Aviation Security Law 航空安全法(10)

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The seminal consideration regarding ICAO’s role in sustaining the aviation industry lies in the mandate of the Organization, as contained in Article 44 of the Convention on International Civil Aviation.5
In this context, ICAO’s role through-out the past 63 years has been one of adapting to the trends as civil aviation went through three distinct phases of metamorphosis. The .rst phase was the modernist era as it prevailed when the Convention on International Civil Aviation was signed at Chicago on 7 December 1944, which was centred on State sovereignty6
and the widely accepted post-war view that the development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to general security.7
This essentially modernist philosophy focussed on the importance of the
5Convention on International Civil Aviation (also called the Chicago Convention), signed at
Chicago on 7 December 1944. See ICAO doc 7300/9 Ninth Edition, 2006.
6Article 1 of the Chicago Convention provides that the Contracting States recognize that every
State has complete and exclusive sovereignty over airspace above its territory.

7Preamble to the Chicago Convention.
C. Emerging Threats 9
State as the ultimate sovereign authority which can overrule considerations of international community welfare if they clashed with the domestic interests of the State. It gave way, in the 1960s and 1970s to a post-modernist era of recognition of the individual as a global citizen whose interests at public international law were considered paramount over considerations of individual State interests.
The 11 September 2001 events led to a new era that now calls for a neo-post modernist approach. This approach, as has been demonstrably seen after the occurrence of the events of 11 September 2001, admits of social elements and corporate interests being involved with States in an overall effort at securing world peace and security. The role of ICAO in this process is critical, since the Organiza-tion is charged with regulating for safe and economic air transportation within the broad parameters of the air transport industry. The industry remains an integral element of commercial and social interactivity and a tool that could be used by the world community to forge closer interactivity between the people of the world.
In the above sense, ICAO’s initiatives in the .elds of aviation security in the immediate aftermath of the 9/11 events have not been mere reactive responses but a visionary striving to ensure the future sustainability of the industry. Of course, this responsibility should not devolve upon ICAO alone. ICAO’s regulatory responsi-bility can only be ful.lled through active regulatory participation by States.
C. Emerging Threats
I. Probability
Blaise Pascal, in his book Ars Cogitandi states that fear of harm ought to be proportional not merely to the gravity of the harm but also to the probability of the event.8
It is also a fact of risk management that, under similar conditions, the occurrence (or non-occurrence) of an event in the future will follow the same pattern as was observed in the past.9
Based on these premises one is confronted with the terrifying possibility that there could be a nuclear 9/11 sometime in the future.10

In the 1919 decision of Schenk v. US,11
Justice Oliver Wendell Holmes used the words clear and presentdanger when the US Supreme Court adjudicated the case of Charles Schenk who had distributed lea.ets allegedly calculated to incite and cause insubordination and obstruction in recruits of the American Socialist Party.
8Ferguson (2008, p. 188). 9Ferguson (2008, p. 188). 10Bobbitt
(2008, p. 98–179). 11249 US 47 (1919).
The actions of Schenk were considered to constitute an offence under the Espio-nage Act of 1917. Justice Holmes stated:
　
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