A strong doctrine of enforceable reparation must be brought into force to compensate the injured. The United Nations and their agencies must have more monitoring and enforcement powers through tribunals rather than impotent councils and arbitral bodies.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
We are a democracy…we don’t achieve things by force, but through shared knowledge and cooperation
Angela Merkel
When we apply this simple but essential global process in retrospect to what happened to the world with the Covid-19 spread, we see that the exact opposite happened. The last thing we did was sharing knowledge and cooperating with each other. Individual decisions of self interest and churlish decisions for lockdowns without supporting economic and exit strategies were taken based on egoistical and political ideology. The main protagonist, and dare we say, culprit, was air transport which transports nearly 4 billion people worldwide annually. So what went wrong? The following analysis of the air transport scene is not intended to ascribe responsibility or reprehensibility to the United Nations, or its specialized agencies, which seemingly did their best post facto to address the calamitous situation. Rather, it is attempted to make some sense, albeit in a subjective sense, of the way forward in a post pandemic world order.
At the heart of the air transport equation of this issue is the International Civil Aviation Organization (ICAO) – the specialized agency of the United Nations – which has taken tenacious and regular action to engage with the aviation community during the crisis. It continues to do so withing the parameters of its aims and objectives. The issue is how effective these efforts have been. For one, ICAO’s programme, established to respond to the 2003 SARS crisis – called CAPSCA, (Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation) - however noble its purpose and intent have been, has clearly not been effective enough. This is by no means through a fault of the recommendations in the programme but rather, through the inherent structure that underlies it. The genesis of the fight against the spread of communicable diseases through air navigation lies in Article 14 of the Chicago Convention of 1944, which is the fundamental philosophy and driving force of CAPSCA, and which carries all the legal legitimacy ascribed to a multilateral treaty. The inherent defect of this provision is in the wording itself. A careful and nuanced distinction could be made between the “middle of the road” approach in the words of Article 14:“ Each contracting States agrees to take effective measures to prevent the spread by means of air navigation…” by maintaining close contact with the international organizations concerned. The word “agrees” denotes mere consent to do something that is suggested. Elsewhere in the Convention, for instance in Article 3 c) it is stated that “ No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance terms thereof”. While this is not the only instance in the Convention that the word “shall” is used, which reflects a peremptory command, the absence of such mandate in Article 14 renders it destitute of the compulsory effect needed to obligate States to take immediate action to advise other States to take effective measures in precluding the spread of a communicable disease through air transport.
As for ICAO, there are provisions wherein the Council of ICAO could have taken some action provided there was a flow of information from the origin of the spread in China to ICAO’ headquarters in Montreal. One has to take a hard look at whether ICAO is both equipped and empowered to achieve its aims and objective, as prescribed in the Chicago Convention, the operative provision in this context being that ICAO should meet the needs of the world for “safe”, regular, efficient and economical air transport. On this basis the answer is both in the affirmative and negative. In a general sense, by no means should ICAO be found reprehensible. However ,one cannot gainsay that ICAO is able to agitate the world order by reason of its being a specialized agency of the United Nations which, through its Charter, has empowered ICAO to act on its behalf .
One thing the ICAO Council could have done was to have been more vigilant. When the Covid-19 spread was first made known to the world – an epidemic was reported in the central China city of Wuhan in January 2020, two months before the outbreak became a global health crisis – The ICAO sub-regional office located in China could have alerted the ICAO headquarters in Montreal without delay as that office knew, or ought to have known with earlier knowledge and experience gathered from the 2003 SARS crisis, that the disease could spread rapidly through air transport . Although the primary responsibility of this sub-regional office is to support improved airspace organization and management to maximize air traffic management performance across the Asia Pacific Region, that does not mean that it should not keep its eyes open for any possible implications with regard to provisions of the Chicago Convention. Furthermore, ICAO’s regional office in Bangkok, the primary objective of which is to foster implementation by States of the global ICAO Standards as well as organization’s Regional Air Navigation Plan, in order to provide for the safety, security and efficiency of the Asia and Pacific region air transport network, had a distinct link to Article 14 of the Chicago Convention which speaks of air navigation.
With this knowledge ICAO could have communicated with China the need to take necessary measures, to give full information, in order to alert other States of the possible threat of a viral spread through air transport. The Chicago Convention has, as a mandatory function of the Council of ICAO, the duty to report to contracting States any infraction of the Convention, as well as any failure to carry out recommendations or determinations of the Council. There is no evidence that this process was adhered to. Like everyone else, seemingly ICAO was taken off-guard.
At this juncture, this is all very theoretical and remains water under the bridge. Once this is over, the world will have to recalibrate, as it did after the plague of the 14th Century, the Spanish Flu of 1908 and the Second World War. There would have to be a drastic revision of the world order on the basis that a global crisis would need effective and enforceable global corporation and collaboration. Some of the aspects of this revitalization of the global order would require a new look at the permanent members of the United Nations Security Council and their veto powers and the outworn fetishes of purblind tunnel vision of each State which still cling to their Westphalian self service interests couched in the concept of State sovereignty to the exclusion of the interests of other States. The United Nations and its specialized agencies should get together with their member States to carve out principles of State responsibility and accountability for what goes on in their countries that could adversely affect other countries. There should be consequences for delinquent States.
A strong doctrine of enforceable reparation must be brought into force to compensate the injured. The United Nations and their agencies must have more monitoring and enforcement powers through tribunals rather than impotent councils and arbitral bodies. They must be equipped to be the eyes and ears of the world. As history has shown after every pandemic, the world will bounce back economically, and the heavy burden of sovereign debt incurred on account of this killer pandemic will be overcome. But the impotence of a world destitute of the force of accountability will be with us until something is done to ensure each State has global responsibility written into its sovereignty.
Whether this would be possible in a world that is divided and is receding within the boundaries of parochial State interest is another matter.
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