76Abeyratne (2005a) (on .le with author).
R. Abeyratne, Aviation Security Law, DOI 10.1007/978-3-642-11703-9_2, # Springer-Verlag Berlin Heidelberg 2010
.ying across the North Atlantic, and it emphasized the vulnerability of the global air transport system. This plot revealed a new modus operandi, calling for immedi-ate response. Accordingly, the ICAO Council convened a special session and directed the Aviation Security Panel to consider the wider implications for aviation security. Since technologies are not currently deployable to detect certain liquid explosives, the Council adopted security control guidelines for screening liquids, gels and aerosols, known as LAGs, and these were conveyed to States in December 2006, with an effective date of 1 March 2007. The guidelines recommended that all LAGs should be carried in containers with a capacity not greater than 100 mL each and should be placed in a transparent re-sealable plastic bag of maximum capacity not exceeding 1 L, each passenger being permitted to carry only one such bag. Exceptions are allowed for medications, baby food and special dietary or other medical requirements.
The issue of State responsibility for private acts of unlawful interference against civil aviation was not a contentious issue until the paradigm shift of 11 September 2001, when terrorists engaged in hijacking aircraft with a view to using them as weapons of mass destruction, causing damage to civilians on the ground.77
The incidents of that day brought to bear serious implications for the continuity of air transport operations worldwide, particularly in the area of insurance of aircraft,78
the cost of which the airlines had to bear. This prompted the International Air Transport Association (IATA) to raise the issue of State responsibility for the security of aviation within their territories at the 35th Session of the ICAO Assem-bly which was held in Montreal from 28 September to 8 October 2004. IATA drew the attention of the Assembly to the fact that the aviation underwriting community had announced formally its intention to exclude all hull, spares, passenger and third party liability claims resulting in damage caused by the hostile use of dirty bombs, electromagnetic pulse devices or biochemical materials.79
IATA contended that such exclusions would place the airlines at risk of breaching state regulations as well as being destitute of access to adequate coverage, which in turn would compel airlines to cease their operations of air services. Recognizing the need for effec-tively precluding such market failure, IATA urged states to extend government guarantees that would ensure coverage for the categories mentioned above that would be affected by losses arising from state targeted act of terrorism. Further-more, IATA requested the Assembly to consider the need to establish a legislative structure pertaining to limitation of liability for war and terrorism losses.
The main thrust of IATA’s argument in seeking state coverage against losses in this context was that terrorists carried out their inimical acts against States and airlines and the air transport infrastructure were mere pawns or a proxy. As such it
77See Abeyratne (2002a, pp. 406–420).
78Abeyratne (2002b, pp. 521–533; 2005b, pp. 117–129).
79War
Risk
Exclusions,
A35-WP/97,
LE/8,
17/08/04,
p.
1.
See
also,
Abeyratne
(2007, pp. 689–704).
A. State Responsibility
was the responsibility of governments to ensure indemnity of carriers and infra-
80
structure.
Although ex facie the claim of IATA – that governments indemnify air carriers and infrastructure against .scal liability is based on the fact that terrorist attacks are aimed at governments and therefore the governments concerned should make good the losses to airlines and infrastructure – does not directly establish that govern-ments are solely responsible for making aviation secure, it carries a general presumption of State responsibility. However, it must be noted that governments have the dif.cult and unenviable task of balancing the need for maintaining and encouraging anti-terrorists vigilance while, at the same time, putting in place workable security measures that do not compromise the commercial basis of the air transport sector. This problem is compounded by the fact that huge economic damage can be suffered even when terrorist plots are foiled. There also can be well-founded human rights legislation that might impact negatively across a host of air security issues, from the need for legal statutes, identi.cation and the criminality clearance of airport workers, to legal rulings hindering the deportation of aircraft hijackers. These and other issues must be addressed in order to reconcile security with the ef.ciency and sustainability of the industry.
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