Smuggling of Human Cargo and Liability Issues-Perspectivesat International Law.

Smuggling of Human Cargo and Liability Issues-Perspectivesat International Law.

Illegality or irregularity in migratory movements at International Law

Dr.Ruwantissa I.R. Abeyratne

DCL (McGill), LL.M (Monash) LL.M (Colombo) FRAeS, FCIT

International Civil Aviation Organization, Montreal, Canada

1. Introduction

Illegality or irregularity in migratory movements, although generally viewed from the perspective of the destination country, may occur in either one of the countries of origin, transit or destination or all of them. The country of origin becomes involved when a person leaves that country without a valid passport or an equivalent document of identity as required by national legislation. As regards the country through which an illegal migrant travels – or the transit country, its laws may be infringed upon if the person being smuggled did not have a transit visa to travel through that country. From the perspective of the country of destination, the main characteristics of illegal or irregular migration are more readily discernible. They are:

(a) the arrival by a person in a country and attempt thereafter to enter without compliance with required formalities or without authorization required by law for admission or stay in that country

(b) the cessation by a person of meeting conditions to which that person’s stay or activity is subject.1

Human migration is a compelling social indicator of the future and is driven by economic and social factors. Economically motivated migration characteristically takes place between countries which show a marked disparity in labour market situations (typically when one country shows shortage of labour and the other shows a surplus of labour) and sharply different levels of income.

The magnitude of the problem naturally spawns opportunities for profit making which in turn have given rise to the multi billion dollar human smuggling industry. In 1995, the Economist recorded:

Around the world, smuggling organizations ranging in size and degree of sophistication are smuggling tens of thousands of people from poorer to richer countries. In the process, they are earning at least

$7 billion per year, with the potential for even greater future profits.2

The risk element involved in the smuggling of humans is far less than the smuggling of narcotics and therefore some gangs of notoriety have reportedly abandoned the drug trade in favour of smuggling humans.3 Human smuggling, to be defined as such, has to be composed of two different kinds of activity: the exchange of money or other form of payment between the would-be illegal migrant and smuggler

Smuggling is a popular recourse and an easy “way out” to the illegal immigrant who faces huge distances to travel

Ironically, the last reason – difficulty in adjusting to life in the host country – works to the advantage of the smuggler. The process of payment, which is the essential part of the transaction of smuggling, is not always concluded with the act of smuggling. It may extend well beyond that point. The form and method of payment often reach insidious proportions of exploitation where the smuggler may discourage payment at the outset, making the illegal migrant an easy victim to exploitation and abuse. In many cases, the person seeking to be smuggled into a country illegally welcomes such deferral of payment making the smugglers’ business flourish through easier recruitment of candidates for illegal migration. This situation also strengthens the position of the smuggler to tighten his grip on the migrants and use their virtually indentured services for unlawful and criminal activities.

A 1995 study on smuggled women carried out in Belgium suggests that although most women were not required to pay the smuggler in advance, a high proportion of them had found themselves on arrival to be required to perform various services to the smuggling network4. The Vienna-based

International Centre for Migration Policy Development (ICMPD) has revealed that 15% – 30% of those who illegally went into Western Europe for purposes of employment or residence, estimated in 1993 to be a figure of 250,000 to 300,000 persons, used the services of smugglers.5

2. United Nations’ Initiatives

Concerned that the activities of criminal organizations that profit illicitly by smuggling human beings were becoming a threat to the world community and recognizing that international criminal groups often convince individuals to migrate illegally by various means for enormous profit, the United Nations, at its 48th General Assembly in December 1993, adopted Resolution 48/102 on the prevention of smuggling aliens. This Resolution makes mention of smuggling of illegal migrants as an activity that endangers the lives of those smuggled and imposes severe costs on the international community. The United Nations noted that smuggling of aliens can involve criminal elements in many States and condemned the practice of smuggling aliens in violation of national and international law. Resolution 48/ 102, while urging States to adopt measures to frustrate the objectives and activities of smugglers of illegal migrants, identifies the International Civil Aviation Organization (ICAO) as one of the specialized agencies of the United Nations that could consider ways and means to enhance international co-operation to combat the smuggling of aliens. At the same meeting, the General Assembly of the United Nations adopted Resolution 48/103 on crime prevention and international justice which reaffirmed the importance of the United Nations crime prevention and criminal justice programme and the crucial role the Organization has to play in promoting international co-operation in crime prevention and criminal justice. Resolution 48/103, inter alia, invites governments to lend their full support to the United Nations crime prevention and criminal justice programme.

In a subsequent 1997 resolution6 the United Nations General Assembly, at its fifty-first session, inter alia, recognized that international criminal groups often convinced individuals to migrate illegally by various means for enormous profits and that socio-economic factors influenced the problem of the smuggling of aliens and also contributed to the complexity of current international migration. The Assembly requested States to co-operate bilaterally and on a multilateral basis to prevent the use of fraudulent documents and reaffirmed the need to fully observe international and national law in dealing with the smuggling of aliens, including the provision of humane treatment and strict observance of all human rights of migrants.

Following up on its early initiatives, the United Nations General Assembly, at its 53rd Session, held in December 1998, adopted Resolution 53/111 establishing an open-ended inter-governmental ad hoc committee for the purpose of elaborating a comprehensive international convention against transnational organized crime. This Resolution gave rise to United Nations Convention against Transnational Organized Crime 7 (which was still in draft

form at the time of writing). The purpose of the Convention is to promote co-operation to prevent and combat transnational organized crime more effectively.

The Convention, by Article 3, requires Contracting States to establish as criminal offences, when committed internationally, the act of agreeing with one or more persons to commit a serious crime for any purpose relating directly or indirectly to the obtaining of financial or other material benefit and conducted by a person with knowledge tantamounting to participating in criminal activities of an organized criminal group.

The Convention also considers organizing, aiding, abetting, facilitating or counselling the Commission of serious crime involving an organized criminal group to be a criminal offence.8 The Convention attributes to any person who aids and abets a crime, knowledge, intent, aim and purpose to commit such crime as provided for in Article 3, which makes the conduct by a person who knowingly aids and abets a criminal or criminal organizations a crime. The provision does not impute liability to any person who aids and abets a crime if that person ought to have known that his conduct would aid and abet a crime. In other words, any person who commits a crime under the Convention should essentially have the knowledge that his conduct would facilitate, aid or abet a crime.

The Protocol9 which supplements the Convention (which was also in draft form at the time of writing) specifically addresses the smuggling of migrants by land, air and sea and records in limine, the concern of the States Parties to the Protocol that the smuggling of migrants may lead to the misuse of established procedures for immigration, including those for seeking asylum.

The Protocol defines the smuggling of migrants as follows:

“Smuggling of migrants” shall mean the procurement of the illegal entry into or illegal residence of a person in fa] [any] State Party of which the person is not a national or a permanent resident in order to obtain directly or indirectly, a financial or other benefit.10

The Protocol defines illegal entry as crossing of borders without complying with the necessary requirements for legal entry into the receiving State.

The purposes of the Protocol are to prevent, investigate and prosecute the smuggling of migrants, when involving an organized criminal group, as defined in the Convention and to promote international cooperation to meet these objectives.11The Protocol excludes the prosecution of persons who are smuggled, thus exclusively applying only to those responsible, directly or indirectly, in carrying out the act of smuggling.12

Article 4 of the Protocol requires States Parties to enact domestic legislation that would criminalize, inter alia, the act of producing a fraudulent travel or identity document. This would also mean that a person who aids and abets such an act would be deemed to be criminally liable under the

Convention. Article 12 of the Protocol provides that State Parties shall adopt such measures as may be necessary, in accordance with available means, to ensure that travel or identity documents issued by them are of such quality that they cannot easily be misused and cannot readily be unlawfully altered, replicated, falsified or issued. The provision also calls for States Parties to ensure the integrity and security of travel or identity documents issued by or on behalf of the States Parties and to prevent their unlawful creation, issuance and use.

3. ICAO Initiatives

ICAO initiatives on the development of secure identity documents, which has gained rapid momentum over the past decade, goes back to over three decades. The Seventh Session of the ICAO Facilitation Division in 1968 recommended that a small panel of qualified experts including representatives of the passports and/or other border control authorities, be established to determine the following:

a) the establishment of an appropriate document such as a passport card, a normal passport or an identity document with electronically or mechanically readable inscriptions that meet the requirements of document control

(b) the best type of procedures, systems (electronic or mechanical) and equipment for use with the above documents that are within the resources and ability of Member States

c) the feasibility of standardizing the requisite control information and methods of providing this information through automated processes, provided that these processes will meet the requirements of security, speed of handling and economy of operation.13

The FAL/7 Division also recommended that Contracting States should simplify the documentary requirements and other formalities for the issue of entrance visas for temporary visitors and should ensure that such visas are issued as quickly as possible after receipt of the application.14 Thus was born the passport card15 – the ancestor of the machine readable passport.

In its early stages the Passport Card Panel acted on the basis that a document with electronically or mechanically readable inscriptions could be accomplished only through the creation of a passport which took the form of a card. As there was no possibility at that time for available technology to admit of the development of a machine readable document in conventional passport-form, the Panel concentrated solely on developing a machine readable passport card, at least for the duration of its first three meetings. The Panel also came to the conclusion that a universal process of change from the conventional passport to a more simplified machine readable Card would only be possible through a cautious process of evolution. The main advantage of the Passport Card was considered to be in the fact that, since visas can

obviously not be endorsed on a Card by traditional methods as on pages of a conventional passport, Contracting States would be compelled to eliminate visa requirements when the Card was being used. The concept of the machine-readable Passport Card however, was later not considered an immediately viable proposition and the Panel agreed that a viable interim measure might be an improved conventional passport with machine readable characteristics,16 thus giving rise to the birth of the currently used machine readable passport (MRP). This reversal of priorities, from the machine readable Passport Card to the Machine Readable Passport is interesting, since the progenitor – the Passport Card – had now become the progeny and the ultimate aim in the scheme of evolution of machine readable travel documents.

A. The Machine Readable Passport (MRP)

The machine readable passport (MRP) is a passport that has both a machine readable zone and a visual zone in the page that has descriptive details of the owner. The machine readable zone enables rapid machine clearance, quick verification and instantaneous recording of personal data. Besides these advantages, the MRP also has decided security benefits, such as the possibility of matching very quickly the identity of the MRP owner against the identities of undesirable persons, whilst at the same time, offering strong safeguards against alteration, counterfeit or forgery. Another advantage of the MRP is the fact that the document obviates the need for the passenger to lodge embarkation or disembarkation cards, on the assumption that countries installing automatic reader equipment would accept the data on the passport as sufficient for their clearance purposes. Of course, the MRP had to offer safeguards equal to or better than those of conventional passports and satisfy those control requirements already set by conventional passports and other travel documents in use throughout the world. Also, since it was only natural that a certain number of States would not have wished to issue the MRP or adopt new procedures related thereto, it was expected that a machine readable system and conventional passport procedures would operate side by side for some time.

Although the MRP may be produced and used as a single and separate card, it has to take booklet-form since most States still insist on entrance visas, which have to be accommodated in the passport. The MRP’s dimensions are smaller than those of most traditional passports, its overall dimensions being 88.75-mm by 125.75-mm. The page has two areas – with the visual-inspection zone on top of the page as the first area, and the machine-readable zone at the bottom, as the second area. The visual inspection zone contains the photograph and personal data of the owner. At the bottom – in the machine readable zone, are prescribed data elements printed in machine readable form in a prescribed sequence and position. When being used, the MRP is opened at the page containing the visual-inspection and machine-readable zones and placed face down on a glass surface in the reading machine, thus activating an electro

optical-scanning mechanism. The mechanism illustrates the two machine readable lines and surrounding background using a light source. The whole process operates on a principle of “light absorption” where the mechanism in the reader uses an optical sensor to measure the presence or absence of light reflecting off the page. The cumulative efforts of this “imagery” process and a computer installed in the reader then produces on the screen of the reader, all the information that the inspecting officer requires, such as the passport number, date of expiry of the passport, name of the issuing State, passport-owner’s name, nationality, sex, date of birth, and optionally, national ID number. The computer also interrogates simultaneously, a data base containing a list of persons considered undesirable by the State of entry and the results thereof are displayed on the screen momentarily, enabling the inspecting officer to decide whether the bearer of the passport can be admitted to the country. This process takes a mere ten seconds,17 and adds a tremendous impetus to the facilitation efforts of ICAO.

ICAO recommends the use of the MRP by all States, even if meagre traffic flows may not justify the use of reading equipment.18 The first MRP was issued in the United States of America in 1981 and since then, well over 35 million MRPs have been issued World-Wide, while millions more are being issued every year in countries such as Canada, Australia, Germany.19 Technical specifications for MRP’s were first published by ICAO in the First Edition of Doc 9303 in 1980, based on Standard 7501 of the International Organization for Standardization (ISO). Developments in technology and modern exigencies of prolific air travel however, dictated that the specifications contained in Doc 9303 be improved. As the ICAO Panel on Passport Cards had been extinct with the publication of its Fifth Report in 1978, the International Organization for Standardization (ISO) took it upon itself to establish a working group to update the provisions of Doc 9303 so that the outcome of their deliberations would be published as a new ISO Standard. The care taken by the ISO working group led to considerable time being taken by the working group, compelling ICAO to establish a new group to succeed its Panel on Passport Cards, namely, the Technical Advisory Group on Machine Readable Passports (TAG/MRP) which met for the first time in 1986.20 ICAO thus regained its lead in developing MRP specifications and co-ordinating with other organizations the task of developing a single set of specifications for machine readable travel documents. On the strength of ICAO’s new leading role, the Air Transport Committee of ICAO widened the scope of the terms of reference of ICAO to include the development of specifications for machine readable visas and to provide for the Group’s membership to include participation by the authorities responsible for visas. Accordingly, the ISO Technical Committee, in the light of ICAO’s new role in updating specifications in Doc 9303, adopted a proposal to withdraw ISO Standard 7501, so that there would not be confusion by the introduction of double standards or “overlapping” of specifications of ICAO and ISO.

ICAO’s terms of reference in the development of specifications for MRPs stem from the Chicago Convention itself which provides for ICAO’s adoption of international Standards and Recommended Practices dealing inter alia with customs and immigration procedures.21 It is interesting that passports apply to other modes of international travel as well, and the fact that ICAO has been singly designated to adopt specifications speaks for the uniqueness of its facilitation programme.22

B. The Machine Readable Visa

With the terms of reference of ICAO having been expanded to cover the development of machine readable visas (MRV), the Technical Advisory Group changed its name to read as the Technical Advisory Group on Machine Readable Travel Documents (TAG/MRTD), and, in 1992 released specifications relating to a machine readable visa23. Since the visa is inextricably linked to the passport, both the MRP and the MRV go side by side, and are not considered in isolation. As long as visas were required and needed to be attached to the passport, it was difficult to envisage the development of a Passport Card, and a booklet type passport was required for visual inspection. The MRV therefore is the main reason for the retention of the MRP concept in its present form. Since MRVs can be accommodated in any type of passport (whether machine-readable or conventional) the placement of an MRV in a conventional, non machine readable passport would make that passport machine readable, worldwide.

C. Official Travel Documents

The Technical Advisory Group on Machine Readable Travel Documents has also developed the Size 1 and Size 2 Official Travel Documents24 (TD-1) which are cards conforming with Specification 7810 of the International Standards Organization (ISO) and is designed to be read by machine similar to the machine readable passport and visa. The specifications stipulate standards for official documents of identity which can be used for travel purposes in terms of acceptance of a person by a receiving State. In the same year during which the official travel document specifications were released by ICAO – 1996 – the Organization released specifications for machine readability of the crew member certificate25

At its eleventh meeting held in September 1999, the Technical Advisory Group on Machine Readable Travel Documents reiterated its support for continued work to develop a set of indicative, probably short term, test methods that could emulate failure modes commonly found in travel documents26. The Group also approved in principle that the future direction of the Group’s work should include inter alia, the development of specifications for an electronic visa

D. Annex 9 Provisions and related issues

The Tenth Session of the Facilitation Division of ICAO held in September 1988, considering that several States were issuing MRPs and that a standard document would greatly assist the clearance of persons through airport controls, recommended that Contracting States should issue machine readable passports in the layout as set out in Doc 93O3.28 This recommendation was adopted by the FAL/10 Division29 and incorporated in Annex 9 (Ninth Edition) to the Chicago Convention.30 Insofar as visas were concerned, the FAL Tenth Division recommended that in cases where Contracting States continued to require entry clearances or visas, these should be issued in machine readable form compatible with the layout specified in ICAO Doc 9303 even if the travel document in which they are placed is not established in machine readable format.31 This Recommendation was later incorporated in its Report,32 and adopted as a Recommended Practice in Annex 9 (Ninth Edition).33

At the Eleventh Session of the ICAO Facilitation Division, which was held in April 1995, the Division recommended that in cases where States cannot yet issue machine readable passports, they shall issue passports which conform to the format set forth in Doc 9303 Part 1, leaving the machine readable zone blank. This recommendation was later included as a standard in Annex 934.

At its 32nd Session, held in Montreal between 22nd September and 2 nd October 1998, the ICAO Assembly adopted a resolution which requests the Council of ICAO to study specific actions and measures for enhancing the effectiveness of controls on passport fraud, including the possible preparation of necessary Standards and Recommended Practices (SARPs) and guidance material, to be implemented by Contracting States in the interests of maintaining the integrity and security of passports and other travel documents. The Resolution also calls upon all Contracting States to intensify their efforts to safeguard the security and integrity of their passports, to protect their passports against passport fraud, and to assist one another in these matters.35

4. Liability of the Air Carrier

The primary consideration when considering an air carrier’s liability for transnational crime is that it would be unrealistic to envisage a carrier colluding with organized criminal elements or initiating the smuggling of persons across borders for financial or other gain. The only implication for carriers would be for aiding and abetting organized crime, and the draft Convention Against Transnational Organized Crime on Transnational Crime explicitly provides that such aiding and abetting should be accompanied by knowledge. Thus, if a carrier unknowingly facilitates organized transnational crime, it could not be directly held liable under the Convention. The only difficulty that a carrier may face is on the question of whether liability could be imputed to a carrier in circumstances whether it ought to have known

that a crime under the Convention would be facilitated by the carrier’s actions or absence thereof.

The Chicago Convention of 194436 in its Article 13 provides that the laws and regulations of a Contracting State with regard to the admission to or departure from such State of passengers, crew or cargo of aircraft, in relation to their entry, clearance, immigration, passports, customs and quarantine should be complied with by or on behalf of such passengers, crew or cargo, upon entrance into or departure from, or while within the territory of that State. This provision prima facie imposes a legal duty on the airline passenger concerned to comply with the legislation of the country he is attempting to enter, presumably by ensuring inter alia that he carries all necessary legal documentation to enter that country. The provision also carries the implied requirement that if the passenger fails to comply with such laws, they should be complied with on behalf of the passenger. By this, Article 13 of the Chicago Convention, without explicitly stating that it is the airline’s responsibility to ensure on behalf of the passenger, compliance with laws of the country of arrival, imputes to the airline that responsibility. Of course, one can argue that in the absence of explicit mention in the provision* the airline is not responsible for ensuring that a passenger is admissible in the country to which it carries that passenger, particularly since the Chicago Convention is a treaty establishing the obligation of States towards each other. Therefore, logically, it may be arguable that when Article 13 uses the words “on behalf of”, it may well be applicable to the duty devolving upon the authorities of the State in which the person embarked on his flight.

Annex 9 to the Chicago Convention – on facilitation of air transport – dedicates Section E of its Chapter 3 to inadmissible persons carried by air. An inadmissible person is defined at air law as “a person who is or will be refused admission to a State by its authorities”. The Annex provides that the operator (airline) which carries a passenger to a country shall be responsible for the custody and care of passengers and crew until they are accepted for examination for the purposes of immigration37 which that country is obligated to do without unreasonable delay.38 The authorities take responsibility for such passengers and crew once they are so accepted for examination, until a determination is made whether they are admissible to the country or not.39

A person found inadmissible is required to be handed over by the authorities who find him so inadmissible, to the operator (airline) who brought him in.40 The airline is then responsible for taking the person back to his country of origin (where he commenced his flight) or to any other place which accepts him.41

The Annex casts a burden on a State in which a person has stayed for a period of time (not merely in transit) prior to his landing in another State which finds him inadmissible, to accept such person for examination, subject to the fact that by doing so, the State which accepts the person for

examination does not jeopardise his life or freedom.42 Perhaps the most relevant provision of Annex 9 to the question at issue is Standard 3.40.1 which stipulates

Contracting States shall not fine operators in the event that passengers are found inadmissible unless there is evidence to suggest that the carrier was negligent in taking precautions to the end that passengers complied with the documentary requirements for entry into the receiving State.

There is also the provision that Contracting States and operators shall co-operate, where practicable, in establishing the validity and authenticity of passports and visas,43 with a recommendation that where operators co-operate with the control authorities to the satisfaction of those authorities, Contracting States should mitigate fines and penalties that might otherwise be applicable to the operators for inadmissible passengers carried to those States.44

A strict interpretation of regulatory provisions on air carrier liability for the carriage of inadmissible persons seems to suggest that there is no prima facie presumption of guilt on the airline. On the contrary, Article 13 of the Chicago Convention, which is strictly an international treaty containing provisions setting out legal obligations between States, provides that applicable laws have to be complied with by the passenger, or on behalf of the passenger (my emphasis), which may be interpreted that State authorities, such as customs and immigration or consular authorities would have a greater burden of ensuring compliance with Article 13 than the airlines.

A fortiori, Annex 9, by Standard 3.40.1 explicitly requires that in the absence of evidence of the carrier’s negligence, the carrier shall not be fined. Although the linkage between the Convention and Annex is at times doubted in view of the Statement in Article 54(1) in the Convention that the Annexes to the Convention are so named for convenience, nonetheless it is an incontrovertible fact that Annex 9 attenuates its authority from the Convention and therefore is an integral part of it. Standard 3.40.1, which has been developed by the Council of ICAO with the approval of ICAO member States, is therefore international in scope and not diminished in its legal authority, but rather acts as an explanatory note to Article 13 of the Convention.45

The security and integrity of the passport46, which is usually recognized as the fundamental

legal document of travel between countries, becomes a critical issue in the determination of liability. The passport carries details of a persons identity, country of citizenship and entitlement to travel privileges. Above all, and in the context of inadmissible passengers, the passport would serve as assurance to the country in which a person is found inadmissible, that he can return to the country which issued the passport.

Unless otherwise specified, a passport remains the property of the State of issue, and therefore misuse or destruction of a passport becomes an infringement of law against that State.

Conversely, a grave responsibility devolves upon States to ensure that their property is secure from such misuse or fraud – particularly the commonest known abuse or fraud in the nature of forgery. The use of forged or counterfeit passports, the use of valid passports by impostors, and the misuse of valid passports by their rightful owners in the perpetration of an offence are some of the common ways in which passport fraud is perpetrated today.47

If an air carrier were to be found guilty of aiding and abetting a crime of transnational smuggling of persons, it would have to be proved that the carrier would at least have had reasonable knowledge that its actions or inaction would assist in the offence. Mere carriage of the person by the carrier concerned would not be sufficient grounds. Although the distinction between aiding and abetting is not easily distinguishable, it is reasonably clear that the act of aiding is giving some assistance in the commission of a crime while abetting is being present at the scene of the crime and encouraging or procuring the commission of a crime. A person who distracts a security guard while his friends shoplifts may be aiding the offence, while a sales clerk who encourages or stands by while a person shoplifts may abet in the offence. The element of positive intention is critical to determining the offences of aiding and abetting. Be that as it may, one could well ask the question, “what if a carrier, knowing full well that a grave risk of allowing the smuggling of illegal migrants on its flights would exist if proper security measures are not adopted, does not adopt such measures and as a consequence has persons smuggled in its aircraft”? Does this tantamount to aiding and abetting the smuggler under the Convention? Is the carrier encouraging the smuggler to pursue his criminal activity?

Of course, much would depend on the circumstances of each case. Although there is a traditional reluctance in criminal law to penalize omissions, courts have distinctly recognized exceptions to this principle in cases where a person who stands by is under a specific legal duty to act. A driver of a car who tacitly acquiesces by doing nothing on the road while the driver next to him is engaging in dangerous driving has been held to have abetted the dangerous driving because he did not exercise his power to control the use of his vehicle48. In a 1990 Canadian case49, a senior officer of a police lock up was found to have aided and abetted an assault on a prisoner on the ground that he failed to exercise his statutory authority to protect the prisoner. If this principle were to be applied in analogy to a carrier who stands by without adequate checking of travel documents of persons boarding its flights or does not employ adequate security measures that would discourage potential transnational smuggling of persons, one could certainly expect a common law court to consider such a carrier within the parameters of national legislation adopted in accordance with the Convention Against Transnational Organized Crime as having aided and abetted a crime, although such carrier may not have had the necessary intent is required, and notwithstanding the fact that, as discussed above, the Chicago Convention and Annex 9 do not impose liability

on the carrier with regard to fraudulent travel documentation. The 1994 American case of Argenbright Security v. Ceskoslovenske Aeroline50 is a good analogy where, in determining the liability of an airline’s omission to detect stowaways, whose presence in an aircraft would impute to the carrier knowledge of such presence on the basis of negligence to discover such passengers and eject them from the flight prior to take-off, the Court upheld a fine imposed on the carrier by the Immigration and Naturalization Services (INS). In such an instance where the airline ought to have known of the stowaway, a penalty is imposed by INS, as a penal sanction rather than as coverage for administration costs involved in the application for asylum made by the stowaway. The Court held:

This penalty is clearly designed as a sanction for carriers who fail to detail or deport a stowaway and has nothing to do with the cost of detention of stowaways who are properly detained pending a hearing … As a result, the availability of this fine does not relieve the airline of its statutory responsibility … to bear the full maintenance costs associated with the detention of excluded stowaways.51

This decision demonstrates that air carriers are required to exercise due diligence in carrying persons on board their aircraft and prevent the unauthorized carriage of persons.

5. Conclusion

It is clear that, on the issue of the determination of air carrier liability for the carriage of illegal migrants, what is seemingly a straightforward regime concerning criminality that requires knowledge and intent could now be stretched to accommodate subjective interpretations of aiding and abetting. The reason for this is the rapid development of information technology which has placed in the hands of States such sophisticated security tools as the machine readable travel document. Although all readings of existing regulatory instruments such as those promulgated by ICAO and the Convention Against Transnational Organized Crime do not admit of air carrier liability (unless the elements of knowledge and intent are present as stipulated in the Convention), the fact that a person cannot just stand by when he has a specific duty to act is a strong factor that would militate against the provision requiring knowledge and intent. Air carriers must, as a necessity, strengthen their security and take all necessary measures to prevent crime within their business operations.

A fortiori, airlines will be required to exercise more vigilance in the future, particularly with the introduction of the excellent initiative of the International Air Transport Association (IATA) for Simplified Passenger Travel (SPT) which has now gained momentum. The SPT concept, which is calculated to be essentially a tool for facilitating air travel, uses a smart card which confirms a traveller’s identity through trip related information and biometric data which is encoded52 The check-in takes less than a minute with the SPT card. Reportedly, a number of airlines are already

well into the process of developing smart card technology. This could only mean that such a process, when developed by some, would have a coercive effect on other airlines which are able to follow suit. Failure to follow such industry practices may have negative implications on an air carrier’s security record and may result in uncalled for legal liability.


1 Binal Ghosh, Huddled Masses and Uncertain Shores, Martinus Nijhoff: 1998 at p. 4.

2 The New Trade in Humans, Economist, August 5 1995 at p. 45.

3 Human Smuggling, Paul J. Smith ed. The Centre for Strategic and International Studies: Washington DC. 1997 at p.9.

4 Trafficking and Prostitution: The Growing Exploitation of Migrant Women from Central and Eastern Europe, International Organization for Migration (IOM): Geneva 1995 at p. 12

5 Jonas Widgren, Multilateral Co-operation to Combat Trafficking in Migrants and the Role of International Organizations, ICMPD: Vienna, 1994, at p. 5-6.

6 A/RES/51/60.

7 Revised Draft, United Nations Convention Against Transnational Crime, A/AC.254/4/Rev.8, 7 April 2000.

8 Id. Article 3 l.(b).

9 Revised draft Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime, A/ AC.254/4/Add. I/Rev. 5, 20 March 2000.

10 Id. Article 2.

11 Id. Article 3.

12 Id. Article 3 bis

13 Facilitation Division, Report of the Seventh Session, 14-30 May 1968, ICAO Doc 8750-FAL/564, Agenda Item 2.3, at 2.3-4. See also AT-WP 1079, 1/12/70, Attachment A, which sets out the Terms of Reference of the Panel.

14 Id. at 2.3-5.

15 See ICAO, AT-WP/1183, 13/9/73, at 7 and 22. The passport card has been identified as a passport in card format as well as an improved conventional passport, both possessing machine-readable characteristics.

16 Id. at 8.

17 Pamela Shaw, Cutting Red Tape, ICAO Journal, January 1991, 6, at 8-9.

18 Pamela Shaw, op. cit. at 7.

19 Ibid.

20 The Technical Advisory Group comprised experts nominated by eight of the ten States that had originally participated in the ICAO Panel on Passport Cards. At present, the Group has twelve members from ICAO Contracting States, twelve observers from ICAO Contracting States and three observers from international organizations

21 Convention on International Civil Aviation, signed at Chicago on 7 December 1944, Article 37(j). For full text see ICAO Doc 7300/6, Seventh edition, 1997.

22 See Machine Readable Passports, ICAO Doc 9303/2, Second Edition 1990 at 6.

23 Machine Readable Travel Documents Doc 9303 Part 2, Machine Readable Visas, First Edition, 1992. The second edition of this document was released in 1994.

24 See Machine Readable Travel Documents, Doc 9303 Part 3 Size 1 and Size 2 Machine Readable Official Travel Documents, First Edition 1996

25 Machine Readable Travel Documents, Doc 9303 Part 4, Machine Readable Crew Member Certificate, First Edition -1996.

26 See Report of the Technical Advisory Group on Machine Readable Travel Documents, Eleventh Meeting, TAG-MRTD/ 11 Report, Montreal 1-3 September 1999

27 Id, para 2.1.3.

28 See FAL/10-WP/17, Recommendation A.

29 Facilitation Division, Report of the Tenth Session (7-23 September 1988), ICAO Doc 9527, FAL/10 (1988), Recommendation No. A-44.

30 Annex 9 to the Convention on International Civil Aviation (Tenth Edition) – April 1997, Recommended Practice 3.5.1.

31 See FAL/10-WP/I8, 29/1/88.

32 Supra note 29, at Recommendation A-44.

33 Annex 9 (Tenth Edition), Recommended Practice 3.8.1.

34 Annex 9 to the Convention on International Civil Aviation, Tenth Edition – April 1997, at 3.5.2.

35 The full text of the Resolution is as follows: International co-operation in protecting the security and

integrity of passports

Whereas the passport is the basic official document which denotes a person’s identity and citizenship and provides an assurance for the State of transit or destination that the bearer can return to the State which issued the passport

Whereas international confidence in the security and integrity of the passport is of prime importance in the functioning of the international travel system

Taking into account the resolution adopted by the United Nations General Assembly which requests that ICAO consider ways and means to enhance international co-operation to combat the smuggling of aliens, while emphasizing that such efforts should not undercut the protection provided by international law to refugees

Taking into account the resolutions adopted by the United Nations Genera] Assembly and the Economic and Social Council which request that Member States establish or improve procedures to permit the ready discovery of false travel documents, that States co-operate bilaterally and on a multilateral basis to prevent the use of fraudulent documents, and that States take measures to provide penalties for the production and distribution of false travel documents and the misuse of international commercial aviation

Whereas high level co-operation among States is required in order to strengthen resistance to passport fraud, including the forgery or counterfeiting of passports, the use of forged or counterfeit passports, the use of valid passports by impostors, the misuse of authentic passports by rightful holders in furtherance of the commission of an offence, the use of expired or revoked passports, and the use of fraudulently-obtained passports.

The Assembly:

1. endorses the actions taken by the Council through the Air Transport Committee to strengthen and approve specifications for machine readable passports as they relate to security of such documents

2. requests the Council to study specific actions and measures for enhancing the effectiveness of controls on passport fraud, including the possible preparation of necessary SARPs and guidance material, to be implemented by Contracting States in the interests of maintaining the integrity and security of

passports and other travel documents

36 Convention on International Civil Aviation, Supra, note 21.

37 Annex 9 Supra, note 30, Chapter 3, Section E, 3.38.1.

38 Id. 3.38.

39 Id. 3.38.2.

40 Id. 3.39.

41 Ibid.

42 Id. 3.39.1.

43 Id. 3.40.3.

44 Id. Recommended Practice 3.40.2.

45 It is noteworthy that the ICAO Facilitation Panel which met in Montreal, from 17 to 21 November 1997, has suggested two new Recommended Practices to Annex 9 which provides:

1. The appropriate public authorities of Contracting States either singly or jointly should enter into co-operative arrangements such as memoranda of understanding with the airlines providing international services to and from that State, setting out guidelines for their mutual support and co-operation in countering the abuses associated with travel document fraud. Such arrangements should assign mutual responsibilities to the public authorities and to the airlines, in the ascertainment of the validity and authenticity of the travel documents of embarking passengers, and in the necessary steps to prevent the loss or destruction of documents by passengers en route to their destinations

2. Contracting Sates are encouraged to make arrangements such as memoranda of understanding (MOUs) with other Contracting States with the intention of permitting the positioning of “liaison officers” at airports or to establish other forms of international co-operation in order to assist airlines to establish the validity and authenticity of the passports and visas of embarking passengers.

See Facilitation Panel Report. First Meeting, Montreal, 17-21 November 1997 at 1-4.

46 For a more detailed discussion of the legal nature of the passport see R.I.R. Abeyratne, the Development of the Machine Readable Passport and Visa and the Legal Rights of the Data Subject, Annals Air & Space Law, Vol. XVII (Part II), 1992, pp 1-32 at pp l2-I4,

47 In conformity with Article 22 of the Chicago Convention, which confirms the agreement of all Contracting States to adopt all practicable measures to prevent unnecessary delays to aircraft, passenger and crews especially in the administration of laws relating to immigration, quarantine customs and clearance, ICAO is actively seized of the development of a machine readable travel document which uses various devices to secure the passport, visa and other travel documents against fraud.

48 R.v. Halmo (1941) 76 C.C.C. 116 (On. C.A). Also, R. v. Kulbacki (1966) I.C.C.C. 167 (Man. C.A.)

49 R.v. Nixon, (1990), 80 C.C.C. (3d) 16 at 21 (Ont. C.A.)

50 849 F Supp. 276 (S.D.N.Y. 1994).

51 Id. 281.