standards and Recommended Fractices, as well as recom~nendedfacilities and services. material of a more pennanent character which is considered too detailed for inc~rporationin an Annex, or ICAO CIRCULARS make available specialized ill- is susceptible to frequent amendment, for which the formation of interest to Contracting Slates. This includes processes of the Convention would be too cumbersome. studies on technical subjects as well as texts of Pmvi- As in thC case of Recommended Practices, the Council vional Acccptahle Means of Compliance. EXTRACT FROM THE ICAO CATALOGUE

International Conference on Air Law. . Tokyo, August-September 1963. (Doc 8565-LCf152-1). Volume I - Minutes. xvii + 414 pp...... $6.75 (Doc 8565-LC/152-2). Volume I1 - Documents. vi + 313 pp...... $5.00

MINUTES AND DOCUMENTS OF THE LEGAL COMMITTEE

Fourteenth Session. Rome, 28 August - 15 September 1962. (Doc 8302-LCl150-1). Volume I - Minutes. xxm + 205 pp...... $3.75 (Doc 8302-~~/150-2). Volume I1 - Documents. iii + 237 pp...... $3.75 Seventeenth Session. Montreal, 9 February - 11 March 1970. (Doc 8877-LCl161). Minutes and Documents relating to the subject of Unlawful Seizure of Aircraft. xv + 190 pp...... $3.25 Eighteenth Session. London, 29 September - 22 October 1970. (Doc 8936-~~1164-1). Volume I - Minutes. iv + 275 pp. $4.25 (Doc 8936-L~1164-2). Volume I1 - Documents. iv + 267 pp...... $4.25 SUBCOMMITTEE OF THE LEGAL COMMITTEE

Subcommittee of the Legal Committee on the Subject of Unlawful Seizure of Aircraft. First Session (10-21 February 1969) Second Session (23 September - 3 October 1969). (Doc 8838-LC/157). Reports and Documentation. ii + 166 pp...... $2.75

@ ICAO 1972 - 3/72, E/Pl/ 1300

PRICE: U. S. $4.75 (or equivalent in other currencies)