ICAO in need of reforms to enhance its relevance – now is opportune

Summary

• "Equal application" provisions of the Chicago Convention present both benefits and barriers.
• There may be too many ICAO standards, and not enough are being implemented.
• There is a need for assurance and stability in funding the organisation's activities.
• There should be address of deficiencies in transparency and access….
• …along with morale in the Secretariat.
• The organisation must play a more integral part in the UN system.
• A third party "group of wise persons" could undertake a strategic evaluation of the organisation's mission and requirements being fit for purpose for the current and future needs of modern aviation.

This article is provided by Montreal-based Chris Lyle, International Aviation Policy Consultant, Fellow of the Royal Aeronautical Society and veteran of British Airways, the UN Economic Commission for Africa, the International Civil Aviation Organisation and the UN World Tourism Organisation (as Representative to ICAO). He wishes to acknowledge various contributions to this article by past and present colleagues involved with ICAO. The views expressed here are his and do not necessarily represent those of CAPA - Centre for Aviation.

ICAO's position in a brave new world

The organisation's membership has grown from 26 to 193 Contracting States.

The Chicago Convention has meanwhile had few technical changes, notably the addition of Articles 3bis (non-use of weapons against civil aircraft in flight) and 83bis (transfer of certain functions and duties in cases of lease, charter or interchange of aircraft). There have also been a number of administrative ones, including those raising the membership size of the Council and of the Air Navigation Commission in stages.

ICAO has managed to enlarge its mandate without amendment to the Convention. The most fundamental and effective action since 1944 was the addition of safety and security audits of 'Contracting States', in 1999 and 2002 respectively - before that, the organisation set the standards and left it to states to implement them without assessment or redress. The impact of the audit process may well have contributed to the substantially falling accident and incident rates globally.

The organisation has also addressed new subjects, notably environmental protection.

In the past few years ICAO has faced criticism and been seen rightly or wrongly as an outlier even in the UN system for its lack of transparency in decision-making, its lack of access to information by the media, undue influence of industry ("captured by producer interests": The Economist), restricted involvement of civil society and independent scientists, and its political interference in the culture and workings of the Secretariat.

There are detrimental procedural inconsistencies with other institutions of the UN system, some of which have been repeatedly remarked upon by the system's Joint Inspection Unit.

There are boundaries to ICAO's mandate which raise complications

ICAO - which actually predated the formation of the UN - has undoubtedly been a highly successful institution over its lifetime "to develop the principles and techniques of air navigation and to foster the planning and development of international air transport so as to insure the safe and orderly growth of international civil aviation throughout the world".

But the organisation, like any other multinational institution, has had its limitations.

Because of the equal application provisions of the Chicago Convention, ICAO's approach to regulation is essentially 'top down'.

This is achieved through a system of 'Standards and Recommended Practices' ('SARPs'): standards, agreed through ICAO, which are unique quasi-legislative practices that member states are expected to conform to.

As a result of this top down nature, its standards are a minimum that can be achieved globally. Individual countries can, and do, have stronger standards applying within their national jurisdiction. National jurisdiction boundaries are well defined on technical issues and thus, an aircraft flying to a country with such higher standards has only to meet those of ICAO.

But economic and environmental measures such as those involving taxes and charges frequently raise issues of sovereignty.

An illustration of the successes and challenges of this technical, standard-setting agency is its work on environmental protection. This was initiated by concerns regarding aircraft noise, notably in northern European countries. Increasing stringency standards for jet and large propeller aeroplanes have been established, from 'Chapter' 2 in 1973 via Chapters 3 and 4 to Chapter 14 in 2013.

In common with other ICAO standards, they were industry-determined and reflect, rather than drive, technology.

With increasing volumes of traffic, noise concerns increased, and ICAO was obliged for the first time to look for mitigation beyond its standards. After lengthy negotiations and failures to reach agreement, a resolution was finally adopted in 1990, necessitating an extraordinary session of the Assembly, on a phase-out of Chapter 2 aircraft (even then exempting widebody aircraft).

ICAO initiated work on local air quality in 1971 and adopted the first related standards in 1981. Work on the climate change impacts of emissions did not really get going until ICAO was given a mandate by the United Nations Framework Convention on Climate Change through the 1997 Kyoto Protocol. As with noise, growth in traffic outpaced operational and technological improvements and ICAO had to look beyond technical standards for aircraft.

Following adoption by the Assembly, in 2010, of the IATA concept of "carbon neutral growth" from 2020, ICAO developed the market-based mechanism of CORSIA, which is now the primary global emissions mitigation measure; ICAO has since adopted related standards on "Monitoring, Reporting and Verification" of emissions.

But CORSIA, always a 'lowest common denominator' among states because of the Chicago Convention's 'top down' equal application provisions, is now seen as fundamentally inadequate to meet the imperative of climate change and make aviation's requisite contribution to the targets of the 2015 Paris Agreement.

Furthermore, ICAO specifies that CORSIA is to be the only global market-based measure applying to CO2 emissions from international aviation. This was aimed at constraining those countries with greater ambition and is inconsistent with the Paris Agreement (a 'bottom up' success after the failure of the 'top down' approach in Copenhagen in 2009).

The challenge of getting a stronger global arrangement on emissions is a quantum larger than that on aircraft noise, not only because the issue is far more critical, but also because the phase-out of Chapter 2 aircraft only applied for those countries who wished to limit their operation (initially Australia, Japan, United States and the European Union) - operators could continue to fly Chapter 2 aircraft elsewhere.

The impact of aircraft emissions on climate change is global. Whether ICAO can respond adequately to the Paris Agreement, hopefully no later than its Assembly Session in 2022, is presently an open question. The organisation has been "exploring the feasibility" of a long term emissions goal for the past 11 years.

Taking a pre-emptive position once more, at its Oct-2021 AGM IATA agreed such a goal for its member airlines and invited ICAO to adopt one "equivalent to the ambition of the industry".

Are there too many ICAO standards - and not enough being implemented?

The annexes to the Chicago Convention now include more than 12,000 Standards and 'Recommended Practices'.

The 2020 edition of ICAO's Safety Report states that in 2019 the average effective implementation of ICAO safety standards for audited contracting states (six states had not been audited) was 69%.

Only 86 audited states had an effective implementation above 75%. Twenty-four audited states had an effective implementation under 40%, including eight states with an effective implementation below 20%. Ten states had a total of six 'Significant Safety Concerns' in the areas of personnel licensing, aircraft operations and air navigation services.

Two conclusions may be drawn from this.

First, there may well be too many SARPs. Perhaps some are outdated or overlapping, and perhaps others are of lessening importance in today's world - an extensive review and streamlining would be in order.

Second, there needs to be increased emphasis on application - fostering Implementation of SARPs has been a primary ICAO objective since 1997 and is a key focus of ICAO's "No country left behind" philosophy, but more needs to be done.

The role of ICAO's seven regional offices, which the new Secretary General wishes to strengthen, could be key to greater implementation of standards. It may well also be worth considering means of enforcement of standards against the situation in other agencies, and notably the parallel one of the International Maritime organisation.

Are traditional sources of funding adequate and how might they be complemented?

ICAO continually faces issues of payments by states - late in the year concerned, payments in arrears and even non-payment. Despite continual efforts to obtain other sources of income, from time to time the organisation has consequently had to live almost hand to mouth.

For many years the budget has been constrained by a principle of "Zero Nominal Growth", which should be reviewed against major additions to the work programme such as the audit function, environmental protection, and strengthening of the regional offices.

There is a need to examine the dues structure and guarantee a stable and sure income, which might include the possibility of extending the Ancillary Revenue Generation Fund to secure significant contributions from private sources (provided these can be obtained in such a way as to retain impartiality of the organisation).

ICAO's decision-making needs to be made more transparent...

Apart, arguably, from its triennial Assembly sessions, ICAO essentially works behind closed doors in its decision-making processes. This frustrates the media trying to cover it and often leads to a bad press, on the basis that if you have something to hide, then there must something wrong.

An immediate reform, and one already undertaken by other elements of the UN system, including the Security Council itself, would be to open up the council sessions and make ICAO Council working papers publicly available in the manner presently followed for Assembly papers, with the exception - where necessary - of certain ones on security.

Transparency could be extended to subsidiary bodies of particular interest externally and notably the Committee on Aviation Environmental Protection, which not only meets behind closed doors but requires the signature by participants of non-disclosure agreements; an exception might be made in this case if there are serious reasons pertaining to commercial confidentiality.

…and decision-making processes need to be opened up more widely to interested parties

Over the years the organisation has developed an extensive 'list of international organisations that may be invited to attend suitable ICAO meetings', naturally including various UN bodies along with global NGOs such as IATA, ACI and CANSO. But many organisations are considered for invitation only on the basis of the subject matter of the specific meeting concerned.

These include an extensive inventory of national and regional aviation entities, but notably they include only one environmental NGO, in the form of the International Coalition for Sustainable Aviation (ICSA) - an umbrella entity that was established by a number of environmental bodies purely to meet an ICAO requirement. The members of ICSA have differing obligations and can have varying views, but their voice at ICAO has had to be a lowest common denominator.

ICSA has nevertheless managed to play a significant role at the technical level, including (for example) developing ICAO's 'Carbon Calculator', as well as contributing significantly to the technical discussions on CO2 and CORSIA - even if it has been largely dismissed at the policy level of conferences, the Council and the Assembly.

Also, the high paywalls for reliable data cause independent scientists difficulties in researching efficient technical measures and solutions - this restricts ICAO from receiving 'free' scientific support and innovation.

A more open participation on environmental protection and several other subjects, consistent with other UN organisations, would surely benefit ICAO and its contribution to civil aviation and society at large.

Morale in the Secretariat needs to be improved

An early priority of the new Secretary General, who is committed to reform of the organisation, should be to address the low morale in the secretariat, which in some areas has been credibly reported as "toxic", as a consequence of allegedly politically directed management.

ICAO consistently ranks among the lowest of all UN entities in surveys that request staff to evaluate their organisation and its management in terms of trustworthiness, ethics, transparency, accountability, and career opportunities.

There are several pending administrative actions, including resolution of the appeal of a former Director of Administration who was fired following a whistle-blowing incident - an appeal that remains stalled after more than 18 months.

The data hacking of ICAO, which first came to light in 2016 and was widely reported in the media, also remains largely unresolved and in the public arena. A good start for the new Secretary General would be to clear the air.

The Secretariat must be allowed to be impartial - and the organisation should take its full place in the UN system

This is one element of a broader need, to demarcate more specifically the responsibilities of the Council and the Secretariat.

ICAO is unique in the UN system in that its governing council is in permanent residence at the headquarters location, although it formally meets only for three sessions each year. This has sometimes led to overlap in responsibilities and impinged on the freedom of the secretariat to act impartially.

With the fresh eyes of a new Secretary General and a Council President appointed just two years ago, there may be an opportunity for improvement along the governance lines taken elsewhere in the UN family.

Another issue which warrants early address is the silo mentality of the organisation, largely confining itself to the civil aviation sector rather than its wider impact.

ICAO seems unwilling to share its work substantively with others; in some cases more relevant bodies such as UN Environment, the World Meteorological organisation and the UN Framework Convention on Climate Change. This is creating significant duplication and including activities seemingly beyond ICAO's remit, for example biogenetics, forestry and land use aspects of aviation's impact on climate change.

ICAO needs to integrate more fully into the UN family, inter alia taking a more positive approach to the UN's Joint Inspection Unit, Joint Appeals Unit and Dispute Tribunal - these bodies are there to serve and support the organisation, not to undermine it.

Now is the opportunity for a strategic way forward

Juan Carlos Salazar, appointed as Secretary General of ICAO for three years as of 1 August 2021, comes with an open mind and an extensive detached external perspective, having served as Director General of Aeronautica Civil of Colombia (2018-2021) and as Air Transport Adviser of the United Arab Emirates General Civil Aviation Authority (2006-2018).

Mr Salazar clearly has full authority to deal with several of the issues discussed above. He has publicly committed "to further strengthen the agency's governance and ethical framework, to review the organisational structure of the Secretariat, to build a digital transformation programme, and to modernise the working methods of the organisation to keep pace with aviation innovation".

But for a number of matters he will require specific backing or action by the Council, or even by the Assembly. Both governing bodies maintain a certain inertia, simply because of their size and internally varying views on many subjects.

A need for significant change has long been recognised in ICAO circles. Indeed, as long ago as 1997 the Secretariat presented a "Strategic Action Plan". This was a comprehensive re-evaluation of ICAO's mission and it was adopted by the Council. However, this ultimately emerged as a collection of views of different departments and led to minimal change.

An external review would be useful

Major reforms will likely remain elusive as long as ICAO is tasked with evaluating and policing itself from within.

The organisation, and the international aviation community which it serves, would benefit from third-party appraisal. One approach would be to set up a small, "group of wise persons" to look at the broad picture - independently, but with terms of reference set by the Council.

Membership would come from outside the organisation and perhaps even outside aviation, for example some former heads of UN and private sector foundations and institutions. The group could hire management consultants and also work with the Joint Inspection Unit of the UN and past and present ICAO External Auditors. The ICAO secretariat would provide the aviation expertise and serve as administrators.

Funding could be established by the ICAO assembly and/or other sources could be explored. The possibility of amendment of the Chicago Convention should be on the table, even if perhaps not necessary and probably not viable - even a small change would be cumbersome, taking years, if not a decade, from adoption to ratification.

The group might develop some metrics of accountability in order that the organisation may be regularly assessed against its mandate.

In the mid-term there might be established a permanent independent assessment body that is free from political interference (as far as possible) and made up of ethical and legal international experts, in common with independent external oversight advisory committees found elsewhere in the UN.

The bottom line - modernisation

ICAO is a vital institution which needs to be modernised, made fit for purpose for the current and future needs of modern aviation, and kept relevant.

At a time when the aviation industry is under extreme duress and in need of future directions, ICAO has the opportunity to make a real difference,