Bringing externalization home: the International Civil Aviation Organization and ‘entry screening’ in Australia

Abstract

ABSTRACT This paper examines the previously unexplored question of the role of the International Civil Aviation Organization (‘ICAO’) as a forum for the development and implementation of practices of externalization in the civil aviation space. Since 1947, ICAO has played a key role in the legal development of international air travel, including through formulating Standards and Recommended Practices (‘SARPs’). SARPs have principally focussed on the safety, regularity and efficiency of civil air travel while leaving state obligations under international refugee law largely outside of that structure. The Australian policy of ‘entry screening’ international travellers at Australian airports, whereby people with protection claims may be removed from the country without full consideration of the claim, serves as a case study. Entry screening reveals how (1) States have used the reframing afforded by ICAO’s SARPs on passenger facilitation to chip away at observance of the obligations of non-refoulement and non-penalization; and that (2) the interaction between civil air law and international refugee law implicates important questions of treaty interpretation.