Abstract
The article discusses the importance of Taiwan’s participation in and contribution to the International Civil Aviation Organization (ICAO). The continuous absence of a notable aviation country situated at the cross-roads of the Asia-Pacific poses a threat to global aviation safety and security, which requires the uniform adherence to accepted international standards and practices, and the real-time exchange of information vital to air navigation. The lives and wellbeing of millions of passengers from around the world, and the safe transit of high value air freight originating from, destined for, or passing through Taiwan means the international community can no longer ignore the presence and importance of this strategic aviation hub in the Asia-Pacific.
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- 1.
The number of fatal accidents are at an all-time low. Since the late 1970s, when the peak was reached, the number of fatal accidents per year has steadily declined. See “Statistics”, online: Planecrashinfo.com, www.planecrashinfo.com/cause.htm; see also “Statistics”, online: Aviation Safety Network aviation-safety.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 www.theguardian.com/world/datablog/2014/dec/29/aircraft-accident-rates-at-historic-low-despite-high-profile-plane-crashes
- 2.
ICAO, “Vision and Mission”, online: ICAO www.icao.int/about-icao/Pages/vision-and-mission.aspx
- 3.
See “Brussels: Islamic State launches attacks on airport and station – as it happened”, The Guardian (23 March 2016), online: The Guardian www.theguardian.com/world/live/2016/mar/22/brussels-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 March 2014. To date, it is still unclear what transpired onboard the fateful aircraft before its disappearance and where the plane is located.
- 5.
Safety denotes “technical and operational safety of flight” whereas aviation security relates to “safeguarding civil aviation against acts of unlawful interference”. Ludwig Weber, “The Chicago Convention” in Paul S Dempsey & Ram Jakhu, eds, Routledge Handbook of Public Aviation Law (New York: Routledge, 2016), 9 at 16.
- 6.
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 www.icao.int/MemberStates/Member%20States.Multilingual.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], art 37. 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, Consolidated statement 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: Rules of 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).
- 15.
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. Ludwig Weber, 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 — Climate change, ICAO Res A38–18. 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 (2016), ICAO Doc 10,004, online: ICAO www.icao.int/Meetings/a39/Documents/GASP.pdf; and Draft 2016–2030 Global Air Navigation Plan (2016), ICAO Doc 9750-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: Kyoto Protocol to the United Nations Framework Convention on Climate Change, 16 March 1998, 2303 UNTS 148 (entered into force 16 February 2005), art 2(2).
The McGill Centre for Research in Air and Space Law and the Centre for International Sustainable Development Law have together published a series on the very topic of sustainable international civil aviation. These papers, written by scholars and practitioners from around the world, explore the issue of how to mitigate the environmental impact of aviation without constraining aviation growth and development. See Occasional Paper Series: Sustainable International Civil Aviation, online: McGill University www.mcgill.ca/iasl/publications/occasional/sustainable-aviation
- 20.
Central Intelligence Agency, “Taiwan” in World Factbook 2016, online: CIA www.cia.gov/library/publications/the-world-factbook/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 www.caa.gov.tw/APfile/en/download/pliad/1371635616050.pdf
- 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
- 23.
Airports Council International, “International Passenger Traffic for past 12 months”, online: ACI www.aci.aero/Data-Centre/Monthly-Traffic-Data/International-Passenger-Rankings/12-months
- 24.
Airports Council International, “Cargo Traffic 2013 FINAL (Annual)”, online: ACI www.aci.aero/Data-Centre/Annual-Traffic-Data/Cargo/2013-final
- 25.
This FIR was already demarcated by ICAO back in 1953. See Ruwantissa Abeyratne, “ICAO admits Taiwan to its premises 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 in the Philippines: online: Shelley Shan, Unidentified flights aviation risk”, Taipei Times (1 August 2015), online: Taipei Times www.taipeitimes.com/News/taiwan/archives/2015/08/01/2003624398
- 27.
See Air Navigation and Weather Services, Civil Aeronautics Administration, Ministry of Transportation and Communications, “Operational Performance—Air Traffic Control”, online: ANWS www.anws.gov.tw/eng/index.php?act=service_report&code=engchart1 See also Air Navigation and Weather Services 2015 Annual Report, online: ANWS www.anws.gov.tw/upload/eng/attachment/3aad810f8162d7a67b355559706795b7.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 international airways 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, “Taipei FIR en route Chart”, online: ANWS eaip.caa.gov.tw/eaip/history/2015-10-29/graphics/135435.pdf
- 29.
“Fact Sheet 2015” (29 June 2016). On file with authors.
- 30.
Article 92 of the Chicago Convention provides the Convention is open for adherence by members of the United Nations, which Taiwan is not. Article 93 of the Convention provides States be admitted to ICAO with the approval of four-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: see United Nations Treaty Collection, online: UN treaties.un.org/. See also Stefan Talmon, “The Recognition of the Chinese Government and the Convention on International Civil Aviation” (2009) 8 Chinese J Int’l L 135 at 137. The ROC was a member of ICAO until 1971, when the People’s Republic of China was recognised and admitted into the United Nations (UN) simultaneously with the expulsion of the representatives the ROC “from the place which they unlawfully occupy at the United Nations and in all the organizations related to it”: See Restoration of the lawful rights of the 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 a member of the International Civil Aviation Organization unless the General Assembly of the United Nations attaches 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 747–400, 9 V–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 (1 September 2013), online: Taiwan Review taiwanreview.nat.gov.tw/ct.asp?xItem=208453&ctNode=1446. The fact that Taiwan is not part of the “information loop” and must wait for ICAO to publicly disseminate information vital to air navigation and safety means that “Taiwan’s operations are between six months to a year behind the international norm, which hinders its ability to provide safe and efficient air transport services”: see Taiwan, Ministry of Foreign Affairs, “Taiwan’s quest for meaningful participation in the International Civil Aviation Organization (ICAO)” (April 2011) [“Taiwan’s quest for meaningful participation” (2011)], online: MOFA www.mofa.gov.tw/Upload/RelFile/1061/1940/8d6243ff-e966-4d1a-ba01-8afcc115f7d2.pdf
A saving grace, and a means by which Taiwan’s provision of air navigation services can be more uniform with international 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: see Shelley Shan, “Taiwan joins CANSO aviation organization”, Taipei Times (15 January 2011), online: Taipei Times www.taipeitimes.com/News/taiwan/archives/2011/01/15/2003493568
- 34.
“Taiwan’s Quest for Meaningful Participation in the International Civil Aviation Organization (ICAO)” (2010) 28 Chinese (Taiwan) Y B Int’l L & Aff 281 at 284 [“Taiwan’s Quest for Meaningful Participation” (2010)]. Glaser writes:
As a member of the international community in an increasingly interconnected world, Taiwan faces numerous challenges that cannot be addressed unilaterally. […] The exclusion of Taiwan from global networks also carries a cost for international society. Taiwan is a significant provider of official development assistance (ODA), but because it is not a member of the major international donor organizations it has to employ innovative ways of delivering aid through or with nongovernmental organizations (NGOs) and multilateral institutions.
Glaser, supra note 32 at 2.
- 35.
“Taiwan’s Quest for Meaningful Participation” (2010), supra 34, at 284–285.
- 36.
See High-Level Conference on Aviation Security (HLCAS), Montreal, 12–14 September 2012, “Principles governing International Aviation Security Cooperation”, ICAO Doc HLCAS-WP/31 (20 July 2012), Appe B, “Declaration of the High-Level, Ministerial Conference on Aviation Security (19–20 February 2002, Montreal)”, Preamble [emphasis added], online: ICAO www.icao.int/Meetings/avsecconf/Documents/WP%2031/PRINCIPLES%20GOVERNING%20INTERNATIONAL%20AVIATION%20SECURITY%20CO-OPERATION.en.pdf See also ICAO, “Address by the Director of the Air Transport Bureau of the International Civil Aviation Organization (ICAO) Mr. Mohamed Elamiri to the International Conference on Arab Aviation Security”, Abu Dhabi, UAE, 7 February 2006, online: ICAO www.icao.int/secretariat/air-transport/Documents/ACAC-SecConf-2006/IcaoElamiriAddress_En.pdf
- 37.
USAP’s scope covers the standards contained in Annex 17, as well as other security-related provisions in Annex 9: respectively, ICAO, Annex 17 to the Convention on International Civil Aviation: Security, 9th ed (March 2011) [Annex 17] and ICAO, Annex 9 to the Convention on International Civil Aviation: Facilitation, 13th ed (July 2011).
- 38.
ICAO, “Background and Evolution”, online: ICAO www.icao.int/Security/USAP/Pages/Background-and-Evolution.aspx
- 39.
“Taiwan’s Quest for Meaningful Participation” (2010), supra note 34 at 286. As a member of the US House of Representatives Committee on Foreign Affairs notes, the exclusion of Taiwan not only “hurts Taiwan” but also puts “the entire international aviation system at risk” and prevents ICAO “from developing a truly global strategy to address security threats”: “Concerning the Participation of Taiwan in the International Civil Aviation Organization”, 113th Congress, 1st Session, 159 Congressional Record H3705, at H3707, online: US Congress beta.congress.gov/congressional-record/2013/06/18/house-section/article/H3705-1 See also “Al Qaeda had its sights on Taiwan”, Taipei Times (6 January 2004), online: Taipei Times www.taipeitimes.com/News/taiwan/archives/2004/01/06/2003086534
- 40.
ICAO, “USAOP Continuous Monitoring Approach”, online: ICAO www.icao.int/safety/CMAForum/Pages/default.aspx
- 41.
For more on ICAO’s USAP and USOAP, see Weber, supra note 17 at 101–104.
- 42.
See Steven D Jaffe, Airspace Closure and Civil Aviation: A Strategic Resource for Airline Managers (New York: Ashgate Publishing, 2015) at 164. See also Jim Hwang, “Towards a Seamless Sky”, Taiwan Review (1 September 2013), online: Taiwan Review taiwanreview.nat.gov.tw/ct.asp?xItem=208453&ctNode=1446 In 2000, as yet another example of ICAO drew a flight route from Manila to Shanghai which passed through Taiwan, via airspace designated by the government of Taiwan for military exercises: see “Taiwan finally wins ‘guest’ status at ICAO Assembly”, Taiwan Insights (16 September 2013), online: Taiwan Insights www.taiwaninsights.com/2013/09/16/taiwan-finally-wins-guest-status-at-icao-assembly
- 43.
See Preliminary conclusion reached between Taiwan and mainland China on the latter’s establishment of new flight routes in the Shanghai FIR, including M503, Press Release, Civil Aeronautics Administration, Ministry of Transportation and Communications (2 March 2015) (English translation). On file with authors.
- 44.
A pilot voiced concerns that when flying into an airport, pilots should not have to worry about safety risks. As the pilot vividly describes, Taiwan’s exclusion from ICAO is a major concern:
Imagine there is a huge highway that crosses different countries. When you enter Taiwan, the name of this highway is, let’s say, Highway 41. But if someone suddenly changes the name of Highway 41 to Highway 52, then there is a huge problem because the flight plan may be rejected and the aircraft barred from entering the Taipei FIR. The pilot may have to take a detour, not having enough fuel for the detour or to declare an emergency. If the delays were to affect the safety and efficiency of Taiwan’s airports and the Taipei FIR, we will regret not having Taiwan as a member of ICAO. From a pilot’s point of view, information is essential to maintain a high level of safety.
Fred Tan, “Taiwan seeks observer status in aviation body”, New Straits Times (22 September 2013), online: New Straits Times www.nst.com.my/mobile/nation/general/taiwan-seeks-observer-status-in-aviation-body-1.360795 See also Yeh-Chung Lu, “Safer Skies, Better Global Cooperation: Why Taiwan’s Inclusion in ICAO is Necessary” Georgetown Journal of International Affairs (4 September 2013), online: Georgetown University journal.georgetown.edu/safer-skies-better-global-cooperation-why-taiwans-inclusion-in-icao-is-necessary-by-yeh-chung-lu
- 45.
The US Federal Aviation Administration’s International Aviation Safety Assessments (IASA) was established to assess a country’s ability to adhere to ICAO’s international standards and recommended practices for aircraft operations and maintenance. Taiwan falls under Category 1, a country which is compliant with ICAO standards of safety, see FAA, “FAA Flight Standards Service”, online: FAA www.faa.gov/about/initiatives/iasa/media/IASAWS.xlsx. According to the US State Department:
The US Federal Aviation Administration (FAA) has assessed Taiwan’s Civil Aeronautics Administration (CAA) as being in compliance with International Civil Aviation Organization (ICAO) aviation safety standards for oversight of Taiwan’s air carrier operations.
See US State Department, “International Travel Information: Taiwan”, online: State Department travel.state.gov/content/passports/en/country/taiwan.html
- 46.
See Jet Airliner Crash Data Evaluation Centre, “JACDEC Airline Safety Ranking 2016”, online: JACDEC www.jacdec.de/airline-safety-ranking-2016/. According to Skytrax, a global survey of air passenger reviews, EVA Air is one of the “World’s Top-10 Best Airlines”, the “Best Trans-Pacific Airline”, and one of only eight air carriers worldwide to earn the prestige of being a “5-Star Airline”: see “EVA Revealed to Be World’s 3rd Most Loved Airline SKYTRAX scored carriers on total of global traveler ratings”, online: EVA Air www.evaair.com/en-global/news-releases/2016/2016-08-29-the-most-loved-airlines-on-skytrax.html?filter=
- 47.
Taiwan, Civil Aviation Act, art 1, online: CAA www.caa.gov.tw/APfile/en/download/pliad/1355122508112.pdf. Several provisions of the Civil Aviation Act reflect international practices and/or are reflections of provisions of the Chicago Convention. For example, on the issue of airworthiness standards, Article 23 of the Act provides “the airworthiness standards, which are generally used in international aviation practices” can be adopted. Article 121 of the Civil Aviation Act provides Taiwan’s Civil Aeronautics Administration:
may, making reference to the standards, recommendations, measures or procedures outlined in relevant international conventions and annexes thereto, propose [the] adoption of provisions involving international affairs not covered in this Act, for their promulgation and implementation [emphasis added].
On the issue of compensation for damage caused to passengers onboard an aircraft, despite the fact Taiwan is not (able to be) a party to the private international air law conventions governing air carrier liability, Article 93 of the Civil Aviation Act provides the compensation rules will be adopted “reference to international standards for liability”. Taiwanese air carriers voluntarily accept the liability rules of any convention and amendment “from the 1929 Warsaw Convention to the 1999 Montreal Convention” that may be applicable. See EVA Air, “Conditions of Carriage”, art 15.1.1, online: Eva Air www.evaair.com/en-us/conditions-of-carriage/
Even so, Taiwan’s Aviation Safety Council recognised, in light of an air crash at the nation’s main international airport, there is a lack of qualified legal personnel in Taiwan’s CAA to draft and update regulations relating to aviation in accordance with international norms, as a result of which rules and regulations are “inadequately written”: see Aviation Safety Council Report, supra note 32 at 182.
- 48.
Ibid at 128–129. See also François Shalom, “Taiwan pushes for place at ICAO table”, Montreal Gazette (25 September 2013); and Glaser, supra note 32 at 19.
- 49.
Abeyratne, supra note 25 at 661–662. As Glaser writes:
Taiwan’s exclusion from ICAO has prevented its civil aviation authorities from obtaining timely information regarding ICAO standards and recommended practices (SARPs), which has impeded Taiwan’s efforts to maintain civil aviation practices that comport with evolving international standards.
Glaser, supra note 32 at 19. See also François Shalom, “Taiwan pushes for place at ICAO table”, Montreal Gazette (25 September 2013).
- 50.
See Glaser, supra note 32 at 19. By way of example of how Taiwan lags behind in adopting standards that are in line with international standards, in October 2006, ICAO and Member States formulated a policy prohibiting liquids, aerosols and gels over 100 ml in carry-on luggage. The policy, deliberated and formulated behind closed doors, was set to be implemented from March 2007. Only in December 2006 did aviation authorities in Taiwan receive information relating to the latest security measures through third party sources, prompting the country’s CAA to quickly adopt measures that conform to the international standard. See Jim Hwang, “Toward a Seamless Sky”, Taiwan Review (1 September 2013), online: Taiwan Review www.taiwantoday.tw/ct.asp?xItem=208453&ctNode=2190
- 51.
In an accident report following the crash of an airliner at the (then) Chiang-Kai Shek International Airport in 2000, Taiwan’s Aviation Safety Council, the body responsible for investigating air accidents noted:
CAA’s knowledge of most updated civil aviation related laws and regulations were impaired by its absence from participation in major international organizations, including ICAO. Limited access to certain civil aviation resources also causes some problems. Regulations originating from the USA’s FAA, enacted by one division, may conflict with regulations derives from the JAA of EU, enacted by the other division. In some cases, the shortage of resources leads to difficulty in implementation of some rules and regulations in a timely fashion.
Aviation Safety Council Report, supra note 32 at 128–129, online: Aviation Safety Council www.asc.gov.tw/upload/acd_att/e2e5348e-a4b8-4705-8495--4ffd35e99483.pdf
- 52.
Chicago Convention, supra note 10, art 28(a).
- 53.
As the Annex notes “[c]orrupt or erroneous aeronautical information/data can potentially affect the safety of air navigation”, and States must “as far as practicable, avoid standards and procedures other than those established for international use”: ICAO, Annex 15 to the Convention on International Civil Aviation: Aeronautical Information Services, 12th ed (2004) at 1–1. See also ICAO has also called upon States to establish Performance Based Navigation (PBN) implementation plans to improve the performance, safety and efficiency of global air navigation system: ICAO, Performance-based navigation global goals, ICAO Res A36–23. Taiwan has done so largely through the implementation of satellite-based navigation systems.
- 54.
Article 38 of the Chicago Convention obliges all Contracting States that finds it “impracticable to comply in all respects with any such international standard or procedure” to give “immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard”. It is practically impossible for Taiwan to do so as the country is not a Contracting State.
- 55.
See Taiwan CAA, “eAIP”, online, CAA eaip.caa.gov.tw/eaip. Even in the air transport agreement between Taiwan and Mainland China, both sides agreed to maintain procedures on air traffic control registered in “flight path rules manuals (AIP, Aeronautical Information Publication) that are in common use internationally”. See Mainland Affairs Council, Cross-Strait Air Transport Agreement, 4 November 2008, online: MAC www.mac.gov.tw/public/Data/96301072771.pdf; and Mainland Affairs Council, Explanation concerning the Cross-Strait Air Transport Agreement, 4 November 2008, s IV, para 3, online: MAC www.mac.gov.tw/public/Data/962917501071.pdf
- 56.
See e.g. Gen 1.7 Differences from ICAO Standards, Recommended Practices and Procedures of Annex 3 Meteorological Service for International Air Navigation, online: CAA eaip.caa.gov.tw/eaip/history/2015-03-19/pdf/RC-amdt-en-TW.pdf
- 57.
Hsiu-chuan Shih, “Taiwan only ‘guest’ due to China: ICAO”, Taipei Times (26 September 2013), online: Taipei Times http://www.taipeitimes.com/News/front/archives/2013/09/26/2003573020/2. The article refutes the suggestions that Taiwan’s aviation data be sent to ICAO via China or that China does receive any information from Taiwan.
- 58.
Air Transport Agreement between Taipei Economic and Cultural Representative Office and the American Institute in Taiwan, 18 March 1998, Preamble, online: Airlineinfo.com, airlineinfo.com/openskies/taiwan.pdf. The Taipei Economic and Cultural Representative Office and the American Institute in Taiwan are the de facto embassies in each respective countries which, due to the lack of official diplomatic relations, are responsible for signing bilateral agreements on behalf Taiwan and the US.
- 59.
Ibid, art 6.
- 60.
Ibid, art 7. These conventions include: the Convention on Offenses and Certain Other Acts Committed On Board Aircraft , 14 September 1963, 20 UST 2941, TIAS No 6768, 704 UNTS 219, 58 Am J Int’l L 566 (1959) (entered into force 4 December 1969) [Tokyo Convention]; the Convention for the Suppression of Unlawful Seizure of Aircraft , 16 December 1970, 860 UNTS 105, [1972] ATS 16, 10 ILM 133 (1971) (entered into force 14 October 1971) [Hague Convention]; the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 177, [1973] ATS 24, 10 ILM 1151 (1971) (entered into force on 26 January 1973) [Montreal Convention 1971]; and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 24 February 1988, ICAO Doc 951, 1589 UNTS 474,[1990] ATS 37,27 ILM 628 (1988) (entered into force 6 August 1989) [Montreal Protocol 1988].
- 61.
See Steven Leib & Chien-tsung Lu, “A Gap Analysis of Airport Safety Using ICAO SMS Perspectives: A Field Study of Taiwan” (2013) 2 Journal of Aviation Technology and Engineering 63. As the authors note, at 70:
As Taiwan is not a member of ICAO, its largest airport’s level of compliance with the SMM is impressive. Overall, the airport addresses key components of safety hazard reporting, safety risk management, safety assurance, and safety promotion in ways that are consistent with the ICAO SMM.
See also Chien-tsung Lu, John Young & Stewart Schreckengast “Safety Culture: the Perception of Taiwan’s Aviation Leaders” (2011) 11 International Journal of Applied Aviation Studies 27. This should be contrasted with the conclusions of a report in the aftermath of a crash at TPE in 2000: see “Accident Report Provides Lessons Learned about Preventing Takeoff on a Closed Runway” (July 2002) 59(7) Accident Prevention 1 at 7, online: Flight Safety Foundation flightsafety.org/ap/ap_jul02.pdf. There were even concerns Taiwan’s own safety records were glossed over and that the deficiencies of the airport were “downgraded” in the crash investigation: see Tom Ballantyne, “Peers Support sieged pilots”, Orient Aviation (1 May 2002), online: Orient Aviation www.lite.orientaviation.com/orient-aviation-magazine/airlines/peers-support-sieged-pilots. There are also claims that Taiwan’s conduct of aircraft accident investigation is at odds with ICAO standards, the sole objective of which is “the prevention of accidents and incidents” and not “to apportion blame or liability”: ICAO, Annex 13 to the Convention on International Civil Aviation: Aircraft Accident and Incident Investigation, 10th ed (July 2010), ch 3.1.
- 62.
See ICAO, Global Air Navigation Plan for CNS/ATM Systems, ICAO Doc 9750, AN/963 (2002). The vision according to ICAO is:
To foster implementation of a seamless, global air traffic management system that will enable aircraft operators to meet their planned times of departure and arrival and adhere to their preferred flight profiles with minimum constraints and without compromising agreed levels of safety.
See also ICAO, Amendment No. 1 to the Procedures for Air Navigation Services—Air Traffic Management, ICAO Doc 4444-ATM/501.
- 63.
Meg Chang, “Taiwan Launches Asia’s First CNS/ATM System”, Taiwan Today (6 October 2011), online: Taiwan Today taiwantoday.tw/ct.asp?xitem = 177,482&ctnode = 1743
- 64.
See Kuang-shih Yeh, “Taiwan Seeks Meaningful Participation in the International Civil Aviation Organization”, online: MOFA http://www.mofa.gov.tw/enigo/News_Content.aspx?n=F9C9A875D719DB70&sms=DE4C0FE1DE37E6E0&s=F508CA8B5B203ACF. Taiwan has expertise in aviation training, air traffic control system upgrades and safety surveillance data acquisition
- 65.
Bureau of Consular Affairs, “Taiwan migrates from MRP to e-passport” (2009) 29 Keesing Journal of Documents & Identity 11, online: BOCA www.boca.gov.tw/public/Attachment/98241264371.pdf. For the ICAO standards on machine readable passports, see ICAO, Machine Readable Travel Documents, ICAO Doc 9303.
- 66.
“Taiwan’s quest for meaningful participation” (2011), supra note 33. In a statement by the Minister of Transportation and Communications:
For over four decades, due to the lack of direct contact with ICAO, Taiwan’s aviation authority, the Civil Aeronautics Administration (CAA), has had to make extra efforts to keep abreast of constant updates of flight safety and security standards set by ICAO. Although we have an excellent record in keeping our systems up-to-date, obtaining the latest ICAO standards has often been a costly and drawn-out process.
Yeh, “Taiwan Seeks Meaningful Participation in the International Civil Aviation Organization”, supra note 64.
- 67.
Hsiu-chuan Shih, “Taiwan only ‘guest’ due to China: ICAO”, Taipei Times (23 September 2013), online: Taipei Times www.taipeitimes.com/News/front/archives/2013/09/26/2003573020
- 68.
Chi Shen, “ICAO invites the Republic of China (Taiwan) to attend the 38th Session of the ICAO Assembly”, (2013) 31 Chinese (Taiwan) Yearbook of International Law and Affairs 274 at 275.
- 69.
The ability of representatives from Taiwan to take part in the 38th ICAO Assembly rested largely due to the approval China. See Steven D Jaffe, Airspace Closure and Civil Aviation: A Strategic Resource for Airline Managers (New York: Ashgate Publishing, 2015) at 164. See also Shih, “Taiwan only ‘guest’ due to China: ICAO”, supra note 67.
- 70.
See EU, Annual report from the Council to the European Parliament on the Common Foreign and Security Policy (CFSP) in 2012, EU Doc P7_TA(2013)0453 (24 October 2013) (in German), para 82. See also EU, “Statement by the Spokesperson of EU High Representative Catherine Ashton on the occasion of the participation of Taiwan in the 38th Assembly of the International Civil Aviation Organisation”, EU Doc 130,923/01 (23 September 2013), online: European External Action Service eeas.europa.eu/statements/docs/2013/130923_01_en.pdf. See also EPP Group, “Taiwan should be granted Observer Status in the ICAO”, online: EPP Group www.eppgroup.eu/press-release/Taiwan-should-be-granted-Observer-Status-in-the-ICAO
- 71.
See Public Law No 113–17, An Act to direct the Secretary of State to develop a Strategy to obtain Observer Status for Taiwan at the triennial International Civil Aviation Organization Assembly, and for other purposes, 12 July 2013. See also American Legislative Exchange Council, “Resolution Supporting Taiwan’s Meaningful Participation in the International Civil Aviation Organization (ICAO)”, online: ALEC www.alec.org/model-legislation/resolution-supporting-taiwans-meaningful-participation-in-the-international-civil-aviation-organization-icao/; and National Association of Secretaries of State, NASS Resolution In Support of Taiwan’s Participation as an Observer in the International Civil Aviation Organization, 21 July 2013, online: NASS www.nass.org.
- 72.
“Taiwan’s ICAO observer-bid garners European and global support”, European Business Review (20 August 2013), online: European Business Review www.europeanbusinessreview.eu/page.asp?pid=1083. See also John Scott Marchant, “Flexibile diplomacy gives new impetus to Taiwan-Canada ties”, Taiwan Review (17 September 2010), online: Taiwan Review taiwanreview.nat.gov.tw/fp.asp?xItem=118156&ctNode=205
- 73.
Abeyratne, supra note 25 at 661.
- 74.
Again, attempts to attend the 39th Assembly later this month depends much on the goodwill of ICAO members as well as China. See Mainland Affairs Council Press Release No. 51 (4 August 2016):
The CAA applied to participate in this year’s ICAO Assembly as the authority in charge of international aviation safety and safety of cross-Strait travel. The administration submitted the application under “a proper name” and is willing to follow the relevant rules for participation in ICAO meetings. The government will seek support from the ICAO members and believes that this issue could be resolved through cross-Strait negotiations and hopes that mainland China could show goodwill to the people of Taiwan.
[Emphasis added]
- 75.
These organisations include the World Trade Organization (WTO), the Asia-Pacific Economic Cooperation (APEC), the Asian Development Bank and the International Olympic Committee. Participation is however, according to one commentator, “at the cost of indignities of nomenclature (“Chinese Taipei” and so on) and other affronts”. Jacques De Lisle, Taiwan: Sovereignty and Participation in International Organizations, Foreign Policy Research Institute (2011), online: FPRI www.fpri.org/docs/media/201107.delisle.taiwan.pdf
- 76.
See supra note 30. As Weber notes, this provision is nowadays outdated as it was drafted with “enemy States” of the Second World War in mind: see supra note 17, at 26.
- 77.
ICAO, Proceedings of the Council, 2nd Session, 1947, ICAO Doc 7248-C/839 at 62–63. The Resolution is contained in ICAO Doc 4595-C/564. See also Abeyratne, supra note 25 at 654–655. Glaser cites the example of the Cook Islands, which was not a member of the UN, but joined ICAO as a full member. Glaser, supra note 32 at 20.
- 78.
ICAO, Standing Rules of Procedure of the Assembly of the International Civil Aviation Organization, ICAO Doc 7600/7 (2012), rule 5.
- 79.
Ibid, rule 25 and 43(c). For meetings of bodies with limited membership, observers may, on the invitation by that body or the body’s officers, be able to attend and participate in the meetings without the right to vote. See also Glaser, supra note 32 at 21–22.
- 80.
Ibid.
- 81.
The EU is an observer at ICAO represented by the European Commission, see: “The European Union at ICAO”, online: European Commission ec.europa.eu/transport/modes/air/international_aviation/european_community_icao/. Even the Palestine Liberation Organization (PLO) took part in ICAO as an observer: “PLO Gets Observer Status in the ICAO”, JTA (5 October 1975) online: JTA www.jta.org/1977/10/05/archive/plo-gets-observer-status-in-the-icao
- 82.
See Che-Ming Yang, “The Road to Observer Status in the World Health Assembly: Lessons from Taiwan’s Long Journey” (2010) 5 Asian J WTO & Int’l Health L & Pol’y 331. See also deLisle, who notes Taiwan’s participation as an observer was an example of the “delicate and intricate dance” to compromise partial inclusion and involvement with its statehood. DeLisle, Taiwan: Sovereignty and Participation in International Organizations, supra note 75.
- 83.
Glaser, supra note 32 at 22. The Committee on Aviation Environmental Protection (CAEP) is an example, as it allows observers from “States, intergovernmental and non-governmental organizations, including airlines, aircraft and engine manufacturers, environmental NGOs and UN bodies” to take part in its work. See e.g. ICAO, “ICAO Environmental Protection Committee delivers progress on Aircraft CO2 and Noise Standards”, Press Release, COM 4/13, online: ICAO www.icao.int/Newsroom/News%20Doc%202013/COM.4.13.EN.pdf. See also ICAO, “Committee on Aviation Environmental Protection (CAEP)”, online: ICAO www.icao.int/environmental-protection/Pages/Caep.aspx#Members
- 84.
Glaser, supra note 32 at 22–23. The author cites involvement in the Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) as a feasible way forward, as the framework is a means for stakeholders to be involved in the preventing and managing the spread of diseases through air transportation.
As DeLisle put it rightly, Taiwan is an important player in several fields of activity that requires coordinated efforts and transparency of information and exchange. These include:
international organs that regulate financial institutions and other economic behavior, shipping, fishing, civil aviation, nuclear energy, potential dual-use technology—all areas in which Taiwan is a significant actor whose actions have substantial international consequences.
See Taiwan: Sovereignty and Participation in International Organizations, supra note 75 [emphasis added].
- 85.
Chicago Convention, supra note 10, art 1. As Talmon underlines, the People’s Republic of China may claim to exercise sovereignty over Taiwan, “rights derived from the Convention that require control over territory are suspended with regard to Taiwan”: Talmon, supra note 31 at 159.
- 86.
Glaser, supra note 32 at 2.
- 87.
Abeyratne, supra note 25 at 650. Dr. Abeyratne succinctly notes “Taiwan must have continued and sustained involvement in ICAO and not just attendance at an ICAO meeting where ICAO would pay lip service to international pressure and influence” and suggested ICAO “shed political considerations in favour of safety in air transport”. Ibid at 661–662.
- 88.
As suspected by Glaser, Taiwan’s attendance at the 38th Assembly “will not by itself guarantee involvement in ICAO Council and technical meetings, and did not mean full access to ICAO SARPs and the deliberations involved in formulating these international norms. Glaser, supra note 32 at 19–20.
- 89.
ICAO, “ICAO Strategic Objectives 2014–2016”, online: ICAO www.icao.int/about-icao/Pages/Strategic-Objectives.aspx
- 90.
Ibid [emphasis added].
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Jakhu, R.S., Chen, KW. (2018). The Missing Link in the Global Aviation Safety and Security Network: The Case of Taiwan . In: Masys, A., Lin, L. (eds) Asia-Pacific Security Challenges. Advanced Sciences and Technologies for Security Applications. Springer, Cham. https://doi.org/10.1007/978-3-319-61729-9_11
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