General conclusions. The Chicago Convention is a very successful international treaty, if looked at from the perspective of its global acceptance, and predominantly focuses on the regula- tion of technical aspects of international civil aviation. Yet, in the past it had been subject to some criticism with regard to the effectiveness of global implementa- tion of aviation safety standards, and the enforcement competences of ICAO. In reality, the very fact that the Chicago Convention achieved such a broad degree of acceptance can be largely attributed to the fact that its drafters managed to strike a good balance between, on the one hand a desire to achieve ‘the highest practicable degree of uniformity in regulations, standards, procedures, and organi- zation in relation to aircraft, personnel, airways and auxiliary services’, which is necessary for aviation as a global industry, and on the other hand, the principle that ‘each State has complete and exclusive sovereignty over the airspace above its territory.’ The greatest paradox of the system of the Chicago Convention is that over time it has become the victim of the original compromise which allowed the sys- tem to be born in the first place. With ICAO’s membership increasing steadily to 191 participating States, and based on the principle of individual State responsibil- ity for safety oversight, it has become virtually unavoidable that the level of im- plementation of SARPs and eight CEs will be variable across the world. With the differences - sometimes significant - in safety oversight between individual national jurisdictions revealed thanks to USOAP transparency, States, especially those with a good safety record, started to increasingly ring-fence their airspaces and territories with requirements for additional certifications, authorisa- tions, audits and checks. Unilateral inspection schemes started to emerge duplicat- ing the USOAP efforts. Today even the recognition of very basic certificates nec- ▇▇▇▇▇▇ for day-to-day cross border operations of airlines, such as AOCs, and cer- tificates of airworthiness is being increasingly made conditional upon additional authorisations and surveillance programmes. It is really hard not to criticise a system which requires, for example, a re- pair station to obtain up to twenty different certificates to perform exactly the 227 See Paragraph 7 of: 'Annex on aviation safety to the Memorandum of Cooperation between the European Union and the International Civil Aviation Organization providing a framework for enhanced cooperation', (OJ L 232, 9 September 2011). 228 A38-WP/50, supra note 138, at Appendix, Paragraph 5.1. same work, only because the aircraft it works on are registered in twenty different States and which, at least in theory, should follow the same set of minimum inter- national requirements. This ‘death by audit’ and, one could also add, ‘death by re- certification’, has today become a major source of inefficiency in the global sys- tem, in addition to problems that some States experience in setting up effective safety oversight arrangements. States are of course aware of these inefficiencies and try to address them, in particular through the BASAs, in the hope that this will bring them back to achieving the objective of ‘the highest practicable degree of uniformity in regula- tions, standards, procedures’. However, because they are only bilateral in nature, BASAs, whilst giving benefits to a specific pair of States, from a more general perspective actually contribute to the fragmentation of the global regulatory sys- tem. At the same time, it cannot be denied that ICAO has drawn lessons from the past and is making good progress in helping States to improve their compli- ance with international requirements, within the scope of its mandate and taking into account the legal and political limitations that it has as an intergovernmental organisation. Differences in safety oversight performance between and within ICAO regions persist, but the review of ICAO audit results show that States are consistently managing to improve the level of effective implementation of USAOP protocols. The overall trend is therefore positive. At the end of 2013, States with SSCs represented overall only 0.3% of the worldwide international air traffic and ICAO is very committed to further reduc- ing this figure. ICAO is also working on improving the implementation of Article 38 on filing of difference, and has managed to secure a competence to publish, as of 2014, a publicly available list of States with the most serious safety deficien- cies. This is not a bad result compared to other intergovernmental organisations, such as the IAEA which is still struggling to convince its Member States to agree to a mandatory system of inspections, even after accidents as terrible as the one at the nuclear plant in Fukushima, Japan in 2011. There are of course elements which can be further improved, such as more standardisation and uniformity in application of Article 38 on the filing of differ- ences, where ICAO should, in addition to offering an EFOD system, conduct a more general review as to the scope and purpose of notifying the differences. What is however certainly clear today, is that ICAO, with its 191 Member States, will not be able to continue working as it did in the past with the resources available. The recent shift to the USOAP–CMA methodology is a telling example of that new reality. ICAO therefore needs to find a way which would allow it, in addition to monitoring State safety performance and helping States in addressing the detected deficiencies and enforcing global standards, to also address more decisively the ongoing erosion of the aviation safety system in terms of redundant regulatory oversight and waste of resources deriving from duplicate certifications. Regional cooperation can be seen as one of the principal answers to these challenges. Regional cooperation, although only scarcely addressed in the Chicago Convention, is not a new subject for ICAO, who in 2010 adopted a comprehen- sive ‘Policy and Framework for Regional Cooperation’. An integral part of this policy is recognition of the value and support that regional aviation safety organi- sations or RASOs can provide. Today there is a strong conviction amongst the international aviation community that: [E]stablishment of subregional and regional aviation safety and safety oversight bodies, including regional safety oversight organizations, has great potential to assist States in complying with their obligations under the Chicago Convention through economies of scale and harmonization on a larger scale.229 The main test case for the effectiveness of RASOs will be in Africa, where many States do not individually have the necessary resources ‘to run a workable safety oversight system’, and where the overall safety levels – despite improve- ment – remain the lowest in the world. ICAO should also finalise the transition of COSCAPs into ▇▇▇▇ type bodies where it is possible, as the parallel existence of RASGs, COSCAPs and RASOs creates the risk of duplication of effort and waste of resources. This duplication will be further demonstrated in Chapter 3. Experiences from the international maritime sector and the European SA- FA programme demonstrate that regional cooperation can be an effective way to ensure more uniform implementation and enforcement of international safety standards. It can be argued however that ICAO should not be looking at RASOs merely from the perspective of tools to be deployed to address deficiencies in safety oversight systems of States which are unable to deal with such problems on their own. Instead RASOs should be fully integrated into the way ICAO manages safety and used as building blocks for a future GASON. The architecture of the GASON should be based on ICAO relying on and working closely with a number of strong RASOs, which could ensure harmonised implementation of SARPs at regional levels and organise regional enforcement mechanisms. Such a system would not only allow ICAO to be more efficient in the use of resources, but would also contribute to more uniform implementation of SARPs, as instead of a multitude of national regimes, the system could ultimately provide for a more limited number of regional schemes which would be much easier to standardise and control. The regional approach would also contribute to harmonisation of actual safety performance through regional safety performance planning at RASG level and consistent with globally agreed GASP targets. The concept of the GASON would however require a high level of confi- dence by ICAO in the robustness of the regional systems which it would be moni- toring and relying on. This in turn would necessitate strong and appropriately em- powered RASOs which is not yet always the case, as the following chapters - pre- senting and analysing these organisations in detail - will show. 229 Assembly Resolution A38-5, supra note 32 in Ch.1. ‘The establishment of regional civil aviation bodies with regulatory and/or executive tasks and responsibilities should not be seen as a threat to the global framework for civil aviation, but as an opportunity to reinforce it and to make it work better.’ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Director for Air Transport at the European Commission (2004-2011)1
Appears in 2 contracts