2.
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, it may as its option consider this Convention
598Boyle(1972, p. 473).
D. The Hague Convention on Hijacking 1970
as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions provided by the law of the requested state.
3.
Contracting states which do not make extradition conditional on the existence of a treaty shall recognize the offence between themselves subject to the conditions provided by the law of the requested state.
4.
The offence shall be treated, for the purpose of extradition between Contracting States, as if it had been committed not only in the place in which it occurred, but also in the territories of the states required to establish their jurisdiction in accordance with Article 4, paragraph 1.
Thus according to Article 8, if a Contracting State receives a request for extradition from a State with which it has no extradition treaty, the Convention shall be considered as the legal basis for extradition. The effect of this provision is to enlarge the scope of existing international treaties on extradition to include hijacking. Where a State is usually prohibited by domestic law from extraditing a hijacker in the absence of a treaty, the State must extradite the offender under the provisions of the Convention.
The obligation to extradite an airline hijacker is subject to all other customary and conventional rules of law governing extraditable offenses. As a general rule, extradition is denied where an individual is accused of committing a political offence. Most States recognize the granting of political asylum as a right to be determined by the State from which it is requested. As the laws of a State may preclude extradition of an airline hijacker if the offence is regarded as political, the existence of hijacking in an extradition treaty may not result in mandatory extradi-tion. However, if a State does not extradite the offender, according to Article 7, the case must be submitted to the proper authorities for prosecution. I.D. Johnston has stated the following in relation to Article 8:
The Convention obliges the parties to include hijacking in extradition treaties to be concluded between them and insert it retrospectively into existing extradition treaties. Parties which have not concluded extradition treaties but which make extradition condi-tional on a treaty can regard the Convention itself as a legal basis for extradition. These provisions increase the possibility of extradition but by no means make it a certainty. The Russian Proposal, supported by the U.S.A., that hijackers be returned in all cases was rejected at the Conference. Automatic extradition, though probably the best deterrent, was considered too drastic a commitment by most of the negotiating States. What they are prepared to accept however, was the duty to prosecute offenders whom they did not extradite as provided for by Article 7.599
Be that as it may, so far as the extradition of nationals is concerned, there is no indication in the Convention as to what the position is. Shubber is of the view that even though there is no mention to the extradition of the States own national according to the Convention or to the term offender in Article 8 still such extradi-tion is possible.
599Aviation Security Legislation, Aviation Security Legislation, Vol. 5, April 1973 at 307.
There is no reason to suppose that hijackers who happened to be nationals of the
State requested to extradite him should be excluded from the scope of extradition under the Convention, provided that course ofaction is compatible with the national law of the State concerned. This interpretation is not incompatible with the inten-tion of the drafters and the purpose for which the Convention has been created.600
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