Aviation Security Law 航空安全法(33)

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In spite of the delicate balance between enforcing security in a transport system which has as its main advantage speed and expediency of carriage of passengers and freight and coping with new and emerging threats that would compromise that advantage, States have, to their credit, taken initiatives that demonstrate their responsibility. A good example is Europe where over the last 40 years, States have followed the philosophy that if compensation does not come from the perpe-trators, States would step in to assume that responsibility.81
A similar approach was taken by the United States consequent to the events of 11 September 2001. The European Union imposed Council Directive 12(2) which, by 1 July 2005 at the latest, all 25 EU Member States should have complied with and required EU member States to ensure that their national rules provide for the existence of a scheme on compensation to victims of violent international crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.
A leading commentator Harold Caplan states that the idea that States have a responsibility to ensure that victims of crime are compensated is not con.ned to Europe. He observes that the US Department of Justice has long had an Of.ce for Victims of Crime [OVC] which oversees the schemes in individual States,82
and in collaboration with the State Department, has compiled and updated a Directory of
80War Risk Exclusions, A35-WP/97, LE/8, 17/08/04, p. 3.
81See 1983 Strasbourg “Convention on the Compensation of Victims of Violent Crime”; and EU Council Directive 2004/80/EC (29 April 2004) relating to compensation to crime victims. 82See Crime Victim Compensation Programs Directory 2002 http://www.ojp.usdoj.gov/ovc/
publications.
schemes in 35 countries principally for the information of US citizens who travel or reside overseas.83

Finally, Caplan states that:
Disregarding the 9/11 Victim Compensation Fund, none of the known State crime com-pensation schemes around the world can be said to provide lavish compensation. What is important is that they exist and they demonstrate unmistakable evidence of a widely-accepted principle of State responsibility.84

I. Principles of State Responsibility
The fundamental issue in the context of State responsibility for the purposes of this article is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent a private act of terrorism against civil aviation or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a state reprehensibility on the ground that a principal–agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct.85

II. The Theory of Complicity
At the core of the principal–agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583–1645), founder of the modern natural law theory, .rst formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of Patienta or receptus.86
While the concept of Patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.
The eighteenth century philosopher Emerich de Vattel was of similar view as Grotius, holding that responsibility could only be attributed to the State if a sovereign refuses to repair the evil done by its subjects or punish an offender or
83Directory of International Crime Victim Compensation Programs 2004–2005.
　
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