Each year, nearly 80 million passengers travel nonstop to the U.S. from more than 90 foreign countries. Security measures at these foreign airports vary, with some having inconsistent and non-standardized security procedures, at best. Couple this with the fact that every attempted, post 9/11 attack on U.S. commercial aviation flights has originated abroad, including flights originating in Paris (2001), London (2006), and Lagos (2009). Questions have arisen as to why U.S. officials have not completely focused on the security practices of foreign airports.
While the Transportation Security Administration’s (TSA) efforts to secure commercial aviation in the U.S. are commendable, aviation security efforts should also focus on threats from passengers boarding commercial flights abroad with nonstop service to the U.S. The problem is how to ensure that these passengers are properly screened to minimize the risk to aircraft bound for the U.S., while recognizing the financial and practical factors limiting those foreign airports. The solution: standardized airport screening procedures for all foreign airports with nonstop service to the U.S., which adapts to current aviation security threats.
The Current Approach to Foreign Airport Security
The U.S. reviews foreign airport security procedures through the TSA Foreign Airport Assessment Program, whereby TSA assesses the security procedures of foreign airports that provide service to the U.S. or “that [pose] a high risk of introducing danger to international air travel.” While TSA review of foreign airports is expected, it is important that TSA more thoroughly evaluate these airport procedures.
The TSA utilizes “Standards and Recommended Practices” (SARPS) to determine whether foreign airports comply with the Foreign Airport Assessment Program. These SARPS are created by The International Civil Aviation Organization (ICAO) and bind almost 200 countries. However, these countries are only required to “make a genuine effort to comply with the recommended practices” and may refuse compliance as long as they notify ICAO. These SARPS also do not mandate specific security procedures, such as the use of body scanners or any other specific equipment, but rather ask only that the country take steps to “ensure” passengers are screened.
If the TSA determines that a foreign airport has not complied with the SARPS, the U.S. Department of Homeland Security (DHS) must then take several responsive actions. As an extreme measure, the Secretary of Homeland Security may suspend service to the offending country in the event that there is a threat to passengers, aircraft, or crew safety, as long as the suspension is in the public interest. However, DHS can also “[require that] the identity of the airport [be] posted and displayed prominently at all U.S. airports at which scheduled air carrier operations are provided regularly,” notify the news media of an airport’s status, and publish a notice in the Federal Register containing the name of the airport. DHS has issued Federal Register notices five times since 1998. One such warning cautioned travelers against using all airports in Venezuela, and remains in effect today. However, despite these DHS warnings, many U.S. airlines continue to fly to Venezuela non-stop from the U.S., since DHS has not prohibited carriers from flying between the two countries.
The Proposal: Standardization of Procedures Tailored to Current Threats
Because the SARPS are vague and do not mandate that countries implement a specific type of technology, the resulting aviation security landscape includes diverse and inconsistent security screening procedures that some could exploit. To seal the loophole created by these procedures, the U.S. should adopt a two-part approach: (1) develop a standardized approach to airport screening that is tailored to address current threats, and (2) prohibit flights to and from airports that do not adopt this standardized approach, which could be implemented via diplomatic agreements.
Step 1: “Standardization” for Effective Airport Screening
A standardized approach to airport screening would involve foreign airports deploying substantially the same passenger screening technology based on the most credible threat information available. For example, if the prevailing threat to aviation security remained explosives hidden on a person’s clothing, body scanners should be deployed if it is the best technology available to guard against this threat. The important characteristic of a standardized regime is that every airport with nonstop service to the U.S. is deploying the proper, specific technology to address all threats.
While it can be argued that standardizing security screening makes it easier to exploit screening vulnerabilities, procedures would change under a standardized program with each emerging threat, just as airports in the U.S. function today. Further, strengthening foreign airport security is certainly not a catch-all solution to lessening security threats to U.S.-bound commercial flights. In fact, several post-9/11 plots involved departures from airports with sophisticated screening procedures. However, implementing a standardized program that moves with changing threat and that is adopted by every single airport with non-stop service to the U.S. could strengthen the safety and security of U.S.-linked international aviation interests in a tangible way.
Step 2: Using Diplomatic Agreements to Prohibit Flights from Countries Without Standardized Screening
With a standardized screening regime in hand, the U.S. could then use existing law and diplomacy to prohibit non-stop flights to and from countries that do not comply with specific, mandatory screening procedures. The U.S. Department of Transportation (DOT) and the U.S. Department of State (State) together negotiate bilateral and multilateral air service agreements with foreign countries, which allow airlines to offer service between the U.S. and the country with which the U.S. has signed an agreement. These agreements detail the terms by which each country may provide international air service for passengers, cargo, and mail. Since 1992, the U.S. has rigorously pursued more liberalized “open skies” agreements with foreign nations as the legal framework for international aviation agreements.
A standardized security screening program could be implemented through individual international agreements between the U.S. and each country that offers non-stop service to the U.S. Each country would agree to specific, defined security screening standards, which could include deployment of specific screening technology. The U.S. could either institute separate, specific agreements outlining the requirements that countries must follow, or it could add a provision to its current open skies or bilateral air transport agreements.
Reaching agreement with multiple foreign countries on standardized security screening requirements through international agreements is not without legal precedent. The U.S. negotiates aviation security agreements with foreign countries, as it is the official policy of the U.S. to “(1) seek bilateral agreements to achieve United States aviation security objectives with foreign governments; (2) to continue to press vigorously for security improvements through the…foreign airport assessment program; and (3) to continue to work through the International Civil Aviation Organization to improve aviation security internationally.” In seeking bilateral agreements to achieve U.S. aviation security objectives with foreign governments, the U.S. could include a mandatory requirement that countries with non-stop service to the U.S. adhere to standardized security procedures.
Further, the U.S. approach to ensuring the safety of foreign airlines involves a categorical ban based on whether certain standards are met, which is the approach that this article proposes in the context of aviation security screening. While the TSA has authority over airport security, the Federal Aviation Administration (FAA) has responsibility over aviation safety, including for foreign airlines. However, the FAA does not evaluate foreign airlines individually. Instead, the FAA assesses the Civil Aviation Authority (CAA) of each country with airlines that serve or wish to serve the U.S. to determine whether the foreign CAA provides safety oversight in compliance with ICAO standards. The FAA then classifies foreign countries as “Category 1” if the CAA is in compliance, or “Category 2” if the CAA is not. While airlines of Category 1 countries may begin or continue service to the U.S., airlines of Category 2 countries may not expand or change operations if they currently fly to the U.S., and may not begin service to the U.S., until and unless that country secures Category 1 status. Thus, in the area of aviation safety, the U.S. effectively prohibits foreign airlines from operating in the U.S. unless certain safety minimums are met. The same can and should be true for aviation security at foreign airports.
While there has never been a one-size-fits-all solution to securing the skies, ensuring that foreign airports with nonstop service to the U.S. adhere to a strict set of screening standards can strengthen aviation security in a critical way. Such a proposal is not without limitations, such as cost constraints and diplomatic concerns. Moreover, there continues to be active debate over the efficacy of scanning techniques and their role in safety and security. However, ensuring that all airports with nonstop service to the U.S. are deploying proper levels of airport passenger security—and using the best technology available to combat emerging threats—is an appropriate focus in the quest to safeguard commercial aviation interests.