Compliance and Enforcement in International Aviation
Can international law be enforced? Public international law regulates relations between sovereign nations and differs substantively from domestic law. In the international arena, there is no authoritative enforcement mechanism for punishing non-compliance with international norms. How can State compliance with international obligations therefore be assured?
This is a question that is often asked in the context of enforcing international safety and security obligations as set forth in the Convention on International Civil Aviation (the ‘Chicago Convention’ of 1944). The Convention provides for the creation of the International Civil Aviation Organization (ICAO) and sets forth in 19 Annexes more than 12,000 international Standards and Recommended Practices (SARPs) to provide uniformity and harmonization in international air transport (see Catherine Zuzak, ICAO Journal, v 58, No7).
Under the International Aviation Safety Assessment (IASA) Program, the Federal Aviation Administration determines whether another country’s oversight of its air carriers comply with ICAO SARPs, particularly with respect to Annex 1 (Personnel Licensing), Annex 6 (Operation of Aircraft) and Annex 8 (Airworthiness of Aircraft). Airlines assessed are those which have filed an application with the US Transportation Department for a foreign air carrier permit. If the Civil Aviation Authority meets ICAO Standards, the FAA grants that authority a Category 1 rating which means the carriers from the assessed State may initiate or continue service to the United States. (See Anthony Broderick and James Loos, Government Aviation Safety Oversight – Trust but Verify, 67 J. Air L. & Com).
A Category 2 IASA rating means the air carriers from the assessed State cannot initiate new service to the United States and are restricted to current levels of any existing service while corrective actions are underway (see FAA.gov/International Travel). The FAA also does not support reciprocal code-share arrangements between air carriers for the assessed State and US carriers when the CAA has been rated Category 2. During this time, the foreign air carrier serving the United States may be subject to additional inspections at US airports.
As the UN specialized agency responsible for ensuring safe and secure air transport, ICAO has audit programs that oversee State’s compliance with safety and security Standards and Recommended Practices: the Universal Safety Oversight Audit Program and the Universal Security Audit Program (see Catherine Zuzak, ICAO Journal, v 58). Unlike the FAA IASA program, the audit programs do not pass or fail States, but rather make recommendations designed to improve the oversight capabilities of the State. Depending upon the nature of the deficiencies identified in an audited State, the ICAO technical assistance and cooperation programs are also available to assist States to meet compliance with the international norms (see ICAO Assembly working paper A39-WP/28 Ex/16, Report on the ICAO Technical Assistance Programme).
If governments act in a manner inconsistent with the goals and aims of the Chicago Convention, the most extreme measure would be for ICAO to suspend or expel the country from membership. However, ICAO would more commonly try to use a positive compliance strategy by working closely with countries in a spirit of cooperation to resolve safety and security concerns (see George N. Tomkins, Enforcement of Aviation Safety Standards, 20 Annals of Air & Space Law 319; and Han Li, Perdue University Press).
Under Article 38 of the Chicago Convention, any State which finds it impracticable to comply in all respects with the international standards or which deems it necessary to adopt regulations or practices differing in any particular respect from the international standard is required to give immediate notification to ICAO of the difference (see Catherine Zuzak, ICAO Journal v 58, No 7). To this end, ICAO has developed compliance checklists to allow for the electronic filing of differences. States provide information through an online framework, showing the level of compliance with ICAO Standards including when the State requirement exceeds the ICAO Standard; is different in character or has other means of compliance; or is less protective, partially implemented or not implemented.
Enforcement tools of international law are not perfect but reciprocity and collective action can represent effective ‘soft law’ alternatives to sanctions and enforcement action. Most countries dislike negative publicity and will endeavor in good will to comply with the norms of the international community. Often, the reason for a member State’s noncompliance is not a wilful breach, but rather a lack of technical capacity to comply. In such cases, the breach can be remedied through technical assistance and advice and the cooperation of States working together in the international community.