Aviation Security Law

Transcription

1 Aviation Security Law

2 .

3 Ruwantissa Abeyratne Aviation Security Law

4 Dr. Ruwantissa Abeyratne International Civil Aviation Organization 999 University Street Montreal H3C 5H7, Quebec Canada ISBN e-isbn DOI / Springer Heidelberg Dordrecht London New York Library of Congress Control Number: # Springer-Verlag Berlin Heidelberg 2010 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg, Germany Printed on acid-free paper Springer is part of Springer Science+Business Media (

5 Preface Aviation is an important global business and a significant driver of the global economy. It is vital, therefore, that stringent measures are taken to counter acts of unlawful interference with civil aviation. The Convention on International Civil Aviation signed at Chicago on 7 December 1944, states in its Preamble that whereas the development of civil aviation may help preserve friendship and understanding among the people of the world, yet, its abuse could become a threat to general security. The genealogy of the term Terrorism lies in Latin terminology meaning to cause to tremble (terrere). Since the catastrophic events of 11 September 2001, we have seen stringent legal measures taken by the United States to attack terrorism, not just curb it. The famous phrase war on terror denotes pre-emptive and preventive strikes carried out through applicable provisions of legitimately adopted provisions of legislation. The earliest example is the Air Transportation Safety and System Stabilization Act (ATSAA) enacted by President Bush less than two months after the 9/11 attacks. Then, two months after the attacks, in November 2001, Congress passed the Aviation and Transportation Security Act (ATSA) with a view to improving security and closing the security loopholes which existed on that fateful day in September The legislation paved the way for a huge federal body called the Transportation Security Administration (TSA) which was established within the Department of Transportation. The Homeland Security Act of 2002 which followed effected a significant reorganization of the Federal Government. All this goes to show that the law plays a significant role in ensuring aviation security. This book addresses new and emerging threats to civil aviation; evaluates security tools now in use such as the Public Key Directory, Advance Passenger Information, Passenger Name Record and Machine Readable travel documents in the context of their legal and regulatory background; and discusses applicable security treaties while providing an insight into the process of the security audits conducted by the International Civil Aviation Organization (ICAO). v

6 vi Preface The book also examines issues of legal responsibility of States and individuals for terrorist acts of third parties against civil aviation and discusses from a legal perspective the latest liability Conventions adopted at ICAO. The Conclusion of the book provides an insight into the application of legal principles through risk management. Since the writing of this book, the author published three feature articles entitled, The NW Flight 253 and the Global Framework of Aviation Security (Air and Space Law, Volume 35 Issue 2 April ); The Use of Full Body Scanners and Their Legal Implications; and The Use of Forged Passports for Acts of Criminality (both of which could be accessed through the web page of the Journal of Transportation Security (Springer). These three articles form a useful adjunct to this book. Montreal, CA Ruwantissa Abeyratne

7 Contents 1 A Security Culture... 1 A. A Risk-Based Approach... 1 B. The ICAO Response... 2 I. The ICAO High-Level Ministerial Conference... 2 II. Post Conference Work C. Emerging Threats... 9 I. Probability... 9 II. Reacting to Probability III. Deterrence IV. Problems of Deterrence V. Threat Assessment in ICAO VI. The AVSEC Panel VII. Bioterrorism VIII. Cyber-Terrorism IX. MANPADS X. The Diverse Nature of Missile Attacks XI. Installation of an Anti-missile System XII. The Perimeter Guard XIII. International Accord XIV. Other Current Threats References Principles of Responsibility A. State Responsibility I. Principles of State Responsibility II. The Theory of Complicity III. Mechanisms for Extradition of Offenders: The Lockerbie Case IV. The Condonation Theory V. The Role of Knowledge vii

8 viii Contents VI. Profiling of Passengers VII. Airport Profiling VIII. Profiling and the Right of Privacy B. Other Aspects of Responsibility I. Prelude to the Rome Convention of II. The Rome Convention of C. The Rome Convention of I. Background II. Insurance III. Provisions of the Convention IV. The Montreal Protocol of V. Modernizing the Rome Convention References Initiatives of the Early Twenty-first Century A. The Two Liability Conventions I. The General Risks Convention II. The Unlawful Interference Compensation Convention B. Innovative Security Tools I. Biometric Identification II. Public Key Directory C. Advance Passenger Information D. The Passenger Name Record I. Definition and Application of PNR II. The Importance of PNR Data to States III. Advantages of Unified Guidelines IV. Advance Passenger Information Guidelines V. Contracting States Positions E. Machine Readable Travel Documents I. Some Problem Areas F. Unmanned Aerial Vehicles I. Legal and Regulatory Issues II. Operations Over the High Seas III. Air Traffic Services IV. UAVs as State Aircraft References Narco-terrorism A. Introduction B. United Nations Initiatives I. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances II. Some Recent Efforts of the United Nations

9 Contents ix C. ICAO Initiatives I. Basic Principles of Aeronautics on International Narcotic Control D. Other Regulatory Provisions I. Article 4 of the Convention on International Civil Aviation II. Article 3 bis III. Other Legal Aspects IV. ICAO Assembly Resolution A References The Unlawful Interference Conventions A. United Nations General Assembly Resolutions on Unlawful Interference with Civil Aviation B. International Conventions I. Convention for the Prevention and Punishment of Terrorism (1937) II. Convention on International Civil Aviation (Chicago Convention of 1944) III. United Nations Charter IV. The Geneva Convention on the High Seas (1958) C. Concerted Action Under the Auspice of the International Civil Aviation Organization: The Tokyo Convention (1963) I. The Powers Given to Aircraft Commander and Others in Order to Combat Hijackings II. Jurisdiction to Punish the Terrorists III. Powers and Duties of States IV. Extradition V. Responsibilities of States VI. An Answer? D. The Hague Convention on Hijacking I. The Scope of the Convention II. Powers and Duties Imposed Upon States in Order to Combat Hijacking III. Other Provisions E. The Montreal Convention (1971) I. Definition of In Service II. Definition of the Offence III. Penalties and the Scope of the Convention IV. Jurisdictional Powers Given to States Under the Montreal Convention (1971) F. The Bonn Declaration I. The Legal Status of the Bonn Declaration II. Incompatibility of the Declaration with the Vienna Convention on the Law of Treaties

10 x Contents III. The Incompatibility of the Declaration with the Convention on International Civil Aviation (Chicago Convention 1944) and the International Air Services Transit Agreement IV. Problem of Prosecution or Extradition G. A New Convention on the Marking of Plastic Explosives for the Purpose of Detection I. Scope of the Convention II. Obligations of States III. Technical Annex IV. International Explosives Technical Commission V. Final Clauses and Final Act References Aviation Security Audits A. Security Oversight B. The Role of the ICAO Council References Conclusion Index

11 Table of Cases 1969 Case of Walls v Mussens Ltd P Case of Mannington Mills v. Congoleum Corporation 595 F.2d 1287 P Cases International Tin Council v. Amalgamet Inc. P Case of EEOC v. Arabian American Oil Company and ARAMCO Services 113 L E 2d 274 P. 127 Air India v.wiggins [1980] 1 WLR 815 at 819 P. 127 Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.) P. 83 Arab Banking Corporation v. International Tin council and Algemene Bank Nederland and Others (Interveners) and Holo Trading Company Ltd. Interveners) (1988) 77 ILR 1 8 P. 120 Barboni v. Cie Air-France (1982) 36 RFDA 358 P. 82 Buchbinder v. American Airlines, P. 87 Case of Palsgraf v. Long Island Railway Co. P.84 Chartered Bank v. International Tin Council and others P. 120 Cork v. Kirby Maclean Ltd., [1952] 2 All.E.R. 402 (C.A.). P. 84 El Al Israel Airlines, Ltd. v. Tseng 525 U.S. 155 (1999) P. 87 Gibbs v. American Airlines, Inc., 1999 P. 87 Haddad v. Cie Air France (1982) 36 RFDA 355 P. 82 Holmes v. Bangladesh Biman Corporation, [1989] 1 AC 1112 at 1126 P. 127 Laura M.B. Janes (USA) v. United Mexican States (1925) 4 R Intl Arb Awards 82 P. 43 Lutcher SA Cellulose e Papel v. Inter-American Development Bank, 382 F.2d. 454 (DC Cir.1967) P. 120 M Alister (or Donoughue) v. Stevenson [1932] A.C. 562 (H.L.) P. 83 Naziranbai v. the state, 1957 Madhya Bharat Law Reporter, P. 109 Neilson v. Kamloops (City of), [1984] P. 84 Nicaragua v. the United States, ICJ Reports 1986, P. 52 Palsgraf v. Long Island Railway Co. 162 N.E. 99 (N.Y. 1928) P. 84 Schenk v. US, 249 US 47 (1919) P. 9 xi

12 xii Table of Cases Smith v. Socialist Peoples Libyan Arab Jamahiriya, 866 F. Supp 306 (1995) P. 107 Standard Chartered Bank v. International Tin Council and others [1986] 2 All ER 257 P.120 Timberlane Lumber Company v. Bank of America, 549 F. 2d 597 (1976) P. 128 UK v. Albania, [1949] ICJ Rep. 4 (9 April) at 22 P. 108