Finally, there are a few principles that have to be taken into account when determining State responsibility for private acts of individuals that unlawfully interfere with civil aviation. Firstly, there has to be either intent on the part of the State towards complicit or negligence re.ected by act or omission. Secondly, where condonation is concerned, there has to be evidence of inaction on the part of the State in prosecuting the offender. Thirdly, since the State as an abstract entity cannot perform an act in itself, the imputability or attribution of State responsibility for acts of its agents has to be established through a causal nexus that points the .nger at the State as being responsible. For example, The International Law Commission, in Article 4 of its Articles of State Responsibility states that the conduct of any State organ which exercises judicial, legislative or executive functions could be consid-ered an act of State and as such the acts of such organ or instrumentality can be construed as being imputable to the State. This principle was endorsed in 1999 by the ICJ which said that according to well established principles of international law, the conduct of any organ of a state must be regarded as an act of State.132
The law of State responsibility for private acts of individuals has evolved through the years, from being a straightforward determination of liability of the State and its agents to a rapidly widening gap between the State and non State parties. In today’s world private entities and persons could wield power similar to that of a State, bringing to bear the compelling signi.cance and modern relevance of the agency nexus between the State and such parties. This must indeed make States more aware of their own susceptibility.
VI. Pro.ling of Passengers
It is an incontrovertible fact that pro.ling is a useful tool in the pursuit of the science of criminology. Pro.ling is also a key instrument in a sociological context and therefore remains a sustained social science constructed through a contrived
129Brownlie (1983, p. 39).
130Report of the International Law Commission to the United Nations General Assembly,
UNGOAR 56th Session, Supp. No. 10, UN DOC A/56/10, 2001 at 73.
131de
Arechaga
(1968, p. 535).
132Differences Relating to Immunity from Legal Process of a Special Rapporteur, ICJ Reports
1999, 62 at 87.
A. State Responsibility
process of accumulation of single assumptions and propositions that .ow to an eventual empirical conclusion. However, pro.ling raises well reasoned latent fears when based on a racial platform. Jonathan Turley, Professor of Constitutional Law at George Washington University, in his testimony before a United States House of Representatives Committee on Airport Security regarding the use of racial pro.ling to identify potentially dangerous persons observed:
[R]acial pro.ling is to the science of pro.ling as forced confessions are to the art of interrogation. Like forced confessions, racial pro.ling achieves only the appearance of effective police work. Racial pro.ling uses the concept of pro.ling to shield or obscure a racist and unscienti.c bias against a particular class or group. It is the antithesis of pro.ling in that it elevates stereotypes over statistics in law enforcement.
Notwithstanding this telling analogy, and the apprehensions one might have against racial pro.ling, it would be imprudent to conclude that racial pro.ling is per se undesirable and unduly discriminatory, particularly in relation to pro.ling at airports which should essentially include some considerations of ethnic and national criteria. This article will examine the necessary elements that would go into effective and expedient airport pro.ling of potential undesirable passengers. It will also discuss legal issues concerned with the rights of the individual with regard to customs and immigration procedures. The rights of such persons are increasingly relevant from the perspective of ensuring air transport security and refusing carriage to embarking passengers who might show pro.les of criminality and unruly persons on board.
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