A Study On The Legal Issues Of No Fly List

In recent years, some airlines in China have taken the no fly list into practice, which prohibits the unruly passengers from boarding. It makes an extensive dispute in the practice of aviation transportation. Whether the airlines have the right to use the no fly list? What is the criterion of the no fly list? What relief can the passengers get when they are wrongly put in the no fly list? The laws and regulations in China have not answered the above questions yet. In fact, American government has used the no fly list to guard against the terrorists since the 1980 s. When passengers’ unruly behaviors became increasingly fierce between late 20 th century and early 21 th century, many airlines also formulated their own no fly lists to protect the aviation safety. At that time, there are two different types of no fly lists in the practice of aviation transportation. One is regulated by the government, which is used to guard against the terrorists. The other is owned by the airlines, which is used to deal with the unruly passengers.This article mainly discusses the following questions: What disputes will the no fly list bring in both the practice and theory? Whether the no fly list is legal? How does the no fly list operate? What relief can the passengers get if they are wrongfully put in the no fly list? Based on above, some suggestions are given to improve the no fly list in China. The discussion is divided into four parts as follow:The first chapter puts forward the disputes in the practice and theory according to the comparative study about the operation of no fly list in America, Canada, EU and China. In the government level, America’s no fly list is regulated by Terrorist Security Center. Canada’s no fly list is regulated by Transport Canada. EU’s official no fly list is on the way. It did not pass the Passenger Name Record Plan until 2015. However, there is no government’s no fly list in China. In the airlines level, many airlines in America, Canada, EU and China have already taken the no fly list into practice. When the no fly list is taken into practice more and more frequently, a lot of problems came out, which raised a dispute in the theory. Whether the no fly list violates aviation carriers’ duty of compulsory contracting? Whether the no fly list infringes consumers’ selection right? Whether the no fly list deprives passengers of the right to travel?Based on the first chapter, the second chapter studies aviation carriers’ duty of compulsory contracting, consumers’ selection right and right to travel. First of all, only when the aviation carriers provide transportation services to the public, they should be considered as common carriers and thus they should perform the duty of compulsory contracting. Such a duty is based on the prerequisite that passengers’ requirements are ordinary and reasonable. If passengers’ requirements fall outside the aviation carriers’ scope of operation, infringe other passengers’ rights or maybe endanger the aviation safety, the aviation carriers can refuse to make a contract with such passengers. Secondly, passengers can get protection as consumers. However, the aviation safety takes precedence over the protection of consumers’ rights. Therefore, the government’s protection of consumers’ selection right is based on the premise that the passengers’ behaviors do not endanger the safety of aviation. When the passengers are put in the airlines’ no fly list, they still have the selection right to some extent and the airlines also have the right to select consumers in the legal and reasonable scope. Finally, the passengers have the right to travel, which is among human rights and protected by law. When the passengers are wrongly put in the no fly list, their right to travel is infringed. However, when the passengers are rightfully put in the no fly list, their right to travel is not infringed by the government’s no fly list, because people’s rights are not absolute and thus the government can limit people’s rights by law to protect the public safety. The airlines’ no fly list does not infringe passengers’ right to travel as well, because the passengers can still take another airline’s fight when they are banned from flying by one airline.The third chapter analyses the procedure and redress of the no fly list. During the procedure, the dispute exists in the following two aspects: formulation and operation. In the formulation, the register of the no fly list should not be open to the public, because it is just a judgment by the government or the airlines based on the passengers’ past behaviors. That is to say, the passengers in the no fly list just maybe endanger the aviation safety. If the passenger is wrongfully put in the no fly list and such a list is open to the public, then there is no doubt that the no fly list infringes the passengers’ privacy and reputation. The society will have a lower evaluation of such a passenger. However, the criterion for the passengers to be put in the no fly list should be open to the public, because only after that the passengers can know why they are put in the no fly list. It is beneficial for them to protect their rights and can also warn the potential terrorists or unruly passengers. In the operation, if the government wants to prohibit the passengers from flying, it must give notification and hearing to the passengers, which is the requirement of due process. Besides, when the passengers are put in the no fly list, they should be given relieves, because the no fly list is just a subjective judgment and thus it may be wrong. If the passengers are wrongly put in the airlines’ no fly list, they can make a civil lawsuit against the airlines. While if the passengers are wrongly put in the government’ no fly list, they can not only get the right of hearing, but also request administrative review and bring an administrative lawsuit against the government.The fourth chapter gives some suggestions to improve China’s no fly list based on the current situations. Nowadays, there are a lot of defects in the formulation and regulation of the no fly list in China. Firstly, it is necessary to make clear who has the right to make the no fly list. China’s government can make the no fly list, which is the requirement for China to perform the duties both under the domestic law and the international treaties. Therefore, the aviation law and regulation shall be modified and confer the government upon the power to make the no fly list clearly. As to thesubject, the Airport Public Security can make the criterion and draft the names in the register of the no fly list. After that, such a no fly list should be approved by Civil Aviation Administration of China. Of course, the airlines can also make their own no fly list to guard against the unruly passengers, which does not violate the provisions of Montreal Convention and China’s contract law. Secondly, it is necessary to clarify the criterion for the passengers to be put in and get out of the no fly list. When the passengers are likely to carry out terrorist attacks and endanger the aviation safety, they should be put in the government’s no fly list. As to the criterion of the airlines’ no fly list, the airlines can make it by themselves. However, such a criterion for the passengers to be put in the airlines’ no fly list should be written in the contract of carriage. Because the government’s no fly list is used to guard against the terrorists, it may be reasonable to forbid the terrorists who hijack the airplane from flying forever. We need to restrict them from getting out of the no fly list, unless they can prove that it is a mistake to put them in the no fly list. For the passengers to be put in the airlines’ no fly list, we should give them the opportunity to correct their faults. When the period of prohibition passes or the unruly passengers signs a letter of commitment not to disrupt the order on the flight, we can put their names out of the no fly list. Finally, it is necessary to give relieves to the passengers, who are wrongly put in the no fly list. The passengers wrongly put in the airlines’ no fly list can bring a civil lawsuit or arbitration against the airlines, requiring cancellation of their prohibition of flying. The passengers wrongly put in the government’s no fly list can not only get the notification and hearing, but also request administrative review and bring an administrative lawsuit against the government, because the behavior to put the passengers in the no fly list is attributed to specific administrative acts.