Inclusion of Taiwan's membership in the International Civil Aviation Organization ("ICAO") from a legal perspective

Vikrant Pachnanda comments on Taiwan’s inclusion in the ICAO from a legal perspective.

A. Issue

Taiwan, the Republic of China, was a founding member of the International Civil Aviation Organization, but was excluded from ICAO following its withdrawal from the United Nations in 1971. The government and 23 million people of Taiwan have since been unable to participate in ICAO meetings, activities, and mechanisms; safeguard our civil aviation development rights and welfare; and contribute to ICAO. Although the Chicago Convention, 1944 does not contain a specific membership clause, Articles 91-93bis are predicted on the principle that only sovereign States may adhere, or be admitted and thereby become a member of the ICAO.

Being a full-fledged democracy, Taiwan is not, and never was, part of the People’s Republic of China. However, for almost half a century, Taiwan has been excluded from the United Nations and ICAO due to the People’s Republic of China’s one-China policy and its claim of Taiwan being part of one China.

According to Lin Chia-lung, Minister for Transportation and Communications, Republic of China (Taiwan), “The Taipei Flight Information Region (Taipei FIR), for which Taiwan is responsible, manages large air traffic volumes in East Asia and provided services to over 1.75 million controlled flights in 2018, a 5.8 percent increase over 2017. As of the end of 2018, Taiwan’s 17 airports served more than 68.9 million passengers. Some 92 airlines offered services to and from Taiwan, operating passenger and cargo flights on 313 routes connecting 149 cities around the world. Taiwan is an active stakeholder in the international civil aviation community, and the Taipei FIR is an inseparable part of the global network of FIRs. Given technical, professional, and pragmatic considerations, Taiwan urgently needs to establish direct communication channels with ICAO and obtain the most up-to-date rules and regulations, so that the safe air transport of passengers and cargo can be ensured.”

Moreover as per Taiwanese government sources, Taiwan signed air services agreements with 57 countries or areas. According to the International Air Transport Association, China Airlines and EVA Airways—Taiwan’s two largest airlines—ranked 28^th and 37^th worldwide in terms of international passenger volumes, and 6^th and 19^th in terms of international cargo volumes in 2018. As of December 2018, there were 8 civil aviation operators and 10 general aviation operators in Taiwan, with a total of 273 airworthy civilian aircraft. In addition, there were 5 airport ground handling services providers, 5 catering services providers, 1,280 air freight forwarders, 6 air cargo entrepots, 25 certified aircraft repair and maintenance companies, 2 flight training institutes and 3 aircraft maintenance training institutes.

B. Solution

An amendment to the Chicago Convention to permit membership of Taiwan would be theoretically possible under Article 94 of the Chicago Convention. However such an amendment could not enter into force unless ratified by two-thirds of all members as stated in Article 94(a) i.e. 128 out of 191 member States. Therefore, a possible solution is to be invited by ICAO as an observer to attend its meetings, which is reflected in its own ‘Standing Rules of Procedure of the Assembly of the International Civil Aviation Organization’ (ICAO Doc 7600/2008). Rule 5 of these rules allow non-contracting States and international organizations duly invited by the ICAO Council or by the ICAO Assembly itself to attend a session of the Assembly by being represented by an observer.

Further as per Rule 25, observers may participate without a vote in the deliberations of the Assembly, its commissions and sub-commissions when their meetings are not held in private. In case of meetings of bodies of limited membership, observers may also attend and participate without a vote in the meetings of such a body if invited by that body or by the officer by whom the members of that body were originally appointed. With respect to private meetings, individual observers may be invited by the body concerned to attend and be heard.

The United Nations should in fact consider Taiwan for all purposes not to be a part of the People’s Republic of China meaning that it would be a non-contracting State thereby being eligible to be considered for being accorded with the ‘observer’ status. A ground to support this line of argument as also stated aforesaid is that, Taiwan has signed air services agreements with 57 countries or areas including the United States of America, Japan, as well as the People’s Republic of China. The respective governments of these 57 countries have signed Air Services Agreements with Taiwan, which categorically refers to the “Signing of Air Services Agreement between that particular country and Taiwan” implying that Taiwan is being referred to as a separate state.

C. Conclusion

Taiwan occupies a key position in both regional and global civil aviation transport and flight control. Yet it is unable to participate in ICAO meetings, mechanisms, and activities. It is excluded from important ICAO discussions on aviation safety, navigation services, security, environmental protection, and economic issues. It is also denied real-time access to complete information and regulatory updates. Consequently, Taiwan has to devote more time and resources toward meeting ICAO standards and recommended practices. Only when the Civil Aviation Authority of Taiwan is able to participate in ICAO, will it be able to keep abreast of the latest developments in a timely and comprehensive manner.

The Director-General of CAA was invited by the President of the ICAO Council to participate in the 38th Assembly of ICAO session in 2013, and since that a global safe and seamless sky should be universally agreed, Taiwan, a Non-Contracting State of ICAO, needs and has to be invited to join the ICAO Assembly session. Therefore if Taiwan is able to get invited as an ‘observer’, then it may be able to participate in the aforesaid meetings leading to closer cooperation in international civil aviation, thereby contributing to ICAO’s goal of achieving a safe and seamless sky therein upholding the principle of ‘good neighbourliness’ as enshrined in Article 74 of the United Nations Charter as well as ‘insuring the safe and orderly growth of international civil aviation throughout the world’ as laid down in Article 44 as well as the Preamble to the Chicago Convention.