Airborne Laws: Jurisdiction At 30,000 Feet

When it comes to air travel, the laws that apply can vary depending on the location of the aircraft and the nature of the offence. While on the ground, local laws typically take precedence, regardless of the aircraft's country of registration or the nationalities of its passengers and crew. Once in the air, the laws of the country where the aircraft is registered generally govern any offences committed on board. However, the laws of the country whose airspace the aircraft is in may also be applicable under certain conditions, such as when the act committed involves the overflown country's security or affects its citizens.

Laws on the ground

When an aircraft is on the ground, the laws of the country it is in apply. This is the case for flights that have yet to take off and those that have landed at their destinations. These local laws take precedence over any laws based on the aircraft's country of residence, passengers' nationality, or crew's nationality. For example, in 2013, a Pakistan International Airlines pilot was arrested when he was found to be over the UK alcohol limit for operating a flight from Leeds Bradford Airport. This would not have been a violation of the law in Pakistan, but he was charged under UK law.

Local laws also apply on the ground and within regional airspace. This is why airlines will not serve alcohol in or around countries where alcohol is banned, such as Iran and Saudi Arabia.

In most countries, the general civil law applies, except as modified. Most states confer their nationality on those born on aircraft registered to that country. However, there is no general principle in air law that the law of the state of registry is applicable to every occurrence on board. There are, however, various international agreements that affect the exercise of civil jurisdiction by states.

In the US and most European nations, aviation law is considered a federal or state-level concern and is regulated at that level. States and municipalities do have some indirect regulation over aviation. For example, zoning laws can require an airport to be located away from residential areas, and airport usage can be restricted to certain times of day.

Laws in flight

Aviation law is a complex area that concerns flight, air travel, and associated legal and business concerns. The laws that apply when you are flying can vary depending on several factors, including the type of offence, the location of the aircraft, and the nationality of those involved.

When an aircraft is on the ground, the local laws of that country apply. This takes precedence over any laws based on the aircraft's country of registration or the nationality of its passengers or crew. For example, a pilot found to be over the legal alcohol limit before operating a flight will be charged according to the laws of the country where the offence took place, regardless of the laws in the country where the aircraft is registered.

Once an aircraft is in the air, the laws that apply become more complex and can vary depending on the specific circumstances. In general, the country where the aircraft is registered has jurisdiction over offences committed on board. However, multiple countries can have jurisdiction at the same time, and the nature of the offence can also dictate whether local jurisdiction applies, especially if it concerns national security or affects a country's citizens.

The Tokyo Convention states that the laws of the country where the aircraft is registered apply to acts committed on board. However, the Montreal Protocol expanded these rules, giving jurisdiction to the arriving country and the home country of the operator in certain cases. Additionally, the country whose airspace the aircraft is in can also apply their laws if the act committed involves that country, as outlined in the conditions set by the Tokyo Convention.

It is important to note that aviation law can overlap with admiralty law, and in many cases, it is considered a matter of international law due to the nature of air travel. The International Civil Aviation Organization (ICAO) provides general rules and mediates international concerns regarding aviation law.

Criminal jurisdiction

For a long time, the challenge arose when an aircraft was outside national airspace, as states did not extend their criminal laws to their aircraft in such cases. This issue was addressed in 1963 with the Convention on Offences and Certain Other Acts Committed on Board Aircraft, also known as the Tokyo Convention. This convention obliges contracting states to enforce their criminal laws and jurisdiction on aircraft registered to them, even when those aircraft are outside their national territory. The convention also empowers the aircraft commander to maintain law and order on board and authorises them to disembark any offender in any contracting state where the aircraft lands.

The Tokyo Convention establishes that the laws of the country where the aircraft is registered take precedence in most cases. However, there are exceptions. The Montreal Protocol, an extension of the Tokyo Convention, grants jurisdiction to the arriving country and the home country of the operator, as well as the lessor in certain circumstances. This expansion aims to provide authorities with more flexibility in dealing with ambiguous jurisdictional cases and encourages international cooperation in prosecuting offenders.

Additionally, the laws of the country whose airspace the aircraft is traversing may also be applicable under specific conditions outlined in the Tokyo Convention. These conditions include situations where the offence has an effect on the territory of that state, involves a national of that state, threatens its national security, or breaches its rules and regulations relating to aircraft flight and manoeuvring. Furthermore, jurisdiction can be exercised to ensure compliance with international agreements to which the state is a signatory.

The application of criminal jurisdiction in aviation is a dynamic and evolving process, with international agreements and conventions shaping the legal landscape. The interplay between different jurisdictions and laws can be intricate, and specific cases may vary depending on the circumstances and the countries involved.

Crimes against aircraft

Aviation law is a complex area of legislation, covering flight, air travel, and associated legal and business concerns. It is considered a federal or state-level concern in the US and most European nations, with some aspects falling under international law.

The 1958 Geneva Convention on the High Seas defines piracy as:

> any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private [i.e., nongovernmental and not noncommercial] ship or a private aircraft, and directed: (a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

This definition specifically excludes acts committed for political motives, as well as those confined within an aircraft, such as mutiny or hijacking. While some nations, including the US, categorise hijacking as aircraft piracy in their own laws, this does not trigger the consequences of piracy under international law.

The 1963 Tokyo Convention addressed the issue of criminal offences committed on or involving aircraft, obliging contracting states to extend their criminal laws and jurisdiction to aircraft registered in their country when outside of national territory. This convention also empowers aircraft commanders to maintain law and order on board and to disembark offenders in any contracting state where the aircraft lands.

International law

Firstly, it is important to note that when an aircraft is on the ground, the laws of that country apply. This takes precedence over any other laws, including those based on the aircraft's country of registration, or the nationality of passengers and crew. For example, a pilot found to be over the legal alcohol limit before a flight will be prosecuted under the laws of the country where the plane is on the ground, regardless of the laws in the country where the plane is registered.

Once an aircraft is in flight, the laws that apply become more complex and varied. Generally, the country where the aircraft is registered has jurisdiction over offences committed onboard, as per the Tokyo Convention. However, multiple countries can apply jurisdiction simultaneously, and the specific nature of an offence can dictate whether local jurisdiction also applies, particularly if it concerns national security or affects a country's citizens.

The Montreal Protocol expanded these rules, giving jurisdiction to the arriving country and the home country of the operator, and in some cases, the lessor. This was to encourage cooperation between states in prosecuting offenders and to provide more flexibility in dealing with grey areas of jurisdiction.

The laws of the country whose airspace the aircraft is in can also be applied under certain conditions, as outlined in the Tokyo Convention. These include if the offence:

• Has an effect on the territory of that State;
• Has been committed by or against a national of that State;
• Is against the national security of that State;
• Consists of a breach of any rules and regulations relating to the flight and manoeuvre of aircraft in that State;
• Requires the exercise of jurisdiction to ensure the observance of any obligation of that State under an international agreement.

There are also various international agreements that affect the exercise of civil jurisdiction by states, including the Warsaw Convention on International Carriage by Air, the Guadalajara Convention, and the Guatemala City Protocol. These agreements relate to issues such as where legal action can be brought and the precautionary arrest of aircraft.

Frequently asked questions