The International Civil Aviation Organization (ICAO) held its 41st Session of the Assembly in Montreal from September 27, 2022, to October 7, 2022. The ICAO acts as a clearinghouse for cooperation and discussion on civil aviation issues among its 193 member States. Some States had listed for the Legal Commission of the Assembly’s consideration a working paper suggesting a framework detailing the enhancement of competency for civil aviation legal advisers. The intent of the working paper was to provide a framework that would “assist civil aviation authorities and their equivalents in the recruitment, training, and professional development of civil aviation legal advisers”—with a view toward “strengthen[ing] and enhanc[ing] their competencies, capabilities, and capacities for supporting their organizations and States in [performing] regulatory and other functions, in particular, in the areas of aviation safety and security oversight, aviation environmental protection, the implementation of air law treaty obligations, and the updating of national laws and regulations.”
The working paper recalled that at the 40th Session of the ICAO Assembly, held from September 24, 2019, to October 4, 2019, the Assembly adopted a resolution on “[e]nhancing the capacity and effectiveness of States to implement air law treaties and update national laws and regulations,” focusing on the fact the resolution had inter alia acknowledged
the important role that civil aviation legal advisers and air law practitioners play in supporting their States and Organizations to implement air law treaties, to formulate and update national laws and regulations to give effect to national policies and regulatory requirements, and to contribute to adherence to the rule of law.
As such, there was a compelling need for legal advisers to “continuously update and enhance their competencies, capabilities, and capacities to effectively carry out their responsibilities.” Therefore, the resolution requested the secretary general of the ICAO “to assist [contracting] States in achieving and maintaining the appropriate competency of civil aviation legal advisers including through developing a competency framework for strengthening their role” with the entities they represent. The working paper articulated that it was “essential for the legal advisers to not only know the relevant law and treaties and/or be able to acquire such knowledge and the related experience but also the various aviation regulatory and operational domain areas and contexts.” Therefore, the working paper presented a step forward in the direction of implementing the resolution.
The 2022 working paper somewhat ambivalently identified the action required by the Assembly to “note the competency framework” contained therein, which was set out in the appendix; and to “encourage States to consider the competency framework” as a point of reference when they recruited, trained, and planned for the “professional development of their civil aviation legal advisers and their equivalents.” The action suggested in the paper was couched in typical ICAOese text with traditional ICAO wording such as “note” the framework and “encourage” States. As for the first, it is a given that the Assembly would note the text, and therefore one can only conclude that the word carried a nuanced message that the States should merely note it and that further action, such as a proactive and directional decision by the Assembly, was not requested. As for the second, the word “encourage” is meaningless as it does not elaborate as to how to encourage by prescribing a methodology to be used to implement the suggested framework.
The concept set out in the working paper and its structure and content are sound, and the work that has been put in has been both rich in essence and relevant. The informal legal advisers (outside of the Legal Committee of the Council of ICAO) who worked assiduously to share and develop the competency framework for enhancing the skills and knowledge of civil aviation legal advisers have to be commended. However, the paper and its approach for action do a disservice to the Assembly, which was hard-pressed to glimpse the strategic foresight offered for meaningful implementation of the framework. Strategic foresight does not predict the future; rather, it helps leaders create the future via better understanding of current and potential situations while establishing a road map for innovation that guides inspired actions and generates a way forward.
One of the primary drivers over the next 15 years will be digital technologies that will continue to have major impacts on economies and societies. Business entities over that period are likely to rely heavily on digitized technology, which will impact product design, manufacturing, and delivery processes by rendering them highly integrated and efficient. Digital technologies have already begun affecting air transport to the extent that aviation law has entered a digital age where existing treaties in aviation law and the annexes to the Convention on International Civil Aviation (Chicago Convention) have to be viewed in a complex, adaptive legal environment.
Information technology and development have changed our world and made our lives easier. However, they have facilitated the work of those who intend to pursue their own agendas even at the expense of human life. Hyperconnectivity is the most pervasive agent of change at the present time. The present has personified the changing nature of power from the world of big government and commerce to the individual, where individual empowerment is a key driver. This has been brought about by a technology revolution that relentlessly bombarded the past few years, making education the key factor that kept on increasing the numbers of the middle class. Corollaries of this trend made artificial intelligence (AI) boom with such innovations as Google’s DeepMind and Tesla’s self-driving and self-navigating car.
The civil aviation legal adviser in the modern world should be open to new ideas and be curious by wanting to know why something is so; be a good observer and think outside the box, understanding his/her field of practice but being interested in global change as well; challenge assumptions about the future and value diversity by understanding that differing perspectives are neither right nor wrong but just are; and be resilient. Civil aviation legal advisers must understand the value of foresight to better analyze and understand the future of aviation law, and realize that the future may sometimes be difficult to communicate. Finally, civil aviation lawyers must trust and value the expertise and knowledge they have and be able to identify observations that are relevant and important to the future of the entities they represent.
This commentary examines the framework proposed in the working paper in light of the above comments and proposes a way forward for implementation.
The working paper’s proposed framework starts on a sound footing by addressing the inherent legal function of a civil aviation legal adviser, i.e., to be well-versed in
the more common functions and responsibilities of civil aviation authorities (CAAs) and their equivalents, such as aviation safety and security oversight and regulation, air services negotiations and air traffic rights allocation, formulation and updating of national laws and regulations to give effect to ICAO Standards and Recommended Practices (SARPs), and national policies and regulatory requirements, [and] regulatory enforcement.
Secondly, the framework addresses the “implementation of air law treaties”; the representation by civil aviation lawyers of “their respective State and/or organization”; and their participation “in the ICAO Legal Committee and/or its subcommittees, working groups or other groups and other fora at [an] international, regional or national level on work in the legal field.” This is followed by economic considerations—that is, the “additional functions and responsibilities of some CAAs and their equivalents, such as airline and airport economic regulation (including slots and competition regulation), airport development, management, and operation, air navigation services provision, aviation-related environmental protection regulation, aircraft accident and incident safety investigation, consumer protection, and civil aviation training.”
As for eligibility requirements, the proposed framework suggests that in order for a legal adviser to successfully support his or her CAA in implementing air law treaties, “formulat[ing] and “updat[ing] national laws and regulations,” “support[ing] regulatory oversight activities,” and “contribut[ing] to adherence to the rule of law,” the legal adviser must essentially
be a qualified lawyer, holding a law degree (which need not [necessarily] be an aviation law degree) or equivalent professional qualification, and acquire relevant and sufficient knowledge and competencies in air law and other relevant laws, including through on-the-job training, research and work, and [attend] ICAO seminars and workshops, the ICAO International Air Law Course, the Civil Aviation Legal Advisers Forum (CALAF) and other similar events and courses.
Furthermore, legal advisers must “not only know the relevant law and treaties and/or be able to acquire such knowledge and the related experience, but also [be conversant with] the various aviation regulatory and operational domain areas and contexts.”
The functions and eligibility requirements adequately cover the parameters that a framework for the competency of civil aviation legal advisers should cover. However, the terminology should be looked at carefully as the words “equivalent professional qualification” could lead to confusion—that is, that a professional such as an architect, accountant, or engineer would qualify. This is a minor issue and can be easily rectified by the use of “equivalent professional qualification in the law.” Because the basic and essential requirement is a degree in law, which comports with the functions of a legal adviser described above, it would be difficult to imagine that any professional without a grounding in the law could competently carry out those functions.
Detailed aspects of the subjects involved in formulating a framework are in the appendix of the working paper. They broadly cover ICAO’s strategic objectives, which are well deconstructed in terms of the legal knowledge needed—all the way up to the point where skills are identified.
The skills identified include the following categories and examples:
Although the skills section of the appendix does not include a “Legal Knowledge” column to explain the particular legal information needed for each skill, it is clear that these skills bring to bear a compelling need for the legal adviser to have nothing but a legal background, be it an academic degree in law or a
professional legal qualification.
It is noted that a good portion of the subjects identified in the appendix to the working paper involve ICAO’s work, which is appropriate as a legal adviser must be conversant with civil aviation at the highest level of international cooperation. However, consideration also should be given to the following technical aspects: sovereignty, aerospace, and territorial limits; international aviation and megatrends; the digital age and international law; blockchain and aviation; uncrewed aircraft systems and regulation; aviation and telecommunications in the digital world; aviation and cybersecurity; privacy and passenger issues; and aviation and the internet.
Those aspects aside, there could be some focus on the status of rules and regulations; ICAO and lawmaking; principles of rulemaking; judicial review of rulemaking and administrative action; and interpretation of treaties, rules, and regulations. The elements of the framework must be implemented through a knowledge-based and competency program where competencies could be evaluated through workshops. These workshops could be on subjects including, but not limited to, the drafting of air transport policy, air navigation laws and regulations, and the drafting and interpretation of treaties.
Another area that the framework could benefit from is systems thinking, as well as geopolitical, social, economic, and regulatory factors (including international relations, politics and negotiation, and risk management). For risk management, financial risk management, human resources risk management, liability risk management, enterprise risk management, and property risk management would be important.
An integral part of the framework implementation must involve treaty interpretation of the Chicago Convention and its annexes. In particular, the nature and status together with the implementation of the annexes must be clearly addressed in the implementation of the framework. The Vienna Convention on the Law of Treaties (Vienna Convention) defines treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Here, the operative words are “embodied in a single instrument or in two or more related instruments and whatever its particular designation.” There is no denying that the annexes are related to the Chicago Convention under Article 37 of the Chicago Convention. And the fact that the Vienna Convention admits any designation to be used to identify instruments related to a treaty would arguably lead one to the conclusion that the 19 annexes to the Chicago Convention form an integral and inextricable part of the treaty.
The above notwithstanding, there is seemingly a problem with identifying the annexes as part of the Chicago Convention and ascribing to the annexes the status of a treaty. Article 38 of the Chicago Convention provides inter alia that
[a]ny State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the [ICAO] of the differences between its own practice and that established by the international standard.
This provision, which effectively releases contracting States from the obligation of complying with international standards of a treaty, does not comport with the legal obligation of compliance imposed upon a State. This inconsistency, paired with the fact that the Chicago Convention has not explicitly stated that the annexes are a part of the Chicago Convention, militates against recognizing the treaty nature of the annexes. As one commentator has observed,
when a treaty has an annex it is normal to provide, though not necessarily in a separate article, that the annex is an integral part of the treaty. Since there are often other documents produced at the time the treaty is adopted, such as agreed minutes, declarations, and interpretative exchanges of notes, it is important to know whether they are an integral part of the treaty or merely associated with it.
This dichotomy in the legal status of the annexes to the Chicago Convention is important to the foundation of understanding aviation law and the making of a competent legal adviser involved with aviation—and should be a component of the framework in addition to the mere mention of annexes as already included.
It was inevitable that the working paper, as presented to the ICAO Assembly, would end up as another result of a political compromise, as do declarations, resolutions, and statements originating in ICAO, unless a concrete program was formulated for knowledge and competence enhancement and capacity building of civil aviation lawyers in collaboration among ICAO, the International Air Transport Association (IATA), Airports Council International (ACI), and the Civil Air Navigation Services Organisation (CANSO).
An example of such collaboration is the Airport Management Professional Accreditation Program (AMPAP), which began in 2007 between ICAO and ACI and culminates with participants receiving the designation of IAP (International Airport Professional). AMPAP, which is a training collaboration between ACI and ICAO, is a strategic initiative highlighting the two organizations’ aligned commitment to developing airport management practitioners in all functional areas of the airport business, with the objective of improving performance at the world’s airports. The AMPAP program, which has both face-to-face and online components, has four mandatory courses that participants are obligated to complete, the first of which is the only face-to-face course. In addition, there are two other elective courses that the candidate has to complete successfully to graduate.
Another good example of ICAO collaboration can be found in the Aviation Security Professional Management Course (PMC). ICAO’s website says PMC is the most advanced aviation security training program in existence today and that it carries a formal designation (AVSEC PM), making it the first of its kind globally.
The programme was developed by the [ICAO] in collaboration with the John Molson School of Business at Concordia University in 2004. Its aim is to provide aviation security middle and senior management personnel with new management skills and a greater understanding of the application of the [SARPs] contained in Annex 17 [to the Chicago Convention] [Aviation Security], while maintaining a creative and pedagogic philosophy. Emphasis is also placed on the use of the ICAO Security Manual (Doc 8973) [which is a restricted document].
A similar program, leading to the designation “International Civil Aviation Legal Expert” (ICALE), can be initiated involving collaboration among the four partners. The program would integrate the elements contained in the appendix to the working paper, as well as some suggestions offered in this article. Also for consideration in the formulation of the program would be the elements of the already-existing ICAO International Air Law course, the Civil Aviation Legal Advisers Forum (CALAF), and other similar events and courses. Similar to AMPAP and AVSEC PMC, the ICALE program could consist of a hybrid structure with a face-to-face element as well as an online component. During the face-to-face segment, participants should have the opportunity to actively engage with their instructors as well as their colleagues and exchange legal experiences, including via workshops. The majority of courses in the program could be followed on the participant’s own time so as not to disrupt professional work. The program could benefit from the involvement of a university, and ICAO is well-placed to engage the Institute of Air and Space Law of McGill University—with which ICAO already has a formal understanding of cooperation and exchange of documentation.
Consideration by the 41st session of the ICAO Assembly of a proactive and engaging program for civil aviation lawyers is timely, particularly in a post-pandemic world.
The State is no longer the only actor in the international system but will still be the most important actor. The State will not disappear but will disaggregate into its component institutions, which will increasingly interact principally with their foreign counterparts across borders. These institutions will represent
distinct national or State interests, even as they also recognize common professional identities. Government networks will exist alongside and sometimes within more traditional international organizations.
Against the backdrop of exponential change to the practice of air law brought about by rapid developments in digital technologies, the participants in the ICALE program must be introduced to a new way of thinking—a fast, surefire way of assessing, questioning, and determining what is important—and thinking to win. It is a new way of thinking about problems and taking advantage of opportunities, and a novel way of quickly communicating what’s going on, what is to be done, and what impact actions taken would have. The fact that airlines, airports, and air traffic management are using information and communications technology in the advancement of their activities and in coping with the exponential rise in demand for air transport leaves no room for doubt that they are on the right track. However, they must not disregard the fact that law and regulation are key elements in managing data flows and ensuring that whatever the buzzwords might be in modern technology and science, and however much they would facilitate the functioning of a rapidly changing world, they must be properly regulated. The ICALE program must have this fact as its central theme.
As a first step, the ICAO Assembly should remand the subject to the Legal Committee for further study. The 41st Session of the Assembly was an auspicious event for the Legal Committee as it marked 75 years of productive work in the legal field. In this context, the Assembly was scheduled to consider a working paper that heralds the Legal Committee as continuing to take a leadership role in ICAO to study new and emerging issues affecting air law; to identify the means to address legal issues arising from the challenges posed as well as the opportunities; and to be involved not only in the preparation of studies on specific issues pertaining to international air law, but also in the development of guidance material benefiting ICAO, contracting States, and international organizations in their implementation of air law treaties and SARPs. The Assembly was asked inter alia to reiterate the need for the ICAO Legal Committee to continue to take a leadership role in studying new and emerging issues affecting air law and promoting the development and codification of international air law—and thereby strengthen the legal framework governing international civil aviation.
On this basis alone, it could be concluded that the Legal Committee would be the “first stop” in the framework toward successful fruition as a viable program for the civil aviation legal community.
