ICAO has proposed changes to the bilateral template, but could more be done to ensure deals are properly filed asks Earl Scott, president of Seattle-based Aero-Accords, which runs a global database of air service agreements?
Last March, ICAO proposed important and rare changes to its standard bilateral Air Services Agreement (ASA). The standard had remained relatively unchanged since first developed in 1944 at the Chicago Conference. That gave the opportunity for changes to the rules governing how and when bilaterals are registered.
The original article directing ASA registration stated only that an "agreement and all amendments thereto shall be registered with ICAO". This wording suffers from weaknesses in its coverage, timing and responsibility.
The wording complied with the obligations outlined in the Chicago Convention, which deal with aviation accords, but it ignored provisions in the United Nations Charter, which covers all types of bilateral accords. As a result, failure to register is nearly twice the problem at the UN as it is at ICAO. Over the last 20 years, Aero-Accords has found that about half of ASAs are registered with the UN registered, but two-thirds with ICAO.
Unfortunately, ICAO's new wording fails to include a requirement for UN registration. In its discussion of the template, ICAO acknowledges the need to update the wording covering registrations, warning of "a negative impact on the transparency of the whole process". The omission of a UN requirement means this problem will remain.
Though fewer in number, UN registrations provide verification of ICAO registration lists. The United Nations Treaty Series also provides translations which aid ICAO's goal of "process transparency".
The Chicago wording also failed to address timing. When were these agreements or amendments to be registered? When they were initialled, on signature, on entry-into-force, or within a specified future timeframe? Due to this ambiguity, some were registered early (at signing), and some later (after entry-into force), and some very late. One ICAO agreement, registered in 2000, was signed back in 1958, a gestation of 42 years.
The new format states: "This agreement and any amendments thereto shall be registered upon its signature." This addresses the problem of timing and should reduce gestation. But the new format may add to the list of agreements registered without ever identifying their date of entry into force. Might the words "...and to any change in status" not also have been added to the registration requirement?
The final shortcoming of the 1940s format was the unclear specification of who was responsible for registration. This led to the frequent lack of registration and to double registrations.
Both problems arise from human error, not covert design. At Aero-Accords we find most aviation authorities register unregistered documents once identified. But we also found cases where a second State registered an agreement previously registered by its bilateral partner.
The new format should reduce problems, with the wording: "This agreement and any amendments thereto shall be registered upon its signature with ICAO by [name of the registering Party]."
The ICAO leadership, and those states contributing to the new standard, deserve our compliments. However, until further revised it will be for each bilateral partner to see that the UN obligation is included. This has been done in about one in 10 cases. With such a historical representation it is unclear why the provision was omitted from the new standard.
Source: Airline Business
