INTERVIEW: ICAO assembly invite is ‘nonsense’: professor

Chris Huang, an associate professor at the Institute of Law for Science and Technology at National Tsing Hua University, spoke to ‘Taipei Times’ reporter Shih Hsiu-chuan on Thursday to give his legal perspective on International Civil Aviation Organization (ICAO) Council President Roberto Kobeh Gonzalez’s letter to Civil Aeronautics Administration director-general Jean Shen inviting administration experts and officials to be his ‘guests’ at the 38th ICAO Assembly

Sun, Sep 22, 2013 - Page 3

Taipei Times: The government has said that Taiwan’s presence at the assembly as a guest — not as an observer, as it had hoped — is subject to Article 5 of the ICAO’s Standing Rules of Procedure of the Assembly, which it said limits observer status in the assembly only to non-contracting states or international organizations. Since there is no consensus among ICAO members that Taiwan is a non-contracting state and Taipei does not accept attending as an international organization, Taiwan was then invited as a guest. What is your view on this?

Chris Huang (黃居正): It is nonsense. Those articles regulate the criteria and procedures regarding non-member participation in the assembly. They are drawn up by the ICAO Secretariat to assist with the running of meetings and have nothing to do with granting Taiwan observer status.

The ICAO enjoys the status of a subject of international law, meaning it is incumbent on the organization to exercise its function and its members to perform rights and obligations in strict observance of its constitution: the 1944 Convention on International Civil Aviation, also known as the Chicago Convention.

Under the convention, there is no mechanism for admission of a party to the ICAO as an observer because membership is the only status under which a party can be admitted to the organization.

It can grant observership on an ad hoc, or case-by-case, basis at various meetings when consultation over certain issues with the concerned party is required.

For example, the ICAO council once invited the International Air Transport Association to participate in its meetings as an observer to discuss the economics and viability of a planned flight route. It did the same for related agencies under the Kyoto Protocol to discuss issues regarding aircraft carbon emissions.

TT: You said there is no observer status accreditation in the ICAO, but the government has said that being invited to attend the assembly as a “guest” is the first step toward gaining that status and that observership remains a goal for Taiwan.

Huang: I really cannot understand why the government has invented the existence of an ICAO observer status.

If one looks at the way the UN agency operates, it is evident that it is not necessary for the ICAO to have non-member parties attend the triennial assembly as observers. Almost every country is a member. Standards, regulations, operating practices and procedures covering the technical fields of international aviation are drawn up in ICAO Council’s daily meetings, not the assembly, which is a so-called quasi-legislative function of the council.

All 191 ICAO member states have representatives in Montreal, Canada, who regularly engage in meetings and activities at various levels.

The main purpose of the assembly is to ratify legislation and resolutions adopted by the council. If more than half of the assembly votes to overrule a decision made by the council, it will be rescinded, but this seldom happens.

The ICAO did make the EU an observer at its assembly in 1999 in Montreal. However, the reason the EU was invited was that it dictates foreign policy to its member states and the ICAO therefore needed its input on the multilateral treaty on air carriage rules adopted at the convention.

I do not see why the ICAO needs Taiwan to be present at the upcoming assembly as an observer, nor do I understand why the nation wants to attend.

It surprised me that the government has attached such great importance to participating in the assembly as an observer so the nation can enhance its aviation safety and standards as there is no logical link between the two.

For which issues does the ICAO need Taiwan present at the assembly? Which delegation invoked Article 5 to initiate the invitation?

TT: What exactly does being a guest of the ICAO council president mean?

Huang: Gonzalez did not invite Taiwan to be his guest at the assembly on his own accord. He extended the invitation because some of the agency’s members asked him to. It is impossible to judge from the letter he sent to Jean Shen (沈啟), who is responsible for initiating the invitation, but the government is responsible for telling the public which ICAO member put a delegation from Taiwan using the name “Chinese Taipei Civil Aeronautics Administration” on the guest list.

TT: Does the 1944 Chicago Convention that established the ICAO allow for Taiwan’s participation?

Huang: I would say no. The government has made the wrong move in proposing the bid, a completely wrong move. There is no way China is going to agree to that because strong implications that Taiwan is a sovereign state could be drawn from its participation in the aviation agency.

Article 1 of the Chicago Convention states that “its contracting states recognize that every state has complete and exclusive sovereignty over the airspace above its territory.”

TT: Why is the government attaching such importance to becoming an ICAO observer then?

Huang: Aside from my understanding that some of President Ma Ying-jeou’s (馬英九) brain trust are personally interested in the organization, I would say that it was the Ma administration’s premeditated plan to try and access the ICAO.

Since participation in the agency’s activities is an emblematic of state sovereignty, the administration knew that its bid would only result in the nation’s sovereignty being denigrated, which is exactly what has happened.

Conventional perspectives of international law say that if a country accepts arrangements limiting its sovereign rights, with or without resistance, it constitutes acquiescence to the loss of sovereignty. If things go on like this for years and the acquiescence grows, it would be interpreted in a way detrimental to the country’s sovereign rights.

TT: Is Taiwan’s exclusion from the ICAO detrimental to global air safety?

Huang: The ICAO was the first of the UN’s specialized agencies to expel Taiwan after the Republic of China lost its seat at the UN to China in 1971.

In the 42 years since then, has Taiwan’s airspace ever been considered an area in which activities that could endanger aircraft occur? Has any country failed to sign an agreement on exchange of air traffic rights with Taiwan because of the nation’s lack of access to the aviation agency? The answer to those questions is: No.

The Civil Aeronautics Administration has ensured that every standard adopted in the Taipei Flight Information Region is in line with ICAO standards, through collaborating with aviation authorities like the US Federal Aviation Administration or the Joint Aviation Authorities.

It is true that Taiwan has to get its ICAO information via indirect channels, but it can use a variety of well-established mechanisms to access this information. Being present at the assembly as a guest would in no way solve any problems related to information access.

TT: Considering the diplomatic predicament Taiwan faces, is attending the assembly as an observer not a chance to increase the country’s visibility on the international stage?

Huang: Since the negative effects of going to the assembly outweigh the positive effects, I would rather Taiwan not attend. I am not in favor of squeezing Taiwan’s international space, but when a country makes a move that could put its sovereignty at risk because it amounts to acquiescence in limitations of its independence, it is better to not take that action and avoid jeopardizing the nation’s legal status.

TT: If this is true, why have the US Congress and US President Barack Obama’s administration voiced such strong support for Taiwan’s ICAO bid?

Huang: I wish that the US had not enacted the H.R. 1151 bill.

The law is neutral and friendly to Taiwan — for example, it states that ICAO rules and existing practices allow for the meaningful participation of non-contracting countries, as well as other bodies in the organization’s meetings and activities through the granting of observer status. However, when signing the act into law, Obama issued a statement which damaged Taiwan’s efforts to participate in international organizations.

First, the US president said that international organizations where statehood is not a requirement is a prerequisite for Washington supporting Taipei’s membership bids, otherwise it would only support meaningful participation. The problem with this is that meaningful participation has no legal validity in international law.

Second, Obama said that his administration would construe the act to be consistent with the US’ “one China” policy and made no mention of the US’ Taiwan Relations Act in the statement. This was unusual.

Normally, whenever the US mentions its “one China” policy, it is also mentions the act. Leaving out the act suggests that Washington accepted Beijing’s claim that Taiwan is part of China’s territory because according to the act, Taiwan is a country under US law.

Last of all, Obama’s emphasizing that his administration will interpret and implement sections of the H.R. 1151 bill in a manner that does not interfere with his constitutional authority to conduct diplomacy showed that his administration might not implement the law as requested.