Bringing Externalisation Home: The International Civil Aviation Organization and “Entry Screening” in Australia

This paper examines the previously unexplored question of the role of the International Civil Aviation Organization (‘ICAO’) as a forum for the development of practices of externalisation which prevent refugees from reaching state territory and accessing protection. Since 1947, the Convention on International Civil Aviation and ICAO have played a key role in the establishment of the modern legal and operational framework of international air travel. One of ICAO’s principal functions is to formulate and adopt Standards and Recommended Practices which have mainly focused on the safety, regularity and efficiency of civil air travel. The Australian policy of ‘entry screening’ international travelers at Australian airports reveals how (1) the reframing afforded by ICAO’s formulation of standards on passenger facilitation has diminished observance of the binding international obligations of non-refoulement and non-penalisation; and that (2) the interaction between civil air law and international refugee law implicates important questions of treaty interpretation