Other Human Rights in Aviation Security

Abstract

As discussed, the rights to privacy and data protection are inadequate to capture all the aspects of aviation security, and all human rights are interdependent, indivisible and interrelated. Thus, aviation security versus privacy dilemma is actually broader than privacy and data protection rights only.

1 Introduction

As discussed, the rights to privacy and data protection are inadequate to capture all the aspects of aviation security, and all human rights are interdependent, indivisible and interrelated. Thus, aviation security versus privacy dilemma is actually broader than privacy and data protection rights only.

The first rather common association that comes to mind with the words “air passenger rights” is primarily the rights of a passenger as a customer. Air transportation in a legal sense involves the relationship between air transportation service providers (airlines) and consumers; traditionally, these relations are governed by civil law.¹ According to the contract of carriage, the airline undertakes to deliver passengers and cargo to an agreed destination for a set fee, under certain conditions.

The rights of a passenger as a consumer may vary from airline to airline,² but in general, they relate to such issues as flight cancellation, delays, baggage liability, etc. They will not be analysed thoroughly since they do not fall within basic human rights category and, although the security undertakings may have impact on consumers’ interests and may result in negative economic consequences, they do not violate consumer rights. Typical examples here are denial of boarding, long security lines, the restrictions on liquids allowed on board aircraft, property risks. For instance, when being subjected to hand-held metal detection or body scanning, one can no longer watch his/her hand baggage and items such as a wallet or phone can disappear.

The second association is that air passengers use the airlines’ services exercising their right to travel, in other words, freedom of movement, one of the basic fundamental human rights. In addition, however, as a human being and individual, a passenger possesses all the fundamental human rights enshrined in different human rights conventions. The first of these is the right to life.

Taking into account the terrorist threat and other risks in civil aviation, a person’s right to life is directly related to aviation security undertakings. Everybody wants to travel safely. It is believed that different security measures and technologies are intended to provide the highest level of security for passengers, to protect their lives. Passengers, legitimately expecting states to ensure that security is maintained by such measures, become subject to security rules and regulations governing different screening procedures at the airport and on board the aircraft, as well as to customs and immigration requirements.

As discussed previously, some of these procedures entail risks to privacy/data protection as well as other relevant rights: the right to health, freedom of movement, the right to equal treatment and non-discrimination, freedoms of thought, conscience and religion, and rights of the child.

This chapter will include several parts. First, it is a general discussion on the whole human rights concept. Such a broad analysis is necessary in order to indicate general principles and mechanisms of human rights protection as well as grounds for their restrictions and limitations, which are mainly common for all human rights and are applicable in the aviation security sector. The key issue is to ascertain the circumstances under which the law may allow interference and subsequent limitations of human rights in the course of security undertakings.

Secondly, the chapter will analyse the relevant rights more concretely, in particular, general regulation (the discussion is mainly limited to international and the EU instruments), important case law, general applicability of case law in aviation security, possible interference and basic rules for substantiation.

More importantly, a broader overview of human rights applicable in aviation security may allow the construction of a common general model to evaluate whether the measure’s interference with human rights is justified, and consideration of whether the scheme which will be further developed in terms of the right to privacy can be basically applied to other human rights.

Moreover, the correlative impact of aviation security measures with regard to all applicable human rights may have an impact on evaluation of the proportionality of the regime and, accordingly, may contribute in the analysis of the dilemma “aviation security versus privacy”. The rule is that the more negative impacts on different human rights, the more “weighty” the cost of aviation security measures in the form of human rights concerns and accordingly, the more security benefits and other factors are needed to justify the impact. Therefore, impact on other rights in addition to privacy/data protection may be additional grounds for the justification or non-justification of the measure and will be taken into account in the Special Part.

I acknowledge that discussion in this chapter is more cross-investigative rather than comprehensive, in-depth analysis of all applicable human rights; thus, the legal regulation and literature used will be quite limited. In addition, respective norms from national Constitutions may be used as examples; thus, there is a mix of human rights law and constitutional law.

2 The Concept of Human Rights

2.1 Protection of Human Rights

The importance of human rights cannot be underestimated. Human rights constitute instruments of protection against humiliation and governmental abuses; they perform important functions to restrict the government in order to protect human dignity and to encourage the government to protect it; the essence of human rights is that they support human dignity and ensure external recognition and respect of it.³ On the formal side, fundamental human rights are enshrined in different international and regional human rights conventions, treaties and other instruments, as well as in the national constitutions and legislation of many countries.

In the aftermath of the First World War, under the established League of Nations, attempts were made by the international community to develop a system of protection of human rights and international monitoring mechanisms.⁴ After the Second World War, such a system was established, when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR) on 10 December 1948.

Formally the Declaration is not a treaty, but it determined basic civil, political, economic, social and cultural rights, and it served as the foundation for two binding UN human rights covenants: International Covenant on Civil and Political Rights of 1966 (ICCPR)⁵ with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR).⁶ The UDHR, together with the ICCPR and the ICESCR, form the so-called International Bill of Human Rights. In addition, on the basis of the UDHR, other international human rights treaties and instruments were adopted.

At the regional level, such instruments were adopted as well, reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. In Europe, the most important instruments include the European Convention on Human Rights of 1950 (ECHR),⁷ the Charter of Fundamental Rights of the European Union of 2000 (CFREU), and the Treaty on Functioning of the European Union (TFEU).

At the national level, the states which become parties to international human rights treaties and ratify them, usually adopt respective norms in national Constitutions and/or acts on human rights. But only adopting norms on paper is not enough. The states are obliged to promote, respect, protect and fulfil human rights of the people living in their territory.⁸ These elements require closer scrutiny.

The term “people” here is used as a synonym for “individuals” or “persons”. However, when applied to the state, they include own and foreign citizens as well as persons without citizenship. In general, all of them, being human beings, enjoy all the human rights within the territories of all states which are parties to respective international treaties (with a few exceptions, such as the rights to vote or to stand for public election, which are usually reserved for citizens). Aviation security deals with air passengers, crew and people on the ground; all of them are human beings thus enjoy the rights as well.

As for the “territory”, in general, state territory is a part of the globe that is under the sovereignty of a particular state. It includes the land (all the dry land within the state boundaries), the waters (both inland and territorial), and the air space over both the land and the waters (the troposphere, stratosphere, ionosphere, and a considerable part of adjacent outer space). Within its territory, a state has territorial supremacy.⁹ In other words, state territory is an area under the jurisdiction of a particular state. There are also territories which do not belong to a particular state, with special, mainly international status (Antarctica etc.).

The aviation security can be provided on the ground, in the air and beyond.¹⁰ It is clear that the ground falls within the term “land” thus constituting a state’s territory. Difficulties with jurisdiction may arise in conjunction with international aviation, where aircraft cross state boarders and fly in the air space above different territories. However, jurisdiction can be determined according to international and national air law.¹¹

A broad interpretation of these principles allows the conclusion that protection and enforcement of the human rights of air passengers and other people on board as well as on the ground must be provided no matter where a person is, subject to ratification of the human right treaties by applicable states.

The state’s obligation to promote human rights is self-explanatory. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires states to protect individuals and groups against human rights abuses, including ensuring that non-state parties do not infringe upon human rights. The obligation to fulfil means that states must take positive action to facilitate the enjoyment of basic human rights.¹²

The states must take steps, individually and in cooperation, in order to progressively achieve the full realization of the rights by all appropriate means.¹³ The states must therefore put the rights in effect in national law, that is implement domestic laws and other measures as may be necessary.¹⁴ The human rights are often protected by the main national legal instrument – the Constitution, or by other laws.

Furthermore, the states must ensure that any person whose rights or freedoms are violated shall have an effective remedy, including judicial remedy; the rights to a remedy must be determined by competent judicial, administrative or legislative authorities, or by any other competent authority.¹⁵

Taking into account different factors and processes affecting the protection and realization of human rights, an effective scheme of protection of any human right or freedom should include the following¹⁶: (i) existence of laws protecting this right from violations; (ii) assurance of effective protection mechanisms, including judicial remedy. Such implementation and enforcement cannot be effective without transparency of government activities, availability of information about the rights and possibilities of their protection, and existence of independent protection institutions; (iii) existence of self-regulatory mechanisms, such as corporate principles and policies, binding corporate rules, etc.. In other words, this right should be “rooted” in the culture, traditions and customs; (iv) existence and availability of means of self-defence for individuals.

Such an “ideal” protection scheme can be fully realized only in the conditions of the rule of law, with an effective judicial system, responsible and competent officials, law enforcement agencies following the law, and higher standards of legal consciousness of the citizens who respond actively to violations and use all the means of protection.¹⁷

The human rights concept looks good in the theory: there are certain rights, and the states must promote, respect, protect and fulfil these rights. But in reality there are different factors, circumstances, interests, values and so on which may have impact on human rights; some of them can be described as threats.

Namely, the existing protection mechanisms co-exist with current public conditions (social and political conditions, including the priorities of domestic and foreign policies and features of international relations, the level of technological progress, development of civil society, social communication, etc.) and subjective factors (relevance of the law, level of social activity, etc.). Despite the formal existence of protection possibilities, the right may not actually be protected due to prevailing attitudes in the particular society, the features of national traditions and cultural context, the presence or absence of social experience in the right protection, the degree of public confidence in social institutions, etc.

Fortunately, national law and national features are not the only factors that play a role. Many national constitutions and laws include provisions stipulating that in the case of conflict between the provisions of national law and those of international treaties, the provisions of international treaties shall prevail.¹⁸ The incorporation into domestic laws of international instruments recognizing the human rights can significantly strengthen the scope and effectiveness of remedial measures. It enables courts to adjudicate violations of the rights by direct reference to the international treaties.¹⁹

But is it possible to control how the states fulfil the international obligations concerning human rights, to hold governments accountable if they violate the rights? Monitoring and holding states accountable are procedures taking place at national, regional and international levels and involving a variety of actors, such as the state itself, non-governmental organizations, national human rights institutions or international treaty bodies.

The concept of accountability of the state and redress implies that the rights should be realized and monitored through various mechanisms, such as reviews of policy, budgets or public expenditure, governmental monitoring mechanisms, impact assessments, democratic processes, monitoring and advocacy by civil society organizations. Moreover, at the international level, different committees exist, such as treaty bodies established by the UN, which also monitor the states’ compliance with the international instruments.

Finally, when the states fail to ensure an effective remedy for human rights abuses at the national level, it is possible for an individual to apply for redress at the regional and international level, for instance to the ECtHR.

2.2 Limitations of Rights

Despite the mechanisms discussed above, a negative impact of different factors on human rights still exists, taking various forms: from “little concern” to limitations, restrictions and violations. In addition, there always appear “internal” conflicts of values between human rights themselves, entailing difficulty in finding an appropriate balance: how to enforce one right or freedom without limiting or even violating another one? What can be done where two or more rights compete and result in none of them being fully realized? A classic example is the relation between the freedom of speech and the right to private life.

A general rule is that rights may not be exercised contrary to the purposes and principles of the UN, or if they are aimed at destroying any of the human rights (UDHR Art. 30). It can hardly be stated that the security process, protecting the right to life, involves the aim of destroying any other human right. The impact occurs latently, in the course of definite security measures, mainly due to special features, technical capabilities, applied methods, etc. Can the security’s “ultimate aim” as well as terrorism threat, the risks justify all the concerns? In the human rights context, the main question is whether the protection of every relevant human right involved allows, in definite circumstances, a lawful exception or limitation of this right.

Scheinin and Vermeulen note that there is nothing new in governments engaging in legal argumentation to justify a measure that at first sight amounts to a human rights violation; the point is that post 9/11, international terrorism and counter-terrorism measures have been transformed from legal arguments into a combination of arguments, doctrines, concepts and interpretations.²⁰ They suggested several types of such unilateral exceptions²¹; for the purposes of this research, the most relevant are derogation during times of emergency and overly broad use of permissible limitations or restrictions.

In order to evaluate them, one should again refer to the international instruments on human rights, providing that in definite circumstances the human rights can be derogated or limited. Here, the problem of finding appropriate balance is seen from the priority perspective. Accordingly, the derogation can be implemented in time of emergency; limitation is allowed in order to protect national security, public order, public health or morals or the rights and freedoms of others.

According to ECHR Article 15, during times of war or other public emergency “threatening the life of the nation”, the states may take measures derogating from their obligations under this Convention “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.

However, paragraph 2 provides that a number of rights are not subject to such derogations: no derogation from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 § 1 and 7 – to be free from torture, to be free from slavery and servitude, to be free from punishment without law respectively. These rights are usually referred to peremptory norms or jus cogens.

Article 15 was used by some states in the context of terrorism: by Ireland and the UK due to terrorist violence connected to Northern Ireland; by Turkey in respect of south-east Turkey due to activities of a terrorist organization Workers’ Party of Kurdistan; by the UK in 2001 after the September 11 terrorist attacks in the USA.²²

These types of exceptions, therefore, may refer to terrorism. Since civil aviation is particularly attractive as a terrorist target (see 4.5.4), aviation security is designed specifically to protect against terrorist attacks. But can this fall under “public emergency” derogation?

Emergency always implies something extraordinary. The above-mentioned cases dealt with threats from particular terrorist groups in particular territories, requiring individual, respective measures. But routine screening of passengers in airports, repeatedly, day after day, can hardly be seen as a measure of national emergency. It is normally carried out in the interest of routine national security and public safety. Thus, this derogation is probably not applicable.

As for the second type of limitations, the ECHR contains no general provision applicable to all the rights authorizing restrictions on their exercise.²³ However, restrictions are provided with regard to concrete rights, e.g. Art.8 (2) (right to privacy) states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. This contains exhaustive lists of aims which are regarded as legitimate for the purpose of restricting this particular right.

CFREU Article 52 states more generally: “Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others”. The formulation of aims here is quite vague, e.g. “objectives of general interest recognized by the Union”.

The limitation and conditions which are applicable to all rights and freedoms are often contained in national law, e.g. Article 55 (3) of the Russian Constitution²⁴: “The rights and freedoms of man and citizen may be limited by the federal law only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for ensuring defence of the country and security of the State”.

Limitations on human rights are not something extraordinary. Most human rights are not absolute, i.e. they permit restrictions or limitations if the following conditions are satisfied: this serves a legitimate aim, is prescribed by the law in a precise and foreseeable manner, and is both necessary and proportionate.²⁵

According to the Human Rights Committee‘s General Comment 27, “States should always be guided by the principle that the restrictions must not impair the essence of the right…; the relation between right and restriction, between norm and exception, must not be reversed”.²⁶ Any limitation hence must remain the exception and must respect the protection of the right in question.²⁷ It is proposed that with regard to the legitimate interest of public security in the fight against terrorism, any measure restricting the right to privacy should be assessed for its permissibility, through a step-by-step process, including the following conditions:

• (a) The essence of a human right is not subject to restrictions.

• (b) Any restrictions must be provided by the law.

• (c) Restrictions must be necessary in a democratic society.

• (d) Any discretion exercised when implementing the restrictions must not be unfettered. The deeper the intrusion, the stronger is the need for judicial review.

• (e) For a restriction to be permissible, it is not enough that it serves one of the enumerated legitimate aims; it must be necessary for reaching the legitimate aim.

• (f) Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.

• (g) Any restrictions must be consistent with other human rights.²⁸

The Council of Europe also stresses that “All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision”.²⁹ If applied to each human right which is or may potentially be violated by aviation security measure, these rules provide a strong proportionality test, which takes into account many factors (will be discussed in Chap. 5).

The difficulties arise with the categories “proportionality” and “necessity”, which are broad and quite unclear. It is obvious that almost any measure can be argued by security professionals and other interested persons to be “necessary” when society is faced with the threat of terrorism. The limitation of human rights is one of the most disputed issues of interpretation. For instance, in accordance with some views, the rationale of human rights limitation should be reconsidered or at least reinterpreted due to the changed reality, affected by the threat and by fear. What may have seemed disproportional, unnecessary and unreasonable before 9/11 may now be deemed proportional, necessary and reasonable respectively. Under this approach, security demands prevail over human rights. Or, if one considers security as an aspect of human rights as discussed above, the need to protect the right to life prevails over protection of other human rights. The grounds for the limitations and derogations become broader.

This is especially relevant for aviation security, with a higher risk of terrorist attacks. For instance, in the USA, researchers note that the historical evolution of the law as it applies to airport screenings reveals a number of disturbing points concerning Fourth Amendment protections. A review of the cases illustrates that a person rarely wins a hearing and that searches are almost always found to be reasonable.³⁰

In the EU, the ECtHR practice has formulated an approach to the “proportionality” and “necessity” issues. This will be considered in Chap. 5, but in general, they are common and can be applicable to any restrictions and any human rights.

In order to apply the limitation provisions to the security measures-versus-human rights dilemma, several steps should be taken that are similar to the interference test mentioned in Chap. 2. Similar to the right to privacy, an important source here is the case law developed around human rights, establishing and explaining many important principles and positions.

First of all, the exact impact of a concrete security measure on human rights should be analysed. This includes research on the security measure, its features, capabilities, operation modus etc. – i.e. how it actually works.

Then, it is necessary to indicate which rights are relevant with reference to this measure. In this step, the applicability of law protecting the rights should be ascertained. After that, the relation between the relevant rights and the security measure should be analysed in order to establish if there is interference. The rules on the limitations above will apply: if a security measure leads to limitation of human rights, this measure is allowed only, first, if the limitation is provided by law, and secondly, if the limitation complies with the requirements, i.e. is necessary in a democratic society in the interests of national security, public safety, public order, the rights and freedoms of others etc.

If this scheme is used, it becomes clear that some rights can be relevant, i.e. be protected by the law and at the same time interfered with by a security measure. In some cases the limitation is justified, i.e. the interference is substantiated, in some cases it is not, i.e. the right is violated.

3 Right to Life

The right to life is provided by Article 2 of ECHR: “Everyone’s right to life shall be protected by law”. As discussed, security itself may be a question of human rights too. It is aimed to secure people, to free them from certain harms, external and internal threats. It is obvious that people need to be protected from such harms in order to fulfil their right to life as such, and to conduct their lives as they wish. The right to life therefore has a special role in the human-rights-versus-security dispute discussed in this work. In contrast to other rights that run a risk of being violated by security measures, this right is supposed to be protected by them. Moreover, the states have both the right and the obligation to protect their citizens (see Sect. 4.6).

Within security undertakings, states must protect other human rights too. For instance, according to the Council of Europe “states are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts”.³¹ However, as mentioned above, the right to life prevails over other rights and freedoms, including those considered in this work (privacy, non-discrimination, etc.). No derogations from this right can be made even in the case of emergency or war.

Aviation security organs thus may argue that they act in accordance with the principles of international air law and requirements of Article 2 of ECHR, fulfilling positive obligations of the state to safeguard the lives of people.

However, the security measures may be claimed to be inadequate, excessive or insufficient, in some cases resulting in failure to protect the right to life. Two dimensions can be distinguished. First, an air passenger can be injured in the course of a criminal act or terrorist attack. It can be claimed, then, that the security organs violated his right to life by failure to provide enough security and prevent the injury. Secondly, a passenger may suffer due to the actions of the security organs, for instance, in the course of an anti-terrorism or rescue operation, and then may claim excessive security.

As it will be discussed below, the aviation security measures may be divided into preventive security measures (protection against potential threats) and operative measures (response to acts of unlawful interference, i.e. reaction to realized threats). The nature of preventive measures differs from the nature of operative ones (the core idea of the former is to avoid “actual situations” at all) and the amount of possible damages to persons can hardly be compared. All the measures discussed in Special Part of this research are preventive security measures, with the purpose, roughly speaking, to search all the passengers in order to catch the one with the gun. Therefore, only the first dimension (failure to provide enough security and prevent the injury) can be applicable here. At the same time, the approaches and findings formulated by the Court with regard to the second dimension may be helpful for the discussion and will be considered as well.

With reference to the first type, in Cesnulevicius v. Lithuania ³² it was claimed that the state failed to comply with its positive obligations in order to prevent the death of a prisoner (§55). Here, the Court found a violation of Article 2 of the ECHR (§90). The Court emphasized that “persons in custody are in a vulnerable position and that the authorities are under a duty to protect them” (§84), and that the prisoner was “not [beaten] somewhere in forest or on the street at night, but in a State institution”, thus whilst being in an apparently controlled environment” (§94). It was concluded that “the authorities did not respond adequately to the danger the person was in and thus did not fulfil their positive obligation to ensure that his right to life was upheld” (§89).

This case includes important considerations on ECHR Article 2. According to the Court, Article 2 “enjoins the State to take appropriate steps to safeguard the lives of those within its jurisdiction” (§82) and it “extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual” (§83).

But such positive obligations are not unlimited. They arise only “where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.³³

However, due to “the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources”, the Court tends “not to interpret Article 2 in such a way as to impose an impossible or disproportionate burden on authorities”.³⁴ Accordingly, the Court stated that “not every claimed risk to life can entail a Convention requirement for the authorities to take operational measures to prevent that risk from materializing”.³⁵

These conclusions, as applied to this work, mean that state organs are obliged to take measures, including preventive measures, within the scope of their powers in order to prevent harm to air passengers and other persons. In the aviation security, with terrorism as the main threat,³⁶ the existence of a risk to the life of air passengers is known (however, it is arguable that this risk is “real and immediate”) thus they take measures to avoid that risk, hence acting within Article 2 requirements.

However, this would be too simplified, since in the aviation security, there are the concepts of threat and risk assessment (discussed in more detail in Chap. 4) which are designed to determine the probability of a threat, the possible consequences of attacks, and the actions to be undertaken. The main idea is that the security measures must be threat-based and risk-managed. Equipped also with the modern technologies and methods, aviation security is designed to deal with the difficulties described above: unexpected risks, unpredictability of human conduct, etc., all actions should be proportionate.

Probably, however, if despite these endeavours the security should fail anyway, one might argue that the failure occurred due to the certain difficulties, and the positive obligation to prevent the risk will still be limited.

With reference to the second type (where the measures taken by the authorities are excessive), there were cases when, for instance, the use of definite methods by authorities in actual situations such as anti-terrorist operations with hostages was questioned as being excessive and disproportionate under Article 2 of the ECHR.

The case of Finogenov and others v. Russia ³⁷ concerned the hostage crisis in October 2002 in the Dubrovka theatre in Moscow and the decision to overcome the terrorists and liberate the hostages using gas. The applicants alleged, under Article 2 of the ECHR, that the authorities applied excessive force, which resulted in the death of hostages, and that the authorities failed to plan and conduct the rescue operation in such a way as to minimize the risks for the hostages (§3).

The Court determined that the situation was covered by Article 2 since the case was about the use of a dangerous substance by the authorities in conjunction with a rescue operation that resulted in the death of many of the victims that the authorities were trying to liberate and in mortal danger for many others (§203). Similar to the above-mentioned case, the Court considered that the authorities’ positive obligations under Article 2 are not unqualified (§209). After examining whether the use of force was compatible with the requirements of Article 2, the Court held that there was no violation on account of the decision by the authorities to resolve the hostage crisis by force and to use the gas; however there was a violation of Article 2 on account of the inadequate planning and conduct of the rescue operation.

It can be seen that the Court distinguishes two aspects: first, the use of definite methods, secondly, the manner of carrying out these methods. Violation of Article 2 can refer to any or both of them.

In the course of preventive aviation security, if no direct victims, injuries or damages resulted, it is not so clear what can be questioned as “excessive” under Article 2. Therefore, it can hardly be stated that such measures, even if they have a strong negative effect on other human rights, may have a direct negative impact on the right to life. This concerns all the measures from the Special Part. The only, single preventive measure with such direct consequences known to me is shooting down of hijacked planes with the crew and passengers on board if it appears that terrorists intend to use them to attack targets on land, which may cause far more victims.

Whereas US pilots are trained to shoot down civilian aircraft in the event of any attack and in Russia this measure is provided by the law,³⁸ in Germany, the proposed measure was rejected by the Court, which found that the law infringed the right to life and human dignity and was unconstitutional and thus void.³⁹ In Poland, the measure was implemented in 2005, but in 2008, it was found unconstitutional and dismissed by the Court.⁴⁰ Obviously, this measure by the state, although having strong grounds, directly kills the passengers, deprives them of their right to life.

Fortunately, cases of implementation of this measure in practice have not occurred. Hypothetically, if there were victims and the authorities were claimed to provide “excessive” security, again, it could be argued that the risk was worth it, although the court may judge differently when applying Article 2.

A more important conclusion for this work is the approach to the issue of excessiveness, which may be used not only with reference to Article 2, but to any other human right versus security undertakings. First, excessiveness may refer to both the form of particular measures and the manner of executing them. Secondly, the excessiveness issue depends greatly on concrete circumstances of a particular situation: e.g., the measure may be deemed to be non-excessive and thus proportionate and necessary despite the amount of victims and damages (in the case of other rights, different inconveniences such as loss of privacy) caused by this measure.

In aviation security, all these issues are supposed to be covered by the concepts of threat and risk assessment mentioned above: the security solutions should be proportionate to the probability of the threat and possible harms. The aim is also to ensure that the security resources are used effectively. But the key question is who decides? The decision making process is not democratic, and mainly unilateral decisions are taken by authorities. What is considered proportionate in the terms of threats, risks and harms may be disproportionate/excessive in the terms of human rights protection. Violations may also be considered “harms” – but, in contrast to the first harms, unintentional harms resulting from the security’s actions rather than from the terrorists’.

As the result, in any case, the right to life – the obligation of the state to protect it – can serve as a good argument for the enhanced technologies and methods. With such an obvious aim and indisputable object to be protected, it may look like any security measures are permissible as long as they enhance security. But clearly, there should be reasonable limits. The impact of a security measure on passengers’ human rights and freedoms, the considerations of proportionality, necessity and effectiveness – all in a broader sense than the concept of the aviation security usually implies – may serve contra arguments. And it is the government that has to prove that a disputable security measure has the right to exist. This will be further explored in the following chapters.

4 Right to Health

The right to health is a human right recognized in international human right law. At the same time, it is closely related to the right to life, since certain conditions of health are prerequisites for living at all.

The importance of this right is stressed in the above-mentioned provisions stipulating that certain other human rights may be limited for the protection of health. The Constitution of the World Health Organization (WHO) of 1946 defines health in its preamble as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. It also states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”. Article 12 of ICESCR enshrines the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Although the ECHR does not contain an article on the right to health, it has provisions to protect the right to life, security of the person, and other freedoms that affect the right to health. The CFREU provides in Article 35 that “A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities”. Further, according to Article 11 of the European Social Charter⁴¹ “With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organizations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases”.

This right is frequently associated with access to health care, but actually it implies much more. It extends further, including a wide range of factors that can help one to lead a healthy life, such as safe drinking water and adequate sanitation, healthy working and environmental conditions, etc.⁴² The realization of this right is thus dependent on the realization of economic, social and cultural rights and on the exercise of various freedoms. It is also directly related to peace and security. The right to health is therefore an interdependent right.

One of the most important factors for health is healthy environment. According to the WHO, almost one third of all illnesses are caused by environmental degradation.⁴³ Art.12(2)(b) of ICESCR obliges states to take steps necessary for the improvement of all aspects of environmental hygiene. Airports and aircraft are a part of daily life of thousands of people, thus the environment established there should satisfy to the requirements of normal environmental conditions. If a certain airport or airline security measure has an impact on passengers’ health, then the provisions protecting this right may be violated.

Similar to the right to life, the right to health can hardly be subject to limitations due to security needs. Accordingly, every new or amended aviation security measure should be thoroughly tested on health effects before its use. Security practices dangerous to health should not be used even if they are highly effective. Hypothetically, if a negative health effect of the already used security measure is proved and the devices are still in use, applications on violation may be submitted to respective authorities as violating Article 11 requirements to the states to remove the causes of ill-health and prevent diseases.

At the same time, reports on health issues originating from different experts may contradict each other, as in the case of body scanners (see Special Part). Apart from security needs, there are other different interests around health issues in civil aviation. The point is that flying as such is linked with cosmic radiation. Crew members, for instance, have restrictions on the number of hours they can fly. Accordingly, if the airline industry is really concerned about radiation, then scanners should not be the only potential cause discussed, “frequent flyers ought to be advised as to the health risks of their journeying…but I’m guessing that the commercial departments will resist all efforts to afford this issue the oxygen of publicity”.⁴⁴ Thus, some actors may be interested to create uncertainty or silence around health issues.

The key problem is how to prove that the technology is safe or not. Definite requirements regarding certainty, objectiveness, independence of the assessment, with appropriate documentation should be ensured. Simple comparison with other daily life risks is not enough. The aggregate effect on the population, on frequent fliers, on vulnerable persons such as children, pregnant women, and long-time effects should be taken into account.

5 Right to Freedom of Movement

From the perspective of civil air transportation as such, the most important passenger right is the right to services provided by an airline, based on the fundamental right to freedom of movement and the contractual obligation which arises from selling a ticket. No matter the purpose for which you are travelling – visiting friends or family, on business, or just travelling for pleasure – you are in any case exercising your right to freedom of movement.

Analysis of international instruments allows concluding that the right to freedom of movement has three components: (1) the right to freedom of movement within a country, which includes the right to choose where to live within the country; (2) the right to leave any country, regardless of your citizenship; and (3) the right to enter a country of which you are a citizen.

For instance, Article 2 of Protocol No.4 to the ECHR⁴⁵ provides that “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own”.

Accordingly, the right to freedom of movement within human right law does not presume unlimited freedom of movement and limits this right by exclusion of the right to freely enter any countries where you are not a citizen. Clearly, a full and unlimited realization of this right implies a risk for security.

Of course, regional or national law may give preference to citizens/residents of particular states to enter certain states. For instance, the US Visa Waiver Program allows citizens of certain countries to travel to the USA without a visa for short stays. CFREU Article 45 provides that every citizen of the EU has the right to move and reside freely within the territory of the EU, and freedom of movement and residence may be granted to nationals of third countries legally resident in the territory of the EU. At the same time, EU Member States may restrict the freedom of movement of EU citizens on grounds of public policy or public security – but such restrictions must comply with the principle of proportionality and must be based exclusively on the citizen’s personal conduct, representing a genuine, present and sufficiently serious threat.⁴⁶

In general, however, entering foreign states is not free and is subject to various immigration and administrative requirements, including passport and visa regimes. In this context, these measures are quite understandable and substantiated.

In addition, limitations can be due to security needs too. For instance, there are different no-fly-zones, usually zones of military conflicts,⁴⁷ and different states may prohibit civil aircraft from flying to specific territories. For instance, in 2015, Russia and the UK suspended all flights to Egypt due to aviation security concerns in Egyptian airports in the aftermath of Metrojet’s Airbus A321 tragedy.⁴⁸

At the same time, the right to free movement in the scope mentioned above (i.e. already limited) can be limited too. Lawful grounds for limitation are contained in Sections 3-4 of Article 2 of Protocol No.4 to the ECHR:

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Hence, two layers of limitations can be noted: the first is the limitation of the right to free movement in itself, regarding entrance into states of which you are not a citizen, and secondly, limitations to other components.

Civil aviation transports passengers both within and between the states, subject to limitations above. As a rule, it is presumed that a traveller must obtain all necessary prerequisites for legal travel beforehand. Although it is the task of immigration, police and other relevant organs to ensure that persons do not reside in the country or cross the borders illegally, aviation security control may contribute to detecting unlawful travellers.

In general, aviation security undertakings may prevent individuals from travelling both between and within states, constituting either a limitation on the already limited right of the person to enter a state where he/she is not a citizen or a limitation on the other aspects of freedom of movement respectively. Since reasons for the limitations are similar, they will be considered together.

In the aviation security field, the most “logical” exemption would be the national security needs and the protection of the rights of others, namely, the right to life. The limitations on the freedom of movement, accordingly, can be justified if they are necessary to protect these values, but similarly to other human rights, the obligation to prove that the measures are necessary lies with the state.

Another common lawful example of restriction of this right – overlapping with the one above – is in respect of persons charged with a criminal offence. It is believed that if a state, using different methods, undertakes to ensure that certain people are not able to leave a state (and possess a passport), such interference is justified by the public interest. For instance, in Fedorov and Fedorova v. Russia,⁴⁹ a restriction on leaving the place of residence lasting about 4 years and 3 months was found to be proportionate; consequently, no violation was found.

However there may appear different circumstances that make the Court find violation of Article 2 of Protocol No. 4 to the ECHR, as in the case of Miażdżyk v. Poland.⁵⁰ Here, the preventive measure was applied to the applicant for a period of 5 years and 2 months, with a pre-trial detention in one year (§34). But the Court, after assessing special features of the case, keeping in mind that “The restriction may be justified in a given case only if there are clear indications of a genuine public interest which outweigh the individual’s right to freedom of movement” (§35), found that a fair balance between the demands of the general interest and the applicant’s rights was not achieved (§41).

In Luordo v. Italy ⁵¹ the Court also found disproportionate an obligation imposed on the applicant for the duration of the bankruptcy proceedings (14 years and 8 months). This approach was followed in subsequent cases, where the duration of an obligation not to leave the territory of the respondent State varied between more than five years and more than ten years.⁵²

Another type of infringement by applicant which led to violation of freedom of movement can be illustrated by Stamose v. Bulgaria.⁵³ The applicant infringed the terms and conditions of his US visa and was deported to Bulgaria. The Bulgarian border police imposed a two-year travel ban on the applicant, and directed the competent authorities to seize his passport for breaching the US immigration laws. He alleged that the ban was unjustified and disproportionate, and that it prevented him from travelling to the US, where his mother and brother lived.

In §33, the Court observed that “the salient point is whether it was at all proportionate automatically to prohibit the applicant from travelling to any and every foreign country on account of his having committed a breach of the immigration laws of one particular country”. In §34 the Court stated that it cannot consider “such a blanket and indiscriminate measure as being proportionate. The normal consequences of a serious breach of a country’s immigration laws would be for the person concerned to be removed from that country and be prohibited (by the laws of that country) from re-entering its territory for a certain period of time”. The Court stressed that individual circumstances of the person concerned should be taken into account (§36). Hence, the Court found violation of Article 2 of Protocol No.4 to the ECHR.

Therefore, when judging the applicability of this Article, the Court takes into account circumstances of the case, proportionality and necessity. However, all the above cases dealt with persons who have in different ways infringed definite rules, and the restrictions were applied post factum. But in aviation security, a practical possibility exists that restrictions may be used before any proved unlawful acts or infringements, thus, in respect not only of criminals, terrorists and potentially dangerous persons, but ordinary, innocent people as well.

With reference to aviation security, such restrictions may relate to: (i) existence of security requirements as such; (ii) particular aviation security measures, and (iii) immigration requirements if applied beyond immigration purposes and/or for the general security and aviation security purposes. Thus, there is overlapping between categories (ii) and (iii).

With reference to the first type of limitations, it is quite common that the possibility of travelling by air directly depends on going through the security controls. The general rule is that those denying to be screened are not allowed to proceed to the gates and will not fly.⁵⁴ Similarly, the airlines provide their right to refuse to carry such passengers in Contracts of Carriage.⁵⁵ Here, the needs to protect the public and other assets, obviously, substantiates that some control should be provided. How much control is sufficient, though, is yet another question – but this may relate to limitations of type two.

Another problem may emerge if a person does not refuse to be screened, but is nevertheless detained due to an “anomality” revealed by a security method. This can be a case of alarm by the body scanner’s automatic detection system, by sniffing technology, by scanning of person’s hand baggage, etc. In order to resolve the “anomality”, the person may be subject to questions and further searches which take time and may ultimately result in missing a flight. As it will be discussed in the Special Part, the cases of false positive detection are not so rare. At the same time, missing a flight relates more to economic consequences, issues of moral damages, etc. rather than the freedom of movement as such.

As for the second types of limitations, they may be caused by use of concrete aviation security measures, such as comparison of passenger data against watch lists, profiling, camera surveillance, traceability techniques, etc. They will be considered in the Special Part.

As mentioned above, in general, identity check/passport and visa control are connected with immigration and customs requirements in case of travelling between various states thus fall within the first layer of limitations mentioned above. However, today, these measures are often applied beyond travelling between states and/or for general security and aviation security reasons, thus, have potential to become limitation within the second layer too. Two dimensions can be noted.

First, immigration measures can be applied for domestic flights or flights between countries with no borders between them. For instance, in the Schengen system, despite its ultimate aim to abolish internal borders, third-country nationals must prove, if so required, that they have entered the territory lawfully, hold a valid visa, travel document or residence permit and satisfy entry conditions⁵⁶; in other words, even when flying between Schengen member states or within a state. Failure to do so will lead to impossibility of travelling. But if the freedom of movement means the crossing of borders would be open to everyone, irrespective of their nationality, the scope of this right should encompass third-country nationals. Thus, these rules in fact limit the right to freedom of movement, thus, requires substantiation.

Secondly, the functions of the identity check/passport and visa control systems go far beyond immigration purposes and include security objectives. In the EU, for instance, along with abolishing of internal borders, new forms of control emerged, security measures which weaken the mobility of people.⁵⁷ They actively use and exchange personal data, create huge databases, etc. in order to identify, monitor and manage the movements across borders both inside and outside the EU.⁵⁸ This means increased opportunities for surveillance based on traceability, which raise concerns about freedom of movement. All these techniques fall within or overlap with aviation security measures and thus reflect limitations of type two above.

All these factors affect freedom of movement. It is argued that today, genuine free movement would only be possible inside a secured space with checkpoints and radars,⁵⁹ and that “aviation enables the free movement of individuals and goods. But only that which can be monitored, traced, calculated, assessed and managed appears to be trustworthy”.⁶⁰

At the same time, civil aviation as such contributes to freedom of movement like no other means of transport, carrying people to other continents within hours, providing huge opportunities for travel which were impossible before aviation was born. Aviation security measures can also be considered to provide advantages for the right to free movement, since some people would not choose to fly if strict security was not provided.

Thus, while the need to choose between being subject to aviation security measures and not flying is probably substantiated by the security risks, limitations imposed by particular measures should be evaluated more thoroughly. The substantiation rules here are similar to the substantiation of privacy interference and can therefore be applied together.

6 Right to Equal Treatment and Non-discrimination

We can ask today how it feels to be treated like a prisoner while being free: the randomness of Islamophobia at the airport is a case in point and the current ‘war on terrorism’ has managed to problematize and criminalize Muslims across the globe and treating all as guilty until proven innocent.⁶¹

In the aviation security context, the citation above, unfortunately, can be applicable not only to Muslims, but to broader groups of people: in the course of airport security, with all the methods and procedures involved, anyone can suddenly feel himself or herself being treated as guilty until proven innocent. But clearly, certain groups of people are more likely to get this feeling than others. The word that comes to mind in this regard is discrimination.

Non-discrimination and equality are fundamental human rights provided by Article 14 of ECHR, prohibiting any discrimination and providing that the enjoyment of other rights and freedoms shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The list of the grounds is not exhaustive; other international instruments⁶² include also belief, ethnic origin, genetic features, disability, age, sexual orientation. The formulation “other status” indicates that the application of this prohibition of discrimination is virtually unlimited.⁶³ However, in general, the grounds overlap with the categories referred to sensitive data by Article 8 of the DPD, which, as discussed, require additional protection.

Article 1 §2 of Protocol no.12 to the ECHR⁶⁴ adds that no one shall be discriminated against by any public authority on any of the grounds. In comparison with ECHR Article 14, the prohibition of discrimination is not limited to enjoying others human rights and is extended to any legal right available in national law.⁶⁵ But the application of Protocol is limited, since not all signatories of ECHR signed the Protocol, e.g. the UK did not sign in order to avoid obligations not previously applicable to and accepted by the UK.⁶⁶

Discrimination means any distinction, exclusion or restriction made on the basis of such grounds which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedoms. It is linked to the marginalization of specific population groups, making these groups more vulnerable.⁶⁷

Equality of treatment is understood as steps that must be taken to prevent or remove differences in treatment with regard to other rights and freedoms. Thus, the right to non-discrimination and equality is interconnected and interdependent with other human rights and may be considered as their component: for example, all individuals are equal before the law, the rights to privacy and data protection are enjoyable by individuals regardless of race, origin, nationality, etc.

Thus, in addition to equality and non-discrimination as a fundamental right, it is possible to note a principle of equality and non-discrimination, which is an important principle in a democratic society and can be applicable in any sphere. This principle provides “rationale for resilience or resistance and a criterion for evaluating surveillance”,⁶⁸ since the latter can have multiple negative effects on individuals or particular groups of people. Accordingly, equality is one of general legal principles discussed in Chap. 5, but due to overlap with equality as human right, discussed here.

With respect to aviation security, the principle of non-discrimination implies that any measure must not be discriminative on the basis of definite grounds mentioned above, and must not be applied in a manner which discriminates on these grounds. Accordingly, in the case of exercising security in the civil aviation, two dimensions of possible discrimination can be noted.

First, a security measure may be discriminatory in itself, on the whole. Technological advances and enhanced uses of personal data allow persons and groups to be classified in different ways⁶⁹ and also provide individual treatment.⁷⁰ Aviation security practices based on distinguishing persons and placing them in categories include, first, the above-mentioned black lists, watch lists, no-fly lists and so on; profiling techniques, trusted traveller programmes (TTP). ID classifications at borders may also be discriminatory, e.g. the way they work in Israel “is not dissimilar from the ways in which they operated in South Africa under apartheid”.⁷¹

Secondly, a security measure may be exercised in a discriminatory manner. For example, if a definite screening method such as a body scanner or hand search measure is applicable on a selective basis at the discretion of security personnel, a person may be selected to pass through it on the basis of specific criteria such as race, colour, sex, religion, ethnic or national origin (see more details in Special Part).

According to FRA, discrimination can be direct and indirect. Direct means that an individual is treated unfavourably in comparison to others in a similar situation, because of his/her particular characteristic, which falls under “sensitive” grounds mentioned above.⁷² Indirect discrimination means that a neutral rule, criterion or practice affects a group in a significantly more negative way in comparison to others in a similar situation,⁷³ i.e. the grounds are beyond “sensitive” grounds.

The ECJ has an important decision regarding the principle of non-discrimination on the grounds of nationality in the protection of personal data within the context of EU citizenship. It held that the difference in treatment between Member State nationals and other EU citizens which arises during systematic processing of personal data relating only to the latter for the purposes of fighting crime, constitutes discrimination.⁷⁴ The same logic can be applied to the aviation security: the states cannot differ between different categories of citizens.

The ECtHR established applicable principles in its case law. First, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Article 14 prohibits differences in treatment based on an identifiable, objective or personal characteristics, or “status”, by which persons or groups of persons are distinguishable from one another.⁷⁵

Further, such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.⁷⁶

Finally, the states enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background.⁷⁷ For instance, in a case regarding discrimination on the grounds of nationality, the ECJ stated that different treatment may be justified only if it is based on objective considerations independent of the person’s nationality and is proportionate to the legitimate aim.⁷⁸ As to the burden of proof, once the applicant has shown a difference in treatment, it is for the Government to show that it was justified.⁷⁹

The ECtHR has been extremely strict in relation to discrimination based on race or ethnicity, stating: “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures”.⁸⁰

As it will be discussed in Special Part, in aviation security, as a rule, it is prohibited to exercise security measures in a discriminative manner, in particular, on the grounds of race, ethnicity, gender, national origin, or sexual orientation. Logically, if it is prohibited as such, no justifying grounds can be applied for making these ground criteria of security controls. However, in practice, these grounds are still used either illegally, or via exemptions: in the USA, for instance, profiling guidelines contain exemptions for certain activities at airports carried out by aviation security, immigration, and intelligence organs.⁸¹

In any way, similar to procedures described for the rights to privacy and the right to freedom of movement, if discrimination issues arise, first, it should be decided if the non-discrimination provisions are applicable to the concrete case, specifically, to the security measures or the manner they are practiced. Then, it should be evaluated whether there is interference to the right to non-discrimination. While it is obvious that the idea of both types is to distinguish persons according to specific grounds, it is up to the person to show that he/she is subject to a difference in treatment. The third step is to indicate whether different treatment has objective and reasonable justification, and it is up to the states to prove that.

7 Right to Freedom of Thought, Conscience and Religion

As indicated above, the religious grounds serve one of the main grounds for discrimination in the course of the aviation security measures and procedures. If practicing one’s religion leads to almost automatic discrimination, in some sense this creates an overlay: in addition to the right to non-discrimination, the right to freedom of religion may be affected as well. Since the first dimension (discrimination) was discussed above, this section will focus on particular religious norms requiring of its practitioners definite behaviour or actions (or avoiding definite behaviour or actions), in particular during screening at the airports or in relation to any other aviation security measures.

The right to freedom of thought, conscience and religion, including freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance, is provided by Article 9 of ECHR.

As for the restrictions, the same article states in §2: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

Accordingly, if one party does not allow the other party to practice its religion, and there are no justifiable grounds, this will probably amount to violation. In the case of Cyprus v. Turkey,⁸² the violations against ECHR Article 9 were quite “visible”. The Court concluded that restricting access to places of worship as well as restricting their ability to travel outside their villages to attend religious ceremonies, failure to appoint priests to the area limited the religious life of the enclaved Greek-Cypriot population living in northern Cyprus all constituted a violation of Article 9 (§§241–244).

But what about religious rules that have an impact on a person’s behaviour in public, non-religious places, such as airports or airplanes? Of course, the relation between the law and religious norms may be different in various cultures. The law may amount to religious norms and derive from them as in the case of Iran. But the law of vast majority of the modern states is more neutral; freedom to practice and manifest any religion is declared without any legal privileges (principle of secularism).

However, since some religions demand definite behaviour or practices from their adherents, conflicts between general law and order and religious rules may arise. There were cases when people fought for their religious beliefs to be allowed to be practised lawfully, such as wearing or not wearing hijab in public places. For example, the governments of Saudi Arabia and Iran oblige women to wear the hijab, while France, Turkey, Tunisia, Tajikistan have banned it in some public settings. In the USA and the UK, it is allowed to wear a hijab with a police uniform.⁸³

In the ECtHR practice, a number of applications concerned allowance to wear hijab at schools and universities. Some of them were declared inadmissible holding that the measure had not been unreasonable.⁸⁴ In Aktas v. France,⁸⁵ the Court underlined the State’s role as a neutral organizer of the exercise of various religions, faiths and beliefs. In other similar cases the Court found no violation.⁸⁶

However, violation of Article 9 was found in Ahmet Arslan and Others v. Turkey ⁸⁷ where the Court emphasized that in contrast to other cases, the case concerned punishment for the wearing of particular dress in public areas that were open to all, and not regulation of the wearing of religious symbols in public establishments, where religious neutrality might take precedence over the right to manifest one’s religion.

In the course of security, in El Morsli v. France,⁸⁸ a Moroccan national married to a French man, was denied an entry visa to France, as she refused to remove her headscarf for an identity check by male personnel at the French consulate general. The Court declared the application inadmissible, holding that the identity check as part of the security measures of a consulate general served the legitimate aim of public safety and that requirement to remove the headscarf was very limited in time.

In the area of airport checks, some persons might face difficulties reconciling their philosophical or religious beliefs while being subjected to some of the security measures. For example, a procedure entailing a body image being viewed by a human screener may be very sensitive for many people. Muslim women, for instance, may be prevented from going through body scanners due to religious restrictions on modesty.⁸⁹ The Fiqh Council of North America (FCNA) stated that a general and public use of the scanners was “against the teachings of Islam, natural law and all religions and cultures that stand for decency and modesty”.⁹⁰

In 2010, the Dubai Airport authorities rejected the use of “naked” body scanners at the Emirates’ airports as they violated ethical principles relevant to Islamic culture. In 2011, the Emirates considered installing the devices once again due to the technological developments, specifically, the option that blacks out sensitive parts of the body. But they decided not to install the scans anyway and to follow “the better practice, which is in line with religious and traditional values” instead.⁹¹ But in this case, the key point is that the state here belongs to Islamic culture.

Taking into account the above-mentioned ECtHR practice, “questionable” devices like body scans constitute a part of the security measures served the legitimate aim of public safety and that the measure is limited in time, thus, if the same logic is followed, it can be argued that the case should be inadmissible or without violation (see El Morsli v. France). Moreover, in a research study considering aviation security versus basic fundamental human rights from an Islamic law perspective, it was concluded that aviation security provisions in general can be accommodated by the existing doctrines of the Islamic law.⁹²

However, the availability of alternative measures that could substantiate the “questionable” practices for those concerned may serve contra argument. For instance, in several cases,⁹³ applicants refused to perform military service for conscientious reasons and were convicted for that reason. They were willing to serve alternative service, but there were no respective laws in these countries. The Court found a violation of Article 9, taking into account that there existed effective alternatives capable of accommodating the competing interests involved in the overwhelming majority of European States. In the case of Armenia, it was taken into account that Mr. Bayatyan’s conviction had happened at a time when Armenia had already pledged to introduce alternative service; in the case of Turkey, the Court invited Turkey to enact legislation concerning conscientious objectors and to introduce an alternative form of service.

Probably, taking into account the same logic, if alternative measures could be applied instead, but are not applied, non-violation of Article 9 in the case of some security measures is not so certain. Thus, it should be assessed whether people are provided with alternatives to scanning (e.g. the possibility of hand searches in private which would be acceptable to people with religious concerns), privacy safeguards of scanning equipment, etc., which all together may make it difficult to prove that scanners as such violate freedom of thought, conscience and religion.

However, since religious grounds can be used for discrimination in the course of the different aviation security measures, including the selection of persons to go through a scan, in these cases, substantiation discussed within the right to non-discrimination is needed (see above).

It should be also noted that both rights – to non-discrimination and to freedom of thought, conscience and religion – if violated, may have an impact on the right to free movement, as well. This illustrates the key idea of this chapter that all human rights are connected, and violation of one of them leads to violation of others, and for evaluation of proportionality of the aviation security regimes, they should be considered all together.

8 Rights of the Child

The rights of the child are stipulated in many international instruments such as ICESCR, the Convention on the Rights of the Child,⁹⁴ ICCPR. As a general rule, a child means every human being below the age of eighteen years.⁹⁵

Due to the stage of their physical and mental development, in particular, their psychological, social or legal immaturity and less-developed awareness, children are seen as a group “at the margin”.⁹⁶ Thus, they are especially vulnerable and face particular challenges with reference to human rights. The core idea of human right law in respect of children is that children, as a vulnerable group, are afforded special protection, with additional guarantees. The guiding principle is “the best interest of the child”.⁹⁷

According to Article 24 of ICCPR, “Every child shall have, without any discrimination, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state.” Children shall have the right to such protection and care as is necessary for their well-being; in all actions relating to children, whether taken by public authorities or private institutions, courts of law, administrative authorities or legislative bodies, the child’s best interests must be a primary consideration.⁹⁸

Sector-specific instruments may include special provisions on protection of children. For example, since profiling children may have serious consequences for them throughout their life, and since they are unable to give their free, specific and informed consent, specific and appropriate measures for the protection of children are necessary in accordance with the UN Convention on the Rights of the Child.⁹⁹

Both the EU GDPR and the “Police” Directive¹⁰⁰ stress that in addition to the right to data protection, other potentially affected fundamental rights include the rights of the child. According to the GDPR, children deserve specific protection of their personal data, as they may be less aware of risks, consequences, safeguards and their rights (recital 38). Article 8 sets out additional conditions for the lawfulness of the processing of children’s personal data. The principle of transparency (providing information addressed to the public should be easily accessible and easy to understand), requires that with reference to children, information should be in such a clear and plain language that the child can easily understand (Recital 58). The GDPR also adopts “the right to be forgotten”, which is particularly relevant, when the data subject has given their consent as a child and later wants to remove personal data (Recital 53). Further, although there are some exceptional circumstances when measures based on profiling by means of automated processing are allowed, such measure in any case should not concern a child (Recital 65). However, it is clear that some security measures are based on profiling, and information about the measures, which may include technical and special terms, may be difficult to understand and not clear enough.

In the USA, despite the lack of general privacy and data protection law (see Chap. 2), children deserve special attention in this regard. For instance, in January 2013 the US Federal Trade Commission published rules interpreting the Children’s Online Privacy Protection Act. Existing definitions were updated, e.g. “personal information” included Internet Protocol (IP) information and location information. These changes are designed to help to ensure that the personal information of children is not collected without parental permission. In Russia, there is a Federal Law on protection of children from information which may harm their health and development.¹⁰¹

Nevertheless, the EU report on human rights indicated that one of main challenges regarding children’s rights is the lack of child-friendly services and systems.¹⁰² This is very relevant for aviation security: different security measures and procedures are usually applicable to child passengers to the same degree as adults. I did not find any rules exempting children from particular aviation security measures, although these ideas are circulating.

For instance, in the UK, with reference to “naked scans”, there was a discussion about making an exemption for children, since the scanners may violate the Protection of Children Act of 1978 by creating images or pseudo-images of nude children.¹⁰³ However, with new generation scans (see Chap. 6), no exemption is provided.

With regard to same problem in the USA, the concerns were raised over the viewing of their images, potential health effects, and safety when the child is separated from parents or guardians during the screening process. While TSA modified screening procedures for children under 12 years of age, it did not exclude them from body scanning or hand search.¹⁰⁴ The point is that with exemptions for children there may appear a risk that terrorists would then recruit children.

Another solution could be providing alternative measures for children, which would comply with the law. But the point is that alternative measures may be more expensive and take more time, thus, could be acceptable only if applied to a limited number of people. This logic can be noted for instance in the UK. Before 2013, no alternatives to scanners in the form of a private search were provided since it was considered to be disruptive to airport operations due to high volumes of expected searches required. But, experience showed the number of passengers refusing to be scanned was very low, thus, an alternative was provided.¹⁰⁵ The US TSA also reports that since scanners were taken into use, 99% of passengers choose scanners instead of hand searches.¹⁰⁶

This issue is similar to the possibility of providing alternatives on the grounds of religious beliefs discussed in section above. Apparently, the number of children is lower than the number of Muslims; thus, it could be easier to provide alternatives. However, taking into account that all the considered states – the USA, Russia and the UK – already provide alternatives in the form of hand searches universally, the unavailability of any other adequate alternatives (see Special Part), and the small number of people refusing scans, it can be problematic and may be unnecessary to establish other alternatives than those that currently exist.

As for the other aviation security measures, no alternatives are provided. In these cases, it must be considered whether the measures are necessary and no less intrusive alternatives are available, but these are consideration for all passengers in general (see Chap. 5 and Special Part).

In order to better protect the rights of child, instead of alternatives, may be preferable to concentrate on protecting all relevant human rights in the course of aviation security and minimizing the negative impact of aviation security measures in general. The point is that any negative effect may become more serious in terms of children, increasing aggregated harm to the population. Thus, in this regard, any interference requires more substantiation – compared with a situation in which only adults travelled by air. At the same time, aviation security is designed to protect travelling children along with other passengers, and this aim is also very important. Regardless, the less harm the better.

9 Concluding Remarks

The concept of human rights offers general principles and mechanisms of human rights protection and enforcement, as well as grounds for their restrictions and limitations. If applied to the civil aviation area, roughly speaking, the rights of air passengers – just as the rights of any human beings – are protected by law. But, some security measures may have impact on human rights, leading to their restrictions and limitations. The question that arises is whether or not the limitations are justified; if definite requirements are not satisfied, the respective human rights can be violated, and this is unacceptable. This has resulted in an aviation-security-versus-human-rights dilemma.

The right to life enjoys a special status. As discussed, it has priority in relation to other human rights. The risks of terrorism and crime in civil aviation and the positive obligation of the state to ensure the right to life are supposed to serve as substantiation for restriction and limitation of human rights in the course of security practices. For justification, the states may use a range of arguments, doctrines or constructions.

However, despite the fact that the right to life is supposed to be protected by security, it is possible that aviation security measures may be inadequate, excessive or insufficient, in some cases resulting in failure to protect the right to life. Hence, under certain circumstances, security is able to violate the right to life itself. While this does not make the right to life less important, this allows a more critical approach towards the aviation security measures, to contribute in the evaluation of aviation security features that may be excessive in relation to other human rights limitations.

A right close to the right to life is the right to health. It can hardly be subject to limitation due to security needs as well. If any aviation security measure has a negative health effect, the states must not use it or remove it immediately. Necessary prerequisites for evaluation of whether the measure is safe/unsafe are reliable, objective and documented reports on health effects conducted by independent experts. In the event a measure is unsafe, it does not matter how effective it is in terms of security, the impact it has on other rights, whether they are justified or not, since health concerns do not allow it to be used.

Regarding the rights to freedom of movement, to equal treatment and non-discrimination, and freedoms of thought, conscience and religion – different concerns deriving from aviation security measures can be indicated. Similarly to the right to privacy, the applicable law and the courts’ practice suggest a common general scheme for analysis of the impact of security measures. Three steps include the following: establishing applicability of law protecting the right; establishing existence of interference; determining whether the interference is justified or there is violation. A common problem is interpreting and construing all the limitations properly. Difficulties may arise in substantiating the interference and implementing enough safeguards in practice.

Although positive obligations of the state to ensure the rights are not unlimited, it is usually up to the state to prove that a security measure having impact on the right(s) is justified and substantiated. At the same time, the states enjoy a certain margin of appreciation¹⁰⁷ in assessing whether and to what extent the questionable measure is justified, depending on concrete circumstances and situation, which make the value of human rights less absolute.

In order to evaluate the justification, a number of common criteria, especially the principles of legality and proportionality, can be used. With reference to the discussed human rights, courts formulated many of the important terms, principles and positions, such as approaches to proportionality, necessity, effectiveness and excessiveness, which allow us to make suggestions and draw tentative conclusions.

These approaches and principles will be further analysed in Chap. 5. Although the discussion is dedicated to privacy and data protection, since the approaches for evaluation and principles are general and common, they can be applied to other human rights too. This will allow making common substantiation for particular aviation security measures in the Special Part.

As for the rights of the child, since the aviation security measures are, as a rule, applied universally to adults and children, if a measure raises human rights concerns, the consequences (possible limitations or violations) become more serious with respect to children due to their vulnerable status. Thus, any interference requires even more substantiation in addition to general substantiation.

In summary, the aviation-security-versus-human-rights dilemma is wider than the aviation-security-versus-privacy/data-protection dilemma and covers the latter. For the purposes of this research, it is important that the correlative “weight” of limitations and violations of all applicable rights by a security measure have an impact on the proportionality of the regime. The rule is: more concerns, both qualitatively and quantitatively, more substantiation and safeguards are required. At the same time, the measure’s actual ability to protect the right to life should be also taken into account. However, some concerns, such as health, if proved, may be enough for non-use/removal of the measure, without the need for further justification and irrespective of the measure’s effectiveness. This is the approach in the discussions below.