NCJ Number
62754
Journal
Journal of Air Law and Commerce Volume: 35 Dated: (1969) Pages: 171-203
Date Published
1969
Length
33 pages
Annotation
PROBLEMS AND POTENTIAL SOLUTIONS RELATED TO CUSTODY JURISDICTION, AND PROSECUTION IN CASES INVOLVING CRIMES COMMITTED DURING INTERNATIONAL FLIGHT ARE ANALYZED.
Abstract
THE TYPE OF CASE AT ISSUE IS ONE IN WHICH A NONRESIDENT ALIEN COMMITS A CRIME AGAINST ANOTHER NONRESIDENT ALIEN ON BOARD AN AIRCRAFT FLYING FROM A FOREIGN CITY TO AN AMERICAN CITY; IN WHICH THE OFFENSE IS PERPETRATED OVER THE HIGH SEAS; AND IN WHICH NO APPROPRIATE EXTRADITION TREATY EXISTS BETWEEN THE UNITED STATES AND THE FLAG COUNTRY OF THE AIRCRAFT. THE FIRST PROBLEM IS CUSTODY: IF THE OFFENSE VIOLATES ONLY THE FLAG COUNTRY'S PENAL LAW, U.S. LANDING AUTHORITIES CANNOT DETAIN THE OFFENDER. THE TOKYO CONVENTION, UNRATIFIED AT THE TIME THE ARTICLE WAS WRITTEN, CONTAINS CUSTODIAL AND DEPORTATION PROVISIONS THAT WOULD REMEDY THIS PROBLEM AND SUBSTANTIALLY ASSURE IMMEDIATE PROSECUTION IN SUCH CASES. THE SECOND PROBLEM CONCERNS JURISDICTIONAL CONFLICT AMONG THE VARIOUS COUNTRIES INTERESTED IN THE OFFENSE. THE CONVENTION'S ARTICLES ON JURISDICTION MAY BE INTERPRETED TO MEAN THAT ONLY THE FLAG COUNTRY CAN RAISE DIPLOMATIC CLAIM AGAINST THE LANDING COUNTRY, AND THAT PRIMARY JURISDICTION IS VESTED IN THE LANDING COUNTRY. THUS, THE CONVENTION IMPLIES A SYSTEM OF PRIORITIES THAT WOULD END DIPLOMATIC CONFLICT. THE THIRD PROBLEM IS THAT, WHEN NO APPROPRIATE EXTRADITION TREATY EXISTS AND WHEN THE CONVENTION'S DEPORTATION PROVISIONS DO NOT ASSURE PROSECUTION, THE OFFENDER CAN ELUDE IMMEDIATE PROSECUTION UNLESS THE UNITED STATES, AS THE LANDING COUNTRY, HAS THE POWER TO PROSECUTE. AN ANALYSIS OF INTERNATIONAL AND U.S. LAW CONCLUDES THAT THE FEDERAL JUDICIARY DOES HAVE CRIMINAL JURISDICTION IN SUCH INSTANCES. THE TOKYO CONVENTION AND FEDERAL JURISDICTION ARE KEY FACTORS IN A SCHEME THAT GURANTEES IMMEDIATE PROSECUTION FOR INFLIGHT CRIMES. THE UNITED STATES IS URGED TO RATIFY THE CONVENTION. (LKM)