Article For Prateek

The Quest of Aviation Security System for Privacy, Diplomatic rights and Women rights with
Especial Reference to Islam.
INTRODUCTION
Aviation from its inception has been one of the biggest technological blessing in the field of
transportation. “ Aviation is an important global business and a significant driver of the global
economy.1 The phenomenal speed of an aircraft makes it a strong pillar of the economy because it can
transport people and cargo within no time to the other parts of the globe. However, this technical
blessing encountered security threats in the third decade of its existence. The acts of terrorism which
can encounter civil aviation range from “hijacking an aircraft, firing heat seeking missiles at an
aircraft, bombing aircraft or airport lounges or gunning down people at airports and the latest way of
turning an aircraft into a guided missile”.2 The first incident of hijacking was recorded on 21st
February 19313, this was however, an isolated incident, in which Peruvian revolutionaries seized a mail
plane belonging to PAN American, which aimed nothing but to drop propaganda leaflets over Lima.4
The first international legislative effort to curb terrorism came up with the Geneva Convention 1937
called the Convention for the Prevention and Punishment of Terrorism 1937, although this was not a
convention directly based on aviation but tried to deal with its parent phenomenon, which is terrorism.
The draft of this Convention was adopted in November 1937 by League of Nations as a consequence of
assassination at Marseilles of King Alexander I of Yugoslavia and French Foreign Minister Louis
Barthou in France. However, unfortunately it could not enter into force as the nightmare of World War
II haunted the global community.5 “ During the second world war there must have been a number of
hijackings of military aircraft, but they were so much a part of worldwide effort that they have never
1 Ruwantissa Abeyratne. Aviation Security Law ( 2010) Springer Publishers at v.

2 Paul Stephen Dempsey. Aviation Security: The Role of Law in the War Against Terrorism (2003) 41 Columbia Journal of
Transnational Law at 651.
3 Available at http://en.wikipedia.org/wiki/Aircraft_hijacking visited on 1st November 2010.
4 zPeter St. John. Air Piracy , Airport Security , and International Terrorism ( 1990) Quorum Books at 5.
5 Ruwantissa Abeyratne. Aviation Security Law ( 2010) Springer Publishers at 210.
1
been sifted from the mess of other war events to stand alone as distinct episodes. The only one that did
make an international splash was the sudden, strange flight Rudolph Hess to Scotland in 1941. 6 “The
Convention on International Civil Aviation signed at Chicago on 7th 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”.7
“However, hijackings were uncommon events until the late 1940's and early 1950's 8 because as
observed by Prof. Dempsey that “During the embryonic stage of civil aviation, a passenger's principal
concerns were the competence of the pilot and the fitness of the aircraft”.9 Within the start of the cold
war, defectors from Eastern European countries viewed hijackings as a means of escaping communist
oppression. Beginning in 1947, sporadic hijackings of flights in Eastern Europe continued through the
1950's.10 To add further, it was “between 1947 and 1958 there were 23 hijack incidents, all but three of
them inspired by the seeking of political asylum in Western Europe. In July 1947 a private plane on a
domestic Romanian run was seized by three Romanian army officers who shot their way to freedom in
Turkey. This was the world's first fatal hijack, since an uncooperative crew member was shot to death.
On June 17th 1948 a Romanian airliner was diverted to Austria with all but one of the 23 passengers
aboard requesting political asylum. On December 16th 1949 a Polish airliner flying from Lodz to
Gdansk was diverted to the Danish Island of Bornholm where the hijacker and 13 other Poles requested
asylum. There were hijacks from Czechoslovakia to the U.S. Zone of West Germany, from Yugoslavia to
Italy, and from Bulgaria to Turkey. Most of these incidents involved large number of refugees. On
March 24th 1950 the first multiple hijack took place.”11 “In each case out of Eastern Europe ' the stolen
6 Peter St. John. Air Piracy , Airport Security , and International Terrorism ( 1990) Quorum Books at 5-6.
7 Ruwantissa Abeyratne. Aviation Security Law ( 2010) Springer Publishers at v.
8 Bartholomew Elias. Airport and Aviation Security (2010) CRC Press at 2.
11 Peter St. John. Air Piracy , Airport Security , and International Terrorism ( 1990) Quorum Books at 6-7.
2
plane went straight from point A to B and everyone got off claimed asylum and disappeared into the
new homeland. The west regarded them as heroes and celebrated their actions without punishment. In
these early years the only real crime was the theft of the airplane itself as a result planes were usually
returned but the killing of pilot or aircrew went unpunished for political reasons. As James Arey
pointed out the message was All hijackings, no matter what the motivation was, such acts infringe upon
the basic human rights of others and carry with them the seeds of injury or death.12 The lack of punitive
action by receiving States against those committing crimes in the pursuit of political asylum set the
stage for further hijacking.13 “ On July 16th 1948, the flying boat Miss Macau was hijacked. The plane
carried gold worth 2 million dollars on each flight to Macau, so when it was hijacked, Eighteen bullets
were fired as the pilot and the co-pilot instinctively tried to regain control of the aircraft and
consequentially the plane crashed, drowning all but one, who ironically was a hijacker. This was the
first criminal hijack and lead to first fatal crash of a commercial flight”.14 “ Between 1953 and 1958
there was a five years lull in skyjacking for no discernible reason. As David Phillips pointed out the
dormant spell in skyjacking came during a period when there were good reasons for it to flourish.15 It
was also pointed out by David Hubbard the Berlin Airlift demonstrated that aircraft were almost
invincible in their conquest of space, time, and political barriers.16 There was a drastic change in the
volume of travelers. The propellers were being replaced by jets after 1958, this was the technological
advancement to bridge the gap created by the changing volume in air traffic”.17 It is further expedient to
discuss the age between 1958 to 1961 as in this era Cuba became the land of hijackings, as Raoul
Castro became the “ father of the modern crime of skyjacking”. He converted Column Six of his brother
Fidel Castro's rebel forces, which was under his command, into a guerrillas base which hijacked two
12 Ibid See also Arey, Sky Pirates, at 51

13 Ibid
14 Ibid
15 Ibid. See Phillips, David. Skyjack, at 40.
16 Ibid. See Hubbard, David. Winning Back the Sky, at 32.
17 Supra Note 9.
3
planes owned by Compania Cubana de Aviacion.18 These actions mainly aimed political disruptions, as
these incident was repeated after two weeks and regretfully such incidents were fetching the inspiration
of the youth. This was the root of modern hijacking era.19 It is also worth mentioning that the day on
which Fidel Castro seized power, that is 1st January 1959 a Cuban airliner was hijacked to New York
by the followers of the former President Fulgencio Batista.20 These chain of events suggest that
hijacking by this time was taking the shape of a tool of proving political discontent by the politically
insignificant. The Geneva Convention of the High Seas 1958, deserves to be discussed at this juncture
due to its contemporary nature with the events mentioned above and secondly due to synonymous
nature of piracy with hijacking as both are crimes involved with modes of transportation. According to
Dr. Abeyratne, this Convention “ was the maiden attempt to internationally harmonize the application
of rules to both forms of piracy, that is aerial and at sea.” “ The Convention adopted authoritative
legal statements on civil aviation security, as it touched on piracy over the high seas”.21 Though the
phenomenon of hijacking in its contemporary form may not involuntarily fall within the definition of
piracy as contemplated by Article 15 of the High Seas Convention 1958, but still there are strong
similarities between both hijacking and piracy, are both threaten modes of transport, breach the safety
of passengers, crew and the craft runs a risk of damage.22 Hijackings became commonplace in the USA
in the early 1960's amid growing tensions between the USA and Cuba. Initially, Cubans had resorted to
hijacking aircraft as a means to escape the Castro regime, but by the early 1960's the flow had reversed,
and airplanes in the US were being hijacked to Cuba by Cuban rebels, radical Leftist Americans, and
fugitives seeking asylum in Cuba”.23 By the autumn of 1961 the draconian consequences of hijacking
came out in the public domain and the most significant impact of these acts of aerial piracy was the
18 Peter St. John. Air Piracy , Airport Security , and International Terrorism ( 1990) Quorum Books at 8.
19 Ibid
20 Ibid
4
heavy cost to airlines, as the enormously expensive machinery is rendered useless.24 The number of
hijackings fell considerably in the period of 1962 to 1967. The number was reduced to four and only a
few out of these were significant.25 This was the time when the global legal community gathered under
the auspices of International Civil Aviation Organization ( hereinafter: ICAO) in Tokyo in 1963, to
come up with the Convention on Offenses and Certain Other Acts Committed On Board Aircraft 1963
but as I strongly agree with Prof. Dempsey and rightly so, when he says that “ the delegates were
initially reluctant to address hijacking and focused more on other acts. Unlawful Seizure of an aircraft
was a disjointed thought to this Convention in the form of Article 11”.26 However, this reluctance does
not render this Convention meaningless and it was the first substantial effort to deal with aerial
terrorism. It was the launching pad for its successors, namely the Hague and Montreal Convention. 27
This Convention had the aspiration of amalgamating the States in restraining terrorist activity directed
towards air transport.28 Dr. Abeyratne derived this view from Boyle as the later said: That the Tokyo
Convention 1963 was the maiden response of the International community to combat hijacking.29 The
competence of the Tokyo is often questioned on the ground of late enforcement on December 4 1969.30
But was entirely due to the fact that the Convention was drafted drafted prior to the draconian incidents
of the late 1960's and most States remained aloof and secondly States were facing complex legal and
political issues during that time. Though we should not be cynical about this initial sluggishness as this
Convention managed 80 ratifications within a short span of less than one year.31 Although the Tokyo
had basic flaws as pointed by Dr. Abeyratne when he refers to A.E. Evans that “ the offense of
hijacking is not made a crime under international law; its definition is to be determined by the
25 Ibid
27 Ruwantissa Abeyratne. Aviation Security Law (2010) Springer Publishers at 218.
28 Ruwantissa Abeyratne. Aviation Security Law (2010) Springer Publishers at 219.
29 Ibid See also Boyle (1972) at 463.
30 Ibid See also Boyle (1972) at 463.
31 Ibid See also Abramovsky (1974) at 89.
5
municipal laws of the contracting State”.32 Secondly the Convention fails to define the offense of
hijacking but “ only specifies the circumstances that would constitute the offense under Article 11”.33
This legal and political reluctance shown in the Tokyo Convention 1963 had far reaching consequences
and by the year 1967 hijacking started taking global dimensions, early in that year an Egyptian plane
was diverted to Jordan with 41 passengers aboard, it was the first hijacking, which involved the Middle
East, which witnessed a six day war between Israel and Arab States and that was a virtual end of the
Arabian help to the Palestine. This made the Palestinians switched over to a radical strategy of
hijacking war was a logical inspiration from the Cubans, as they were involved in a contemporary
revolution. 34 By this time hijacking became a weapon of political revolution. The ghost of hijacking
attained momentum between August 1967 and February 196835 and by January 1969 the public
concern had risen to an extent which was enough to move the government to further concrete action. In
the same month the Federal Aviation Administration was directed to minutely assess each aspect of
aircraft hijacking and to come up with a defense for the same.36 At this juncture airlines were inundated
with suggestions from the public, which were forwarded to the office of Air Transportation Security,
FAA.37 However, these efforts could not stop aircraft hijacking from becoming a global epidemic by
1972, as the hijackings reached their highest tally of 364 within the span of four years (1968-1972)
which were the highest until that time.38 Hijacking also became an appealing tool of extortion which
traveled in the prism of political and personal demands. 39 It is expedient to mention the episode that
took place on 24th November 1971, which involved a man who called himself Dan Cooper made a
propaganda that he had a bomb in his suitcase and demanded an amount of $ 200, 000 and four
32 Ruwantissa Abeyratne. Aviation Security Legal and Regulatory Aspects (1998) Ashgate at 146. See also A.E. Evans
Hijacking: Its Cause and Cure (1969) 63 American Journal of International Law, at 708.
33 Ruwantissa Abeyratne. Aviation Security Legal and Regulatory Aspects (1998) Ashgate at 147.
35 Ibid
36 Kennith C. Moore. Airport, Aircraft & Airline Security (1976) Security World Publishing Company at 5.
37 Kennith C. Moore Airport, Aircraft & Airline Security (1976) Security World Publishing Company at 6.
39 Kennith C. Moore. Airport, Aircraft & Airline Security (1976) Security World Publishing Company at 4-5.
6
parachutes, which were met. He allowed all the 35 passengers and two stewards to deplane, however,
he ordered the pilot and the crew to fly to Reno at low altitude and cruising speed with flaps down and
ventral stairs extended. The crew was forced to cover themselves with a curtains in the front cabin. As
the plane landed in Reno, it was noticed that Cooper was not aboard. It was speculated that he had left,
when the plane was close to Woodland, Washington.40 A fearless demonstration of frequent hijackings
kick-started on September 6th 1970, when terrorists hijacked a plane from Frankfurt to New York City.
On the same day Palestinians hijacked a flight outbound from Zurich and within a gap of three days
hijackers struck again completing the chain of hijackings. A day later one of the hijacked plane was
blown in Cairo and other aircraft were taken hostage and the crew members had to bear six days of
excruciating confinement and then the planes were blown up after the hostages disembarked the plane,
damaging the machinery worth millions of dollars.41 These state of affairs forced Nixon Administration
to issue the statement for appointing “ especially trained, armed United States government personnel
on flights of U.S. Commercial airliners”.42. This was the starting point of United State's obsession for
the electronic screening equipment, “the statement urged the Department of Transportation, Treasury,
and Defense, the Central Intelligence Agency, the Federal Bureau of Investigation, the office of science
and technology and other agencies accelerate their efforts to strengthen security until that time and
Secretary of Transportation was made the watchdog to monitor the pace of all the above mentioned
preventive schemes to be implemented by the agencies named.43 Probably this was the time when when
the global community contemplated the Convention for the Suppression of Unlawful Seizure of Aircraft
Signed at the Hague on 16th December 1970 hereinafter: Hague Convention 1970.
40 Kennith C. Moore. Airport, Aircraft & Airline Security (1976) Security World Publishing Company at 3-4.
7
The Legal Committee of the ICAO while drafting this Convention had the following points in mind:-
A. definition of the act of unlawful seizure of aircraft;
B. declaration that such act constitutes an 'offense';
C. declaration that States shall make the offense punishable by 'severe penalties';
D. declaration that the offense is an ' ordinary' offense not meriting the right of asylum;
E. establishment of wide jurisdiction of States amounting to universal jurisdiction;
F. dealing with the issue of extradition.44
The crux of this Convention is that it declared hijacking as an international offense,45 the major
shortcoming of this convention is that it fails to define severe penalties and leaves it to the wisdom of
the State.46 The Hague Convention was followed by Montreal Convention called Convention for
Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed on Signed on 23rd September
1971. This Convention widened the ambit of offense as hijackings were going down sabotage and
bombings were on the rise,47 The issue to be addressed by the ICAO Legal Committee while preparing
a draft was inter alia sabotage.48 “ Under this Convention the State parties have undertaken to provide
for deterrent punishment for hijacking. Other provisions are similar to those of the Hague Convention.
This Convention therefore, would be an improvement over the Hague Convention. It would have been
better if this Convention had been adopted as protocol to the Hague Convention”.49 The Montreal
Convention was followed by Annex 17 to the Chicago Convention titled as Safeguarding International
Civil Aviation Against Acts of Unlawful Interference “ addresses aviation security. First promulgated as
a Standard and Recommended Practices in 1974. It runs from the spectrum of aircraft, airport,
44 Michael Milde Essential Air and Space Law (2008) Eleven International Publishing at 221.
45 Paul Stephen Dempsey Aviation Security: The Role of Law in the War Against Terrorism (2003) 41 Columbia Journal of
Transnational Law at 667. See also Art.7 Hague Convention 1970.
49 Dr. S. K. Kapoor. International Law and Human Rights (2003) Central Law Agency Allahabad at 123.
8
passengers, baggage, cargo and mail as well as qualifications for security personnel”.50 Then came the
Bonn Declaration 1978. It was the brainchild of G7 countries and its main achievement is eloquently
declare to “ take action against any State that fails to fulfill its international obligations following a
hijacking. It further declared to cease all flights to or from any country that fails to extradite or
prosecute a hijacker or return a hijacked aircraft”.51 The Protocol for Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation (hereinafter: Montreal Protocol 1988)
followed the Bonn Declaration 1978 and emphatically stretched the core provisions of Montreal
Convention 1971 to the destruction of airports and air facilities.52 We witnessed the Lockerbie incident
in the same year of 1988 and we owe it to the prompt use plastic explosives. The global legal
community was nimble to react and came up with The Convention on the Marking of Plastic
Explosives For the Purpose of Detection 1991 (hereinafter: Montreal Convention 1991) and
“ undertook to prevent the manufacture and going outside their territories plastic explosive without
commercial marking. It was also agreed that plastic explosive which are not useful for army or police
be destroyed within a period of three years”.53
In spite of these steps aerial piracy continued in its epidemic form and with the passage of time,
hijacking became a serious weapon and we witnessed the draconian consequences on 11th September
2001, when everything came to a halt in the US. The superpower of the politically unipolar world was
bleeding through its nose. However, before we go into details of 9/11 we cannot forget the 1985
Kanishka bombings, which is, still considered “ a major instance of sabotage of aircraft with extensive
loss of life due to the explosion on Air India B-747 on 23rd June 1985”.54 Therefore, stringent
50 Paul Stephen Dempsey. Public International Air Law (2008) Institute and Center for Research in Air & Space Law
McGill University at 250.
53 Dr. S. K. Kapoor. International Law and Human Rights (2003) Central Law Agency Allahabad at 123-124.
9
measures were taken to counter acts of unlawful interference with civil aviation. The genealogy of the
term terrorism lies in Latin terminology meaning to cause to tremble ( terrere). Since the catastrophic
events of 9/11, 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 provision 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 improve security
and to close the security loopholes which existed on that fateful day, that is 9/11. 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 a significant recognition of the Federal Government”. 55 The assumption about the anti-
hijacking vigilance of the airline industry, now seems “catastrophically naive”.56 We owe this event to
our stereotype approach, as we had been assuming that hijackers seek something other than their own
demise.57 However, instead of correcting the stereotypes the we adopted the intrusive approach to get
the black sheep out of the equation. The 9/11 Commission Report58 suggests that 9/11 was an
intelligence failure. Clarke an office bearer in the Principals Committee criticized the US counter
terrorism efforts past and present in an impassioned personal note to Rice his colleague.59 The US owes
9/11 to its sluggishness over the Al-Qaeda threat which was in their backyard but they could not react
and went into a mode of Islamophobia in the post 9/11 era. Tragedies occur in every country and are
inevitable to this mundane world. I have all my sympathies with victims of 9/11, but that was not a
55 Ruwantissa Abeyratne. Aviation Security Law (2010) Springer Publishers at v.

56 John J. Nance. Denial of Access: Hardening Our Defenses Against Terrorist Manipulation of Commercial Aircraft
(2001) CCH at 1.
57 Ibid
58 Available at http://www.9-11commission.gov/report/911Report.pdf visited 11th March 2011.
59 9/11 Commission Report at 212.
10
universal conspiracy against US. It was the dilemma within the US administration that did them in.
Ever since then US has been haunted by its misplaced fear and consequently they have tightened the
aviation security beyond reason. We have discussed most of the statutes based on hijacking in detail
and can say conclusively that the biggest lacunae in hijacking laws is lack of guaranteed punishment.
Every Convention based on hijacking has left prosecution of a hijacker at the discretion of the domestic
legal system of the State involved. So this is the real problem, which can be solved only by appropriate
prosecution laws at the international level and not by making the security unbearable and disrespectful
for the common passengers as well as dignitaries from other countries or from international bodies.
Osama Bin Laden was the architect of 9/11, however is still absconding and the global aviation
community has started treating every single passenger as a terrorist, which will further add to financial
miseries of the airline industry. We have to catch hold of the terrorists, through intelligence sharing
among nations. We have not strengthened our intelligence cooperation but have been looking at every
passenger with a jaundiced eye, and consequently we have shown total disregard to privacy which is an
integral part of Universal Declaration of Human Rights60 in the form of Article 12, which condemns
any arbitrary interference with anyone's privacy and full body scanners are nothing but an arbitrary
interference into an individual's privacy.
Next comes diplomatic immunity, which is an integral part of international law which starts from Art.
27 and is clearly mentioned in Art. 29 of the Vienna Convention 1961. Art.29 of this Convention says
“ The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving State shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.”61 But this wasn't the case to be and Meera
Shanker the Indian envoy to US had to bear the humiliation at one of the US airports, “ India's envoy to
60 Available at http://www.un.org/en/documents/udhr/index.shtml Visited 11th March 2011.

61 Art. 29 of Vienna Convention on Diplomatic Relations 1961. Available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf Visited 11th March 2011.
11
Washington, Meera Shankar, is at the center of a diplomatic storm. On December 4 2010 Ms Shankar
who was travelling from the American state of Mississippi to Baltimore in Maryland was pulled out of
an airport security line and patted down by an American security official. That despite letting them
know her diplomatic status”.62 This has been a personal shock to me, an envoy of such a senior rank
and above all a woman from a vibrant democracy like India would be carrying a bomb. Such incidents
are not security concerns but political arrogance and need to be stopped. This was in clear violation of
Art. 27 and 29 of the Vienna Convention 1961 and above all it flaunted Annex 9 to the Chicago
Convention 1944. This Annex talks about facilitation during a person's intercourse with aviation travel.
It says “ optimal levels of security and compliance with the law, are attained” with minimum
consumption of time and imposition of inconvenience.63 However, instead of addressing these concerns
we are further intensifying them by our plans of full body scanners, which are a serious threat to
universal harmony. I would further be elaborating religious concerns and our jaundiced eye towards
Islam and in the concluding part I would come up with concrete practical solutions, which will
establish an equilibrium between aviation security and the conflicting issues. I have stressed upon
hijacking in the opening portion of this outline, because I want my audience to be fully aware of the
genesis of this paranoid security procedures is rooted in the draconian events witnessed by the aviation
community since 1930s till the unforgettable trauma of 9/11. However, the harsh reality remains that
crime occurs and will reoccurs in the mundane world, because this world is occupied by angels and
devils together and crime can only be eliminated in heaven, but not in this world. We should only try to
minimize crime, any attempt to eliminate crime is as good as robbing Paul to pay Peter.
62 Available at http://www.ndtv.com/article/india/krishna-on-meera-shankar-being-patted-down-it-is-unacceptable-71513
Visited 11th March 2011.
McGill University at 252. See also Chicago Convention, Annex 9, S1.2
12
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The Quest of Aviation Security System for Privacy, Diplomatic rights and Women rights with

Especial Reference to Islam.

1 Ruwantissa Abeyratne. Aviation Security Law ( 2010) Springer Publishers at v.

12 Ibid See also Arey, Sky Pirates, at 51

A. definition of the act of unlawful seizure of aircraft;

B. declaration that such act constitutes an 'offense';

E. establishment of wide jurisdiction of States amounting to universal jurisdiction;

F. dealing with the issue of extradition.44

be destroyed within a period of three years”.53

55 Ruwantissa Abeyratne. Aviation Security Law (2010) Springer Publishers at v.

interference into an individual's privacy.

60 Available at http://www.un.org/en/documents/udhr/index.shtml Visited 11th March 2011.

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