Abstract
The focus of ICAO has, for the past decades, been on ensuring safety and security of aviation and adopting effective, independent and impartial safety regulation of civil aviation. Therefore, any risks to the safety and security of international civil aviation is considered worthy of attention. Conflicts of interest are viewed as one such risk. In a Resolution adopted by the 39th Session of the ICAO Assembly in 2016, States which have not done so were urged, inter alia to consider establishing a formal legal framework to detect, avoid, mitigate and manage conflicts of interest in civil aviation. This Resolution also invited States to examine at the national level the adequacy of their domestic legal regimes on measures and practices to detect, avoid, mitigate and manage conflicts of interest in civil aviation, so that, with a view to ensuring and improving transparency and accountability in civil aviation regulatory activities would be ensured and improved. Such measures, the Resolution envisioned, would balance the circumstances and ability of States to fulfil their oversight obligations and address the risks to aviation safety and security posed by conflicts of interest.
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Notes
- 1.
Conflicts of Interest in Civil Aviation, A39-WP/77, LE/3, 5/8/16, Revision No. 1, 17/8/16.
- 2.
Organization for Economic Cooperation and Development. The mission of OECD is to promote policies that will improve the economic and social well-being of people around the world. OECD provides a forum in which governments can work together to share experiences and seek solutions to common problems. It works with governments to understand what drives economic, social and environmental change. OECD measures productivity and global flows of trade and investment and analyses and compares data to predict future trends. Additionally, OECD sets international standards on a wide range of things, from agriculture and tax to the safety of chemicals. http://www.oecd.org/about/.
- 3.
OECD Glossary of Statistical Terms, OECD (2007). See https://stats.oecd.org/glossary/detail.asp?ID=7206. The European Union has defined COI as “a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest”. See Conflicts of interest in public administration, Library briefing, Library of the European Parliament, 05/02/2013, http://www.europarl.europa.eu/document/activities/cont/201302/20130221ATT61562/20130221ATT61562EN.pdf.
- 4.
A37-WP/80, LE/6 20/8/10, (Consideration of Guidance on conflicts of interest) presented by the United States.
- 5.
Ibid.
- 6.
POLICY ON THIRD-PARTY ENDORSEMENTS AND MEMORANDA OF UNDERSTANDING (MOUs), A38-WP/338 EX/117 17/9/13, at 2.
- 7.
Survey on conflicts of interest in civil aviation, LE 4/69-14/40 11 June 2014.
- 8.
Id. at ATTACHMENT A at A1-A2.
- 9.
ATTACHMENT B to State Letter Le 4/69-14/40, Guidance on Conflicts Of Interest Survey.
- 10.
LC/36-WP/2-2.
- 11.
Legal Committee 36th Session, Montreal, 30 November–3 December 2015, REPORT: 2016, Doc 10061-LC/36 at para 2.6 at p. 2-1.
- 12.
Id. Para 2.8 at p. 2-2.
- 13.
- 14.
Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, at V-6 to V-7.
- 15.
Convention on International Civil Aviation signed at Chicago on 7 December 1944. ICAO Doc 7300, 9th Edition, 2006.
- 16.
Annex 19—Safety Management (Second Edition, July 2016). The first edition of Annex 19 was adopted by the Council on 25 February 2013 and became applicable on 14 November 2013.
- 17.
Doc. 9734, Third Edition:2017.
- 18.
Annex 19 defines safety oversight as “a function performed by a State to ensure that individuals and organizations performing an aviation activity comply with safety-related national laws and regulations”.
- 19.
Supra, note 17 at 2.3.1.
- 20.
Oversight Manual, Part C, The Establishment and Management of a State’s Aviation Security Oversight System Doc 9734 AN/959, First Edition:2007.
- 21.
Id. 2.3.2.1.
- 22.
Id. 2.3.2.4.
- 23.
Id. 2.3.2.5.
- 24.
Id. 2.3.2.6.
- 25.
Doc 8335, AN/879, Fifth Edition:2010.
- 26.
Mundheim (1981), p. 708.
- 27.
606 F.2d 28.
- 28.
Id. 34.
- 29.
Ibid. There is a string of cases in the United States that have followed the approach in the Armstrong case. See General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); Telos, Inc. v. Hawaiian Telephone Co., 397 F.Supp. 1314 (D.Haw.1975); Handelman v. Weiss, 368 F.Supp. 258 (S.D.N.Y.1973); see also United States v. Ostrer, 597 F.2d 337 (2d Cir. 1979); Traylor v. City of Amarillo, Texas, 335 F.Supp. 423 (N.D.Tex.1971); United States v. Ediger, 166 F. App’x 218 at 226.
- 30.
Zaring (2013), pp. 523–524.
- 31.
424 U.S. 1 (1976).
- 32.
Id. 23–38.
- 33.
In re. Walt Disney Co. Derivative Litig (Disney I) 907 A 2d 693.
- 34.
Id. 755–756.
- 35.
[1831] 131 Eng. Rep. 284.
- 36.
Id. 287.
- 37.
Zheng (2015), p. 1268.
- 38.
The 14 General Principles of Ethical Conduct 5 C.F.R §2635.101 (b. See https://www.justice.gov/archives/ncfs/page/file/761076/download.
- 39.
Hill and Painter (2011), p. 1669.
- 40.
Supra.
- 41.
Vienna Convention on the Law of Treaties, 1969, Article 2(1) (a).
- 42.
See the Permanent Court of International justice’s advisory opinion in Certain Questions Relating to Settlers in German origin in the territory ceded by Germany to Poland, [1923] Publ. PCIJ, Series B No. 6 at 22.
- 43.
See Lord Strang, The Diplomatic Career, London:1962, at 107, where it is said that in 1962, some twenty different government departments in the United Kingdom were responsible for different international organizations.
- 44.
See for example Branno v. Ministry of War, decision of 14 June 1954 by the Italian Court of Cassation, 22 ILR 756-757 where the Court held that NATO’s member States are not legally entitled to exercise judicial functions with regard to any public law activity of the North Atlantic Treaty Organization linked with its organization or in regard to acts performed on the basis of sovereignty.
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Abeyratne, R. (2019). A Closer Look at Conflicts of Interest. In: Legal Priorities in Air Transport. Springer, Cham. https://doi.org/10.1007/978-3-030-18391-2_4
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