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This question relates to a recent sexual assault case of a passenger on an airline from Newark, NJ to London, England as published at the Daily Mail.

No details are available in this article as to the exact time or location of the airplane while the crime occurred, but based on the fact that allegedly the other passengers were as sleep, it is safe to assume that it occurred deep into the travel, and much earlier than the flight having reached the air of Ireland or the UK.

What law would apply in the scenario when this occurs in international air space? Would U.S. and/or New Jersey law apply or international law or charges could be brought on each of these?

Is it different if it flies under the flag of the UK? Or if it reached British airspace?

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    Sexual harassment is very different from sexual assault.
    – xngtng
    Feb 11 at 15:48
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    @xngtng: I've edited the question to better reflect the allegations in the linked article. OP, if you want to ask about sexual harassment instead of sexual assault or rape, feel free to roll back this edit; but I'd recommend you make it clear that you're asking about a different sort of infraction than in the linked article. Feb 11 at 20:32
  • Generally, sexual assault include sexual harassment, but of course, the former is the more serious crime; the edit is warranted, thank you!
    – kisspuska
    Feb 11 at 20:49

3 Answers 3

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The Tokyo Convention requires its Parties to ensure that they can exercise criminal jurisdiction over aircrafts registered under its flag.

Chapter II - Jurisdiction

Article 3

  1. The State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board.

  2. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State.

  3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

It exists to prevent legal vacuum so someone is able to prosecute offences committed on board. It does not abrogate the extent of national laws otherwise applicable (though the exercise of such jurisdiction is limited when interfering with the operation of an international flight). So every state whose law claims jurisdiction has jurisdiction in that state's court. Usually the source of the claim can be classified in three ways, territorial (offences occurred on the territory, incl. airspace), quasi-territorial (offences occurred on registered aircrafts and ships), or personal (offences committed by or against nationals of a state). Extra-territorial or universal jurisdictions are also sometimes claimed but with less recognition by other states.

For the United States, a special aircraft jurisdiction applies to all flights registered under its flag and foreign aircrafts in the U.S. airspace, or foreign aircrafts that land in the U.S. whose next scheduled destination or last point departure is in the United States. The jurisdiction covers limited number of offences, mostly related to aircrafts e.g. hijacking or interference with flight personnel, and a number of serious crimes like murder and sexual abuses(see 49 U.S. Code § 46506).

The United Kingdom claims jurisdiction over offences committed in British airspace, or on British-controlled aircrafts (registered in the UK or owned or leased by a UK person) and certain foreign aircrafts that next land in the UK:

92 Application of criminal law to aircraft.

(1) Any act or omission taking place on board a British-controlled aircraft or (subject to subsection (1A) below) a foreign aircraft while in flight elsewhere than in or over the United Kingdom which, if taking place in, or in a part of, the United Kingdom, would constitute an offence under the law in force in, or in that part of, the United Kingdom shall constitute that offence; but this subsection shall not apply to any act or omission which is expressly or impliedly authorised by or under that law when taking place outside the United Kingdom.

(1A) Subsection (1) above shall only apply to an act or omission which takes place on board a foreign aircraft where—

  • (a) the next landing of the aircraft is in the United Kingdom, and
  • (b) in the case of an aircraft registered in a country other than the United Kingdom, the act or omission would, if taking place there, also constitute an offence under the law in force in that country.

Civil Aviation Act 1982

Thus in your case (United Airlines flight from the US to the UK), British courts have jurisdiction if sexual abuses are generally illegal in the US; and if the offence qualifies under chapter 109A of 18 U.S. Code, the US federal government can also exercise its jurisdiction.

As an example of personal jurisdictions that may be applicable, if the victim is a Chinese national and the alleged offence has a minimum sentence of three years, China can prosecute the case under its penal code due to personal jurisdiction, because its penal code said so. Whether China chooses to exercise this jurisdiction, or whether it can effectively exercise such jurisdiction (e.g. extradition if the accused is not in China), is another question. China also claims jurisdiction over offences committed by its nationals abroad (to provide a way for domestic prosecution since China does not extradite its own citizens).

Generally, precedence, preference of deference is given to territorial or quasi-territorial jurisdictions out of respect to another State's sovereignty.

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It depends

Law in international airspace over international waters is the law of the country the plane is registered in - just like a ship is considered land of the registered/owner's country while in international waters. This is, according to the Britannica, also called the quasi-territorial Jurisdiction.

So if this were a Lufthansa Flight, technically everything there happens in Germany under the Tokyo Convention and German Law (StGB §4) and the case can be held in Germany. For United Airlines it means, that the act happened in the US and if it was an Air Japan flight, it would be Japan, no matter in which airspace it happens.

However, other laws might also make the law of other countries apply and put the people into the jurisdiction by virtue of law applying globally: if the perpetrator or victim were US citizens, any felony that happens between the two on that flight can also be prosecuted in the US, as they claim jurisdiction in those cases. Similarly, the UK and Germany have similar laws, in the latter case for only a subset of crimes (StGB §5, 6-11a). This is the principle of personal jurisdiction. But technically, the quasi-territorial jurisdiction can override that. And that again is overridden once the plane lands and enters the territorial jurisdiction of the harboring country.

All involved countries can elect to prosecute or not, and there is no double jeopardy problem as we have separate sovereigns. Who is most likely to prosecute? Depends on the case, but in the least, the country of registration has Jurisdiction and will usually get the first crack at the case. However, extradition treaties and other treaties between two countries can give preference to the country of the nationals.

BTW: we had pretty much the same question for murder on a plane.

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  • Can you elaborate further on why you think that prosecution in several jurisdictions is not double jeopardy? Over here, DJ is understood quite broadly. ECJ recently ruled that even an Interpol Red Notice from the US can be DJ if the same case previously got closed for monetary stipulation in Germany. ECJ further ruled that a suspect has the right to challenge a foreign interpol notice in Germany even in the absence of an arrest or extradition proceeding. lto.de/recht/hintergruende/h/…
    – erebus
    Feb 22 at 13:49
  • @erebus because double jeopardy does simply NOT attach to different sovereigns and in fact does not exist in several countries! The Human Rights Convention Article 14 (7) ban on punishing someone twice for the same at does explicitly not ban a different sovereign from punishing the same act that another already did. If they can get their hands on the person, all involved countries can have a crack at them and adjudicate them. The EU has a special extradition treaty among members that does ban only other EU members from convicting someone for the same act in different member states.
    – Trish
    Feb 22 at 14:39
  • But it does not ban for example the US from attempting to have a crack at trying to convict for a murder on a Lufthansa Flight
    – Trish
    Feb 22 at 14:43
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    @erebus you are somewhat right but mostly wrong: hrr-strafrecht.de/hrr/bverfg/06/2-bvr-38-06.php : "Bei Inkrafttreten des Grundgesetzes war eine umfassende zwischenstaatliche Geltung des Grundsatzes "ne bis in idem" nicht anerkannt." and "5. Auf die Durchführung eines inländischen Strafverfahrens deshalb zu verzichten, weil ein ausländischer Staat die Tat bereits verfolgt oder den Täter bestraft hat, ist von Verfassungs wegen nicht geboten. " - Only when the extradition treaty with a contry says it, a country gets no crack at an extraditied person.
    – Trish
    Feb 22 at 16:56
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    In fact, the BGH decided in that case explicitly that Other country's adjudication does not prevent Germany from prosecuting, but for other treaties that would bind germany. That is only the case for the EU and only limited at the moment. The moment something happened at least in part in Germany, ne bis in idem does not apply if they are also prosecuted in another state.
    – Trish
    Feb 22 at 17:10
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What law would apply in the scenario when this occurs in international air space?

The cited article states the alleged offence occurred on a United Airlines aircraft (an American company) before landing at Heathrow.

As rape is an offence in both the UK and USA, and the aircraft landed in the UK, s.2 of the Civil Aviation Act 1982 applies, which says:

(1) Any act or omission taking place on board a British-controlled aircraft or (subject to subsection (1A) below) a foreign aircraft while in flight elsewhere than in or over the United Kingdom which, if taking place in, or in a part of, the United Kingdom, would constitute an offence under the law in force in, or in that part of, the United Kingdom shall constitute that offence; but this subsection shall not apply to any act or omission which is expressly or impliedly authorised by or under that law when taking place outside the United Kingdom.

(1A) Subsection (1) above shall only apply to an act or omission which takes place on board a foreign aircraft where—

  • (a) the next landing of the aircraft is in the United Kingdom, and

  • (b) in the case of an aircraft registered in a country other than the United Kingdom, the act or omission would, if taking place there, also constitute an offence under the law in force in that country.

(1B) Any act or omission punishable under the law in force in any country is an offence under that law for the purposes of subsection (1A) above, however it is described in that law.

[...]

The power of arrest comes from s.24 of the Police and Criminal Evidence Act 1984

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