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1 DCAS Doc No. 18 7/9/10 INTERNATIONAL CONFERENCE ON AIR LAW (Beijing, 30 August 10 September 2010) DRAFT PROTOCOL SUPPLEMENTARY TO THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT (Presented by the Secretariat) THE STATES PARTIES TO THIS PROTOCOL DEEPLY CONCERNED about the worldwide escalation of unlawful acts against civil aviation; RECOGNIZING that new types of threats require new concerted efforts and policies of cooperation on the part of States; BELIEVING that in order to better address these threats, it is necessary to adopt provisions supplementary to those of the Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on 16 December 1970, to suppress unlawful acts of seizure or exercise of control of aircraft and to improve its effectiveness; HAVE AGREED AS FOLLOWS: ARTICLE I This Protocol supplements the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970 (hereinafter referred to as the Convention ). ARTICLE II Article 1 of the Convention shall be replaced by the following: Article 1 1. Any person commits an offence if that person unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means.

2 DCAS Doc No Any person also commits an offence if that person: (a) makes a threat to commit the offence set forth in paragraph 1; or (b) unlawfully and intentionally causes any person to receive such a threat, under circumstances which indicate that the threat is credible. 3. Any person also commits an offence if that person: (a) attempts to commit the offence set forth in paragraph 1 of this Article; or (b) organizes or directs others to commit an offence set forth in paragraphs 1, 2 or 3 (a) of this Article; or (c) participates as an accomplice in an offence set forth in paragraphs 1, 2 or 3 (a) of this Article; or (d) unlawfully and intentionally assists another person to evade investigation, prosecution or punishment, knowing that the person has committed an act that constitutes an offence set forth in paragraphs 1, 2, 3 (a), 3 (b) or 3 (c) of this Article, or that the person is wanted for criminal prosecution by law enforcement authorities for such an offence or has been sentenced for such an offence. 4. Each State Party shall also establish as offences, when committed intentionally, whether or not any of the offences set forth in paragraphs 1 or 2 of this Article is actually committed or attempted, either or both of the following: (a) agreeing with one or more other persons to commit an offence set forth in paragraphs 1 or 2 of this Article and, where required by national law, involving an act undertaken by one of the participants in furtherance of the agreement; or (b) contributing in any other way to the commission of one or more offences set forth in paragraphs 1 or 2 of this Article by a group of persons acting with a common purpose, and such contribution shall either: (i) be made with the aim of furthering the general criminal activity or purpose of the group, where such activity or purpose involves the commission of an offence set forth in paragraphs 1 or 2 of this Article; or (ii) be made in the knowledge of the intention of the group to commit an offence set forth in paragraphs 1 or 2 of this Article. ARTICLE III Article 2 of the Convention shall be replaced by the following: Article 2 Each State Party undertakes to make the offences set forth in Article 1 punishable by severe penalties.

3 3 DCAS Doc No. 18 ARTICLE IV The following shall be added as Article 2 bis of the Convention: Article 2 bis 1. Each State Party, in accordance with its national legal principles, may take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for management or control of that legal entity has, in that capacity, committed an offence set forth in Article 1. Such liability may be criminal, civil or administrative. 2. Such liability is incurred without prejudice to the criminal liability of individuals having committed the offences. 3. If a State Party takes the necessary measures to make a legal entity liable in accordance with paragraph 1 of this Article, it shall endeavour to ensure that the applicable criminal, civil or administrative sanctions are effective, proportionate and dissuasive. Such sanctions may include monetary sanctions. ARTICLE V 1. Article 3, Paragraph 1, of the Convention shall be replaced by the following: Article 3 1. For the purposes of this Convention, an aircraft is considered to be in service from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing. In the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board. 2. In Article 3, paragraph 4, of the Convention, mentioned shall be replaced by set forth. ARTICLE VI The following shall be added as Article 3 bis of the Convention: Article 3 bis 1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, the Convention on International Civil Aviation and international humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by military forces of a State in

4 DCAS Doc No the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. 3. The provisions of paragraph 2 of this Article shall not be interpreted as condoning or making lawful otherwise unlawful acts, or precluding prosecution under other laws. ARTICLE VII Article 4 of the Convention shall be replaced by the following: Article 4 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in Article 1 and any other act of violence against passengers or crew committed by the alleged offender in connection with the offences, in the following cases: (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; (d) when the offence is committed against or on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence is in that State; (e) when the offence is committed by a national of that State. 2. Each Party may also establish its jurisdiction over any such offence in the following cases: (a) when the offence is committed against a national of that State; (b) when the offence is committed by a stateless person whose habitual residence is in the territory of that State. 3. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in Article 1 in the case where the alleged offender is present in its territory and it does not extradite that person pursuant to Article 8 to any of the States Parties that have established their jurisdiction in accordance with the applicable paragraphs of this Article with regard to those offences. 4. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

5 5 DCAS Doc No. 18 ARTICLE VIII Article 5 of the Convention shall be replaced by the following: Article 5 The States Parties which establish joint air transport operating organizations or international operating agencies, which operate aircraft which are subject to joint or international registration shall, by appropriate means, designate for each aircraft the State among them which shall exercise the jurisdiction and have the attributes of the State of registry for the purpose of this Convention and shall give notice thereof to the Secretary General of the International Civil Aviation Organization who shall communicate the notice to all States Parties to this Convention. ARTICLE IX Article 6, Paragraph 4, of the Convention shall be replaced by the following: Article 6 4. When a State Party, pursuant to this Article, has taken a person into custody, it shall immediately notify the States Parties which have established jurisdiction under paragraph 1 of Article 4, and established jurisdiction and notified the Depositary under paragraph 2 of Article 4 and, if it considers it advisable, any other interested States of the fact that such person is in custody and of the circumstances which warrant that person s detention. The State Party which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States Parties and shall indicate whether it intends to exercise jurisdiction. ARTICLE X The following shall be added as Article 7 bis of the Convention: Article 7 bis Any person who is taken into custody, or regarding whom any other measures are taken or proceedings are being carried out pursuant to this Convention, shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law. ARTICLE XI Article 8 of the Convention shall be replaced by the following:

6 DCAS Doc No Article 8 1. The offences set forth in Article 1 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include the offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences set forth in Article 1. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in Article 1 as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Each of the offences shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territories of the States Parties required to establish their jurisdiction in accordance with subparagraphs (b), (c), (d) and (e) of paragraph 1 of Article 4 and who have established jurisdiction in accordance with paragraph 2 of Article The offences set forth in subparagraphs (a) and (b) of paragraph 4 of Article 1 shall, for the purpose of extradition between States Parties, be treated as equivalent. ARTICLE XII The following shall be added as Article 8 bis of the Convention: Article 8 bis None of the offences set forth in Article 1 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives. ARTICLE XIII The following shall be added as Article 8 ter of the Convention: Article 8 ter Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in Article 1 or for mutual

7 7 DCAS Doc No. 18 legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person s race, religion, nationality, ethnic origin, political opinion or gender, or that compliance with the request would cause prejudice to that person s position for any of these reasons. ARTICLE XIV Article 9, Paragraph 1, of the Convention shall be replaced by the following: Article 9 1. When any of the acts set forth in paragraph 1 of Article 1 has occurred or is about to occur, States Parties shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his or her control of the aircraft. ARTICLE XV Article 10, Paragraph 1, of the Convention shall be replaced by the following: Article States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences set forth in Article 1 and other acts set forth in Article 4. The law of the State requested shall apply in all cases. ARTICLE XVI The following shall be added as Article 10 bis of the Convention: Article 10 bis Any State Party having reason to believe that one of the offences set forth in Article 1 will be committed shall, in accordance with its national law, furnish any relevant information in its possession to those States Parties which it believes would be the States set forth in paragraphs 1 and 2 of Article 4. ARTICLE XVII 1. All references in the Convention to Contracting State and Contracting States shall be replaced by State Party and States Parties respectively. 2. All references in the Convention to him and his shall be replaced by that person and that person s respectively.

8 DCAS Doc No ARTICLE XVIII The texts of the Convention in the Arabic and Chinese languages annexed to this Protocol shall, together with the texts of the Convention in the English, French, Russian and Spanish languages, constitute texts equally authentic in the six languages. ARTICLE XIX As between the States Parties to this Protocol, the Convention and this Protocol shall be read and interpreted together as one single instrument and shall be known as The Hague Convention as amended by the Beijing Protocol, ARTICLE XX This Protocol shall be open for signature in Beijing on 10 September 2010 by States participating in the Diplomatic Conference on Aviation Security held at Beijing from 30 August to 10 September After 27 September 2010, this Protocol shall be open to all States for signature at the Headquarters of the International Civil Aviation Organization in Montreal until it enters into force in accordance with Article XXIII. ARTICLE XXI 1. This Protocol is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the International Civil Aviation Organization, who is hereby designated as the Depositary. 2. Ratification, acceptance or approval of this Protocol by any State which is not a Party to the Convention shall have the effect of ratification, acceptance or approval of The Hague Convention as amended by the Beijing Protocol, Any State which does not ratify, accept or approve this Protocol in accordance with paragraph 1 of this Article may accede to it at any time. The instruments of accession shall be deposited with the Depositary. ARTICLE XXII Upon ratifying, accepting, approving or acceding to this Protocol, each State Party: (a) shall notify the Depositary of the jurisdiction it has established under its national law in accordance with paragraph 2 of Article 4 of The Hague Convention as amended by the Beijing Protocol, 2010, and immediately notify the Depositary of any change; and (b) may declare that it shall apply the provisions of sub-paragraph (d) of paragraph 3 of Article 1 of The Hague Convention as amended by the Beijing Protocol, 2010 in accordance with the principles of its criminal law concerning family exemptions from liability.

9 9 DCAS Doc No. 18 ARTICLE XXIII 1. This Protocol shall enter into force on the first day of the second month following the date of the deposit of the twenty-second instrument of ratification, acceptance, approval or accession with the Depositary. 2. For each State ratifying, accepting, approving or acceding to this Protocol after the deposit of the twenty-second instrument of ratification, acceptance, approval or accession, this Protocol shall enter into force on the first day of the second month following the date of the deposit by such State of its instrument of ratification, acceptance, approval or accession. 3. As soon as this Protocol comes into force it shall be registered with the United Nations by the Depositary. ARTICLE XXIV 1. Any State Party may denounce this Protocol by written notification to the Depositary. 2. Denunciation shall take effect one year following the date on which notification is received by the Depositary. ARTICLE XXV The Depositary shall promptly inform all States Parties to this Protocol and all signatory or acceding States to this Protocol, of the date of each signature, the date of deposit of each instrument of ratification, acceptance, approval or accession, the date of coming into force of this Protocol, and other relevant information. IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized, have signed this Protocol. DONE at Beijing on the tenth day of September of the year Two Thousand and Ten in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic, such authenticity to take effect upon verification by the Secretariat of the Conference under the authority of the President of the Conference within ninety days hereof as to the conformity of the texts with one another. This Protocol shall remain deposited in the archives of the International Civil Aviation Organization, and certified copies thereof shall be transmitted by the Depositary to all Contracting States to this Protocol.

18 Doc 8920 制止非法劫持航空器公约 1970 年 12 月 16 日签订于海牙 1970 年国际民用航空组织

19 制止非法劫持航空器公约前言本公约各当事国考虑到非法劫持或控制飞行中的航空器的行为危及人和财产的安全, 严重影响航班的运行, 并损害世界人民对民用航空安全的信任 ; 考虑到发生这些行为是令人严重关切的事情 ; 考虑到为了防止这类行为, 迫切需要规定适当的措施以惩罚罪犯 ; 协议如下 : 第一条凡在飞行中的航空器内的任何人 : (a) 用武力或用武力威胁, 或用任何其他恐吓方式, 非法劫持或控制该航空器, 或企图采取任何这种行为, 或 (b) 是实施或企图实施任何此种行为的人的从犯, 即是犯了罪行 ( 以下简称犯罪 ) 第二条每一缔约国承诺对犯罪给予严厉惩罚第三条一为本公约目的, 航空器在完成装载后其所有外部舱门均已关闭时起, 至其任何此种舱门为卸载目的开启时止, 其间的任何时间均被视为在飞行中在迫降情况下, 直至主管当局接管对该航空器及其所载人员和财产的责任时止, 航空器应视为继续飞行中二本公约不应当适用于供军事海关或警察用的航空器 1

20 三本公约应当仅适用于在其内实施犯罪的航空器的起飞地点或实际降落地点是在该航空器登记国领土以外, 不论该航空器是从事国际飞行或国内飞行四在第五条中所指的情况下, 如在其内实施犯罪的航空器的起飞地点和实际降落地点是在同一个国家的领土内, 而这一国家又是该条中所指国家之一, 则本公约不应当适用五尽管有本条第三和四款的规定, 如罪犯或被指控的罪犯在该航空器登记国以外的一国领土内被发现, 则不论该航空器的起飞地点或实际降落地点在何处, 第六七八和十条均应当适用第四条一在下列情况下, 每一缔约国应当采取必要措施, 以确立其对被指控的罪犯所实施的犯罪和对旅客或机组所实施的其他暴力行为的管辖权 : (a) 犯罪是在该国登记的航空器内实施的 ; (b) 在其内实施犯罪的航空器在该国降落时被指控的罪犯仍在该航空器内的 ; (c) 犯罪是在租来时不带机组的航空器内实施的, 而承租人的主要营业地, 或如承租人没有这种营业地, 则其永久居所, 是在该国的二如果被指控的罪犯在某一缔约国领土内, 而该缔约国不依据第八条将其引渡给本条第一款中所述的任何国家, 每一缔约国也应当采取必要措施, 确立其对犯罪的管辖权三本公约不排斥根据本国法行使任何刑事管辖权第五条如各缔约国成立联合的航空运输运营组织或国际运营机构, 而其使用的航空器需要进行联合登记或国际登记时, 则这些缔约国应当通过适当方法在它们之间为每一航空器指定一个国家, 该国为本公约的目的, 应当行使管辖权并具有登记国的性质, 并应当将此项指定通知国际民用航空组织, 由该组织将上述通知转告本公约所有当事国第六条一罪犯或被指控的罪犯所在的任何缔约国在判明情况有此需要时, 应当将该人拘留或采取其他措施以保证该人留在境内这种拘留和其他措施应当符合该国的法律规定, 但是只有在为了提出刑事诉讼或引渡程序所必要的期间内, 才可继续保持这些措施 2

21 二该国应当立即对事实进行初步调查三对根据本条第一款予以拘留的任何人, 应当向其提供协助, 以便其立即与其本国最近的合格代表联系四当一国根据本条将某人拘留时, 应当立即将该人被拘留的事实和应予拘留的情况通知航空器登记国第四条第一款 (c) 项所指国家和被拘留人的国籍所属国, 并在认为适当时, 也立即通知任何其他有关国家进行本条第二款中设想的初步调查的国家应当迅速将调查结果通知上述国家, 并应当表明是否有意行使管辖权第七条在其境内发现被指控的罪犯的缔约国, 如不将此人引渡, 则不论犯罪是否在其境内实施, 应当无例外地将此案件提交其主管当局以便起诉该当局应当按照本国法律, 以对待任何严重性质的普通犯罪案件的同样方式作出决定第八条一犯罪应当认为是包括在缔约国间现有引渡条约中的一种可引渡的犯罪各缔约国承诺将此种犯罪作为一种可引渡的犯罪列入它们之间将要缔结的每一项引渡条约中二如一缔约国规定只有在订有引渡条约的条件下才可以引渡, 而当该缔约国接到未与其订有引渡条约的另一缔约国的引渡要求时, 可以自行决定认为本公约是对犯罪进行引渡的法律根据引渡应当遵照被要求国法律规定的其他条件三各缔约国如没有规定只有在订有引渡条约下才可引渡, 则在遵照被要求国法律规定的条件下, 应当承认犯罪是它们之间可引渡的犯罪四为在各缔约国之间引渡的目的, 犯罪应当被当作不仅是在所发生的地点而且也是在根据第四条第一款要求确立其管辖权的国家领土上实施的来对待第九条一当第一条第一款 (a) 项中所指的任何行为已经发生或行将发生时, 各缔约国应当采取一切适当措施, 以恢复合法机长对航空器的控制或维护其对航空器的控制二在前款设想的情况下, 航空器或其旅客或机组在其领土上的任何缔约国应当尽快对旅客和机组继续旅行提供便利, 并应当将航空器和所载货物不迟延地交还给合法的所有人 3

22 第十条一各缔约国对犯罪和第四条中所指的其他行为所提出的刑事诉讼, 应当相互给予最大程度的协助在任何情况下, 都应当适用被要求国的法律二本条第一款的规定, 不应当影响根据任何其他双边或多边条约在刑事问题上全部地或部分地规范或将要规范相互协助的义务第十一条每一缔约国应当遵照其本国法尽快地向国际民用航空组织理事会就下列各项报告它所掌握的任何有关情况 : (a) 犯罪的情况 ; (b) 根据第九条采取的行动 ; (c) 对罪犯或被指控的罪犯所采取的措施, 特别是任何引渡程序或其他法律程序的结果第十二条一如两个或多个缔约国之间对本公约的解释或适用发生争议而不能以谈判解决时, 经其中一方的要求, 应当交付仲裁如果在要求仲裁之日起六个月内, 当事国对仲裁的组成不能达成协议, 任何一方可按照国际法院规约, 要求将争端提交国际法院二每个国家在签署批准或加入本公约时, 可以声明该国不受前款规定的约束其他缔约国对于任何作出这种保留的缔约国, 不受前款规定的约束三遵照前款规定作出保留的任何缔约国, 可以在任何时候通知保存国政府撤销这一保留第十三条一本公约于 1970 年 12 月 16 日在海牙向参加于 1970 年 12 月 1 日至 16 日在海牙举行的国际航空法会议 ( 以下简称海牙会议 ) 的国家开放签署 1970 年 12 月 31 日以后, 本公约应当在莫斯科伦敦和华盛顿向所有国家开放签署在按照本条第三款生效前未签署本公约的任何国家可以随时加入本公约二本公约须由签字国批准批准书和加入书应当交存苏维埃社会主义共和国联盟大不列颠和北爱尔兰联合王国和美利坚合众国政府, 在此指定其为保存国政府三本公约应当于参加海牙会议的在本公约上签字的十个国家交存批准书后三十天生效 4

23 四对于其他国家, 本公约应当于根据本条第三款开始生效之日, 或在它们交存批准书或加入书后三十天, 两者间较晚的一个日期生效五保存国政府应当迅速将每一签字日期每一批准书或加入书交存日期本公约开始生效日期以及其他通知事项通知所有签字国和加入国六本公约一经生效, 应当由保存国政府根据联合国宪章第一百零二条和国际民用航空公约 ( 一九四四年订于芝加哥 ) 第八十三条进行登记第十四条一任何缔约国可以向保存国政府提交书面通知, 以退出本公约二退出应当自保存国政府收到通知之日起六个月后生效下列签字的全权代表, 经各自政府正式授权, 已在本公约上签字, 以昭信守本公约于一九七 O 年十二月十六日在海牙签订, 正本一式三份, 每份都用英文法文俄文和西班牙文四种作准文本写成完 5

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