< PreviousICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION...................................................................................................................................................................120.............................................................................................................................................................................Cybersecurity The December 2014 signing of the Industry High-level Group (IHLG) Civil Aviation Cybersecurity Action Plan by ICAO, Airports Council International (ACI), the Civil Air Navigation Services Organization (CANSO), the International Air Transport Association (IATA) and the International Coordinating Council of Aerospace Industry Associations (ICCAIA) represented an important development in efforts to address cyber threats. This document establishes clear timeframes for the achievement of goals and targets facilitating the development of a common understanding of cyber threats and risks and the development of information-sharing mechanisms necessary for prompt communication between government and industry stakeholders. Throughout 2015, the IHLG continued to promote consistent and coherent approaches in managing cyber threats and risks. It also encouraged the development of a robust cybersecurity culture in all organizations involved in international civil aviation while identifying and sharing best practices. Recognizing the importance of consolidating all relevant publications on cybersecurity for the benefit of ICAO Member States, the IHLG created a secure repository site entitled “Cybersecurity”. It can be accessed from the ICAO Secure Portal. The repository is continuously updated and currently includes a number of publications addressing sector-specific cybersecurity needs. Cooperation with other United Nations Bodies and International Organizations ICAO worked closely with international organizations, such as the United Nations Security Council and its Counter-Terrorism Committee (CTC), the United Nations Counter-Terrorism Executive Directorate (CTED) and the Counter-Terrorism Implementation Task Force (CTITF). ICAO provided CTED teams with expertise in aviation security for State visits and supplied them with relevant, mission-specific information. ICAO participated in the CTC’s Extraordinary Meeting in Madrid regarding Security Council Resolution 2178 (2014) on stemming the flow of Foreign Terrorist Fighters (FTFs). Held in July, this meeting was attended by over 400 experts and Member State representatives, including those from States most affected by foreign terrorist fighters. In order to advance the follow-up on the Resolution, three principal themes were discussed: i) detection, intervention against, and prevention of incitement, recruitment, and facilitation of foreign terrorist fighters; ii) prevention of foreign terrorist fighters’ travel, including through operational measures, the use of Advance Passenger Information (API), and strengthening border security; and iii) criminalization, prosecution (including prosecution strategies for returnees), international cooperation, and the rehabilitation and reintegration of returnees. The meeting recommended that Member States consider: a) providing dedicated resources and automated tools, including API, access to watch lists, and centralized databases; b) introducing measures and practices to enhance the capacities of competent border authorities, including with respect to the type of information required at the border, the sources of information, and the methodologies for its processing in order to detect potential FTFs, and consider sharing this information with competent authorities;c) as API is an essential source of information about passengers, both prior to their departure and prior to their arrival, standardizing the data transmitted and the means of transmittal; establishing a single point of collection of the information; and using interactive API. ICAO is working closely with the International Air Transport Association (IATA), the World Customs Organization (WCO) and the CTED to establish the way forward, particularly with regard to the implementation of those recommendations relating to API. Additional information on Cybersecurity is available with the online subscription of this publication.Aviation Legal MattersICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION.....................................................................................................................................................................123.............................................................................................................................................................................Conflicts of Interest in Civil AviationDEFINING CONFLICT OF INTERESTA conflict of interest is typically defined as a situation in which an official has private interests that may be perceived to improperly influence or interfere with the performance of his or her official duties and responsibilities. Such improper influence or perceived interference could be attributed to situations involving financial interest, family, emotional life, political or national affinity of the official. Conflict of interest may also be found at the level of an organization. An organizational conflict of interest arises where an organization fails to act or is impeded from acting impartially due to outside activities or relationships it has with other entities.In the field of civil aviation, such conflicts of interest may arise, principally, in two different scenarios:a) First, through interactions between a department of the Government or its regulatory agencies with operating entities that are subject to regulation (such as air operators, aviation training organizations, approved maintenance organizations, design organizations, production organizations, air navigation service providers and aerodrome operators). Examples of conflicts of interest situations that could arise in the course of such interactions include:i) direct or indirect financial interests in regulated entities;ii) movement of individuals between jobs in the regulatory and regulated entities (also referred to as “revolving door” situations);iii) performance of regulatory duties by seconded or designated staff of the regulated entities;iv) partnerships or arrangements between regulatory and regulated entities to advance the commercial interests of the regulated entities at the expense of the public interest (leading to what is also referred to as “regulatory capture”); andv) lobbying of policy or rule-making bodies on behalf of or in favour of regulated entities.b) Second, through relationships between different organs or entities of the State involved in civil aviation activities, which could include:i) overlap of functions between regulatory bodies and the government or its other organs such as the military, police, customs and investigative bodies;ii) ownership or control of regulatory and operator entities by the State; andiii) combination of regulatory and service provision functions in the same or related entities.It is possible that conflicts of interest (real or perceived), arising from such interactions or relationships, may hamper effective, independent and impartial regulation.CURRENT GUIDANCEGenerally, States may have developed legal and institutional frameworks to deal with conflicts of interest in response to the requirements of domestic law or with reference to international treaties, such as the United Nations Convention Against Corruption of 2003 1(UNCAC), or to guidelines or codes of best practice developed by international organizations such as the Organisation for Economic Co-operation and Development (OECD) or by relevant professional bodies. Civil aviation authorities in a given State might be subject to government-wide conflicts of interest frameworks, to frameworks that apply specifically only to them, or to some combination of such frameworks. Frameworks that have been developed generally for the public sector or particular professions may not fully address conflicts of interest as they relate specifically to civil aviation activities.As of today, ICAO has promulgated certain guidance on conflicts of interest. Examples are:a) Paragraph 5.3.3 ICAO Doc 8335, Manual of Procedures for Operations Inspection, Certification and Continued Surveillance identifies the need to establish a strategy to mitigate potential conflict of interest issues with respect to the secondment of staff of an air operator to undertake inspection duties;b) Paragraphs 2.4.9 and 3.4.4 ICAO Doc 9734, Safety Oversight Manual, Part A, “The Establishment and Management of a State’s Safety Oversight System” identify the need to have clear separation of authority UNCAC has 181 State parties as at 12 December 2016. See for instance, Article 7(4) of UNCAC, “Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.”1ICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION...................................................................................................................................................................124.............................................................................................................................................................................and responsibility between State regulatory authorities and operating agencies;c) Paragraph 3.4.2.4 ICAO Doc 9734, Safety Oversight Manual, Part A, “The Establishment and Management of a State’s Safety Oversight System” identifies the need for the direct supervisory and technical control by an independent civil aviation administration of operator personnel carrying out inspection responsibilities in order to best serve the public interest; and d) Paragraph 2.4.2.3 ICAO Doc 9734, Safety Oversight Manual, Part C, “The Establishment and Management of a State’s Security Oversight System” identifies the need to have clear separation of authority and responsibility between State regulatory authorities and State-run operating agencies or service providers in order to avoid any potential conflict of interest and recommends that all approval, certification and continued surveillance procedures should be followed as though the operating agency was a non-governmental entity.Universal Safety Oversight Audit Programme (USOAP) findings in this area have been that, in a number of States, where operator or service provider functions are carried out by the State, there is no distinct separation of responsibilities between the regulatory bodies and air operators, aerodrome operators, service providers and aviation training centres and that most States that use experts seconded by the State’s civil aviation administration or other organization in the State as investigators, have not established measures to avoid possible conflicts of interest. Under the Universal Security Audit Programme (USAP), it is reported that “22 per cent of States have not ensured that the functions and responsibilities of the various entities within the civil aviation security system are clearly defined to ensure that 2there are no overlaps of responsibilities”. OBJECTIVES AND METHODOLOGY OF THE WORKThe overall objective of work under this item is to consider the development of ICAO rules or guidance in order to assist Member States on measures to be used to detect, avoid, mitigate and/or manage conflicts of interest and ensure transparency and accountability within their national frameworks.The first task was to undertake a survey to identify existing mechanisms and measures in States for dealing with conflicts of interest (COI) as it relates to civil aviation administrations and their personnel carrying out regulatory functions in civil aviation. Responses have been analyzed to determine the extent to which States have established measures on the various elements of conflicts of interest in civil aviation as well as the adequacy of such measures to address them. Further consideration will be given to the question as to whether it would be beneficial to undertake the harmonization of measures and practices to detect, avoid, mitigate and/or manage COI and develop rules and guidance for States as well as their documentary form.Options for documenting or promulgating conflicts of interest mechanisms and measures for harmonized or uniform application could include a Standard or Recommended Practice in the Annexes to the Convention on International Civil Aviation, 1944 (Chicago Convention) or guidance material in the form of a new or an amendment of an existing ICAO Document, Manual or Circular.It is acknowledged that work on this subject has to be cognizant of the need to balance the particular circumstances and requirements of States while addressing the regulatory risks to aviation safety and security posed by conflicts of interest. For example, strict divestment requirements or revolving door limits might unreasonably limit States to very few or even no qualified candidates for specialized positions. The consideration of mechanisms or measures to be prescribed or recommended would therefore be mostly concerned with managing risks arising from activities, relationships or interactions giving rise to conflicts of interest and not necessarily with automatically stopping or prohibiting them.STATE RESPONSES TO THE SURVEYAs at 30 January 2015, 43 States, or just about 22 percent of ICAO’s membership, had responded to the survey. Two territories and one international organization also provided responses. The Survey remains open online for other States that would like to respond. Although relatively low, the responses are from States in all the ICAO Regions.CURRENT GENERAL FRAMEWORK FOR COIIn general, all but four of the States that responded to the Survey confirmed that they have a legal and/or institutional Universal Security Audit Programme-Analysis of Audit Results, Reporting Period: November 2002 to June 2013, ICAO, Fifth Edition – 2013, at page 52.”2ICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION.....................................................................................................................................................................125.............................................................................................................................................................................framework dealing generally with conflicts of interest. In most cases that framework is established in the form of legislation, code of conduct, contractual employment conditions or a combination of all these. In most cases (86 percent) monitoring of compliance with COI rules is carried out by an independent body such as a government ombudsman or through internal mechanisms established by the civil aviation agency or administration. Most States (63 percent) deemed the level of enforcement of COI to be sufficient while some considered it to be insufficient (21 percent).SOURCES OF COI IN THE PUBLIC SECTOR Financial interests in regulated entities as well as social interests of individuals, (leading in some cases to corrupt practices, nepotism and favouritism), movement of individuals between jobs in the regulatory and regulated entities, the involvement of the State in regulated activities or entities and lobbying in favour of regulated entities were identified as being among the most prevalent sources of COI. Other situations such as the exertion of political pressure on regulators to favour regulated entities were cited as an additional source of COI. A majority of States did not identify any new or emerging forms of COI that could be considered for development of guidance in which case it could be assumed that the list of COI sources identified is fairly exhaustive. One example of additional sources of COI that was identified by a respondent was the “participation of State employees in partisan political activity”.STATE ACTIVITIES AS A SOURCE OF COI IN CIVIL AVIATIONThe State is involved in civil aviation activities as an operator or service provider in many States (82 percent), the most prevalent activities in which States are engaged in being the provision of air navigation services, aircraft and aerodromes operations and the management of aviation training organizations. Moreover, some civil aviation administrations depend on government subsidies or revenue from regulated activities to support regulatory activities. Furthermore, the percentage of States that have aircraft on the civil register that are used for military or police operations (49 percent) and those that do not (51 percent) is roughly the same. These relationships and activities are subject to aviation safety and security oversight by the civil aviation administration which could raise the potential for vested organizational COI, whereby civil aviation regulators could be unduly influenced or impeded from acting impartially in dealing with regulated entities due to common ownership and control by the State or because of having commercial interests in those entities.Many States (67 percent) have established measures to avoid or manage the overlap between different agencies having a role in the regulation of aviation safety and security. Measures such as the establishment of inter-agency coordination committees, programmes and guidelines were cited. Personnel from an air operator or service provider are used to carry out licensing, certification, approval or surveillance duties and responsibilities and to carry out aircraft accident and incident investigations in a significant number of States (49 percent and 40 percent respectively). However, a majority of States (51 percent) indicated that they had established mechanisms for the management of conflicts of interest of personnel carrying out these functions. Moreover, in most States (79 percent), accident investigation is carried out by an independent organization or entity that is separate from the civil aviation administration. DOES COI POSE RISKS TO CIVIL AVIATION SAFETY AND SECURITY? Those States that encountered COI situations in civil aviation activities indicated that they became known mostly through self-disclosure by the concerned official, a USOAP or USAP audit report, a report by an independent oversight body or internal review and press reports (in that order). Exposure of COI situations through the occurrence of a safety or security related incident was cited in a small number of cases (5.3 percent). Exposure by whistle-blowers was cited in one case. Most States (79 percent) did not find or consider the lack of a framework to be a source of concern for aviation safety or security, while a substantial majority of States (84 percent) affirmed that COI situations have not been linked to or found to be a contributing factor to the occurrence of a serious aviation safety or security incident. Direct or indirect interest in regulated entities, partnerships or arrangements between regulatory and regulated entities to advance the commercial interests of the regulated entities at the expense of the public interest (leading to what is also referred to as “regulatory capture”) and the combination of regulatory and service provision ICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION...................................................................................................................................................................126.............................................................................................................................................................................functions in the same or related entities were identified (in that order) as the three leading situations that States considered would put aviation safety and security most at risk. Other situations, including movement of individuals between jobs in the regulatory and regulated entities and performance of regulatory duties by seconded or designated staff of the regulated entities, were also identified but to a lesser extent. Political pressure being applied on the national aviation administration was one other situation not included in the list that was identified as a risk to aviation safety and security.SHOULD STATES HAVE A SPECIFIC FRAMEWORK FOR MANAGING COI IN CIVIL AVIATION?Many States (33 percent) have established a framework that deals specifically with civil aviation in addition to or separate from the general framework applicable to the public sector as a whole. A large number of respondents (68 percent) felt that it was necessary or useful for a State to establish a specific framework dealing with COI in civil aviation, citing as reasons for this position the need to manage COI risks that are unique to civil aviation and to achieve legal harmonization and certainty. Those States that felt differently saw the existence of an adequate framework as obviating the need to establish a specific one for civil aviation. Some States did not consider it prudent to regulate COI on a sectorial basis, while one State suggested that a framework could be established at a regional level.IS EXISTING ICAO GUIDANCE ADEQUATE?While a majority of States (77 percent) were of the view that existing ICAO guidance material on COI in civil aviation is adequate or somewhat adequate, most (75 percent) still felt that States could benefit from the harmonization of COI practices and measures for dealing with COI in civil aviation.Most States (collectively 61 percent) felt that rules or guidance on COI could be developed in the form of Standards, Standards and Recommended Practices or Recommended Practices only while other States were of the view that guidance disseminated in an ICAO manual or circular could be sufficient (28 percent). One specific suggestion put forward was to develop a model code on managing COI in civil aviation, while at the same time making necessary adjustments to other ICAO documents “dealing with the qualifications of personnel and representatives”.FUTURE WORKA small number of States (less than 10 percent) felt that their COI framework had not been effective in addressing COI in civil aviation, citing the lack of a binding framework and the overlapping relationships between state entities involved in civil aviation as the main barriers to success. States that found their COI framework to be effective, credited staff sensitization and the existence of preventive and enforcement measures for their success.A number of measures were proposed to improve the effectiveness of the COI framework, including: (i) pay parity between personnel of the regulatory bodies and the regulated entities (ii) recruitment of additional personnel dedicated to carry out licensing, certification, approval or surveillance duties and responsibilities; (iii) separation of regulatory bodies from service provision entities; (iv) fostering a COI avoidance culture; and (v) increased regulation of COI. The results of the survey were considered by the 36th session of the Legal Committee which decided on further work to be done including that a resolution urging States to develop a legal framework and cooperate in order to share their best practices in dealing with COI, would be presented to the 39th Session of the ICAO Assembly. The Resolution adopted by the 39th Assembly mandates the Council to facilitate the collection, analysis, dissemination and promotion of best practices addressing conflicts of interest for the benefit of Member States. It also requests the Secretary General to continue to collect information from States and relevant intergovernmental organizations, concerning policies and measures in this respect and to develop a reference document identifying ICAO provisions in the Annexes and manuals relating to conflicts of interest.CONCLUSIONSIt is useful for all States to have a framework for managing COI in civil aviation given the prevalence of COI situations as expressed by States in their responses. Therefore in October 2016, the 39th Session of the ICAO Assembly adopted Resolution A39-8 (available in the Reference Centre) which urges States to establish a framework on COI that applies to civil aviation activities. Its objective is to promote awareness of potential conflicts of interest in civil aviation and to encourage States to take measures to avoid or mitigate risks from COIs to aviation safety and security. The Assembly Resolution also responds to the expressed need to improve the effectiveness of existing COI frameworks through fostering a COI avoidance culture and increased regulation. ICAO WORLD CIVIL AVIATION REPORTINTERNATIONAL CIVIL AVIATION ORGANIZATION.....................................................................................................................................................................127.............................................................................................................................................................................Space Transportation SystemsThe international legal regime governing air transport is well developed. It deals with issues related to liability, security, navigation and air traffic management, and it is set forth in various conventions, treaties, and "soft law" standards. There are five United Nations treaties on outer space, but these treaties were drafted at a time when private space transportation and commercial activities in space where the technology for Earth-to-Earth aerospace movements did not yet exist:!The “Outer Space Treaty" on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967.!The "Rescue Agreement" on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. Adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968. !The "Liability Convention" on International Liability for Damage Caused by Space Objects. Adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972.!The "Registration Convention" on Registration of Objects Launched into Outer Space. Adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976.!The "Moon Agreement" Governing the Activities of States on the Moon and Other Celestial Bodies. Adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984.Today, the emergence of space transportation as a commercial activity has drawn attention to the need for regulatory predictability, and in particular to the necessity for clarification of which set of rules apply to such activity: aviation law or space law, or a combination of these regimes. The industry, regulators, and academics have already started brainstorming to explore possible ways of regulating aerospace transportation, mainly under two approaches. The first one is the functionalist approach, which relies on what type of vehicle is being considered: is it an aircraft, or a spacecraft, or an aerospace vehicle? The second approach is spatialist. It focuses on where the object at issue is: is it in the airspace, or in outer space, or does it traverse both? However, the international community has not yet agreed on which approach should be applied to commercial space transportation vehicles. It is unclear where the legal limits of air space end, and the regime of outer space begins, and vice versa. Amendments to the ICAO AnnexesNext >