Checkmate at the Check-In. Discrimination or Transatlantic People Smuggling from Brussels National Airport

Abstract

Pursuant to the so-called American travel ban, nationals from Iran, Libya, Somalia, Sudan and Yemen were denied access to US territory. Consequently airline companies are performing additional checks at the check-in in order to avoid allowing passengers on board who are not in the possession of the required travelling documents to be allowed into the United States. The authors argue that the American travel ban puts airline companies operating from Brussels National Airport, Belgium within the scope of several criminal law provisions. Obeying the travel ban and denying the passengers access to the plane could constitute a form of indirect discrimination based on nationality. Disobeying the travel ban and granting the passengers access to the plane could constitute a form of people smuggling. In its current form, taking account of the interpretation provided in jurisprudence, the Belgian criminal law does not provide a clear way out of this situation. The situation is therefore described as checkmate at the check-in and is used to urge policy makers to provide a more clear legal framework for companies (in this case airline companies) who find themselves confronted with incompatibilities between different legal systems.