The Missing Link in theGlobal Aviation Safety and SecurityNetwork: the Case of TaiwanbyRam S. Jakhu and Kuan-Wei Chen
THE MISSING LINK IN THEGLOBAL AVIATION SAFETY AND SECURITY NETWORK:THE CASE OF TAIWANbyRam S. Jakhu and Kuan-Wei Chen I.INTRODUCTIONFlying is safer than ever before in the history of civil aviation,1 thanks in large partto the International Civil Aviation Organization (ICAO), which for the past sevendecades has served as the global forum for international civil aviation.2Recent terrorist attacks in Brussels and Istanbul,3 coupled with a series of serious,and at times unexplained,4 aviation accidents over the past few years, have underlinedthe importance of a global approach to guarantee a safe and secure global airtransportation network. Without a doubt, issues of aviation security and safety 5 arematters that, due to the cross-boundary and integral nature of this industry to the world’sconnectivity and economy, concern all. The uniformity of standards and coordination of Director, Institute of Air and Space Law, McGill University, Montreal, Canada. Sessional Lecturer, McGill University; and Editor, Annals of Air and Space Law.1 The number of fatal accidents are at an all-time low. Since the late 1970s, when the peak was reached, the number offatal accidents per year has steadily declined. See “Statistics”, online: Planecrashinfo.com www.planecrashinfo.com/cause.htm ; see also “Statistics”, online: Aviation Safety Network aviationsafety.net/statistics/ ; and Nick Evershed, “Aircraft accident rates at a historic low despite high-profile plane crashes”,The Guardian (24 March 2015), online: The Guardian profileplane-crashes .2 ICAO, “Vision and Mission”, online: ICAO spx .3 See “Brussels: Islamic State launches attacks on airport and station – as it happened”, The Guardian (23 March 2016),online: The Guardian s-airport-explosions-live-updates ;and “Istanbul Ataturk airport attack: 41 dead and more than 230 hurt”, BBC News (29 June 2016), online: BBC News www.bbc.com/news/world-europe-36658187 .4 Malaysia Airlines Flight 370 disappeared while en route from Kuala Lumpur, Malaysia, to Beijing, China, in March2014. To date, it is still unclear what transpired onboard the fateful aircraft before its disappearance and where theplane is located.5 Safety denotes “technical and operational safety of flight” whereas aviation security relates to “safeguarding civilaviation against acts of unlawful interference”. Ludwig Weber, “The Chicago Convention” in Paul S Dempsey & RamJakhu, eds, Routledge Handbook of Public Aviation Law (New York: Routledge, 2016), 9 at 16.
THE MISSING LINK IN THE GLOBAL AVIATION SAFETY AND SECURITY NETWORK:THE CASE OF TAIWANoperational procedures and technical lingo are indispensable to ensure the safe, efficientand economic operation of millions of flights connecting hubs of population andproduction around the world. No part of this intricate network of airports, tightly wovenweb of passenger and cargo screening, and interconnected regions of airspace and airtraffic control systems that the globe has been demarcated into, is dispensable. In theeffort to safeguard the global governance of aviation, no part of this air transportationnetwork can be isolated or excluded. Indeed, ICAO recently launched the “No CountryLeft Behind” (NCLB) campaign6 with the laudable objective of ensuring that all Statesare able to achieve the minimum standards and practices safety and security ofpromulgated by the United Nations’ specialised agency dedicated to civil aviation.However, despite having near-universal membership 7 and enjoying theparticipation of 191 Contracting States to the Chicago Convention,8 there is one missinglink to the otherwise truly global effort and involvement in addressing aviation mattersthat concern all. The continued exclusion of Taiwan is a constant reminder that inconcerted efforts to address global challenges and achieve common objectives, some areunfortunately left behind.II. ICAO STANDARDS AND RECOMMENDED PRACTICESIn order to ensure every part of the world can enjoy the socio-economic benefitsderived from “safer and more reliable commercial air transportation”,9 a continuouslydeveloped and updated set of technical Standards and Recommended Practices(SARPs)10 is in place to cover every conceivable aspect of civil aviation. From the licensingof aircraft personnel11 to the fundamental rules of the air,12 from the conditions of aircraftairworthiness 13 to how aircraft accidents and incidents are investigated 14 to global6 See ICAO, “No Country Left Behind”, online: ICAO www.icao.int/about-icao/NCLB/Pages/default.aspx .7 Paul S Dempsey, Public International Air Law, 1st ed (Montreal: Centre for Research in Air and Space Law, 2008) at 8.8 ICAO, “Member States”, online: ICAO gual.pdf .9 See ICAO, “No Country Left Behind”, online: ICAO www.icao.int/about-icao/NCLB/Pages/default.aspx .10 Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, ICAO Doc 7300/6 [Chicago Convention], art37. See also Article 54(l). An “international standard” is any specification which States must conform to, while a“recommended practice” is any specification which States “will endeavor to conform” to: see ICAO, Consolidatedstatement of continuing ICAO policies and associated practices related specifically to air navigation, ICAO Doc A36-13,Appendix A.11 Chicago Convention, supra note 10, art 37(d); and ICAO, Annex 1 to the Convention on International Civil Aviation:Personnel Licensing, 11th ed (July 2011).12 Chicago Convention, supra note 10, art 37(c); and ICAO, Annex 2 to the Convention on International Civil Aviation: Rulesof the Air, 10th ed (July 2005).13 Chicago Convention, supra note 10, art 37(e); and ICAO, Annex 8 to the Convention on International Civil Aviation:Airworthiness of Aircraft, 11th ed (July 2008).14 Chicago Convention, supra note 10, art 37(k); and ICAO, Annex 13 to the Convention on International Civil Aviation:Aircraft Accident and Incident Investigation, 10th ed (July 2010).2
OCCASIONAL PAPER SERIES XXstandards for noise and engine emissions, 15 ICAO truly is the global forum forinternational civil aviation.The very safety and wellbeing of the international travelling public demandsaviation standards and practices be uniform across international boundaries. ICAO ischarged with the mandate to ensure that international civil aviation develops in “a safeand orderly manner”, and that international air transport services “be established on thebasis of equality of opportunity and operated soundly and economically”.16 The ChicagoConvention, under Article 44, provides the aims and objectives of ICAO are to, amongother things, “develop principles and techniques of international air navigation”. 17 Inmore recent years, and certainly a major issue at the upcoming session of the ICAOAssembly,18 the matter of fostering the sustainable development of international aviationhas been added to portfolio of aviation-related matters ICAO must oversee andregulate.19III. A VITAL MISSING LINK IN GLOBAL AVIATIONLocated at the crossroads of North Asia and South-East Asia and adjacent to theeastern seaboard of the China, the island of Taiwan has a population of over 23 million.Though small in size, the country is the world’s 22nd largest economy and the 18th largestexporting nation.20 Linked to 135 cities globally through 301 scheduled passenger andcargo routes, 21 in 2015, the 17 airports that dot the island processed over 58 million15 ICAO, Annex 16 to the Convention on International Civil Aviation: Environmental Protection—Vol I: Aircraft Noise, 7th ed(July 2014) and Vol II: Aircraft Engine Emissions, 3rd ed (July 2008).16 Chicago Convention, supra note 10, preambular text.17 According to Weber these objectives underline the “predominantly technical nature” of the organization. LudwigWeber, International Civil Aviation Organization: ICAO (Alphen aan den Rijn: Kluwer Law International, 2012) at 9.18 See ICAO, Consolidated statement of continuing ICAO policies and practices related to environmental protection — Climatechange, ICAO Res A38-18. The 39th Assembly is long anticipated to adopt a global measure to arrest gaseous emissionsfrom international civil aviation. Further, the upcoming Assembly session is slated to discuss and adopt the GlobalAviation Safety Plan and Global Air Navigation Plan: respectively ICAO, 2017-2019 Global Aviation Safety Plan, 2nd ed(2016), ICAO Doc 10004, online: ICAO www.icao.int/Meetings/a39/Documents/GASP.pdf ; and Draft -AN/963,online:ICAO www.icao.int/Meetings/a39/Documents/GANP en.pdf .19 The Kyoto Protocol gave ICAO the clear mandate to deal with issues of emissions arising from aviation: KyotoProtocol to the United Nations Framework Convention on Climate Change, 16 March 1998, 2303 UNTS 148 (entered into force16 February 2005), art 2(2).The McGill Centre for Research in Air and Space Law and the Centre for International Sustainable DevelopmentLaw have together published a series on the very topic of sustainable international civil aviation. These papers, writtenby scholars and practitioners from around the world, explore the issue of how to mitigate the environmental impact ofaviation without constraining aviation growth and development. See Occasional Paper Series: Sustainable InternationalCivil Aviation, online: McGill University able-aviation .20 Central Intelligence Agency, “Taiwan” in World Factbook 2016, online: CIA /geos/tw.html . See also Shelley Rigger, Why Taiwan Matters: Small Island, Global Powerhouse (Lanham,MD: Rowman & Littlefield Publishers, 2011).21 See Taiwan Civil Aeronautics Administration (CAA), Annual Report 2015 at 12-13, online: CAA 050.pdf .3
THE MISSING LINK IN THE GLOBAL AVIATION SAFETY AND SECURITY NETWORK:THE CASE OF TAIWANpassengers, of which a staggering 80% were international, cross-Straits or transitpassengers. 22 The country's main international portal, Taoyuan International Airport,was the 11th busiest airport by international passenger traffic in 2015 23 and the 15thbusiest air freight hub in the world in 2013.24Taiwan’s aviation authorities exclusively controls and provides air navigation andair traffic control services in the Taipei Flight Information Region (FIR),25 which spans anairspace of some 180,000 square nautical miles26 and overlaps with one of the densest andfastest-growing air traffic corridors in the world. In 2015 alone, the Taipei FIR providedair traffic control, aircraft communications, and meteorology services for over 1.5 millionflights traversing the airspace.27 Some 14 international airways and 4 domestic airwayscrisscross the Taipei FIR, and over seventy airlines must traverse the airspace over andaround Taiwan in order to access some of the busiest flight routes in the world bridgingNorth and South-East Asia with destinations in North America and Europe.28 Further,the traffic between China and Taiwan numbering up to 890 flights a week, there isundeniable potential for economic ties and transportation links across the TaiwanStraits. 29 These facts and figures clearly underline how Taiwan's engagement andparticipation in international air transport can neither be ignored nor sidelined.22 See Taiwan, Ministry of Transportation and Communications, “Air Transport”, online: MOTC www.motc.gov.tw/en/home.jsp?id 258&parentpath 0,150,250 .23Airports Council International, “International Passenger Traffic for past 12 months”, online: ACI rnational-Passenger-Rankings/12-months .24 Airports Council International, “Cargo Traffic 2013 FINAL (Annual)”, online: ACI /2013-final .25 This FIR was already demarcated by ICAO back in 1953. See Ruwantissa Abeyratne, “ICAO admits Taiwan to itspremises at its 38th Assembly” (2014) Ann Air & Sp L 647 at 657.26 The Taipei FIR borders the FIRs of Fukuoka, Japan; Shanghai and Guangzhou in China; Hong Kong; and Manila inthe Philippines: online: Shelley Shan, Unidentified flights aviation risk”, Taipei Times (1 August 2015), online: TaipeiTimes 1/2003624398 .27 See Air Navigation and Weather Services, Civil Aeronautics Administration, Ministry of Transportation andCommunications, “Operational Performance—Air Traffic Control”, online: ANWS www.anws.gov.tw/eng/index.php?act service report&code engchart1 . See also Air Navigation and WeatherServices 2015 Annual Report, online: ANWS d7a67b355559706795b7.pdf .28 Air Navigation and Weather Services, “About Us”, online: ANWS www.anws.gov.tw/cht/index.php?code list&ids 17 (in Chinese). For a visualisation of the complex internationalairways that crisscross the Taipei FIR, see “Asia Upper ATS Route Chart”, online: Worldairops.com www.worldairops.com/ASI/docs/ASI MAP ATSRoutesUpper atWorldAirOps.com.pdf ; and ANWS, “TaipeiFIR en route Chart”, online: ANWS 35435.pdf .29 “Fact Sheet 2015” (29 June 2016). On file with authors.4
OCCASIONAL PAPER SERIES XXIV. EXCLUSION TO THE DETRIMENT OF GLOBAL AVIATIONSAFETY AND SECURITYDue to several legal reasons precluding Taiwan from becoming a Contracting Stateof the Chicago Convention and Member State of ICAO,30 for more than four decades31Taiwan has not be able to participate in ICAO international and regional meetings andconferences. In the words of the country’s Civil Aeronautics Administration, Taiwanfaces an inherent difficulty that is associated with being neither a member state of,nor an observer at, ICAO activities. Most ICAO documents can be obtained,although not directly, in a fairly timely manner but there is no opportunity to takepart in the deliberations that result in new standards and recommended practices.Being excluded from ICAO, there is not the good notice of developing standardsthat permits the planning for their implementation and there is no forum for[Taiwan] to bring its unique requirements to the international civil aviationcommunity.32Due to arcane motivations that simply pale in light of securing global safety and security,there is radio silence between ICAO and Taiwan. As a result, vital international technicaland operational standards and information related to air navigation are unavailable toTaiwan and must be obtained or purchased through unofficial channels—often withsignificant delay and lacking in the necessary technical details and knowhow to ensuretheir effective implementation.33 Thus, aircraft flying through Taiwan-controlled30 Article 92 of the Chicago Convention provides the Convention is open for adherence by members of the UnitedNations, which Taiwan is not. Article 93 of the Convention provides States be admitted to ICAO with the approval offour-fifths vote of the Assembly. See also Weber, supra note 5 at 29.31 The Republic of China (ROC), Taiwan’s official name, was one of the first signatories of the Chicago Convention: seeUnited Nations Treaty Collection, online: UN treaties.un.org/ . See also Stefan Talmon, “The Recognition of theChinese Government and the Convention on International Civil Aviation” (2009) 8 Chinese J Int'l L 135 at 137. TheROC was a member of ICAO until 1971, when the People’s Republic of China was recognised and admitted into theUnited Nations (UN) simultaneously with the expulsion of the representatives the ROC “from the place which theyunlawfully occupy at the United Nations and in all the organizations related to it”: See Restoration of the lawful rights ofthe People’s Republic of China in the United Nations, UN Doc A/RES/2758 (XXVI) (1971).According to Article 93bis (a)(2) of the Chicago Convention:A State which has been expelled from membership in the United Nations shall automatically cease to be amember of the International Civil Aviation Organization unless the General Assembly of the United Nationsattaches to its act of expulsion a recommendation to the contrary.See also ICAO, Representation of China in ICAO, ICAO Doc 8987-C/1004, 47-49 (8 July 1971); and David MacKenzie,ICAO: A History of the International Civil Aviation Organization (Toronto: University of Toronto Press, 2010) at 278.32 Aviation Safety Council, Crashed on a Partially Closed Runway during Takeoff, Singapore Airlines Flight 006, Boeing 747400, 9V-SPK, CKS Airport, Taoyuan, Taiwan, October 31, 2000 [Aviation Safety Council Report], Appendix 7.5,“Representations on the draft final report by the Civil Aeronautics Administration, Republic of China” at 7-144[emphasis added]. Similarly, see Bonnie S Glaser, Taiwan’s Quest for Greater Participation in the International Community,(Washington DC: Centre for Strategic & International Studies, 2013) at 19.33 See remarks of Taiwan CAA Director-General Jean Shen: Jim Hwang, “Towards a Seamless Sky”, Taiwan Review (1September 2013), online: Taiwan Review taiwanreview.nat.gov.tw/ct.asp?xItem 208453&ctNode 1446 . The factthat Taiwan is not part of the “ information loop” and must wait for ICAO to publicly disseminate information vital to5
THE MISSING LINK IN THE GLOBAL AVIATION SAFETY AND SECURITY NETWORK:THE CASE OF TAIWANairspace may be subject to differing degrees standards and practices as neighbouringflight information regions—the notice of differences of which cannot be officiallyfurnished to ICAO for all States to heed. There simply is no official channel for theTaiwanese aviation authorities to provide ICAO with information and data about theintricacies and practicalities of navigation through the airspace under its exclusivecontrol.Exclusion from ICAO, in effect, “has created a gap in the global aviation network,adversely affecting the aviation safety and convenience of all passengers”.34 “Remainingin the dark” with regard to the rationale and detailed method of implementation hasconceivably adverse impact on the “efficacy and competitiveness of Taiwan's civilaviation industry” and results in “potentially dangerous consequences”35 for the securityand safety of international aviation and the travelling public—the very matters ICAO wasestablished to ensure uniformity of global aviation governance.Following the September 11 attacks, ICAO declared that:a uniform approach in a global system is essential to ensure aviation securitythroughout the world and that deficiencies in any part of the system constitute a threat tothe entire global system.36air navigation and safety means that “Taiwan’s operations are between six months to a year behind the internationalnorm, which hinders its ability to provide safe and efficient air transport services”: see Taiwan, Ministry of ForeignAffairs, “Taiwan’s quest for meaningful participation in the International Civil Aviation Organization (ICAO)” pation”(2011)],online:MOFA e966-4d1a-ba01-8afcc115f7d2.pdf .A saving grace, and a means by which Taiwan’s provision of air navigation services can be more uniform withinternational norms and practices, is the fact that Taiwan is a member of Civil Air Navigation Services Organisation(CANSO), the air navigation service providers organization which represent over 85% of the world's air traffic: seeShelley Shan, “Taiwan joins CANSO aviation organization”, Taipei Times (15 January 2011), online: Taipei Times 5/2003493568 .34 “Taiwan's Quest for Meaningful Participation in
The 39th Assembly is long anticipated to adopt a global measure to arrest gaseous emissions from international civil aviation. Further, the upcoming Assembly session is slated to discuss and adopt the Global Aviation Safety Plan and Global Air Navigation Plan: respectively ICAO, 2017-2019 Global Aviation Safety Plan, 2nd ed
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