International Civil Aviation Organization

Tension and Transition:

How an intergovernmental organization achieves its mission within an international framework of sovereign states as it works to fulfill new aviation safety responsibilities
Steve Brack 20 November 2011 Political Science 201 International Relations Fall 2011 Instructor: Meng Lu
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Table of Contents
Introduction...........................................................................................1
Intergovernmental Organizations, Generally................................................1 The ICAO Jurisdiction: Civil Aviation............................................................2

Exclusion from ICAO Jurisdiction...................................................2

United Nations Status....................................................................................3 The Convention on International Civil Aviation............................................3

Format and Structure of the Convention.......................................3

Membership....................................................................................................4 Predecessor Organizations............................................................................5

Current Organizational Role..................................................................6

ICAO and the Setting of Safety Standards....................................................6

The Challenge of Achieving Safety Goals......................................................9 Erga Omnes Theory Regarding ICAO Member States.................................9 Evaluation of Huang's Erga Omnes Theory................................................10

ICAO Accident Investigations.........................................................7 Libyan Arab Airlines Flight 114..................................................8 Korean Air Lines Flight 007.......................................................8 UTA Flight 772...........................................................................8

Alternate View of State Sovereignty in Civil Aviation...........................9

Conclusion...........................................................................................11 Appendices...........................................................................................12
A: Selected Articles of the Convention on International Civil Aviation.....12 B: Annexes to the Convention on International Civil Aviation...................14

Sources of Information........................................................................15

Intergovernmental Organizations, Generally

An international organization, or, more formally, an intergovernmental organization (IGO), is an organization whose members are sovereign states or other IGOs (such as the European Union and the World Trade Organization). Such organizations function according to the principles of intergovernmentalism.

Individual member states cede no sovereignty to the IGO under intergovernmentalism; consequently, all policy decisions must be taken with the consent of all member states. This effectively requires unanimity among the member states before policy can be set or implemented. Any dissenting state can block any action, if necessary, by voting with its feet and withdrawing from the organization.

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The ICAO Jurisdiction: Civil Aviation

Civil aviation encompasses all aviation operations other than military operations. Civil aviation is itself comprised of two categories: Scheduled air transport ...... General aviation .................. All passenger or cargo flights that operate on a published schedule. All other flights, whether private or commercial.

In the public mind, the most visible part of civil aviation is scheduled air transport. However, the large majority of civil aviation flights are flown as general aviation, rather than as scheduled passenger or cargo flights.

General aviation includes nonscheduled or charter passenger and cargo flights, flights of aircraft in support of a business's activities, and flights of personal aircraft undertaken for transportation, flight instruction, or recreation.

Exclusion from ICAO Jurisdiction Expressly outside the realm of the ICAO is military aviation, which consists of the combatant and noncombatant aircraft & facilities operated by the armed forces of its member states. As a practical matter, however, the ICAO's role as a standards-setting body means that all airspace users are affected to some degree by the ICAO's standards and policies, as agreed to by its member states, whether the ICAO has any explicit role with regard to that type of aviation. For example, most military airfields carry ICAO airport identifiers even though they do not fall within the definition of civil aviation.

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United Nations Status

The ICAO is an autonomous IGO incorporated into the United Nations through the United Nations Economic and Social Council under Articles 57 and 63 of the United Nations Charter.

The Convention on International Civil Aviation

The Convention on International Civil Aviation (also known as the Chicago Convention), first ratified in Chicago on 7 December 1944 by an initial group of 52 signatory states, governs the administration and operations of the ICAO. Its current edition, the ninth, is designated Document 7300/9 and includes modifications from 1948 up to year 2006. In addition, two corrigenda have been added to the Convention, each dealing with minor typographical or translation errors. The entirety of the convention, including all of its Articles and Annexes, is set out quadrilingually, in English, French, Spanish, and Russian.

Format and Structure of the Convention

The organization's purpose is set forth in the Preamble to the Convention, which reads: WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and

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WHEREAS it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends; THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically; Have accordingly concluded this Convention to that end. The Convention consists of 96 Articles, a subset of which are listed in Appendix A, and has 18 Annexes, listed in Appendix B. Notably, its Annex 5, titled Units of Measurement to be used in Air and Ground Operations, is one of few places within the United Nations system where non-metric units are officially recognized for use in an international setting, with the foot (for altitude), the knot or nautical mile per hour (for velocity), and the nautical mile (for long distances) being internationally recognized via Annex 5.

Membership
ICAO members include nearly all nations on Earth: 1901 or 1912 (sources vary) of the 193 United Nations members as well as the Cook Islands. Non-member states include Dominica, Liechtenstein, Niue, Tuvalu, Vatican City (the Holy See), and certain others, the majority of which either do not launch or receive flights in international civil aviation or have a very limited presence on the international civil aviation scene. Illustration III: World map showing ICAO member nations

Liechtenstein, whose foreign affairs are administered by Switzerland, is a de facto member through Geneva's accession to the Convention
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on 6 February 1947. The Cook Islands and Niue, having entered into a free association with New Zealand, exercise only limited sovereignty within the international system: Unusually, one holds its own membership in the ICAO while the other does not.3

Predecessor Organizations
The forerunner to the ICAO was the International Commission for Air Navigation (ICAN). It held its first convention in 1903 in Berlin, Germany (the same year that the Wright Brothers of Dayton, Ohio made their historic flight), but no agreements were reached amongst the eight countries that Illustration IV: ICAO World Headquarters, Montreal, Quebec, Canada

attended. At the second convention in 1906, also held in Berlin, 27 countries attended. The third convention, held in London, United Kingdom in 1912 allocated the first radio callsigns for use by aircraft.

On 13 October 1919, the Convention on the Regulation of Aerial Navigation was signed in Paris, which represented the first successful multilateral endeavor to set up a global regulatory regime for aviation. In addition to the declaration that every State has complete and exclusive sovereignty over the airspace above its territory, the Convention established an international legal framework to cover various matters relating to safety, such as aircraft registration, certificates of airworthiness and international rules of the air.

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The ICAN existed until 1945, when the Provisional International Civil Aviation Organization (PICAO) was established. The PICAO became the ICAO in 1947 with the ratification by 26 nations of the Convention on International Civil Aviation.4

Current Organizational Role

The ICAO is currently the primary international body for facilitating international civil aviation among its member states. It sets standards and regulations necessary for aviation safety, security, efficiency and regularity, as well as for aviation environmental protection. The organization serves as the forum for cooperation in all fields of civil aviation among its 192 member states.

ICAO and the Setting of Safety Standards

The Oxford Dictionary defines safety as freedom from danger or risk,5 but aviation could not be completely free from danger or risks. The only way to assure risk-free flight is to never allow the aircraft to leave the gate. In recognition of the unattainable nature of perfect safety, the ICAO Air Navigation Commission defined aviation safety as [t]he state of freedom from unacceptable risk of injury to persons or damage to aircraft and property.6 This reiterates the sentiment expressed in the original 1944 Convention on International Civil Aviation, where the ICAO members agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner.7

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Toward that end, in July 2007, the ICAO published its Global Aviation Safety Plan, identifying the global strategy for aviation safety: The attainment of a safe system is the highest priority in aviation. However, safety actions are not only driven by facts and data but also by the perception of safety needs by the public. Acceptable safety risk is related to the trust attributed to the aviation safety system, which is undermined every time an accident occurs. Therefore the challenge is to drive an already low accident rate even lower.8 The ICAO's standards-setting ability is used to enhance safety, with the ICAO couching language mandating compliance into its definition of a standard.9

ICAO Accident Investigations

A common misconception is that the ICAO has a routine role in the investigation of accidents in international civil aviation: It does not. Primary responsibility for such investigations rests with the State upon whose soil the accident took place, with the State of registration and the State of manufacture also playing a role in many accident investigations. That said, ICAO has, at times, been called upon to conduct an investigation when considerations of international tension and/or mistrust make a State-based investigation unacceptable to one or more involved parties.

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Libyan Arab Airlines Flight 114

On 21 February 1973, the Boeing 727 airliner was shot down by Israel after penetrating Israeli airspace over the disputed Sinai peninsula, then refusing orders to land from the Israeli F-4 Phantom jet fighters. 108 of the 113 aboard died in the incident. The ICAO found Israel at fault.10 Illustration V: Libyan Arab Airlines Flight 114(Artst's Rendering)

Korean Air Lines Flight 007

On 1 September 1983, at a time of increased Cold War tension, the Korean Boeing 747 strayed off course and crossed over highly sensitive Soviet military installations. The Soviets sent Su-15 jet fighters to intercept the airliner, and, after failed attempts to Illustration VI: Korean Air Lines Flight 007 (Artist's Rendering)

signal the airliner, shot it down, killing all 269 on board.11

UTA Flight 772

On 19 September 1989, Union de Transportes Ariens Flight 772, a French-owned McDonnell Douglas DC-10 took off from Brazzaville in the Republic of Congo en route for Paris Charles de Gaulle Airport. After taking off from a stop in N'Djamena, Chad, a
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Illustration VII: UTA Flight 772 (Artist's Rendering)

bomb detonated in the airliner's cargo hold, killing 170, including the wife of the U.S. Ambassador to Chad. It was later determined that the bomb was most likely placed by Islamic Jihad and that the attack was sponsored by the government of Libya in retaliation for French interference in Libya's attempt to seize Chadian territory. 12

The Challenge of Achieving Safety Goals

In practice, there are no teeth behind the ICAO's safety mandate.13 A State may comply or not comply, taking advantage of provisions in the Convention on International Civil Aviation allowing any state to demur from ICAO safety requirements merely by filing a statement with the organization to give formal notice of their noncompliance.

This issue illustrates how sovereignty restricts the governing efforts of intergovernmental organizations: Each member State is fully sovereign with regard to its own civil aviation matters and can opt out of the ICAO's standards essentially at will.

ICAO still has at its disposal the tools of soft power: persuasion, public opinion, and the like. In the conventional view, though, it doesn't have a means to coerce compliance, rather than merely to encourage it.

Alternate View of State Sovereignty in Civil Aviation

Erga Omnes Theory Regarding ICAO Member States
Professor Huang Jiefang of Wuhan University Institute of International Law, Wuhan, China and at China Civil Aviation University, Tianjin, China postulates that the obligation toward
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ensuring civil aviation safety and security is an erga omnes obligation, an obligation that each State owes to the international community as a whole. Erga omnes obligations, he quotes, are grounded not in an exchange of rights and duties but in an adherence to a normative system.14 They are not pronounced on the basis of quid pro quo, under which States could derogate from obligations inter se. In support of this approach, Huang cites an obiter dictum from the International Court of Justice (ICJ) in the 1970 case involving Barcelona Traction, Belgium v. Spain.15

In that case, the Court cited international instruments of a universal or quasi-universal character as creating an erga omnes obligation.16 Huang holds that the Convention on International Civil Aviation, having nearly every nation on Earth as a signatory, should be considered such an instrument.

Huang makes a convincing argument that, as he concludes, as the UN-specialized agency in the field of civil aviation, ICAO should embrace its responsibility to oversee the global safety of civil aviation, including the undertaking of certain enforcement and implementation action, if necessary.

Evaluation of Huang's Erga Omnes Theory

While Huang appears to use solid legal reasoning to reach his conclusion, the fact of the matter is that, in the international political system, sovereign states only cede sovereignty of their own volition, and no intergovernmental organization may force a ceding of sovereignty. Because of that, no matter how convincing the argument

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made by Huang may be, no change in the international system of regulating air safety will be forthcoming unless his argument convinces States to subjugate their own political independence in the area of civil aviation safety to the ICAO.

Such is an unlikely outcome, given individual States' historic unwillingness to cede sovereignty. The system of international cooperation that has informed the work of the ICAO for the past 67 years seems unlikely to be altered by the novel application of the erga omnes doctrine to this area of international relations.

Conclusion
The International Civil Aviation Organization is, of necessity, in a constant state of tension between the mandates of its governing documents and the restrictions inherent in only being able to solicit voluntary, rather than mandatory compliance. This course of events is likely to remain unaltered due to individual States' natural reluctance to compromise their sovereignty, as sovereignty is the cornerstone of what it is to be a State on the international stage.

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Appendices
A:

Selected Articles of the Convention on International Civil Aviation

Article 1: Article 5: Every state has complete and exclusive sovereignty over airspace above its territory. The aircraft of states, other than scheduled international air services, have the right to make flights across state's territories and to make stops without obtaining prior permission. However, the state may require the aircraft to make a landing. No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State.

Article 6:

Article 10: The state can require that landing to be at a designated customs airport and similarly departure from the territory can be required to be from a designated customs airport. Article 12: Each state shall keep its own rules of the air as uniform as possible with those established under the convention, the duty to ensure compliance with these rules rests with the contracting state. Article 13: A state's laws and regulations regarding the admission and departure of passengers, crew or cargo from aircraft shall be complied with on arrival, upon departure and whilst within the territory of that state. Article 16: The authorities of each state shall have the right to search the aircraft of other states on landing or departure, without unreasonable delay... Article 24: Aircraft flying to, from or across, the territory of a state shall be admitted temporarily free of duty. Fuel, oil, spare parts, regular equipment and aircraft stores retained on board are also exempt custom duty, inspection fees or similar charges. Article 29: Before an international flight, the pilot in command must ensure that the aircraft is airworthy, duly

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registered and that the relevant certificates are on board the aircraft. The required documents are: Certificate of Registration Certificate of Airworthiness Passenger names, place of boarding and destination Crew licences Journey Logbook Radio Licence Cargo manifest

Article 30: The aircraft of a state flying in or over the territory of another state shall only carry radios licensed and used in accordance with the regulations of the state in which the aircraft is registered. The radios may only be used by members of the flight crew suitably licenced by the state in which the aircraft is registered. Article 32: The pilot and crew of every aircraft engaged in international aviation must have certificates of competency and licences issued or validated by the state in which the aircraft is registered. Article 33: Certificates of Airworthiness, certificates of competency and licences issued or validated by the state in which the aircraft is registered, shall be recognised as valid by other states. The requirements for issue of those Certificates or Airworthiness, certificates of competency or licences must be equal to or above the minimum standards established by the Convention. Article 40: No aircraft or personnel with endorsed licenses or certificate will engage in international navigation except with the permission of the state or states whose territory is entered. Any license holder who does not satisfy international standard relating to that license or certificate shall have attached to or endorsed on that license information regarding the particulars in which he does not satisfy those standards."

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B:

Annexes to the Convention on International Civil Aviation

Annex 1 Annex 2 Annex 3 Annex 4 Annex 5 Annex 6 Annex 7 Annex 8 Annex 9 Personnel Licensing Rules of the Air Meteorological Navigation Service for International Air

Aeronautical Charts Units of Measurement to be used in Air and Ground Operations Operation of Aircraft Aircraft Nationality and Registration Marks Airworthiness of Aircraft Facilitation

Annex 10 Aeronautical Telecommunications Annex 11 Air Traffic Services: Air Traffic Control Service, Flight Information Service and Alerting Service Annex 12 Search and Rescue Annex 13 Aircraft Accident and Incident Investigation Annex 14 Aerodromes Annex 15 Aeronautical Information Services Annex 16 Environmental Protection Annex 17 Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference Annex 18 The Safe Transport of Dangerous Goods by Air

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Sources of Information
1

Status of the Convention on International Civil Aviation, ICAO, page 1: http://j.mp/vW39l8. Retrieved 20 November 2011. Sudan Tribune. (2011-11-13). South Sudan becomes 191st member of ICAO. http://j.mp/sumo4S . Retrieved: 2011-11-20. Status of the Convention on International Civil Aviation, ICAO, page 3: http://j.mp/vW39l8 . Retrieved 20 November 2011. "Registrations". Golden Years of Aviation. http://j.mp/v6wUeT Retrieved 20 November 2011. Safety. The Concise Oxford Dictionary (9th ed, Oxford University Press, 1995). ICAO Working Paper AN-WP/7699, Determination of a Definition of Aviation Safety, 11 December 2001. Convention on International Civil Aviation, original version: http://j.mp/uWRgrt . Retrieved 20 November 2011. Global Aviation Safety Plan. International Civil Aviation Organization. http://j.mp/t7IXsr . July 2007. Retrieved 20 November 2011. Assembly Resolution A1-31: Definition of International Standards and Recommended Practices, in ICAO Doc. 7670, Resolutions and Recommendations of the Assembly 1st to 9th Sessions (19471955), International Civil Aviation Organization, Montreal, 1956.

10 Aerial intrusions by Civil and Military Aircraft in a Time of Peace Phelps, John Maj. Military Law Review Vol 107 Winter 1985 11 Criminal Occurrence Description Korean Air Lines Flight 007. Aviation Safety Network. 1 September 2007. http://j.mp/sKgvkm . Retrieved 20 November 2011. 12 Criminal Occurrence Description - Union de Transportes Ariens Flight 772. Aviation Safety Network. 7 June 2009. http://j.mp/u1756z . Retrieved 20 November 2011. 13 ICAO Council Working Paper C-WP/10832, Safety Oversight Programme Implementation in 19992001 Triennium (Presented by Angola, Australia, Bolivia, Canada, Egypt, India, Indonesia, Mexico, Pakistan, and Saudi Arabia), 18 February 1998.

14 R. Provost, Reciprocity in Human Rights and Humanitarian Law, 65 British Yearbook of International Law (1994), 383, 386. 15 Huang, Jiefang. Aviation Safety, ICAO, and Obligations Erga Omnes. Chinese Journal of International Law (2009), Vol. 8, No. 1, 6379. 26 December 2008. Oxford University Press. http://j.mp/slFKI3 . Retrieved 20 November 2011. doi:10.1093/chinesejil/jmn039 . 16 Barcelona Traction (Belgium v. Spain) (Second Phase) ICJ Reports 1970, 32.

Sources of Information (continued)