Radical Outside the ICAO Box Thinking — AVSEC’s Probable Salvation?

From the time of conception in the mid 1940’s to date, the International Civil Aviation Organization- ICAO the UN specialized agency for all matters aviation, currently consisting of a 190 Member States representation has without a shadow of a doubt, for that matter, worked tireless towards the improvement of the international civil aviation industry. Unfortunately though ICAO remains at that forefront of international aviation rule-making, the subsequent global uniformity in the implementation of those very rules and standards, particularly as regards aviation security is yet to be seen.

Neither has the existence of the likes of her regional support organizations the African, Arab, nor the South American Civil Aviation Committees and or the relatively much stronger, European Civil Aviation Conference-ECAC been of any meaningful mention in the collective role of the much required enhancement of the global aviation security regulatory oversight. ECAC even with her abilities, which are way above those of ICAO’s clout and or sphere of influence, particularly in terms of executing bans and the blacklisting of would be errant states, from its member states airspace. Has remained mute; neither has having G7 (seven major advanced economies group) stalwarts the UK, France, Germany and Italy as its constituents members, who also happen to enjoy the favoured decision making, permanent membership in the ICAO Council, been of much help.

Not to mention that, ECAC also enjoys an added bonus of voice, coalition and networking, in terms of the close linkage with the USA and Canada, both members of the G7, who enjoy a permanent observer status at ECAC meetings, while the balance of states making up the ECAC’s membership are mainly industrial powers with a level of affluence way superior to that achieved by the average ICAO Contracting States, better known as developing countries. In security terms, this at least means that, the level at which aviation security standards can be set and be the common denominator — is considerably higher within the ECAC domain with its influence, than that which can be achieved by ICAO, who has to allow for the economic and management weaknesses so often indigenous to the civil aviation authorities of most of her contracting states.

It is however, rather unfortunate that even with all her advantages including that of having the ability of a collective voice in the larger ICAO forum to promote policies which, acting unilaterally, ECAC Member Countries may not achieve, as well as the ability to respond quickly to changing circumstances requiring an enhancement of security procedures. ECAC shares a common weakness with ICAO — in that neither is able to pertinently enforce its rules on its members. Indeed in the area of aviation security regulatory compliance and standards implementation, be it ICAO or ECAC, they both have this failure as a salient common feature. Yes they are associations of sovereign entities, but in reality have no powers to enforce any stringent compliance of their standards over sovereign states forming their distinguished membership.

Even with being a 190 plus contracting (member) states worldwide organization, that derives its mandate from the 1944 Conference on International Civil Aviation, formally born upon the ratification of the Chicago Convention by the appropriate number of states. Through its tiered committee structure, the developing and publishing of International Standards (mandatory rules) and Recommended Practises, its member states are unfortunately only urged to implement the standards and recommended practices, and are hardly held stringently accountable towards the failure in doing so.

At the conceptual level within ICAO, the Aviation Security Panel, a group inaugurated in 1985 following the June 23rd 1985 bombing of Kanishka, the Air India Boeing 747 over the Atlantic ocean area of the Irish airspace, where 329 lives (268 Canadian citizens a majority of them with Indian ancestry, 27 Britons, and 24 Indians) perished. Was specifically charged with, the responsibility of reviewing existing international security standards and re-writing the ICAO aviation security rule book, the Annex 17 to the Chicago Convention. The resulting work remains to a large extent, the basis of today’s international security regulations. Spelling out, in the form of standards and recommended practices (SARPS), the rules needed to effect a valid security programme.

In the small and singularly simple nature Annex 17 is as a publication, born out of much debate and more of a compromise document designed to balance the needs of civil aviation seen through the eyes of security specialists (the ICAO Panel) with those of political and economic considerations demanded by the wide-ranging membership of ICAO. ICAO’s use of the term ‘mandatory’ in relation to the Annex 17 ‘standards’ requires an in-depth explanation if not understanding. Particularly based on the simple fact, that ICAO as an organization more on the side of a coalition of the willing, has never really had any enforcement powers over its members thus, whilst ICAO Annexes are ‘binding’ on governments, provisions are made in the same standards and recommended practices for contracting states to opt out of any regulations which, for one reason or another, they may find unacceptable, by publishing their differences.

Though all governments as represented by its membership are able to participate in the ICAO debates, which in turn lead to the international rule-making, or to comments by states upon the published proposals resulting from such debates before they become effective, where many states fail to do so. Representatives attend sessions where rules are developed, and even vote for their adoption, but we need not forget that delegates at international meetings at times vote with the mood of the meetings only to have second thoughts on their return home. ICAO debates are conducted in one of five languages with instantaneous translation into the other four. The five are English, French, Spanish, Russian and Arabic. Many delegates have a first language other than one of these and thus are forced into debating terms which may be unfamiliar to them. Reflection and an opportunity for discussion in home surroundings tend to later bring a change of position. To complicate matters even further, at times the representative(s) attending often have no authority or influence on return home, to implement any decision(s) taken collectively at ICAO. It may also be that states disagreed all along but chose not to express their opinion in the openness of the forums.

Despite the foregoing, ICAO’s provision of debating chambers (the Panel, the intermediary Committee(s) and the governing Council) in which aviation security matters are discussed by its Contracting States is vital to the enhancement of aviation security standards. We have since seen signs of ICAO’s attempt to strengthen its role, at least since May, 1997 after the then President of the ICAO council Dr Assad Kotaite’s, introduction of ICAO’s first ever strategic action plan which, also reflected one of ICAO’s pertinent weaknesses, by taking ‘several years’ to develop ! The action plan covered all aspects of ICAO’s work but particularly cited ‘acts of unlawful interference’. Where ICAO wanted to be empowered to audit member states routinely, for compliance with international security regulations and to ‘become the recognized worldwide auditor for security standards for international civil aviation’.

Almost 5 years later, on the recommendation of the High-level, Ministerial Conference on Aviation Security convened in Montreal in February 2002, the 166th session of the ICAO Council adopted the Aviation Security Plan of Action for strengthening aviation security. These provided for the identification, analysis and development of an effective global response to new and emerging threats, integrating timely measures to be taken in specific fields, including airports, aircraft and air traffic control systems, and the strengthening of the security-related provisions in the Annexes to the Chicago Convention. It also formally established the ICAO Universal Security Audit Program-USAP, with the initial cycle of USAP audits commencing in November 2002 and were completed in December 2007. A programme of follow-up visits with respect to the initial cycle was initiated in 2005 and completed in 2009, with the intentions of evaluating improvements made by States in implementing the ICAO audit recommendations as reflected in States’ corrective action plans (CAPs).

Despite most States and ICAO itself continuously living in denial, what the audits revealed was simply that, a majority of the 190 Member States are NOT fully compliant with and or implementing to the letter the universal standards as contained in ICAO Aviation Security playbook, the Annex 17 to the Chicago Convention. ICAO in her capacity as the UN specialized agency for all matters aviation has continued to fail in helping Civil Aviation Authorities and by extension Member States Governments address the common deficiency encountered in 90% of the Member States during the USAP audits, that of CAA’s being proficiently unable, to attract qualified professionals and qualitatively populate CAA’s by retaining them to provide the required effective state oversight of all relevant aviation security activities within their State. Though of course it is a well known fact that,the establishment of a comprehensive civil aviation security oversight system is essential if a State is to ensure the effective implementation of Annex 17 SARPs, the security-related SARPs contained in other ICAO Annexes, such as Annex 9 and its own national aviation security requirements.

Though this is a cardinal responsibility for all ICAO Member States , and one that is critical in achieving the common goal of a secure universal aviation network. The fundamental challenge in all ICAO member States, remains that of the establishment and management of a national civil aviation security oversight system, that creates a robust security regime that is highly effective in preventing acts of unlawful interference, does not unduly inhibit the growth of civil aviation, interfere with its efficiency and productivity, impose excessive costs, create unwarranted operational inconveniences, or intrude unnecessarily into private rights or civil liberties. Thereby at the very least creating a proactive regime, moving away from the current reactive stances where enhancement of international aviation security rules and procedures remain linked to major disasters and or occurrences.

As a cynic I strongly believe this to be a case of ‘shutting the stable door after the horse has already bolted’. The immediate reaction of ICAO to the Air India tragedy in 1985 is one example. Activity subsequent to the loss of Pan Am 103's Maid of the Seas over Lockerbie in December 1988, is another and more recently the 9/11 knee jerk reactions, leading to the drawing of the Beijing Convention in 2010 is but another. Following the latter, the specially convened meeting of ICAO’s governing Council already mentioned provided an opportunity for behind-the-scenes negotiations among the major powers with an interest in civil aviation security. This culminated in a resolution which led to help from the wealthier countries in strengthening the structure of ICAO. With ICAO receiving support in terms of cash and manpower enabling them to introduce field operations under the Technical Cooperation Bureau, which begun by taking the form of revision security standards in place in the less fiscally sound states, but has today evolved into an expensive ICAO stay afloat business front, some developing countries can hardly afford.

In an industry where doing business is getting more and more complex, where, globalisation has changed the structure and pace of managing aviation security; where threats are manifesting on a daily basis, and the shift towards a knowledge economy is eroding the previous all care no responsibility approach that ICAO had taken to presumably enhance civil aviation security in concentrating mainly on the development of standard rules and guidelines. As, effective aviation security continues to exist only in a minority of countries around the world, some of its components frequently missing even, from those states which comprise ICAO’s governing council. There is no doubt a need for the establishment of a more powerful global aviation security regime, that requires a degree of consensus among the member states of ICAO, as much as many states would strongly resist any attempt to limit their sovereignty in aviation security matters.

It is time to embrace a radical outside the ICAO box thinking approach, for Governments to potentially overcome the various shortcoming identified in their individual USAP audits, address their findings and implement to the letter, their Corrective Action Plans, to at least enhance their individual aviation security efforts, as well as prop up their National Security prowess by engraining protection and resilience in their critical National Air Transport Infrastructure. As opposed to a glum foreseeable future of having to make do with piecemeal improvement of national aviation security standards, bilateral and regional co-operation, where a new world disorder, that of governments, regulatory agencies and the aviation industry muddling through, by responding to each crisis as it comes and a disjointed incrementalism rather than a coherent and robust global aviation security regime building, is the order of the day.