Article 4 of the Convention stipulates which .ights are to be covered by the Convention. Paragraph 1 excludes from the operation of the Convention aircrafts used in military, customs, or police services.
Accordingto Paragraph2of Article4,the scopeofthe Conventionis determined primarily in terms of the international element of aviation. In case of the offenses contemplated in clauses (a), (b), (c) and (e) of Article 1(1), the Convention applies irrespective of whether the aircraft is engagedin an international or domestic .ight, only if, as stated in Article 4(2):
(a)
the place of take-off or landing, actual or intended, of the aircraft is situated outside the territory of the State of registration of that aircraft; or
(b)
the offence is committed in the territory of a State other than the State of registration of the aircraft.
The Convention also applies in cases of international .ights if the offender or the alleged offender is found in the territory of the State other than the State of registration of the aircraft.
Paragraph5 of Article4provided:
In the case contemplated in sub-paragraph (d) of paragraph1 of Article 1, this convention
shall apply only if the air navigation facilities are used in international air navigation.
Hence, the Convention will apply only if the air navigation facilities are used in international air navigation, i.e., the sabotage of domestic air navigation facilities is outside the scope of the Convention, notwithstanding the fact that the saboteur of domestic facilities may be found in another State. G.F. Fitzgerald observes:
In case of air navigation facilities mentioned in sub-paragraph (d) of Article 1(1), the
Convention applies only if the facilities destroyed, damaged, or interfered with are used in
international navigation.613
IV. Jurisdictional Powers Given to States Under the Montreal Convention (1971)
Article 5 of the Convention, which concerns jurisdiction, provides that each con-tracting State shall take such measures as may be necessary to establish its jurisdic-tion over offences in the same three instances as those contained in the Hague Convention, and a fourth instance of when the offence is committed in the territory of that State. This Convention as its predecessor614 does not exclude any criminal jurisdiction exercised in accordance with national law. Fitzgerald states:
613G.F. Fitzgerald, International Terrorism and Civil Aviation, Unpublished Speech given to the Third Annual Conference of the Canadian Council of International Law, 2 October 1974. 614Hague Convention of 1970.
E. The Montreal Convention (1971)
A controversial topic in the Montreal Convention is that of jurisdiction, since, like The Hague Convention, this Convention attempts to establish a form of universal jurisdiction over the alleged offender.615
Article5of Montreal Convention provides that each contracting State shall take such measures as may be necessaryto establish its jurisdiction over the offenders in the following cases:
1. (a) When the offence is committed in the territory of that State;
(b)
When the offence is committed against or on board an aircraft registered in that State;
(c)
When the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; and,
(d)
When the offence is committed against or on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.
2.
Each contracting State shall likewise take such measures as may be necessaryto establish its jurisdiction over the offenses mentioned in Article 1, paragraphs 1 (a), (b) and (c) and in Article 1, paragraph2, in so far as that paragraph relates to those offenses, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article8to any of the States mentioned in paragraph1 of this Article, i.e., Article 5.
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