C. Concerted Action Under the Auspice of the ICAO
This protection was given to the aircraft commander and other persons in order to encourage them to .ght the wrongful acts contemplated by the Convention.
II. Jurisdiction to Punish the Terrorists
The major problem that States often face in the process of combating terrorism is the issue of jurisdiction. This is most evident in cases of hijacking where the crime often takes place outside the jurisdiction of the receivingState, although in most, if not all of the cases it could be argued that the offence is of a continuing nature. Under international law, State’s jurisdiction to prosecute is founded upon two traditional concepts. First, there must exist a substantial link between the person or the act and the State claiming sovereign jurisdiction and second, this theoretical basis must be actualized through a sovereign act, i.e., legislation for implementation of this theoretical act. In an act of international nature, such as hijacking, two or more States involved may possess jurisdiction to prosecute. As a result, jurisdic-tional con.icts are eminent, since two or more of those States can claim the right to prosecute and press claims against each other through diplomatic channels. In order to eliminate these con.icts, the jurisdictional rules incorporated in the Tokyo Convention were preferred. The Tokyo Convention was adopted to grant powers to States to establish jurisdiction which would be uncomplicated by diplomatic claims over criminal acts committed on board aircraft.
Jurisdiction over offenses and acts committed on board appertain primarily to the State of registration of the aircraft (Article 3(1)). The adoption of this rule guarantees to the .ights over the High Seas the assured presence of the criminal law. It provides a sound legal basis for extra-territorial exercise of criminal juris-diction extending even to cases of .ight within foreign airspace. A.I. Mendelssohn has observed:
As a matter of international law, therefore, any crime abroad an international carrier, no matterwhere,byoragainstwhomitiscommitted,canbepunishedbyatleast onesovereign – the State of registration of the carrier. All doubts are removed on the question whether the .ag will henceforth follow the aircraft as it traditionally has followed a vessel.579
Article 3(2) of the Conventionprovides:
Each Contracting State shall take measures as may be necessary to establish its jurisdiction as State of registration over offenses committed on board aircraft registered in such State.
It is clear that the fundamental objective of this sub-paragraph was to make the act of combating hijacking an international issue in which all States must take part when need arises.
Article 3(3) went further to give more grounds of jurisdiction in order to eliminate the gravity of the obstacles that hinders the prosecution of hijackers.
579Mendelsohn(1967, p. 515).
It provides that the Convention does not exclude criminal jurisdiction exercised in accordance with the national law. Mendelssohn has commented on this sub-paragraph:
Its objectives are (a) to retain all existing jurisdiction presently asserted by the various States; (b) to enable them to enact further legislation providing for even more extensive jurisdiction; and most important, (c) to require the State of registration to extend at least some of its criminal laws to its aircraft and to provide an internationally accepted basis for the application and enforcement of these laws.580
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