SAFETY AND CONTINUITY OF INTERNATIONAL CIVIL AVIATION DURING PANDEMIC

Lessons from International Regulatory Co-operation during the COVID-19 Pandemic with a Focus on Asia

Clinic: National University of Singapore, Spring 2022

Beneficiary: OECD

Executive Summary

The COVID-19 pandemic has posed an immense challenge to international civil aviation and has resulted in what the International Air Transport Authority has described as “the sharpest decline [in air travel demand] in aviation history”. As the world attempts to recover from the pandemic, states have recognised the importance of air transport to local tourism and their economies, and have made various attempts to resume air travel while limiting the detrimental effects of the pandemic. Given the global nature of international civil aviation, regulatory co-operation to revitalise the air transport industry has been vital.

In line with existing literature by the Organisation for Economic Co-operation and Development, this report aims to assess the level of international regulatory co-operation Asian countries have engaged in to facilitate international travel as well as ensure maximum safety of passengers and staff during the pandemic. This report also considers how states have implemented regulatory co-operation mechanisms at the domestic level.

Five specific areas of co-operation are identified in this report:

Co-operation forums. Multilateral and regional co-operation forums have been used to discuss ways in which to resume air travel. These have been created through leveraging existing transgovernmental networks, international organisations, and private-public partnerships.
Safe travel standards, regulations and guidelines. Various standards, regulations and guidelines have been adopted to ensure the health and safety of international travellers (and aviation staff alike). While absolute harmonisation has not occurred to date, regional and international organisations in the public and private sphere have been proactive in promulgating uniform rules. Where states have adopted such rules, friction resulting from regulatory divergences is reduced and international travel is made easier.
Information sharing. Existing networks and international organisations have also been utilised to facilitate cross-border information sharing. Information sharing allows states to establish a common understanding and language regarding issues related to the pandemic. It also aids states in gaining access to the most updated data and facilitates the development of effective regulation.
Travel corridors. Travel corridors serve to facilitate international travel between specific states while maintaining otherwise applicable travel restrictions. For some states, travel corridors are the only means by which foreigners can enter their territory. Commentators have posited that multilateral and regional efforts at establishing travel corridors would be most facilitative of travel.
Vaccination certification. Vaccination certification is often a prerequisite for international travel or streamlined entry into states. Consequently, uniform standards for recognition of vaccination have been key to resuming international civil aviation.

The modalities of regulatory co-operation between states are of importance because lessons learnt from current crises may serve as an important blueprint for future responses to global crises. As the pandemic is still ongoing, a complete assessment regarding the success and failure of the various international regulatory co-operation mechanisms in international civil aviation aimed at resuming air travel in Asia would be premature. Nonetheless, this report makes five salient observations:

Working off existing measures or building from the ground up. Current international regulatory co-operation measures have been built off existing experience, institutions, and mechanisms. International organisations have had previous experience dealing with the impact of communicable diseases and other health crises on international civil aviation. New measures dealing with the unprecedented characteristics of the pandemic were also developed. Nonetheless, this report observes that these measures may also be attributable to pre-pandemic networks and relationship-building.
Soft law or private regulatory nature of international regulatory co-operation. Most of the international regulatory co-operation measures identified are of a non-legally binding nature. This means that adoption of and compliance with standards has relied on consensus, voluntary commitments, and goodwill. This has hindered the adoption and implementation of harmonised practices. On the other hand, soft law (when compared to traditional rule-making) is more flexible, can be developed quickly and can be modified easily to adapt to the constantly changing pandemic.
The role of private actors in international regulatory co-operation. Private actors including the Airports Council International and the International Air Transport Association have an immense influence on the civil aviation authority. This influence also encompasses the international regulatory process. Such private actors are involved in international rule--making through collecting data, providing consultation, encouraging compliance with international standards, engaging in multi-stakeholder organisations such as the Collaboration Arrangement for the Prevention and Management of Public Health Events in Civil Aviation, as well as developing and promoting tools to facilitate international travel.
Low levels of engagement with and implementation of multilateral and regional IRC. While co-operation forums have served as a starting point for consensus, doubt remains over the tangibility and effectiveness of their contributions. Uptake and domestic implementation of international regulatory co-operation mechanisms by Asian countries in particular has been slow. This report considers the non-pandemic and pandemic specific reasons behind this observation. The former include the lack of coordination amongst Asian states, fragmentation at the domestic level, as well as a lack and/or poor allocation of resources. The latter include differing pandemic containment strategies, different levels of access to vaccines, different approaches to data privacy hindering information sharing, and the ever-changing nature of the pandemic itself.
Assessing the effectiveness of international regulatory co-operation: More accountability. This report suggests that states alongside international organisations must monitor and assess the implementation and effectiveness of regulatory co-operation mechanisms in the future. Simply put, a comprehensive ex post review of the global response to the pandemic should take place. Further, going forward, greater transparency is required to ensure the effective dissemination of information.

Read the full report here.