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B. The Role of the ICAO Council
As future measures in the audit programme of ICAO, the ICAO Council approved in 2007, the practice that not all States need to be audited at the same frequency, although the USAP should always preserve the principle of universality. The Council was of the view that, with a solid baseline of audit results established for all States by the end of 2007, a more effective use of resources can be achieved by developing an appropriate scheduling/frequency model to determine the priority of future audits and frequency of visits to States. It remains as a requirement however that the principle of universality will be maintained with all States audited at least once within a 6-year period.
Another decision of the Council was that future audits under the USAP should be expanded to include relevant security-related provisions of Annex 9 – Facilitation. With the recent expansion of the Universal Safety Oversight Audit P to a compre-hensive systems approach covering all safety-related Annexes, Annex 9 is currently the only Annex which is not included in either of ICAO’s two audit programmes. There are a number of security-related provisions contained in Annex 9, particu-larly as related to the security and integrity of travel documentation, which can be audited under the USAP along with the related Standards of Annex 17.
The Council also decided that wherever possible, ICAO aviation security audits should be focused on a State’s capability to provide appropriate national oversight of its aviation security activities. Using the results of the initial audits and follow-up visits, the scope of future ICAO audits should be adjusted to the prevailing situation in each audited State. Those States that have demonstrated the requisite national infrastructure necessary to oversee security activities at their airports may undergo a targeted oversight audit to verify adequate implementation of the State’s national quality control programme. Such oversight audits would continue to include a veri.cation of the implementation of ICAO provisions through spot checks at the airport level.
The decision of the 36th Session of the Assembly – that a “limited level of transparency” with respect to ICAO aviation security audit results be maintained, ensures a balance between the need to divulge certain information while protecting the interests of States. As such the Council has to draw a .ne line between
B. The Role of the ICAO Council
potentially con.icting interests. As for safety, the 35th Session of the Assembly, when it addressed the issue of expanding the audits from a limited Annex basis to a comprehensive systems approach, instructed the Secretary General to make the .nal safety audit reports available to all Contracting States and also to provide access to all relevant information derived from the Audit Findings and Differences Database (AFDD) maintained by ICAO.656
Furthermore, in Resolution A36-2 (Uni-.ed Strategy to Resolve Safety Related De.ciencies) the Assembly, in operative Clause 6 of the Resolution, has directed the Council to apply and review, as necessary, the procedures to inform Contracting States, within the scope of Article 54(j) of the Chicago Convention, in the case of a State having signi.cant short-comings with respect to ICAO safety related SARPs in order for other Contracting States to take action in an adequate and timely manner.
Article 54(j) makes it a mandatory function of the Council to report to any Contracting State any infraction of the Chicago Convention as well as any failure to carry out recommendations and determinations of the Council.657
There are various dimensions to this provision in the context of Resolution A36-2. Firstly, it is surprising that the Assembly Resolution does not also request the Council to perform its mandatory function in Article 54(k), which is to report to the Assembly any infraction of the Convention where a Contracting State fails to take appropriate action within a reasonable time after notice of the infraction. This would have arguably been a more coercive and effective tool than the measure prescribed in Article 54(j) in that States would be quite concerned if their shortcomings were to be aired out in front of 190 Contracting States at an ICAO Assembly.
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Aviation Security Law 航空安全法(198)
