by Dr. Ruwantissa Abeyratne in Montreal
The price of freedom is eternal vigilance. Desmond Tutu
Each year, 7 December is marked as “International Civil Aviation Day”. The only reason one can think of for the choice of this particular day to be dedicated to international civil aviation is that the Convention on International Civil Aviation (Chicago Convention) – the “Bible” of international civil aviation - was signed at Chicago on 7 December 1944. The Chicago Convention lay without legal effect for four months until it reached the minimum number of 26 ratifications required from States for it to go into effect. The Convention received the requisite 26th ratification on March 5, 1947, and entered into force on 4 April 1947, the same date that the International Civil Aviation Organization – the specialized agency of the United Nations for international civil aviation (ICAO) - came into being. Some argue, not without justification – that this auspicious day celebrating international civil aviation should be the 4th April when things actually started happening.
Be that as it may, it is interesting that this year in particular, when the world of air transport has been upended by a virulent pandemic that has spread globally with the help of air transport, that the theme for international civil aviation day has been proclaimed as “Advancing Innovation for Global Aviation Development”. Here, the key word is “innovation”, which means finding a new way or product: or creating new value and/or capturing value in a new way. One wonders whether, instead of trying to create new value or a new product “Reviving Air Transport” would have been more relevant as a theme to an industry which badly needs to be revived to its status quo ante which was flourishing until the pandemic struck.
What is badly needed is revival and, in ICAO’s own admission, seeking innovation has always been an objective: “A commitment to innovation has always been at the heart of aviation, and it has been instrumental to the continuous performance improvements countries have realized, through ICAO, for aviation safety, security, efficiency, and the economic and environmental sustainability of international operations.
Innovation will also be at the heart of our recovery strategies and partnerships as we build back better post-pandemic, establishing a renewed global network that is greener and more resilient in the face of future pandemic threats, and more dependable in terms of the significant socio-economic benefits which air connectivity delivers to modern societies”.
The second paragraph makes eminent sense with the word “recovery” and ICAO must be commended for using this word. Furthermore, the ICAO Council has been proactive with its Council Aviation Recovery Taskforce, which continues to encourage innovative and prudent measures to help countries respond to and ultimately recover from COVID-19.
This notwithstanding, getting to greener and more resilient air transport vis a vis a raging pandemic or even a potential spread of a virulent virus does not comport with effective measures that should be taken immediately to nip things in the bud. Resilience and green technology are admirable. However, the fault lies in the current status quo of the Chicago Convention itself which must be addressed. the genesis of fight against the spread of communicable diseases through air navigation lies in Article 14 of the Chicago convention which carries all the legal legitimacy ascribed to a multilateral treaty. The inherent defect 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: to“ Each contracting States agrees to take effective measures to prevent the spread by means of air navigation…” 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.
Another weakness in Article 14 is somewhat semantic but nonetheless relevant to this discussion. The reference to the spread of communicable diseases caused by air navigation is meaningless. Communicable diseases are caused through air transport and the carriage of persons from place to place. Air navigation broadly defined is the science and technology of determining the position of an aircraft with respect to the surface of the earth and accurately maintaining a desired course.
Taking these initial inconsistencies to ICAO, which derives its legitimacy from Articles 43 – by which the Chicago Convention establishes ICAO – and Article 44 which defines the aims and objectives of the Organization – Article 44 d) which says ICAO should strive to meet the needs of the people of the world for safe, regular, efficient and economical air transport (the word “safe” being the operative word in this context) and the fact that the meaning and purpose of the 96 provisions of the Convention and their implementation are embodied in ICAO’s aims and objectives, one has to take a hard look at whether ICAO is both equipped and empowered to achieve its aims and objectives.
The answer is both in the affirmative and negative as the discussion below shows. In a general sense, by no means should ICAO be found reprehensible. However, 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 . This philosophy had its genesis, prior to the formation of the United Nations in Article 64 of the Chicago Convention which provides that ICAO may, with respect to air matters within its competence directly affecting world security, by vote of the Assembly, enter into appropriate arrangements with any general organization set up by the nations of the world to preserve peace.
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 – A vigilant 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 (AOM) to maximize Air Traffic Management (ATM) 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 alert other States of the possible threat of a viral spread through air transport. Article 54 j) of 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.
We have reached a point where a retrospective look at things is as important as a prospective look. Along with innovative measures, it may be relevant, on this unprecedented International Civil Aviation Day, to take a look at reinventing identities and objectives to face future challenges.
Dr. Abeyratne teaches international aviation law and policy at McGill University, before which he occupied senior positions at air transport and law at ICAO.
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