Feb 04 2010

“No scan, no fly.” What can a would-be traveler do?

With some British airports introducing “No scan, No fly” policies, we’ve been seeing renewed questions about what you can do if a government agency or agent, airline, or private third party won’t let you into or through an airport or onto a flight on a common carrier.

A would-be traveler holding a valid ticket and complying with the conditions of the airline’s published tariff, but denied passage by the airline, could bring a civil lawsuit for breach of contract, and possibly seek enforcement action against the airline for failing to comply with its obligation (under the terms of its tariff, operating license, applicable national laws, and the treaties pursuant to which it is authorized to operate international flights) to operate as a “common carrier” and transport all would-be passengers complying with its tariff.

Government action to deny passage to such a person for refusal to “consent’ to a virtual strip-search would violate Article 12 of the International Covenant on Civil and Political Rights, which as interpreted (pursuant to the treaty itself) by the U.N. Human Rights Committee, allows only such administrative rules that burden free movement as can be shown to be “necessary” for national security (i.e. actually effective, and more effective than any less restrictive alternative). The fact that a rule is intended to protect national security is, quite properly and explicitly, not sufficient, since most such rules restrictive of human rights (old South African passbook laws, etc.) have been justified on grounds of national security and counter-terrorism.

The UK and the USA have both signed and ratified the ICCPR, the US with explicit reservations that it is not “self effectuating”. That make it difficult to raise in a US court unless and until Congress passes a law creating a Federal civil cause of action, with a right of private action, against violators of the ICCPR. (This should be high on the agenda of any US administration desirous of showing that the US holds itself accountable to international human rights law). We don’t know whether there is any history of cases brought under the ICCPR in UK courts. If any is familiar with UK case law or precedent for invocation of the ICCPR, please tell us about it in a comment.

In addition, Optional Protocol #1 to the ICCPR creates a private right for any individual to bring a complaint to the U.N. Human Rights Committee against any state that is a party to the Optional Protocol.

Unfortunately, neither the USA nor the UK are among those that has ratified Optional Protocol #1 to the ICCPR. Thirty-five nations have ratified that protocol, however, and anyone denied passage by agencies or agents or state action of any of those governments (including inter alia Mexico, Australia, New Zealand, and most European Union members other than the UK) could bring such a complaint to the U.N. That remedy would seem to be available for denial of passage on the basis of any rule that doesn’t meet the test of necessity, including not just mandatory submission to body scanners but also extra-judicial no-fly orders or inability to present government-issued credentials.

[Update: the U.K. Department of Transport Interim Code of Practice for the Acceptable Use of Advanced Imaging Technology (Body Scanners) in an Aviation Security Environment contains an explicit, “No Scan, No Fly” provision:  “All passengers selected for screening by a body scanner must be scanned. If a passenger declines to be scanned that passenger must be refused access to the Restricted Zone, with the result that the passenger will not be able to fly. Information should be adequate, clear and provided ideally before ticket purchase.”  Since some people have already purchased tickets for travel as much as a year in the future, that would require at least a year’s delay, after notice begins to be provided by every one of the hundreds of thousands of travel agencies around the world.  More importantly, the new “Code of Practice for Body Scanners” appears to violate U.K. obligations under the ICCPR as well as potentially those respecting “common carriers” under international aviation treaties.]