Air transport security

Szyliowicz, examines the public policy dimensions that impact aviation and the security issues involved.. We begin by identifying the significance of various contextual issues that have

Air Transport Security

Series Editors: Joseph S Szyliowicz, University of Denver, USA and

Luca Zamparini, University of Salento, Italy

Focus on security has dramatically sharpened at all levels of government

following the terrorist attacks experienced in several regions of the world in the

last decade Improvement in transport security now represents one of the key

topics on the agendas of counter terrorist agencies worldwide The Comparative

Perspectives on Transportation Security series provides a much-needed platform

for international and comparative analysis of transport security policies and

practices Looking at different modes of transport in turn, each book in the series

offers a comprehensive and multidisciplinary analysis of security issues for a

particular transport mode, incorporating case studies of several key countries.

Titles in the series include:

Maritime Transport Security

Issues, Challenges and National Policies

Edited by Khalid Bichou, Joseph S Szyliowicz and Luca Zamparini

Multimodal Transport Security

Frameworks and Policy Applications in Freight and Passenger Transport

Edited by Joseph S Szyliowicz, Luca Zamparini, Genserik L.L Reniers and

Dawna L Rhoades

Air Transport Security

Issues, Challenges and National Policies

Edited by Joseph S Szyliowicz and Luca Zamparini

Air Transport Security

Issues, Challenges and National Policies

Edited by

Joseph S Szyliowicz

University of Denver, USA

Luca Zamparini

University of Salento, Italy

COMPARATIVE PERSPECTIVES ON TRANSPORTATION

SECURITY

Cheltenham, UK • Northampton, MA, USA

All rights reserved No part of this publication may be reproduced, stored

in a retrieval system or transmitted in any form or by any means, electronic,

mechanical or photocopying, recording, or otherwise without the prior

permission of the publisher.

Edward Elgar Publishing, Inc.

William Pratt House

9 Dewey Court

Northampton

Massachusetts 01060

USA

A catalogue record for this book

is available from the British Library

Library of Congress Control Number: 2018935756

This book is available electronically in the

Social and Political Science subject collection

1 Introduction 1

Joseph S Szyliowicz and Luca Zamparini

PART I THEMES, ISSUES AND FRAMEWORKS

Joseph S Szyliowicz

Luca Zamparini

4 International and EU legal frameworks of aviation security 43

Francesco Rossi Dal Pozzo

5 The role of the private sector for air transport security 63

Jeffrey Price

Douglas Brittin

PART II POLICY APPLICATIONS

Joseph S Szyliowicz

Kamaal Zaidi

Dawna Rhoades and Michael J Williams163

Hillel Avihai

11 Air transport security in Kenya 180

Evaristus Irandu

Priyanka Puri, Manjit Singh Sandhu and Santha Vaithilingam

Toki Udagawa Hirakawa

Tim Prenzler

15 Conclusions 263

Joseph S Szyliowicz and Luca Zamparini

3.1 Private and public equilibrium levels of security 34

12.3 Passenger movement in all Malaysian airports (2010–2014) 206

12.4 Global aeronautical distress and safety system formulated

9.2 Brazilian air carriers: operational and financial data 148

9.3 Passenger numbers (000s) at the largest Brazilian airports

(2010–2015) 149 9.4 Sample technical competence standards (patterns) and

10.1 Human element vs technological element: a comparison

overview 17411.1 Chronology of terrorist threats or incidents on air cargo

planes 187

12.1 Malaysian aircraft accidents in the last 40 years 201

12.3 Details of initial response of missing aircrafts 209

12.5 Malaysian legislation related to air transport security 215

Hillel Avihai, Skyjack-Aviation Terrorism Research, research fellow at the

Institute for Counter Terrorism (ICT), Israel

Douglas Brittin, The International Air Cargo Association, USA

Evaristus Irandu, University of Nairobi, Kenya

Tim Prenzler, University of the Sunshine Coast, Australia

Jeffrey Price, Metropolitan State University of Denver, USA

Priyanka Puri, Thrive, Malaysia

Dawna Rhoades, Embry Riddle Aeronautical University, USA

Francesco Rossi Dal Pozzo, University of Milan, Italy

Manjit Singh Sandhu, Monash University, Malaysia

Joseph S Szyliowicz, University of Denver, USA

Toki Udagawa Hirakawa, Toki’s Security Lab, Japan

Santha Vaithilingam, Monash University, Malaysia

Michael J Williams, Embry Riddle Aeronautical University, USA

Kamaal Zaidi, University of Calgary, Canada

Luca Zamparini, University of Salento, Italy

1 Introduction

Joseph S Szyliowicz and Luca Zamparini

Although terrorist attacks on aviation are not a new phenomenon – the

earliest hijacking occurred in 1931, the first bombing two years later – they

pose a greater threat to this vital transportation mode than ever before In

2016 alone, two planes were hijacked, one was bombed, and four airports,

a popular new target, were attacked Aviation is today a favored target of

terrorists because of its vulnerabilities and the human, psychological and

economic toll that a successful attack achieves

Ironically, one of the reasons that aviation represents such an attractive

target is the degree to which it has emerged as an enormous global activity

Every day millions of people across the globe arrive at an airport to take

a commercial flight, many others fly their own planes or climb abroad a

private jet And, those passenger jets carry tons of cargo, while air freight

carriers transport millions more

Each of three basic dimensions, passenger, air cargo, and general

avia-tion, has grown dramatically In 1975, the world’s airlines carried about 9.5

million persons, by 2015 that number had more than tripled to almost 33

million Air cargo has grown even more, from 15.570 million ton

kilom-eters in 1975 to almost 190 million in 2015 According to the World Bank,

the industry provides over 60 million jobs and generates over $25 trillion

Clearly, aviation plays an ever increasing role in connecting people across

the world and in the functioning of the global economy as well as in the

economies of individual states Disrupting air transport thus affects not

only the country whose airport or airline is attacked but produces ripple

effects that impact many other countries as well

The very size and complexity of aviation greatly complicate efforts to

protect it from a terrorist attack for each of these dimensions and poses

unique security challenges Securing airports involves dealing with large

numbers of people, not only the enormous numbers of passengers who

pass through but the large number of employees, any one of whom may

turn out to be, as has been the case, a terrorist Terrorists are fully aware of

these vulnerabilities and have moved, tragically with success on too many

occasions, to exploit them

Though aviation had been subject to numerous hijacking and ings for decades, a turning point came in 1968 Until then, attacks had

bomb-been carried out for individual motives and consisted of two types The

first involved hijackings by individuals seeking to escape to a better life,

whether from behind the iron curtain or from Cuba The second consisted

of attacks that were carried out by individuals with personal motives such

as robbery or to collect insurance On July 23, 1968, however, a very

dif-ferent motive led three members of the Popular Front for the Liberation

of Palestine (PFLP) to hijack an El Al Flight, a political one Though

eve-ryone aboard was released after 40 days of negotiations, a precedent had

been established In addition to personal goals, revenge or money, attacks

on planes could be designed to achieve a political objective, in this case to

draw attention to a cause and to achieve the release of political prisoners

Now that it was apparent that attacks on aviation could promote political goals, it was inevitable that some organization would do so more

violently That tragic event took place two decades later, in December

1988, with the destruction of Pan Am 103 over Lockerbie, Scotland Two

hundred and fifty-nine passengers and crew plus 11 local inhabitants were

killed Another turning point had been reached, for though the goal was

also political, the objective was to sow terror and inflict psychological and

economic damage

However, it took some time before the importance of achieving effective aviation security received the attention that it required The need to do so

was finally brought home by the 9/11 attack on the twin towers of the World

Trade Center in Manhattan and on the Pentagon in Washington, DC 9/11

introduced a new chapter in aviation security, for that disaster dramatically

demonstrated the degree to which aviation could be exploited by terrorists

to further their aims and forced not only the United States, but other

coun-tries as well, to focus on the numerous vulnerabilities that characterized the

aviation system at that time Since then enormous amounts of resources

have been allocated throughout the globe in an effort to ensure that people

and goods can be securely transported internationally

Yet the attacks continue because of the attractiveness of the targets and the difficulties involved in safeguarding the aviation sector, including

the terrorists’ capabilities in circumventing the security measures that

have been implemented They have continually worked to develop new

tactics as evidenced by their ever-changing modes of attack and choice

of targets within the aviation system Thus, attacks have ranged from a

‘shoe bomber’ seeking to destroy a plane to bombings of terminals And,

even as these words are being written, intelligence reports that terrorists

are developing a new threat involving bombs that cannot be detected

with existing technologies have led to the US decision to impose new

Introduction 3 restrictions involving laptops on flights originating from certain countries

Nor can one minimize other very real potential threats including a

cyber-attack on a range of possible targets to the use of drones or a missile The

ever-changing nature of the threat to aviation obviously requires continual

adjustments on the part of security agencies and the adoption of proactive

rather than reactive strategies

The threat of a cyber-attack, which can originate anywhere,

under-lines another of the numerous difficulties in achieving aviation security,

its global character Since it is an international activity, no nation can

ensure that its airlines and airports can be secure, regardless of the

resources that it devotes to this effort Even if a country develops, funds,

and implements effective national policies, a high percentage of arrivals

(people and freight) originate elsewhere so that a failure to effectively

screen passengers, baggage, and cargo at the point of origin or at stops

along the way can profoundly impact that country’s aviation sector The

Lockerbie massacre tragically demonstrated this vulnerability, for the

flight to New York originated in Frankfurt and involved a change of

planes in London The bomb that destroyed the plane had been placed

in a Samsonite suitcase and interline luggage security proved to be

tragic ally inadequate

Accordingly, regional and international coordination is essential, and

an entire body of international air law has emerged as well as numerous

regional agreements designed to overcome the limits that the functioning of

this sector imposed on individual countries By World War II, the dramatic

growth and technological developments that had taken place in previous

decades led to a widespread understanding that an international

agree-ment regulating many aspects of aviation was necessary Accordingly, in

1944, a meeting was held in Chicago that produced a Convention on Civil

Aviation (the Chicago Convention) that was signed by 52 countries That

landmark treaty established the International Civil Aviation Organization

(ICAO), which became a specialized UN agency in 1947 Though security

was not an important agenda item at that time, it subsequently became

a major area of concern, beginning in 1963 with the Tokyo Convention

Today, it plays a major role in organizing international efforts to safeguard

aviation, for each member is required to establish a security organization

that develops and implements a specific program to secure its airports

and airlines Reaching agreements on such topics and ensuring that states

implement them effectively, however, is obviously a challenging task given

the variety of states involved, their differing characteristics, policies and

capabilities

Nevertheless, the importance of overcoming such obstacles and

achiev-ing multinational cooperation is widely accepted given the nature and

goals of the organizations that pose the greatest threat to aviation security

today – al-Qaeda and the Islamic State (ISIS) Al-Qaeda is, of course,

responsible for the new era in aviation security, which was inaugurated

by its deadly 9/11 attacks on the World Trade Center and the Pentagon

Though its power and influence apparently diminished following the death

of Osama Bin Laden in 2011, it has recently experienced a resurgence that

is likely to continue Even if that does not occur, it still retains the ability

and interest in attacking aviation facilities in many countries

ISIS, unlike al-Qaeda, sought to establish its rule over a geographic area but it has lost almost 60 percent of the territory it controlled in Iraq and

Syria in the last few years and remains under severe pressure Though it

will probably lose much more territory, it has demonstrated its ability to

use the internet to recruit men and women in many countries who, whether

for a shared religious orientation, support for its goals, or personal reasons,

are willing to engage in terrorist plots Thus, regardless of what happens

on the ground, ISIS will doubtless be able to continue to attract adherents

and to organize terrorist attacks Accordingly, it too must be considered

a continuing terrorist threat, one which has been and will continue to be

directed to aviation

Furthermore, given the growing competition between ISIS and al-Qaeda for global support and resources from the multinational jihadi community,

the threat to aviation is likely to increase in the years to come And, other

groups and organizations may well follow their example How widely

avi-ation continues to be regarded as an attractive target was recently vividly

illustrated by the comments made, on February 1, 2017, by a Palestinian

leader, Fatah Central Committee member and former Palestinian

negoti-ator Nabil Shaath After condemning Europe for its lack of concern for

the fate of the Syrian people and noting that the terror attacks had led

to action, he stated: ‘Do we have to hijack your planes and destroy your

airports again to make you care about our cause?’1

Clearly, the state of global aviation security requires continuing tion In this work, distinguished scholars explore the structure and

atten-functioning of this global system and the evolution and current state of

the security arrangements that have been implemented in many countries

Thus, Part I consists of a discussion of the various domestic and external

factors that have influenced the organization and functioning of the

avi-ation sector The goal of this section is to identify the context within which

security issues are defined, agendas established, decisions made, policy

formulated, and resources allocated Furthermore, the strengths and

weak-nesses of this structure and its functioning are also identified and discussed

including an analysis of the unique characteristics of air cargo and their

implications for security

Introduction 5Chapter 2, ‘The policy dimensions of air transport security’ by Joseph

S Szyliowicz, examines the public policy dimensions that impact aviation

and the security issues involved These can be considered at three levels:

the national, the international, and the regional Essentially, the policy

adopted by a state can be analyzed along two dimensions, the particular

issue area and the policy instrument that is applied Thus, the choices

that states make in defining and prioritizing their aviation issues and in

selecting particular instruments will vary Though all consider aviation

security an important topic, the specific measures that are adopted depend

upon such factors as international requirements, the nature of the political

system, and relations with industry Such considerations also influence

developments at the international level, which has witnessed the growth

and expansion of a large body of international agreements and

conven-tions Though these play an important role in safeguarding aviation, issues

of application and implementation sometimes continue to pose difficult

challenges In order to overcome some of these, regional organizations,

notably by the EU, have implemented policies designed to ensure that

security standards are effectively developed and implemented within the

region Some states, notably the US have also adopted policies that seek to

ensure that the aviation systems of other countries with whom they

inter-act closely will be secure Still, despite all these efforts, ensuring that the

global aviation system functions in a secure manner remains a challenge

Chapter 3, ‘Economic issues in air transport security’ by Luca Zamparini,

aims at providing a brief review of the economics literature on air transport

security by considering the various dimensions that have to be tackled in

order to reach an optimal level of security procurement The chapter will

emphasize that it is important to consider that a good amount of security

does not only benefit air passengers, freight forwarders, airlines and the

other economic actors that are directly involved in the aviation industry

It also generates positive spillovers (externalities) in the overall economic

system The chapter will also discuss the assessment of risk in aviation

security by determining that there are four types of societal risks that have

to be considered in models dealing with this topic: perceived, real,

statisti-cal and predicted risk It will then analyze two different models that have

been proposed in order to estimate the net benefits that are determined by

the adoption of air transport security measures Lastly, it will discuss the

models that assess airport security screening This appears to be the topic

that has attracted the largest share of the relevant literature

Chapter 4, ‘International and EU legal frameworks of aviation security’

by Francesco Rossi Dal Pozzo, stresses the intrinsic international nature of

air transport and travel and the consequent need to implement a common

legal framework The legal initiatives related to aviation security started

to emerge in the 1960s as an answer to the first wave of hijackings and

were substantiated in the Tokyo Convention in 1963 Subsequent

terror-ist related hijackings led to The Hague and Montreal Conventions The

consequent regulations were changed in the decade following the tragic

events of September 11, 2001 by enhancing the security protocols within

the aircrafts and at the airports Such measures should be commensurate

with the risks that may be faced and should take into account cost-benefit

ratio analyses The Resolution A39-18 adopted by ICAO members during

the 39th ICAO General Assembly in Montreal (September–October 2016)

has consolidated the previous regulations and has started to consider

cyber-attacks The chapter then considers the EU regulations for aviation

security since the September 11 events It emphasizes that the first response

led to regulations that were not easily implemented and that, in the

ensu-ing years, several measures were aimed at increasensu-ing security levels and at

homogenizing the protocols and procedures among countries A further

section of the chapter discusses passenger name records, which started as

a commercial initiative and was converted to a security protocol in 2004

Chapter 5 on ‘The role of the private sector for air transport security’,

by Jeffrey C Price, discusses various areas of air transport security that

involve the private sector Corporations are normally employed because

they are supposedly able to bring a higher degree of efficiency to various

tasks than government agencies The first dimensions that the chapter

considers are security screening technologies and personnel Prior to

September 11, security screening was managed by private firms This

was then questioned given that aviation security was deemed to represent

a national security issue Eventually, some airports in the US opted for

Transport Security Administration (TSA) screening and others for private

companies under the supervision of TSA A close collaboration between

private firms and public authorities has historically characterized the

evolution of security screening technologies and apparels The chapter

also discusses access control, identity management and airport

perim-eter security; activities that are deployed by private security contractors

Especially important, in this context, are the perimeter intrusion detection

systems aimed at preventing the access of unauthorized personnel onto the

airfield The chapter then discusses the aircraft operator security

technol-ogy Cockpit doors and secondary flight deck barrier protections, and their

evolution over time, are two noteworthy examples Finally, the intelligence

dimension, including interdiction and research to prevent security related

Introduction 7while maintaining good business practices Air cargo is a vast and growing

sector that transports a wide range of products, including some that are

classified as ‘dangerous goods’, in a variety of different models, each of

which presents its own security challenges In each, numerous actors are

involved, ranging from shippers to freight forwarders to the transportation

companies Security has always been a challenge to the industry because of

criminal activities but in recent decades the terrorist threat has led to the

development of new security processes and regulations, which, given the

nature of the supply chains, require common global practices and

object-ives Furthermore, these regulations extend well beyond merely screening

at airports and involve a wide variety of programs, procedures and

tech-nologies Achieving a high level of security in this environment requires

the resolution of numerous complex operational issues Safeguarding air

cargo under these conditions requires, above all, close cooperation with

regulators, and globally accepted standards and definitions

Having established the general context which shapes global aviation and

its security, we turn our attention, in Part II, to a number of country case

studies drawn from several geographic regions (North America, South

America, Europe, Asia, Africa and Australia) All these countries have

confronted various problems in their efforts to establish effective security

policies and practices as a result of their particular situations Accordingly,

this section has two goals First, it seeks to identify communalities and

differences in how states define security issues, establish agendas, make

decisions, formulate policy and allocate resources Second, it seeks to

identify the strengths and weaknesses of the security structures that these

states have established in order to draw comparative conclusions

This section opens with Chapter 7, by Joseph S Szyliowicz, which

dis-cusses the ‘Aviation security in the USA’ The US did not accord adequate

attention to safeguarding its extensive aviation system prior to 9/11 but

it then moved vigorously to confront the security challenge It adopted

various new policies, rules, and regulations that established a new structure

and adopted policies that were designed to ensure that passengers could

fly safely, that cargo would be secure and that general aviation facilities

would also be adequately protected As part of this effort, it has played an

important role in attempting to ensure that its security standards applied

beyond its borders Nevertheless, the analysis reveals that despite all these

efforts, all parts of its aviation system – passengers, cargo, and general

aviation – still contain various shortcomings

Chapter 8, by Kamaal Zaidi, considers ‘Aviation security policy in

Canada’ He begins by noting the multilayered security matrix, made

up of a network of laws, regulations, policies, measures, programs and

technology that serve as the guiding framework for aviation security in

Canada The importance of this multilayered security matrix emerges

when one layer is breached and the others continue to serve as preventive

barriers to avoid criminal attacks or interference with civil aviation The

chapter then lists all government and private entities involved in aviation

security and their procedures and activities The author then considers the

various programs and measures that have been adopted for both passenger

and cargo security along with the relevant laws, and the main purpose of

each law The chapter finally discusses the main trends that characterize

the current evolution of aviation security: a) privacy and aviation security;

b) the review of Canada’s Transportation Act; c) the regulation of drones;

and d) the right to protest in Canadian airports

Chapter 9, by Dawna Rhoades and Michael J Williams, turns its tion to a South American country and examines ‘Safety and security in

atten-Brazilian aviation’ The chapter begins with a description of the atten-Brazilian

geography and population and a discussion of their importance for the

design of safety and security measures It then considers the air

transporta-tion sector in the key areas of airlines, airports, aircraft manufacturing,

general aviation, air traffic management and aircraft maintenance and

training Brazilian airlines have been characterized, historically, by a high

level of instability over time Some airports suffer from overcrowding and

the related flight delays and cancellations General aviation plays an

impor-tant role in Brazil, particularly for many destinations in the less developed

interior of the country, which cannot be reached by surface transport, or

only with difficulty The chapter then discusses safety and security issues

In the latter case, both crimes against passengers and cargo thefts are

con-sidered The difficulties of airport security due to the lack of investments

in surveillance technology and of physical and electronic barriers are

highlighted and a list of possible recommendations for the improvement

of cargo and passenger security is then provided The chapter ends with a

description of the Civil Aviation National Agency, which is responsible for

aviation regulation in Brazil

Chapter 10, by Hillel Avihai, discusses ‘Air transport security in Israel’

The chapter begins by considering the relevance of the terrorist hijacking

in 1968 for the development of a very stringent aviation security strategy

in Israel It then lists and comments on the main security related episodes

that have occurred since Israeli security philosophy has, at its core, the

necessity to identify potential terrorists, which it seeks to achieve by

rely-ing mainly on the detection of passengers’ intentions The chapter then

lists the assumptions that characterize the multi-circle strategy adopted

by the Israeli security officers and agencies They emphasize the role of

technology and of well-trained personnel and the importance of security

over some inconvenience to passengers The various circles of aviation

Introduction 9security are represented by the area around the aircraft, terminal security

and preventing the aircraft from being used as a flying missile In order to

achieve this goal various measures in terms of security personnel,

strength-ened cockpit doors and cargo containers have been adopted The chapter

then considers the security procedures at Israel’s airport, which have, as

their aim, that no suspicious human or physical element should be able to

overcome the security checks This is accomplished by a profiling of

pas-sengers by trained personnel The chapter concludes with a comparative

analysis between the human and the technological elements that includes a

discussion of their related advantages and disadvantages

Chapter 11, ‘Air transport security in Kenya’ by Evaristus Irandu,

provides a study related to an African country It considers the relationship

between air transport and the overall development of African countries

and identifies security as one of the most relevant issues in this context

It then reports on the continually growing trend of air transport in Kenya

and the quantity and quality of airports in the country The chapter

con-siders the procedures and protocols that characterize security in Kenyan

airports and the agencies that are involved in these tasks Air cargo security

is also analyzed and the roles of the various public and private stakeholders

involved are discussed The author concludes that it is impossible to

per-form a full screening of all items The chapter then lists and discusses other

air transport security challenges faced by Kenya, including the location of

airports, access control and airport perimeter fencing, security screening

equipment and procedures, and the training of security personnel The

chapter finally considers the main strategies to enhance air transport

secur-ity in Kenya, which include the need to implement ICAO standards, to

cooperate with other East African Community members and to implement

the Aviation Security (AVSEC) mechanism

Chapter 12, ‘Air transport security in Malaysia’ by Priyanka Puri,

Manjit Singh Sandhu and Santha Vaithlingam, focuses on a country

that has suffered some of the worst episodes related to aviation security

in the current decade The chapter begins by stressing the relevance that

the tragic events of 2014 have had on the perception of security by the

Malaysian airline and by the general public It also provides a quantitative

estimate of the loss in income in the aftermath of these episodes It then

discusses the Malaysian civil aviation industry and provides a thorough

analysis of the two episodes that occurred in 2014 The chapter then

considers air transport security in Malaysia with special attention to the

role, functions and organization of its governing body, the Department of

Civil Aviation It also considers the main challenges that the Department

confronts including aircraft flight tracking and conflict zone risk

mitiga-tion A thorough analysis of these topics is presented both in terms of risk

assessment and of possible strategies to minimize the threats they pose to

a secure aviation system

Chapter 13, by Toki Udagawa Hirakawa, entitled ‘Air transport security

in Japan’ considers the situation in a second Asian country The chapter

begins with detailed descriptions of the three main aviation security related

episodes that have involved Japan Airlines both domestically and at foreign

airports/routes These served to raise awareness of the importance of the

issue of aviation security and the need for new measures September 11

marked another turning point and led to the further strengthening of

secu-rity related measures Though these changes enhanced the level of secusecu-rity,

the chapter continues by highlighting and describing the main problems

that still need to be dealt with in order to further strengthen the Japanese

aviation security system These are related to voluntary security checks, to

the imposition of expenses to private airlines, to the overall organizational

structure of the aviation security system and to the balance between

security and service The chapter concludes by noting the importance of

aviation security for the successful development of the 2020 Olympic and

Paralympic games in Tokyo

This second section concludes with Chapter 14, by Jeffrey Price,

‘Aviation security in Australia’ It begins by emphasizing that the provision

of aviation security is a challenging task in the country given the number

of airports and the quantity of passengers and cargo It then describes

the situation that characterized aviation security before 2001, one that

did not consider terrorism explicitly because of the widespread belief that

Australia was not considered as an important target Things dramatically

changed after the September 11 events, for these led to a complete

recon-sideration of the aviation security structure and procedures in the country,

including an immediate commitment for security upgrades that involved

all domains of aviation The chapter then discusses two subsequent

security related episodes that raised doubts about the effectiveness of the

measures that had been adopted An external investigation and an inquiry

that lasted three years resulted in a series of recommendations on how to

further strengthen the Australian security system The chapter ends with

a description of the most recent events and with an analysis of the most

controversial issues that prevail in Australian aviation security

In the last chapter of the book, we turn our attention to a consideration

of the issues that have emerged in the two previous sections of the book

We begin by identifying the significance of various contextual issues that

have shaped aviation security policy and the general challenges that remain

to be tackled at that level We then turn our attention to a comparative

analysis of the specific case studies in order to identify the similarities and

differences in the policies that different states have adopted, the resources

Introduction 11they have allocated, and their effectiveness We conclude with an analysis

of the lessons that emerge and a consideration of what, if anything, can be

done to enhance aviation security, nationally and globally given not only

the known existing threats but those that loom on the horizon as well

NOTE

1 https://www.memri.org/tv/nabil-shaath-int’l-peace-conference-anything-better-us-led-ne

gotiations-do-we-need-hijack-planes.

PART I

Themes, issues and frameworks

2 The policy dimensions of air

transport security

Joseph S Szyliowicz

INTRODUCTION

The structure and functioning of the aviation system has changed

dramati-cally in recent years and these developments have had major contextual

and substantive implications for security policy at all levels, international,

regional, and national

Essentially these changes can be attributed to four major trends that

have transformed transportation systems everywhere and have had major

impacts upon public policy in regards to aviation and the other modes The

first is globalization, which has resulted in the ever increasing interaction of

public and private systems across national boundaries This process, which

has been facilitated by information and other technological advances, has

not only led to an enormous growth in the movement of people and goods

across national boundaries but it has created complex new national and

cross national security issues It has also contributed to the emergence of

powerful organizations in both the passenger and freight sectors, actors

who have wielded great influence in the shaping of national, regional,

and international policies Their enhanced role has been facilitated by a

second trend, increased privatization and deregulation As aviation has

constantly grown in economic and commercial importance, states have

granted the airlines far more freedom of action than ever before so that

they and numerous related organizations have emerged as major actors

in the development and implementation of policy, including security A

third trend, intermodalism or multimodalism, has involved the

increas-ing integration of the various transport modes, which traditionally have

functioned as separate entities, into a single system This trend has also

facilitated personal travel and the shipment of goods but it too has created

complex new security challenges ranging from the design of large new

facilities to effective communications between different groups of security

personnel.1 Finally, one cannot overlook the ever growing public concern

with social and political issues such as sustainable development, climate

change and privacy.2 All these trends may have resulted in enhanced

transport efficiency but each has also created complex new challenges for

the development of effective policies to safeguard aviation nationally and

internationally

Any policy, including the ones that governments have adopted in regards

to aviation, can be analyzed along two dimensions – the specific issue area

involved and the policy instrument that is used to resolve it.3 Aviation

policy inevitably has to deal with a wide range of socio-economic and

political issues involving airports, airlines, and passengers In the case of

airports for example, questions such as ownership and control,

construc-tion and expansion, degree and type of economic autonomy, frequently

arouse controversy Similar issues arise in regards to airline regulations in

such areas as market access, routes, fares, marketing, rural air services and

safety issues among others – all of which have security implications

Though all states have to deal with such issue areas, they have numerous instruments available These include outright ownership, subsidies, direct

and indirect contractual arrangements, regulatory controls and research

and development activities Which one is selected, and how it is applied, is

determined by numerous factors including the nature and functioning of

the political system, and its socio-economic context, including financial,

social, and international considerations As a result, wide variations exist

in the policies that are adopted and in their implementation Thus, though

airports are still essentially controlled by public entities – national, state or

municipal governments – the relationship between the public and private

sectors has evolved over time so that today the private sector has assumed

a large role in many operations as well as becoming increasingly

inte-grated.4 Given the political variables involved, however, it is not surprising

that states exercise different degrees of control over their operation as well

as over the airlines that use them Such variations obviously create great

difficulties in efforts to achieve the degree of harmonization that a secure

global aviation system requires

All states, however, consider their aviation systems to be valuable economic and social sectors whose many dimensions require governmental

attention Australia, for example, recently published a comprehensive

‘National Aviation Policy White Paper’,5 which identified this sector as ‘an

industry of national strategic importance’ and ‘a key driver of broader

eco-nomic prosperity’,6 and established long term goals which reflect the key

actors and the potential political conflicts involved Though the

govern-ment accords priority to safety and security, these include (1) international

aviation, (2) domestic, regional, and general aviation, (3) industry skills

and productivity, (4) consumer protection, (5) airport infrastructure, and

(6) environmental impacts Thus, though it explicitly recognizes the critical

The policy dimensions of air transport security 17economic role of the private sector it has to interact with it to develop

policies that deal with aviation’s impact upon communities, travelers and

the environment.7

Such policies are outlined for each sector In the security area, these are

designed to minimize risks, develop functional relationships with industry,

align with international requirements and minimize negative impacts upon

passengers and cargo The specific instruments include passenger and

baggage screening for large aircraft by 2014, hardened cockpit doors (in

accordance with International Civil Aviation Organization (ICAO)

stand-ards) for all planes carrying 30 or more passengers, working with airports

and airlines to safeguard public areas, requiring that all those involved in

screening be certified annually, the provision of enhanced training to ensure

national consistency, strengthening the Aviation Security Identification

Card system, cooperating with industry to implement effective cargo

screening technologies, requiring that a high level executive be assigned

responsibility for security in relevant organizations, and increasing the

number of visits to selected high risk foreign airports Similar issue areas

have been identified by many countries but the degree of governmental

control and regulation varies as does their actual implementation since the

available instruments inevitably involve controversial economic and

polit-ical issues whose resolution will be influenced to a greater or lesser degree

by economic considerations and the political power that relevant publics

and organizations are able to exercise

The role of such considerations is evidenced by the US case, where the

government establishes policies that the legislature oversees and impacts

through legislation Though airlines were deregulated in 1978 and the

areas of governmental control greatly reduced, such issues as mergers,

market alliances, safety, security, and consumer practices, all remain the

province of various departments

The Office of Aviation and International Affairs within the Department

of Transportation is generally responsible for domestic and international

aviation policy including the licensing of US and foreign carriers of

various types, the provision of essential air services (EAS), and the

development of air services to rural areas It does so through the offices

for international transportation and trade, international aviation, and

aviation analysis.8 The Office of International Aviation is concerned with

the relationship between US airlines and foreign countries, and to that end,

it has various divisions which deal with the relevant issues Its negotiating

section is responsible for planning and negotiating agreements that ensure

that US airlines are able to achieve competitive access to external markets

Its Pricing and Multilateral Affairs division focuses on the pricing issues

involved in bilateral and multilateral agreements and monitors foreign

carriers to ensure that their rules conform to US expectations It also

handles relations with international and regional agencies including ICAO,

the European Union (EU), and the World Trade Organization The Air

Carrier Licensing Division works with airlines seeking to enter foreign

markets and also handles their complaints of unfair practices by foreign

governments Foreign Air Carrier Licensing is responsible for dealing with

foreign carriers seeking to operate in the US The last, Special Authorities,

handles such issues as insurance and bonding issues, foreign charter flights

and air freight forwarders Other bureaus, each with its own divisions,

include the office of Aviation Analysis

Still, Congress retains considerable power It authorizes funding for many aviation projects and programs, and can, through legislation, impact

numerous complex topics including airline mergers and acquisitions,

pas-senger rights, safety, and the authority of the Federal Aviation Authority

(FAA), which is responsible for operational issues Indeed, in regards, to

security, Congress legislated major changes following 9/11 The two most

notable were the creation of an enormous new agency, the Transportation

Security Administration, and the creation of a federal corps that replaced

the private passenger and baggage security screeners, a move that still

arouses controversy

In the years since then, many security issues have remained of concern

to Congress, an indication of the degree to which achieving aviation

security remains an ongoing policy challenge These include the

effective-ness of screening procedures for passengers and their luggage as well as

air cargo, the appropriate utilization of intelligence and watch lists, the

adequacy of emergency responses, and dealing with external threats to

aircraft including cyber-attacks, and the impact of drones Each of these

areas raises numerous public policy issues including privacy and passenger

redress, achieving uniformity across airports, economic costs, racial and

ethnic profiling, the proper role for the private sector, and how to ensure

appropriate security levels for foreign air carriers and airports.9

Naturally various aviation groups seek to influence Congressional sions in their areas of interest ‘Airlines for America’, which represents the

deci-major airlines, for example, has defined its policy priorities in the following

order – taxes, regulatory burden, NextGen (a new air control system), global

competition, energy and the environment (stabilizing fuel costs, development

of alternative fuels) and safety.10 To what degree and in what ways Congress

reacts to such concerns is determined by numerous factors, but as the chair

of a key committee recently noted ‘I believe they (the aviation industry) have

had enough, but never underestimate the power of their lobby.’11

The policy objectives and issues articulated by the Australian and American governments demonstrate that the traditional view of the avi-

The policy dimensions of air transport security 19ation sector, that it represents an important element of national power

– soft and hard – has endured Still, even in the industry’s earliest days, the

need for at least bilateral cooperation was obvious, and as aviation became

increasingly globalized, the need for ever increasing areas of international

cooperation could not be ignored Thus, though every state has always had

to balance its domestic priorities with international considerations, the

need for a multilateral approach became ever more obvious, as did action

to enhance the safety and security of the people who fly and of the system

as a whole

THE INTERNATIONAL DIMENSION

The earliest effort to harmonize what was then a new, albeit rapidly

devel-oping, industry occurred soon after the Wright brothers’ first successful

flight in 1903 because of the important role that this new technology

played in World War I Shortly after its conclusion, the Paris Convention

was enacted in 1919 in order to regulate aerial navigation while

recogniz-ing that national sovereignty extended upwards As aviation continued to

assume an ever increasing role in transporting people and goods, the need

for an international organization to regulate aviation became increasingly

obvious and in 1944, 52 countries signed the Convention on Civil Aviation

of 1944 in Chicago (the Chicago Convention), which established the

ICAO In 1947 it became one of the specialized agencies of the United

Nations and today has 191 members

The Convention, which became operational in 1947, noted the role that

aviation can play in enhancing international understanding as well as its

destructive potential and therefore sought to promote its growth and to

provide safe travel To that end, it established international standards for

aircraft licensing, operations, communications and other technical

dimen-sions though security issues were not considered until terrorists began to

target aviation in the 1960s

To counter this new threat, conventions dealing with security, both in the

air and at airports were enacted over time The first step occurred in 1963

when the Tokyo Convention was adopted but as new types of attacks and

issues proliferated, ICAO continued to expand its role in combating

terror-ism by seeking to strengthen the international legal framework Important

steps were taken at The Hague in 1970 to deal with the unlawful seizure of

aircraft, and at a major international conference in Montreal in 1971, when

the Convention for the Suppression of Unlawful Acts against the Safety

of Civil Aviation was accepted and a supplement that protected airports

was also agreed upon In 1974, a very important addition to international

aviation security was made with the passage of Annex 17, an addition to

the Chicago Convention which requires each state to adopt a specific

pro-gram to safeguard its airports and planes from any type of threat ICAO

members must create a specific national security organization responsible

for adopting a variety of such important measures as passenger, baggage

and cargo screening.12

Despite their importance, such international agreements suffer from an important limitation – they only apply to the signatories Thus, though

191 states are members, the Tokyo Convention has 186 signatories, The

Hague Convention 178, the Montreal Convention 174, and the latest, the

Beijing Convention of 2010, which was designed to update the Montreal

Convention, only eight states also differ in the number of conventions and

protocols (ICAO lists 48) that they commit to Australia, for example has

signed up to 32, Switzerland 35, France 33 and the US 25.13

Nevertheless, by virtue of their membership, every member of ICAO is required to implement a variety of measures to safeguard aviation from

terrorist attacks The key regulation that deals explicitly with aviation

security is Annex 17 of the Chicago Convention, which shall ‘have as its

primary objective the safety of passengers, crew, ground personnel and

the general public in all matters related to safeguarding against acts of

unlawful interference with civil aviation’ In order to achieve this goal,

each state is required to create a specific program to ensure the security

of its aviation activities These programs should include such measures

as the screening of passengers, their luggage, mail, and air cargo as well

as securing cockpit doors, safeguarding airports, background checks

and training programs for security personnel, and cooperation with

other members in such area as sharing intelligence in order to protect

the global system The requirements imposed by previous conventions

(Tokyo, The Hague, and Montreal), which provide for the policies that

states must take in the case of hijackings are also reaffirmed and various

other annexes also impose various requirements that are designed to

enhance security.14 The attacks of 9/11 prompted further actions by

ICAO to safeguard aviation, notably its June 2002 Universal Security

Audit Program (USAP), which was specifically designed to assess the

degree to which states were actually implementing Annex 17 Within five

years, 182 audits were carried out (172 of which yielded follow-up visits

to ensure that weaknesses had been remedied), and a new set of audits

was promptly initiated in 2008.15

Annex 17 is the primary policy instrument that underlies ICAO’s efforts

to enhance global aviation security and it has been updated many times to

meet new challenges; the latest amendment, the fourteenth, took effect in

November 2014 Thus, the original focus on establishing Standards and

The policy dimensions of air transport security 21Recommended Practices (SARPs) has expanded and covers three primary

areas – the audits, providing assistance to states to help meet the expected

standards, and various policy initiatives which are based on work by the

secretariat and the Aviation Security (AVSEC) panel, which consists of 27

experts nominated by member states and five industry observers ICAO

panels also work on explosives, travel documents, security training in such

areas as airline and cargo operations, and crisis management

Though ICAO has vigorously attempted to strengthen the international

legal framework regarding security by drafting new conventions and

proto-cols, this process inevitably involves complex and difficult negotiations To

begin with, there are debates over technical issues such as: are more legal

instruments required? Or should the focus remain on Annex 17?16 Then

there are the issues raised by the nature of the international system itself,

which present major difficulties in efforts to create an international legal

system that can minimize terrorist attacks on aviation The history of

the drafting of the Beijing Convention and the Beijing Protocol of 2010

illustrates this point vividly

The 9/11 attacks revealed the need to update and expand the four decade

old Montreal Convention (1971) and its Protocol (1988) as well as the

1970 Hague Convention in order to cope with the new realities Though

the Beijing agreements ‘remove ambiguity in a number of key areas (and)

constitute a valuable contribution of the international legal community

to the area of aviation security’, the fact that it took nine years of

dif-ficult negotiations anticipates the difdif-ficulties of having it enter into force

Indeed, doing so has proven as difficult as the drafting, and as of October

2016 it was still not in force, having been signed by only 32 states and

ratified by only 16 of the 22 states that are necessary Among the missing

are many of the major powers including the US, the UK, China, Russia,

France and Germany

Even if such an instrument achieves ratification, the issue of national

implementation remains Given the variety of states involved with their

differing political systems, ideologies and resources, it is inevitable that

some of those who sign on will fail to adopt appropriate policies or to

implement them effectively One scholar who carried out a detailed analysis

of the many threats posed to aviation and the ways that aviation security

law has attempted to deal with each of them has made this point as follows:

Despite ICAO’s attempts to facilitate agreements between nations on principles

of air security, there currently exists no uniform and universal enforcement

system Because of the wide spectrum of political ideologies, it is extremely

difficult to promulgate enforcement measures that would be adopted by a

sufficient number of states to be able to function effectively 17

In short, it is necessary to understand that, like any international organization, ICAO is a political institution whose policies and actions are

determined by its member states, each of which, as noted earlier, has its

own agenda and political and economic concerns

Furthermore, a range of non-state actors seeking to promote their own interests are also active at the international level The members of the civil

aviation unions of the International Transport Workers Federation (ITF),

for example, actively lobbied their governments at the ICAO’s Triennial

Assembly meeting in October 2016, presenting working and information

papers dealing with the implications of various regulatory issues on

employees As its secretary pointed out ‘[t]he issues are the big ones,

not just for unions but for passengers and for the industry National

lob-bying is key to bringing these topics to the forefront of the agenda ’.18

Numerous other organizations play a role in shaping international aviation

security policy including the Airports Council International, which has

a Security Standing Committee that ‘works with ICAO to ensure that

global standards and recommended practices are the most appropriate for

airports’ and has implemented various programs to ensure that airports

achieve those standards It also cosponsors, with the International Air

Transport Association (whose members include the world’s major airlines)

an annual meeting that deals with passenger screening technologies.19

In order to achieve uniformity in the various policy instruments that are required, ICAO provides SARPS, which specify the standards that member

states are expected to follow The goal is to provide a common set of

secu-rity measures across the globe, but they do not possess the same legal force

as Article 37, which is an international treaty Furthermore, governments

are only obliged to work to achieve uniformity though they may inform

ICAO of any discrepancies between a SARP and the manner in which it is

actually striving to achieve security for the issue area involved.20 However,

the Chicago Convention specifically and international treaty law generally

permit any member of ICAO to take legal action against another state for

its failure to comply with the security regulations provided for in Annex

17 (and other conventions) This option is rarely exercised, however, given

the political implications as well as the financial and other costs involved

As a recent study noted: ‘there is unlikely to be any real prospect that such

measures would be involved (or be deemed to be suitable) in the situation

where one contracting state is not fully compliant with aviation security

SARPs’ To what degree such legalisms can or do impact security remains

unclear since ICAO actively audits security systems to ensure compliance

with the SARPs.21 Though this is clearly an important mechanism, the

degree of its effectiveness has been questioned One analyst noted that,

despite efforts to enhance safety through SARPs ‘many states – mainly the

The policy dimensions of air transport security 23more developed states but including many developing states have remedied

their non-compliance but other states have failed to remedy their safety

deficiencies due to a lack of will, means or ability’.22

All efforts to achieve international legal cooperation are complicated by

the failure to agree on what constitutes the definition of ‘terrorism’ Even

though the UN’s Security Council has agreed that international terrorism

is a major contemporary threat, the international community has failed to

agree on a legal definition This effort, which dates back over 50 years, (to

1972), has foundered because it is a form of political violence which can,

and has, taken many forms including rebellions, revolutions, civil wars,

ethnic conflicts, anti-colonialism, and ideological disputes As a result,

‘ter-rorism remains a diffuse concept, which is addressed worldwide through

different ways, with different means and distinctive purposes, especially

since terrorist conduct sits at the crossroads between political expression

and crime Not coincidentally, terrorism is the topic in international law,

on which there is an unprecedented amount of disagreement.’23 From a

legal perspective the key issue is whether a terrorist act is a criminal act and

if international agreement could somehow be reached that it does qualify

as such, then international efforts to combat this threat would be greatly

strengthened.24

THE REGIONAL AND BILATERAL DIMENSIONS

Under these circumstances, it is not surprising that regional organizations,

particularly the EU, have adopted region wide and bilateral policies

designed to enhance the international efforts regarding aviation security

EU regulations are established by its politically independent executive

branch, the European Commission, and adopted by the EU’s Parliament

and Council They apply not only to the 28 member states but also to

Norway, Iceland, Liechtenstein and Switzerland The EU also has bilateral

agreements with various states, including the US

As elsewhere, the 9/11 attacks led to the rapid adoption of new

security measures Regulation No 2320/2002 established basic standards

for how its members should interpret the provisions of Annex 17 to the

Chicago Convention This regulation was subsequently replaced in 2008

by Regulation (EC) No 300/2008 to strengthen the security measures

by, along with other steps, ensuring that new technologies would be

utilized And, as new issues continued to emerge, additional regulations

were promptly adopted The following year saw the adoption of new

measures in such areas as liquids, aerosols and gels, security scanners, air

cargo shipments, and the quality of national control programs In 2016

all previous regulations dealing with implementation were revised so as to

ensure that all states would actually adhere to the basic security standards

Furthermore, the EU has adopted a set of additional general and detailed

rules that supplement those standards and focus specifically on their

effect-ive implementation

These requirements cover every aspect of aviation, such as ger baggage and cargo screening, airport security, access control and

passen-surveillance, aircraft security, and airport, airline and security

person-nel Furthermore, each state must establish a specific security program,

complete with quality controls, that is administered by a single competent

authority Furthermore, airport and air carrier operators must develop

and implement specific security programs The specified security measures

represent the acceptable minimum that all states must adhere to, but they

can be augmented if deemed necessary Because of the security issues

involved, these are not published.25

Despite all these efforts at ensuring the security of the system within its borders, the EU, given its multinational framework, has to confront many

of the same problems as ICAO, especially how to ensure that the rules are

actually implemented appropriately by sovereign states The EU, though,

has an important advantage over ICAO in this regard for it has created a

mechanism for that purpose – it possesses the power to carry out

unan-nounced inspections and to take action if a state fails to respond

appropri-ately Still, states do not necessarily react as required In 2014 a study by the

EU Commissioners reported that 81 percent of essential security measures

met the EU regulatory standards and 35 airports and governments had

adopted recommended measures to eliminate weaknesses, but 16 airports

in nine countries, including Germany, possessed serious shortcomings

The German case provides a clear example of the process and the tacles that continue to hinder efforts to achieve uniform standards, even

obs-among an integrated bloc of states In the course of a decade, beginning in

2004, the EU inspected Germany’s security system 23 times and detected

flaws which the government failed to remedy Finally, in November 2014

the EU decided to take stronger action and gave Germany two months

to eliminate a security breach in its supervisory system When it failed to

comply, the EU announced in May 2015 that the matter was being sent to

the European Court of Justice Even then, Germany did not take the

neces-sary measures, as demanded by the EU, until the 2016 terrorist attacks in

Brussels and Paris highlighted the need for a truly uniform high level of

security across the EU.26

Nevertheless, Germany was not the only EU country that failed to implement effective airport security, as was shown by the devastating May

2016 attack by two suicide bombers in the Brussels airport’s departure

The policy dimensions of air transport security 25hall That tragedy further highlighted the implementation problem, for

its success was explicitly attributed to the Belgian government’s failure to

implement the EU’s rules in a satisfactory manner Just one month prior to

the attack, the Commission had sent the government a report that

identi-fied ‘serious deficiencies’ in the way that the government was monitoring

the measures that were in place, thus failing to ensure the expected level of

security The Minister of Transport, who resigned, apparently had never

seen the report.27 This episode serves to highlight the degree to which

security depends on effective administration and supervision, a capability

that varies widely among states

Those attacks also stirred the UN to action Later that year, the Security

Council, for the first time in its history, acknowledged aviation security was

a major global issue when it unanimously adopted UNSCR 2309 It ‘called

on all States to work with each other and the ICAO to continuously adapt

measures to meet that ever-evolving global threat’ It is difficult to see

how this resolution with its two elements, recognition of the importance

of safeguarding aviation and a simple call for all states to implement the

existing rules and regulations, actually enhances security given the nature

of the prevailing multifaceted implementation problems

These were further highlighted when, also in May 2016, Egypt air flight

804 crashed into the Mediterranean, for it raised additional concerns

about the state of security at European airports, given ‘the history of

security lapses at all the airports the plane visited that day’.28 Since the

plane took off from Charles de Gaulle airport, its security measures

received particular attention, especially those taken to screen staff and

ground personnel Indeed, previous rescreening, a regularly scheduled

security measure, had, since January 2015 led to over 60 individuals being

forbidden to enter security zones at the major international airports in

Paris.29 Personnel security issues were also uncovered in Norway where

non-citizens, employed by Norwegian airlines, did not undergo security

checks but were still allowed access to restricted areas.30

Aviation security within the EU (and its affiliates) also requires that its

standards prevail beyond its borders and the EU has adopted regulations

to ensure that this is the case Any airline seeking to fly in or out of the EU

must meet specified standards and if they fail to do so they are not allowed

to enter EU airspace or can do so only under specified conditions The

list of banned airlines runs to 18 pages.31 Air cargo has received special

attention Even if the airline is permitted to fly into an EU airport, cargo

carriers that originate outside the EU have been required, (since July 2014)

to comply with the EU’s screening requirements However, the requisite

checking is carried out by the relevant foreign agency.32 The EU recognizes

that the security policies of some countries regarding both air cargo and

passenger flights do meet its standards and has signed bilateral agreements

with the US, Canada and a few other countries that exempts them from

such requirements

Establishing all these rules and regulations, as was the case with ICAO, often involved difficult and complex negotiations These took place

most clearly in the Parliament where the member states sometimes could

not reach agreement on measures that had been recommended by the

Commission One particularly troublesome area has involved financing,

whether the industry or governments should pay the costs required to

implement the security requirements In 2009, the Commission suggested

that the costs be allocated on the basis of such principles as cost- relatedness

and equity between passengers and the airlines This directive sparked

such controversy among the national representatives that the legislature

was never able to accept this directive and the Commission withdrew the

proposal in 2015 Another Commission proposal that aroused controversy

involved the use of body scanners, which raised both privacy issues and the

protection of the acquired data.33 Accordingly the Commission issued a

new regulation in November 2011 that leaves decisions regarding scanners

to the individual states though if they are used at an airport, specific

condi-tions apply including that they not pose a health threat, that a passenger’s

privacy is protected, and that that no data be preserved.34 Body scanners,

however, have continued to raise national concerns In October 2016, the

Commission proposed a new regulation dealing with airport screening

equipment in order to promote innovation and eliminate delays However,

the European Scrutiny Committee of the British House of Commons

raised various concerns and called for an ‘urgent debate’ by Parliament.35

The 2016 Brussels airport bombings raised another security issue that has aroused much controversy – how to safeguard an airport’s landside

sections The EU quickly organized a meeting to discuss how best to

minimize this threat, but finding common ground is no simple matter since

security policies in these areas are generally the purview of governments

Some countries, including Israel, do restrict access to arrival and departure

zones but questions have been raised about the economic and other

impli-cations of such measures as well as their efficacy The Airports Council

International (ACI) Europe has, for example, explicitly expressed concerns

about the utility of restricting access to these area as well as the high costs

that airports would incur if they were to make the necessary adaptations

Not only are numerous physical changes involved but new training

pro-grams would be required as well as additional screening technologies An

ACI official pointed out that: ‘The possible adoption of additional security

measures such as checks on persons and goods entering airport landside

spaces could be disruptive and actually create new security vulnerabilities.’36

The policy dimensions of air transport security 27Nor is it obvious that additional security measures such as canine teams

and behavioral detection units would reduce existing weaknesses and they

raise various issues such as privacy, a value whose significance differs

between states How the landside access issue will be dealt with remains

to be seen but there is little doubt that agreement will be difficult to reach

The EU is not the only regional organization seeking to ensure that its

region’s airlines and airports are secure The Organization of American

States (OAS) has a security program aimed at enhancing the ability of its

members to comply with ICAO’s standards Its secretariat is mandated to

identify issues and to ensure that training, and technical aid is available

to the states which need it Such training, which also includes counter

terrorism generally so as to facilitate national sharing of best practices, has

been primarily provided by American experts though Canada, Israel, and

the region itself are providing increasing assistance and scholarships are

available to facilitate national participation in ICAO workshops.37

Such assistance is needed in many parts of the world In the Pacific

region the Pacific Aviation Safety Office (PASO) confronts an even more

serious problem in ensuring aviation security Though a system to ensure

compliance with ICAO regulations exists, it is inefficient and as a result

aviation security in the Pacific Island countries suffers from numerous

weaknesses and is essentially unable to meet ICAO standards Since these

countries rely heavily on the aviation system for trade and tourism, the

mainstays of their economies, their development is severely threatened

Structural and operational reforms are clearly necessary, but these alone do

not suffice and need to be supplemented by the provision of resources and

technical expertise which, (unlike in the OAS case), are not being supplied

by other states or organizations.38

Even if such aid is forthcoming, its efficacy cannot be taken for granted,

for nation states possess very different political systems with varying

abilities to implement and administer security policies Still, some states,

notably the US, have played an important role in attempts to strengthen

the aviation security system The US has done so in various ways Through

the Transport Security Administration (TSA), the US provides technical

assistance to other states and organizations such as the OAS It also carries

out numerous foreign audits that involve assessing the degree to which

an airport complies with Annex 17 standards Even though it may not be

legally entitled to do so, objections are seldom raised given the size of the

US market and the ability to refuse entry When disagreements do arise, it

resorts to negotiated agreements with other countries and organizations

to ensure that its security requirements are met One such agreement with

the EU, for example, concerned a very delicate subject, the sharing of

passenger information And, it recently signed an agreement regarding

inflight security with Argentina The US has long used air marshalls as a

last line of defense against airplane hijackings; now each country will be

able deploy air marshalls on flights between them.39

CONCLUSION

Despite all the effort, time and money that have been expended over the

years, especially since 9/11, to ensure the security of the global aviation

system, it is clear that though there is no question that it is more secure

today than ever before, many gaps and loopholes remain that can – and

have been – exploited by terrorists A totally secure system can never

be achieved given its global character, the different levels of resources,

capabilities, and interests of individual states, the complexities of the

poli-cymaking systems involved and the ability of terrorists to develop

innova-tive modes of attack Still, various steps can be taken by policy makers at

different levels to help minimize existing deficiencies

To do so it is necessary, as is the case when dealing with any problem, to begin by defining it precisely Yet, as noted above, an agreed-upon defini-

tion of terrorism remains elusive Nevertheless, tackling the admittedly

difficult task of reaching agreement could yield an outcome that would

strengthen the international legal regime.40 Despite the obvious difficulties

that have dogged such efforts for decades, it might be possible to at least

make a start if certain basic principles were kept in mind Almost all

defini-tions focus on the nature of the target – to cause harm to innocent civilians

– but such a broad definition is inevitably self-defeating for it encompasses

a very wide range of groups Thus, though one must not overlook the

human costs involved, it is important to remember that killing civilians is

a tactic used by terrorists to achieve their goals and that it is necessary to

differentiate among them on the basis of such factors as the international

dimension involved and the ends they seek

It is also necessary to differentiate between reactive and proactive approaches to security policy and to recognize that existing policymaking

relies on the former Following 9/11, efforts to strengthen aviation security

have followed successful or failed terrorist attacks and sought to prevent

their repetition Richard Reid, the ‘shoe bomber’ attempted to blow up

a Paris to Miami flight, so the US issued rules that require passengers to

remove their shoes for screening, a precaution that has not been universally

accepted, Similarly, following another failed terrorist effort that sought to

use liquid explosives in 2006, new rules were adopted by the US, the EU

and ICAO that restrict the ability of passengers to carry liquids, aerosols

and gels onto a plane Though such reactions may prevent a similar attack,

The policy dimensions of air transport security 29they represent an approach that is fundamentally flawed, for the history of

terrorism reveals that those planning attacks analyze the existing security

measures and develop new, innovative techniques Thus, a new paradigm,

is required, one that is proactive, that seeks to anticipate and prepares to

deal with unexpected threats and challenges In order to do so, it is essential

to move towards a more integrated approach, one that is based clearly on

the two basic elements of public policy – the issues and the tools to be used

to deal with each After the potential risks have been identified, it is

neces-sary it identify appropriate security measures to deal with each

Any effective counter terrorism strategy is ultimately dependent upon

effective intelligence Essentially three basic dimensions are involved,

gathering information, analyzing it and sharing the results Since

numer-ous police and intelligence agencies are involved nationally, regionally and

internationally, effective cooperation is essential, but this remains more a

goal to be achieved than a reality The recent terrorist attacks in Europe

have, tragically, revealed the degree to which this is a particular problem in

the EU with its numerous regional and national agencies, many of which

remain narrowly focused

The need for cooperation extends well beyond the world of intelligence

for it is widely accepted that no single state or even groups of states can

ensure that the passenger and cargo aviation systems function securely Yet

it is unfortunately obvious that the existing arrangements for international

cooperation still possess various weaknesses, notably the unwillingness

or inability by some states to impose or adhere to high quality sanctions

Though ICAO plays an important role, primarily in establishing rules,

unlike the EU it possesses no enforcement mechanism And, as we have

seen, even the EU’s enforcement mechanism does not always work

effect-ively How to deal with this fundamental problem remains a challenging

priority There is no bigger issue confronting aviation security today than

how to ensure that appropriate standards – proactive standards – regarding

the many elements of aviation security be implemented and maintained

globally All the available tools ranging from sanctions to increased

tech-nical and financial assistance must be utilized in order to achieve this goal

Doing so requires political will and the commitment of the many actors

involved in aviation, especially the major players Hopefully, the EU and

its allies, including the US, will assume the leadership in such an effort

and help ensure that ICAO possesses all necessary resources to deal with

such problems as establishing uniform technology security standards and

enhancing the security capabilities of many developing countries

Achieving a global system wherein all states implement, administer and

maintain an appropriate security level is clearly a demanding goal It will

require wise diplomacy that builds on existing alliances and relationships