Re-Constructing Global Aviation in an Era of the Civil Aircraft as a Weapon of Destruction
Karber, Phillip A., Harvard Journal of Law & Public Policy
The attacks of September 11 have had both an immediate and a long-term impact on global aviation. In the short term we have been overwhelmed by the loss of life, the systemic disruption of flying, and the international war on terrorism. But there is also a delayed impact, like that of a Jurassic meteor strike, in which the long-term impact was not a function of the local devastation but a changed environment, one that slowly starved out even the largest of species. We are witnessing a second order effect: an industrial "Armageddon," (1) with traffic cut from 9 to 7.5 million passengers a week, (2) airline revenue down by more than one-third, (3) 400,000 aviation employees around the world laid off, (4) over 10 percent of the U.S. commercial fleet grounded, (5) international airlines hemorrhaging on the brink of bankruptcy, (6) and a ripple effect throughout major sectors of an interdependent worldwide transportation economy. (7)
A fully fueled large passenger jet represents awesome destructive power -- it carries more explosive power than the smallest nuclear weapon -- but what was diabolically innovative in the attack on the World Trade Center was the creation of "second-order effects" in the release of potential energy in the structural collapse of the Twin Towers. (8) And part of the horror of September 11 was not just that the attacks were larger and more successful than previous terrorist incidents, but that they redefined commercial aviation from a target of terrorism to a weapon of evildoers. We have dramatically entered an era on which both travelers and unsuspecting civilians on the ground are endangered by "new and emerging threats" from the "civil aircraft as a weapon of destruction." (9)
Even before the most recent attack, the global aviation system was having difficulty. (10) How we react over the next year may place many more species (airlines) on the endangered list and in the process fundamentally alter the future of global aviation. (11) The national sense of shock and danger has led to an unprecedented body of remedial legislation with unusual agreement on the diagnosis of the problem, (12) but unexpected controversy over the method and timing of implementation.
Although motivated by a dual imperative to increase actual security and restore public confidence, a narrow preoccupation with rules to "stop the bad men" can constipate a system that is supposed to promote the general good by facilitating the flow of an interconnected global society. (13) The argument I present here is that rules not only regulate behavior but also define and constitute a system of interaction, (14) that a combination of altered rules focused on individual problems can produce a radically changed system even when not intended, (15) and that, however well motivated the individual regulations are, we need to keep in mind what we value in public aviation and to think more consciously about it as a global system. Conversely, when rules are neither observed nor enforced, the system of interaction that is constituted on the assumption of their effectiveness is in danger of collapse.
This Article takes a "constructivist" approach to normative theory to look at the broader systemic implications for the "constitution" of global aviation by the recent events and the "regulation" they have inspired. (16) This regulatory/constitutive tension is addressed from three levels: (17) hardening aircraft against terrorist takeover, increasing the security of the broader aerial environment, and planning for the future of aviation as a global institution. Before addressing these issues, it is worth reexamining the threat to which we are reacting and reassessing our preconceived notions about how to deal with it.
I. THE CHANGING TERRORIST THREAT TO AVIATION
Illicit aircraft seizure has existed almost as long as commercial aviation. The first recorded incident of aerial piracy was "international," occurring in 1931 when local revolutionaries hijacked a Pan American flight flown by a U. …