Crossing the line?

Washington is testing the limits on how far a single nation can or should go in asking others to adopt its rules on regulating air security. Some argue that increasingly intrusive entry procedures and new requirements on overflights cross the line

Still smarting from the political charge of unilateralism, the USA has promised more international co-operation and consultation. Its actions, though, have raised international tensions instead of soothing ruffled feathers and indeed have raised serious questions about how far it can go.

In one of the most dramatic instances yet, US traffic controllers turned back a KLM flight from Amsterdam to Mexico City because two of its passengers were on a US “no-fly” list for a flight that was planned to cross US airspace but not land in the country. The US government had no rule covering the situation, but within days the Transportation Security Administration (TSA) announced revised air security rules that required all passengers on all non-US airlines to be screened against a US no-fly list before entering US airspace – even if the flight was not scheduled to land in the USA.

Since November 2001 all airlines have been required to submit passenger and crew manifests to US agencies for flights scheduled to land in the USA, but extending these manifest rules to overflights raises legal issues. One legal authority, William Karas of Washington law firm Steptoe & Johnson, believes that advance manifest requirements for flights landing within the USA are a proportional response to the 11 September tragedy but notes that any laws must be reasonable in terms of how much they infringe on the interests of other nations, balanced against how well they will accomplish their intended purpose.

The question then arises if this is equally true for overflights. This is not as clear cut as territorial boundaries might make it seem. And legalities aside, how much security is bought with demands for advance manifests on overflights compared with what it could cost, both in terms of airline operations and national dignity? This seems especially true for Canada. Approximately two-thirds of its domestic flights routinely pass through US airspace, and staying solely within Canadian airspace would add substantial time and expense. Yet Canada is reluctant to give the USA domestic passenger manifests. Not only might it violate its privacy laws, but many Canadians regard it as an affront to their sovereignty.

Indeed individual sovereignty – in the form of personal dignity and privacy – is very much at the core of objections to other US actions in the name of security. US insistence that visitors from major trading partners carry passports with biometric identifiers, coupled with increasingly onerous visa requirements, has driven away large numbers of visitors while massively inconveniencing those who did come. Congress only reluctantly pressed the State Department to extend its biometrics deadline. And Homeland Security insistence on fingerprinting and photographing many visitors as part of the US/VISIT programme has offended many.

In the wake of the 7 July bomb attacks in London, further such actions are likely. Indeed less than a week after the tube and bus bombings, Homeland Security Department Secretary Michael Chertoff announced that US/VISIT travellers would now have to give prints for all 10 fingers instead of the two earlier required. And Chertoff said that he would push for a firm biometric passports deadline. Ominously, proposed federal law-enforcement rights to eavesdrop electronically on airborne internet services at almost any stage of flight also raises privacy issues.

While few would deny any nation the right to control who crosses its borders, the sheer size and importance of the US market makes its requirements into de facto world standards. And when it has failed to consult on technical standards for biometrics or on the validity and sourcing of its no-fly lists, the world becomes more reluctant to beat a path to US doorways.

Perhaps Washington should consider a point made by Kenneth Quinn, editor of the American Bar Association’s Air and Space Law Forum: “While the US exercise of extraterritorial application of safety and security requirements usually rests on sound legal footing…that does not necessarily make it wise or effective. Rarely does one size fit all…We need a more tailored, nuanced approach that recognises differences and applies resources in a smart way”.

Any nation has the right to control who crosses its borders, but the USA’s sheer size means its rules become de facto world standards

Source: Airline Business