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One of the signi.cant results of the 36th Session of the ICAO651
Assembly, held in September 2007, was the adoption of a Resolution calling for the sharing of information through the ICAO Council pertaining to security audits conducted by ICAO. This brings to bear a certain shift of focus from the original con.dentiality of the audits to one of limited transparency. It also raises the more compelling issue as to what the legal principles applicable are that would attribute to the Council the ability to divulge information and the limitations if any, on carrying out the instructions of the Assembly, which is one of the mandatory functions of the Council. The question also arises as to whether such a function could be sustained in the face of other overriding factors, one of which is the extent to which ICAO
651The International Civil Aviation Organization, a specialized agency of the United Nations, was established by Article 43 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006). The main objectives of ICAO are to develop the principles and techniques of international air navigation and to foster the planning and development of air transport. ICAO has 190 Member States.
stands empowered by its constituent member States to divulge information pertain-ing to aviation activities in their territories.
A. Security Oversight
ICAO has a security oversight programme called the Universal Security Audit Programme (UASP). The ICAO Universal Security Audit Programme (USAP), launched in June 2002, represents an important initiative in ICAO’s strategy for strengthening aviation security worldwide and for attaining commitment from States in a collaborative effort to establish a global aviation security system.
The programme, which is part of the Aviation Security Plan of Action, provides for the conduct of universal, mandatory and regular audits of the aviation security systems in all ICAO member States. The objective of the USAP is to promote global aviation security through the auditing of States on a regular basis to assist States in their efforts to ful.l their aviation security responsibilities. The audits identify de.ciencies in each State’s aviation security system, and provide recom-mendations for their mitigation or resolution.
Implementation of the programme commenced with the .rst aviation security audit taking place in November 2002 and between three and four audits continue to be conducted around the world each month. The 35th Session of the Assembly held from 28 September to 8 October 2004 mandated ICAO to maintain strict con.-dentiality of all State-speci.c information derived from audits conducted under the Universal Security Audit Programme (USAP). However, in order to promote mutual con.dence in the level of aviation security between States, the Assembly urged all Contracting States to “share, as appropriate and consistent with their sovereignty, the results of the audit carried out by ICAO and the corrective actions taken by the audited State, if requested by another State”.652
While noting the importance of continuing bilateral exchanges of information between States, the 36th Session of the Assembly, held from 18 to 28 September 2007, also recognized the value of proposals presented by the Council and Con-tracting States for the introduction of a limited level of transparency with respect to ICAO aviation security audit results.653
The Assembly directed the Council to consider such an introduction of a limited level of transparency, balancing the need for States to be aware of unresolved security concerns with the need to keep sensitive security information out of the public realm. In doing so, the Assembly emphasized that it was essential that any methodology developed to provide for increased transparency also ensure the appropriate safeguarding of a State’s
652A35-9, Appendix E, Resolving Clause 4; and Recommended Practice 2.4.5 of Annex 17 –
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