C. Advance Passenger Information
immunity, in the light of persuasive legislation in many common law and civil law
jurisdictions to the effect that there is no immunity for proven liability.
C. Advance Passenger Information
One of the most dramatic events pertaining to aviation security occurred in July 2005 when United States air traf.c controllers turned back a KLM .ight en route to Mexico City from Amsterdam, which was .ying over US airspace. The action was grounded on the basis that two of the passengers in the passenger list earlier provided to the US authorities were on a “no .y” list. The importance of this drama to modern day aviation is that the aircraft was merely over-.ying the territoryof a State. Even more important is the fact that at the time of the incident, there was no US legislation covering the act of refusal to grant over-.ying permis-sion to an aircraft in that situation.308 However, within days, The US Transportation Security Administration (TSA) announced that rules will be adopted to require that passengers on all .ights landing in and over.ying US territory will be screened against a “no .y” list.309
The Passenger Name Record (PNR) is a subject that has been under intense scrutinyby the Council of ICAO,310 which has developed PNR Data Guidelines that
308Consequent upon the events of 2001, President George Bush signed a new American Transpor-tation & Security Act on 25 November 2002 making mandatory API transmission and the provision
of PNR data pertaining to all passengers arriving in the United States. Such information, required
prior to departure and arrival in the United States should include in the passenger and crew manifest
for each .ight, in accordance with Section 115 of the Transportation & Security Act, is:
The full name of each passenger and crew member.
The date of birth and citizenship of each passenger and crew member.
The sex of each passenger and crew member.
The passport number and country of issuance of each passenger and crew member if required for
travel. The United States visa number or resident alien card number of each passenger and crew member,
as applicable. Such other information as the under Secretary, in consultation with the Commissioner of Customs,
determines is reasonably necessary to ensure aviation safety. 309Crossing the Line, Airline Business, August 2005, at 9. 310The International Civil Aviation Organization (ICAO) is the specialized agency of the United Nations on the subject of international Civil Aviation. ICAO derives its existence through Articles 43 and 44 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. See ICAO Doc. 7300/8 (Eighth Edition: 2000). Article 44 lists, inter alia as ICAO’s objectives, insuring the safe and orderly growth of international civil aviation throughout the world and meeting the needs of the peoples of the world for safe, regular, ef.cient and economical air transport. Chicago Convention, Article 44(a) and Article 44(d). ICAO has 189 Contracting States, all of whom have rati.ed the Chicago Convention and gained ICAO member-ship ipso facto.
have been transmitted to Contracting States for their comments311 This exercise was carried out on the understanding that, in the present context of the compelling need for the enhancement of aviation security, the global aviation community has shown an increased interest312 in adding the PNR data as a security measure in addition to the already existing Advanced Passenger Information (API)313 and the Machine Readable Travel Document (MRTD), which, although primarily are facilitation tools, greatly assist States authorities in ensuring border security.
One of the issues that emerge from PNR data collection is extraterritoriality and the question as to whether at law a State can require information held by other States relating to .ights that originate and end in the latter States. An example is Canada, which may be required by the US to divulge information pertaining to passengers on domestic .ights operating within the territorial limits of Canada but over-.y United States’ territory for reasons of expediency and fuel ef.ciency. While there is no room for doubt that usually, requirements for safety and security ofa State are based on sound legal justi.cation witha view to protectingA State’s integrity and internal security, a requirement for information by a particular State of those that do not enter the territory of that State might open itself to question, as to whether such would impinge upon another sovereign State’s right to privacy314 and dignity.
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