Content Rationale 

Current political and diplomatic problems mostly emerge as a result of the inability of the world to veer from its self serving concentration on individual perspectives to collective societal focus. This distorted approach gives rise to undue emphasis being placed on rights rather than duties; on short-term benefits rather than long-term progress and advantage and on purely mercantile perspectives and values rather than higher human values.

Air transport has been adversely affected by other factors as well, such as the danger posed possible threat of transmission of communicable disease through air navigation and the inadequacy in some parts of the world of a safe and secure aviation industry. This brings to bear the relevance of responsibility of States, where effective border control might well be the preeminent factor in a State's armory. Although one way of reacting to health issues and problems might be to crack down on illegal immigration, such a method, although effective in the war against terrorism, may not be expeditious in a public health context where a carrier of a virus may not be aware that he is carrying the virus and may have acquired the disease through contact and a chain of happenstance. A Counterintuitive approach may well be the best way for a State to handle the problem where legal, and therefore supervised immigration in which health screening is possible and quarantine measures can be effectively applied should be the norm. Such preventive measures call for tact, diplomacy and global understanding.

Along the lines of the above rationale, the book contains chapters onThe Role of Civil Aviation in Ensuring World Peace - which examines the overall and various specific contributions made by aviation towards world peace: Critical Issues in Aviation ( including the SARS Crisis) - which addresses and identifies current issues that call for diplomatic intervention on the part of the International Civil Aviation Organization (ICAO); ICAO and Diplomacy; which examines and critically analyses in detail the role of ICAO particularly as the only representative diplomatic body in the field of international civil aviation capable of intervening in issues and exercising preventive diplomacy; Dispute Settlement which lays down the dispute settlement powers of the ICAO Council and analyses their effectiveness; and; Conclusion; which ties in the elements addressed in the earlier chapters and examines principles of State responsibility as an adjunct to successful diplomatic practice in the field of international civil aviation. 

Preface

Current perspectives in aviation and diplomacy took a dramatic turn with the events of 11 September 2001, which defied modern economic and management theory when addressed in aviation terms and brought to bear the need for States to look at each other differently when addressing issues of aviation. While economic theory would suggest that, once the impact of such events will be felt no more, and economies are restored to their status quo ante, a rise in the gross domestic product of States to earlier levels would almost inevitably result in increased consumption and restoration of the business, this did not happen naturally due to various intervening factors. The natural assumption that the demand for air travel would rise to earlier proportions and consumption in terms of air transport services would be restored to normalcy was obviated by the very nature and effects of the September attacks in the United States which introduced a unique characteristic through the fear factor that directly impacts the future development of air transport. There was also the 7 day notice given by the insurance underwriters on 17 September 2001 that on 24 September, third party war risk insurance coverage of airlines would be withdrawn which called for collective indemnity action by the World community through nations to insure their own airlines against the risk they were exposed to. As a result of these unique features, the grim task of sustainability of air transport, assurance of services and restoration of passenger confidence stands in the way of economic revival of the air transport industry. These three factors inevitably call for renewed efforts on the part of States and the international community as a whole at diplomacy and international relations.

It is incontrovertible that the most critical challenge facing international civil aviation at the present time is to sustain the air transport industry and assure its consumer of continuity of air transport services. The Air Transport Association (ATA), in its 2002 State of the United States Airline Industry Statement, has advised that, in the United States, the combined impact of the 2001 economic downturn and the precipitous decline in air travel following the 11 September 2001 attacks on the United States have resulted in devastating losses for the airline industry which are likely to exceed $7 billion and continue through 2002. Of course, the overall picture, which portends a certain inevitable gloom for the air transport industry, is not the exclusive legacy of United States' carriers. It applies worldwide, as was seen in the abrupt downfall of air traffic globally during 2001. The retaliation by the world community against terrorism, which is an ongoing feature in world affairs, has increased the airline passenger's fear and reluctance to use air transport. In most instances in commercial aircraft purchasing, air carriers have cancelled or postponed their new aircraft requisition orders. Critical to aviation crisis management is that restoration of confidence.

Confidence building in the global aviation system is within the purview of both diplomacy and effective aviation management. In restoring confidence in air transport services, diplomacy should focus not only on building bridges in the air and settling aviation disputes but also on contributing to the world peace process both regionally and globally through humanitarian perspectives and peace initiatives. Aviation management, on the other hand, should essentially target three disciplines: commercial, insurance and security. Measures already taken for risk management by States, in offering indemnities and guarantees toward third party war risk liability of their air carriers, and initiating action on aviation security and insurance worldwide have provided a basis for global comity and understanding and assured the world community that collective political will through diplomacy is the fundamental postulate in restoring uniformity in a divisive world.

Air transport has been adversely affected by other factors as well, such as the danger posed possible threat of transmission of communicable disease through air navigation and the inadequacy in some parts of the world of a safe and secure aviation industry. This brings to bear the relevance of responsibility of States, where effective border control might well be the preeminent factor in a State's armory. Although one way of reacting to health issues and problems might be to crack down on illegal immigration, such a method, although effective in the war against terrorism, may not be expeditious in a public health context where a carrier of a virus may not be aware that he is carrying the virus and may have acquired the disease through contact and a chain of happenstance. A Counterintuitive approach may well be the best way for a State to handle the problem where legal, and therefore supervised immigration in which health screening is possible and quarantine measures can be effectively applied should be the norm. Such preventive measures call for tact, diplomacy and global understanding.

This book is written at a time when there is a demonstrable and compelling need for diplomacy in aviation in order to bring about and sustain revival in the aviation industry. In this context, it is noteworthy that diplomacy and international relations in aviation has now turned full circle from the inception of its regulation in 1944 when the Chicago Conference gave rise to the Convention on International Civil Aviation. Now once again, as in 1944, States have risen from a disaster, this time concerning aviation, and are required to review the way they see each other. Citizens of the world will scrutinize both their governments and those of foreign nations whose responsibility it is to ensure good governance and the continuity of the world communications systems. The politician, diplomat and lawyer will increasingly turn toward principles of international law to determine the best course of action in crisis.

Current political and diplomatic problems mostly emerge as a result of the inability of the world to veer from its self serving concentration on individual perspectives to collective societal focus. This distorted approach gives rise to undue emphasis being placed on rights rather than duties; on short-term benefits rather than long-term progress and advantage and on purely mercantile perspectives and values rather than higher human values. Another sensitivity is the thin line which exists between international law and international politics, which, when applied to aviation becomes even thinner.

Against this backdrop, this book posits the fundamental principle that the overriding theme of international civil aviation has been, and continues to be, the need to foster friendship and understanding among the people of the world with the ultimate objective of ensuring global peace. Toward this end both the principles of air navigation and aviation economics have to ensure that aviation is developed in a manner that would make sure the world has a safe, reliable, economical and efficient civil aviation system. In order to justify this thesis, it is necessary to examine the theories of war and peace and match those with the global aviation scene, current issues and the exemplary role played by the International Civil Aviation Organization in its pursuit of preventive diplomacy which has greatly assisted the aviation community in times of dispute and danger.

Ruwantissa Abeyratne
Montreal
November 2003 

Contents

Chapter One - The Role Of Civil Aviation In Securing Peace Among Nations

Elements of Peace

Good Governance
Human Rights
Democratic Processes
Elimination of Hatred
Democracy and Peace
Acceptance of International Law by States
Resolution 44/33 in Action
Promotion of International Law and Politics
United Nations Resolutions
A New Legal Order

Aviation and World Peace

Civil Aviation in the Modernist Era
The Chicago Convention
Civil Aviation in the Post Modernist Era
Issues of Security and Peace
Civil Aviation in the Neo Post Modernist Era
Economic and Trade Implications
Sustainability of Air Transport
Civil Aviation and the United Nations Charter

Chapter Two - Critical Issues Confronting Aviation

Political Issues

Airport Profiling
Potentially Unruly Passengers
Advance Passenger Information (API) and privacy Issues
Biometric Technology 

Medical Issues (SARS)

Health Implications
Aeronautical Implications
ICAO's Regulatory and International Responsibility
Liability Under International Conventions

Defences Available to Airlines
Diplomatic Interevention

Intellectual Property Rights Issues

United Nations Initiatives

Economic Issues

Market Access

ICAO and Air Services
The Decision of the European Court of Justice on Open Skies

Diplomatic and Legal Issues
ICAO and WTO

Achievements of the Worldwide Air Transport Conference

Chapter Three - ICAO And Diplomacy

The Evolution of Diplomacy and Aviation Initiatives
Obligations of States Under the Chicago Convention

Chapter Four - The United Nations Dispute Resolutions System

The International Court of Justice (ICJ)

The South West Africa Cases ( 1966)
United Nations Law and the ICJ
The Lockerbie Case

Dispute Resolution in Trade in Services

Chapter Five - The Icao Dispute Resolution System

South Korea, USSR

KAL 007 Incident

Cuba, United States,
The IranAir Incident
The Libyan Incident

Chapter Six - Conclusion