ICAO Symposium on Regional Safety Oversight Organisations
Montréal, 26 – 28 October 2011
Features and Evolution of Regional Safety Oversight Organisations - Comparative Analysis
by Mikołaj Ratajczyk
Permanent Representation of the Republic of Poland to the European Union
I. Introduction
Regional cooperation is increasingly seen as a promising approach to help improve the overall compliance of ICAO Member States with safety related standards and recommended practices, and ultimately to enhance the actual levels of air safety worldwide. Regional cooperation is also considered as a good way to provide greater efficiency for the aviation industry through simplification and harmonisation.
Although a number of regional air safety cooperation schemes already exist today, there is still lack of comprehensive studies of the conditions under which they are able to provide optimal benefits for States and regions concerned.[1] The information presented in this paper is based on preliminary findings from an ongoing study[2] on regional air safety oversight and enforcement and regional air safety organisations[3]. The study has a particular focus on the experiences of the European Union (EU).
II. Promoting greater understanding of RSOOs could be beneficial, especially when functions or tasks normally exercised by States are involved
Currently there appears to be no commonly agreed definition of a Regional Safety Oversight Organisation (RSOO), as understood in the ICAO context. The concept is broad and covers different forms of cooperation. In practice, some technical cooperation projects are even referred to as RSOOs. The common denominator here seems rather to be the objective of an RSOO, which is to strengthen the overall safety oversight capabilities of its Member States.
It could be argued that in view of the increasing presence of the notion of RSOO in ICAO documents, including Assembly Resolutions, dealing with concrete air safety implementation or regulatory projects (e.g. Continuous Monitoring Approach, new Annex on safety management), the concept could be made more precise (or some classifications of RSOOs developed). Such butter understanding could be useful especially where the documents in question attribute (or envisage attribution) to an RSOO functions or tasks normally exercised by States. There should be no ambiguity as to who is an addressee in such cases.
III. Most of the RSOOs are still young and expected to continue evolving in the years to come
The concept of regional cooperation in civil aviation safety is of course not new. Indeed the history of some of the organisations functioning today can be traced back to as early as the 1960’s. However most of the RSOOs operating today are still very young. Out of the 10 organisations studied, 8 have only been established in the last decade. If we take into account that some of those organisations evolved from other bodies, still 6 out of 10 were established not prior to 2000.
This also means that during the last 10 years or so, there has been a real “boom” in the establishment of this type of cooperation. From the institutional point of view this is interesting as young organisations usually have different dynamics from well established ones. Further changes can be thus expected in the institutional set-up of some of these bodies in the years to come.
IV. There is no single model or “one size fits all” approach for RSOOs
Legal and organisational frameworks of RSOOs are far from being uniform. This results from the fact that the needs of States in terms of strengthening their safety oversight capabilities, and providing efficiencies for industry differ, and therefore the concept is usually implemented in a “tailor-made” approach. The solutions chosen by States do not always depend on safety considerations alone. For example, although from a safety perspective a solution calling for a safety agency with legal personality and strong executive powers could have a lot of advantages, this may not always be possible (e.g. for policy reasons).
We have to also bear in mind, as demonstrated below, that RSOOs, or regional air safety cooperation schemes more generally, have a tendency (especially when still young), to evolve over time. Thus an organisation that today is a solid regional body with legal personality and exercising safety related competences on behalf of its Member States, could yesterday have been an informal network of civil aviation safety regulators. This evolution has to be taken into account when comparing different organisations at a given moment in time.
In more general terms, there seem to be three broad types of RSOOs in existence today: networks of aviation safety regulators (sometimes with legal personality under private law), international safety organisations with limited or full international legal personality, and regional safety agencies evolving within the broader framework of a Regional Economic Integration Organization (REIO). Although the majority of them focus on safety oversight and regulatory matters, there are also examples of accident investigation bodies or even bodies dealing with aviation security.
V. RSOOs have a clear tendency to evolve into more “institutionalised” structures
Although the institutional frameworks of RSOOs existing today are very varied, it seems that there is a clear tendency for them to evolve into more formal entities over time. This is especially true for the “younger” organisations. Out of the 8 organisations established in the last decade, 4 have already undergone an evolution from a less formal into a more formal structure[4]. At least one additional organisation is considering a similar evolution in the future. Identified examples of the types of evolutions involve: moving from a technical cooperation project into an international safety organisation/agency with legal personality; or a network of aviation safety regulators evolving into an international safety organization/agency with legal personality.
It can also be noted that States participating in regional cooperation schemes generally seem to consider it necessary (or at least useful) for an RSOO to be set-up as or evolve into an organisation with legal personality at least under private law. For example, out of the 10 organisations studied, 4 at a certain point in time were established as an association under private law. Today 9 out of 10 organisations studied have some sort of legal personality. However only a limited number of them have a full international legal personality – i.e. have a mandate to “contract” under international law on their own.
VI. Delegation of the exercise of State safety functions to RSOOs is important but still not very widely utilised
Some of the organisations have been empowered by their Member States to exercise, in a legally binding manner, certain safety functions, normally attributed by the Chicago Convention to States (e.g. certification). Such delegation is a powerful tool, allowing States to simplify the exercise of a safety function in a uniform, and legally binding way across the whole region. From a legal point of view such delegation can be far reaching, and indeed there is one example today where the exercise of almost all safety functions has been delegated by the participating States to the regional body, with no separate national civil aviation authorities.
From a more general perspective, such delegation (especially in respect of executive and enforcement powers), currently remains one of the most important criteria distinguishing the different types of regional air safety organisations. This is because it results in important legal consequences for the States concerned as parties to the Chicago Convention. In practice however the possibility of such delegation is still not widely utilised. The vast majority of the organisations studied provide mainly advisory services to its Member States, not resulting in directly binding legal effects. For example, only 3 out of 10 organisations studied in practice take advantage of the possibility to deliver certificates on behalf of their Member States.
VII. Institutional choices have important implications for the functioning of RSOOs, but “legal issues” generally not an obstacle to their establishment
Existing experiences show that if political will exists, legal solutions can be found to accommodate States’ needs when establishing an RSOO. Thus while important in its own way, legal engineering, should be seen as an answer rather than an obstacle in the whole process. At the same time it is crucial when considering establishing an RSOO (or considering evolution of an existing one) that States fully understand that the institutional choices they make will have far reaching implications for the functioning of their organisation.
Previous experiences also show that reaching this understanding can be greatly assisted by organising the whole process it in a structured way. For example, the European experiences in the establishment of the European Aviation Safety Agency (which evolved from a previous “Network-type” Joint Aviation Authorities), show that it may be useful for States to establish a list of different possible functions and tasks of an RSOO and consider the implications of the different institutional solutions on each and every potential task and function (e.g. rulemaking, certification, standardisation, etc.), with a view to arriving at the most appropriate “mix”, given the specific needs of States.
Such a structured, tailor-made approach (with adaptations if appropriate) could be replicated in a more generic way – thus leading to the development of a sui generic “tool box” for the establishment of RSOOs.
VIII. Conclusions
There are already a number of conclusions of more general nature that can be drawn from the experiences in the functioning and evolution of the different forms of RSOOs all over the world.
In view of the increasing presence of the RSOO notion in various ICAO documents, promoting greater understanding of this term or giving it more precision could be advantageous. Such definitions or classifications should however be practical, based on relevant criteria, such as legally binding delegation of safety functions to an RSOOs, and take into account in particular that:
- the majority of RSOOs are still young, and expected to continue evolving in the years to come;
- there is no single model or “one size fits all” for RSOOs;
- regional forms of air safety cooperation have a clear tendency to evolve into more “institutionalised” structures, usually with some sort of legal personality;
Based on the experiences so far, there could also be a benefit for the States and the international aviation community at large, in developing a more structured guidance material and methodology for establishing RSOOs in a tailor-made manner (“tool-box” concept).
Annex
Some of the principal organisations being studied [5]
(Les) Autorités Africaines et Malgache de l’Aviation Civile
Banjul Accord Group Aviation Safety Oversight Organisation
Caribbean Aviation Safety and Security Oversight System
Central American Agency of Aeronautical Safety
East African Community Civil Aviation Safety and Security Oversight Agency
Eastern Caribbean Civil Aviation Authority
European Aviation Safety Agency
European Organization for Safety of Air Navigation (EUROCONTROL)
Interstate Aviation Committee
Pacific Aviation Safety Office
1
[1] The recently published 2nd edition of the ICAO Safety Oversight Manual “Establishment and management of a Regional Safety Oversight System” (Doc. 9734), being an important step in systematizing the lessons learned so far in this respect.
[2] This paper presents some of the results of the study being done by the author on regional civil aviation safety oversight and enforcement at the Leiden University in the Netherlands.
[3] The list of the principal organisations studied is attached in the Annex.
[4] This could have included an evolution from an “older” structure.
[5] The study also covers the predecessors of the organisations listed (e.g. the ‘Joint Aviation Authorities’ or ‘l’Association pour le perfectionnement des méthodes de contrôle aérien (the EUROCONTROL association)), as well as the regional evolution of air accident investigation in the European Union (i.e. the ‘European Network of Civil Aviation Safety Investigation Authorities’, with its predecessor ‘Council of European Air Safety Investigation Authorities’).