By Toby McIntosh
Important decisions on how to reduce the impact of air travel on climate change are about to be made, in secret.
That’s how things work at the International Civil Aviation Organization (ICAO), one of the most opaque international organizations.
Here are the lowlights:
- None of the relevant documents, position papers from member governments and interest groups, will be public, either before or after the meeting.
- If sparks fly, they won’t be visible, because the meetings are closed to the public.
- The eventual outcome will be generally described in a short press release, but the eventual official summary will be sold. The one for the last meeting cost $452.
The stakes are significant. Aviation is a top-ten contributor to global warming, accounting for as much as 2 percent of global carbon dioxide emissions, and aviation emissions are expected grow, even to triple, by 2050.
An overall plan to address the issue, called the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), was established by ICAO in 2016. The use of sustainable alternative fuels and carbon offsets are key parts of ICAO’s strategy. Now, work to flesh out crucial implementation details is under way.
Key issues concern the eligibility of different types of alternative fuels and the amount of carbon reductions that can be generated from those fuels.
So the decisions by ICAO’s Committee on Aviation Environment Protection (CAEP) will have important environmental and economic implications. (Getting into the policy details isn’t the role or expertise of eyeonglobaltransparency.net, but here’s one summary of the situation.)
The ICAO committee meeting will convene at ICAO headquarters in Montreal from Feb. 4 through Feb. 15. CAEP is composed of 24 state members and 17 observers (seven states and 10 organizations). (See ICAO official description of CAEP.). The full committee meets every three years and a CAEP Steering Group convenes once a year.
This article will look mainly at the transparency of this committee meeting: particularly what documents the public can see.
Short answer: almost nothing.
(EYE put a series of questions to ICAO and received a gracious promise of a response after legal experts there had been consulted.)
Stay tuned by following EYE on Twitter @tobyjmcintosh
Inputs Not Out There
To begin with, all the preparatory documents prepared in advance of the CAEP meeting, contributions that will play into the committee debate, are kept confidential.
The ICAO “Secure Portal,” on which drafts, proposals and comments are shared, is password-protected and not available to the public.
However, access codes to the portal are given to accredited nongovernment organizations, 46 in total, most of these “observers” representing industry groups. Observers can submit their own documents, and also attend and speak at committee meetings.
Environmental groups have only one observer, at the ICAO’s insistence. In 1998, the groups formed the International Coalition for Sustainable Aviation (ICSA). It now represents six groups (Aviation Environment Federation, Carbon Market Watch, the Environmental Defense Fund, The International Council on Clean Transportation, Transportation & Environment, and the World Wildlife Federation).
Non-Disclosure Agreement Required
ICSA and other observers must sign a non-disclosure agreement, also applicable to member states.
The provisions effectively forbid sharing information, on penalty of losing access. (CAEP Secure Site Terms of Use Agreement_for web – application for access – CAEP_WG3) ICAO holds the copyright on the documents. Users face potential legal liability. They agree to indemnify ICAO from any lawsuits based on a breach of the agreement. Further, portal users are told they must “promptly notify” ICAO if they receive a request for information contained on site.
In practical terms, the ICAO’s restrictions mean that observers can’t share documents with experts outside their organization for comment or disclose the content of documents.
So those granted portal access are cautious.
Skirting the rules gently, the environmentalist coalition ICSA in 2018 released summaries of four of its submissions to ICAO. Prominently at the top, ICSA said, “In accordance with the non-disclosure requirements of the CAEP, no portion of this paper discloses, reproduces, communicates, or disseminates information or content of the CAEP secure site.”
Voluntary Disclosure Limited
Whether voluntary disclosure of one’s own submissions, including by governments, is permitted seems unclear. (One of EYE’s questions to the ICAO is on this topic.)
“States claim there are [restrictions], but we don’t agree with this,” said one NGO veteran, “Certainly they can make redacted versions of their papers public.” But redactions would eliminate such things as descriptions of other governments’ positions.
Another ICAO watcher said that some states argue that ICAO rules inhibit domestic consultation, but he countered that state immunity and past practice supersede ICAO constraints. NGOs, however, are in a more precarious posture when they seek input from relevant outside experts, possibly risking expulsion or claims for damages.
At another UN agency, the International Maritime Organization, sometimes called a sister agency to ICAO, a restriction on voluntary disclosure was relaxed in 2018. The IMO permits countries to designate that their submissions can made public on the IMO website. (See EYE article, July 2018)
EYE asked the US agency that represents the US at ICAO for its submissions to the upcoming CAEP meeting. The Federal Aviation Administration promptly forwarded a document about one agenda item, saying it was the only one submitted. (See US Submission to CAEP)
Such disclosures are rare, ICAO observers said (several asked to see the US document).
In practice, government documents sent to the CAEP portal are kept confidential.
Closed Committee Meetings the Norm
CAEP meetings and those of its subgroups are closed to the public, but open (mostly) to accredited observers.
Although the overarching ICAO rules of procedure says committee meetings “shall be open to the public” (Rule 17), virtually all are closed (Rules of Procedure for Standing Committees of the Council, Doc 8146-C/930/5). ICAO sells the Rules of Procedure for Standing Committees of the Council for $30.
Regarding documents, the rules say:
- Normally, only documents relating to meetings concerning the subjects listed under a) to f) above should be marked “Restricted.”
The a) to f) subjects justifying restriction deal with aviation security, personnel matters and disputes between member states.
Despite these rules, opacity prevails, and even seasoned ICAO watchers are unclear about where the justification is written down. (Another question for ICAO.)
ICAO committees set their own working methods. CAEP activities are governed by “CAEP Directives” approved by the Council, which are not publicly available. But there seems to be no document describing CAEP policy.
(Even on ICAO’s website page describing CAEP, access to information seems restricted. Following a three-paragraph description of the committee there’s a button for “Additional Information,” but a click prompts the user to supply a user name and password.)
CAEP is composed of 24 state members and 17 nonvoting observers (seven states and 10 organizations), according to the ICAO website. The full environmental committee meets every three years and a Steering Group convenes once a year.
The CAEP Steering Committee sessions are closed similarly and no minutes are available. The last one was held in Singapore in 2018, though it’s not included on the ICAO list of meetings on its website.
So the upcoming full CAEP discussions in Montreal will be conducted behind closed doors. No agenda is posted online for the meeting.
Consequences Seen
The restrictions “make it harder to hold governments to account,” said one ICAO critic. “They can say they are holding one position when they are taking another. And this has happened.”
At CAEP, countries with large domestic biofuel industries would prefer a policy making these types of fuels eligible, but environmentalists are concerned about environmental consequences.
Greater use of palm oil from Indonesia, for example, could cause more deforestation and other land use changes. Another debate will concern the eligibility and crediting process for petroleum-derived jet fuels with lower life-cycle emissions, and the decision would impact the pace of movement towards truly alternative fuels.
The secrecy raises suspicions. “Any time something happens beyond closed doors,” the same person said, “there is a greater chance of industry influence.”
Council Meetings Closed, Too
Confidentiality remains the norm as decision-making proceeds up the ICAO decision-making chain.
Recommendations from the full CAEP meeting get forwarded to the 36-member ICAO Council, which will meet three times in 2019 for multi-week sessions. Confidentiality remains the norm as decision-making proceeds up the ICAO process.
ICAO’s rules keeping documents confidential also extend to Council meetings. ICSA and other observers can watch Council sessions but not participate. Council meetings are nonpublic.
The CAEP recommendations to the Council are not public. Annual reports on the Council are posted on ICAO’s website, but not minutes of the meetings.
As a result, it’s not always clear what happens to committee recommendations, as explained by Bill Hemmings, aviation director at sustainable transport group Transport & Environment (T&E)
“Transparency matters,” he wrote in an article that ran on June 6, 2018, in Euroactiv, continuing:
Experts on ICAO’s environment committee worked intensely for two years on sustainability criteria for biofuels – only for the ICAO council to chuck nearly all of them out on political grounds. Behind closed doors, of course. Now we hear that biofuels are going to be redefined by ICAO to include fuels of fossil origin!
Outputs
When the CAEP meeting is finished, information on what occurred is sparse.
ICAO issued a press release about the “landmark” CAEP/10 meeting in 2016, the last full CAEP meeting held. The 12 paragraphs were cryptic and self-congratulatory. The entry on Sustainable Alternative Fuels said:
An impressive amount of work on the sustainability criteria and life-cycle analysis for sustainable alternative fuels was carried out. Developments in this area will be paramount for the sustainable future of aviation and the CAEP’s life-cycle analysis conclusions will serve as an important market indicator supporting higher production and use of alternative fuels in the future.
For the upcoming meeting, CAEP/11, a press release is likely.
The secrecy norm is reflected in how those attending ICAO meetings speak with the press.
A 2018 Reuters story noted, “All of the sources spoke on condition of anonymity because talks on how to implement the 2016 deal, known as the Carbon Offset and Reduction Scheme for International Aviation (CORSIA), are private.”
Documents about agreed-upon recommendations and the full archive of meeting documents, will not emerge.
Even after ICAO committee meetings, the documents available to the delegates throughout process are kept secret.
This stands in contrast to the practice at other international organizations, including that of the International Maritime Organization, sometimes called a sister agency to ICAO because it also deals in transportation matters. At the IMO, the material submitted in advance of the meeting goes public right after the meeting. (See EYE series on IMO.)
Even more transparent is the rules under which the international climate change talks are conducted. At the United Nations Framework Convention on Climate Change (UNFCCC), state and observer submissions are made publicly available from the moment they are submitted.
ICAO Documents for Sale
ICAO’s “Store” sells publications, including guidance documents developed by CAEP and the summaries of the CAEP meetings.
The official summary for the CAE meeting in 2016 (CAEP/10) will cost you $452.
It’s offered in six languages, each for $452. You can contact the “ICAO Sales Team” +1 514-954-8022 or SALES@ICAO.INT
Curiously, the prices for CAEP summaries vary considerably. For the Ninth CAEP, ICAO charged only $251, much less than the $853 price tag for CAEP/8. (CAEP/7 was $552, CAEP/6 $375 and CAEP/5, the last one for sale, $164.)
“Annex 16 – Environmental Protection – Volume 4 – Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA),” a key document for the aviation/climate change discussion, was published in October 2018. It goes for $95.
The Store also sells publications ranging from Fitness to Fly – A Medical Guide for Pilots ($39.99) to Emergency Response Guidance for Aircraft Incidents Involving Dangerous Goods 2019-2020 (Doc 9481) ($90). Data on air transportation statistics is also sold, for several thousands of dollars.
ICAO has a public portal about alternative fuels containing some documents, such as
the Declaration of the second ICAO Conference on Aviation Alternative Fuels (CAAF/2) endorsed by the Council in March 2018, several background reports on the topic, and reports on airlines using alternative fuels.
“There is no reason that the CAEP/10 report should not be in the public domain,” ICSA wrote the Assembly, also stating, “Decisions on public policy by their very nature are not for sale.”
In criticizing this policy, ICSA said, “Decisions on public policy by their very nature are not for sale.”
Abridged Publications
The official descriptions of meetings do not refer to individual countries, they simply say “a member said” or “several members agreed.” So unless there are anonymous leaks, it’s very hard to attribute positions to the influence of specific countries.
In addition, the documents on sale are sometimes abridged.
The ICSA’s comments to the Assembly on transparency cited one example:
For example, the only public versions of the Forecast and Economic Analysis Support Group (FESG) and Modelling and Database Group (MDG) forecasts lack the granularity of the original data, depriving non-privileged users of their scientific basis and of a valuable resource to help further the debate. Rather than encourage the use of ICAO statistics and material, this has the opposite effect, pushing states and organisations to use publicly available but mostly inferior data sets from other sources.
ICSA also said, “In February 2014, the Impacts and Science Group (ISG) co-rapporteur informed CAEP of the estimated 4.9% radiative forcing estimate in 2005, but that figure has yet to find its way into any of the ICAO published literature.”
FOIA
ICAO lacks a mechanism for the public to request documents, although it is not alone among UN agencies in this regard.
There is no ICAO policy akin to the national freedom of information policies, or the access policies at international financial institutions, that set standards for what can be disclosed and lay out a process for handling requests.
Three out of five United Nations agencies, including the UN Secretariat, have no policies on access to information, according to an eyeonglobaltransparency.net survey in October.
The absence of such policies means there are no guaranteed procedures for requesting information and no standards for what documents will or will not be disclosed.
National Court Not Helpful
An effort to use a national court in The Netherlands to obtain the CAEP/10 summary report from the Dutch government was unsuccessful.
Dutch environmentalists Natuur & Milieu, supported by Transport & Environment and ClientEarth, filed the complaint seeking access to the document the ICAO sells, the court ruled in 2018 that it was an ICAO document that the Dutch government did not have to disclose. (See ClientEarth summary.)
Conflict With UN, EU Standards
Arguments for ICAO transparency are made based on United Nation’s resolutions and a European Union environmental standard.
The Rio+20 Resolution adopted by the UN General Assembly in 2012 strongly supports the full participation of civil society in all environmental decision-making. The UN re-endorsed the 1992 Rio Declaration Principle 10, which stresses the importance of citizen participation and access to environmental information. Article 13 of the Paris Agreement on climate change also urges transparency.
European members of ICAO, it is argued, should be uncomfortable with ICAO’s policies because they conflict with the transparency emphasis in the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). Under the Aarhus Convention, any member of the public can request to access documents that contain environmental information.
Bas Eickhout, a Dutch member of European Parliament for The Greens, wrote the EU Ombudsman in March of 2018 asking her to review the EU process for deciding on its positions on ICAO issues, saying the process “lacks transparency.” He objected that “EU negotiating positions to ICAO, as formulated by the Commission, are not published or shared with the Parliament.” (EYE was unable to determine if the Ombudsman accepted his request.)
“The Parliament organised a delegation visit to the ICAO CAEP meeting in February 2016 which was to finalise the CO2 standard, however ICAO blocked the delegation from attending this meeting,” Eickhout recalled.
Telling more of the story, he wrote:
The Parliament sent a delegation regardless, in order to meet with ICAO officials and observers on a bilateral basis. A briefing paper was prepared for the delegation outlining, among other issues, the negotiating positions of the EU, US and other ICAO actors. These positions were known to all parties within the ICAO negotiations, so no party was put at a disadvantage. When ICAO learned that this briefing was prepared and shared with the Parliament, the author of the report, then a CAEP expert, received a lifetime ban from accessing CAEP papers. No papers have been shared with the Parliament since.
In another episode involving EU positions, environmental groups exposed the influence of Boeing in the drafting process.
If the public cannot access information on why and how the final agreement was reached, nor present information relevant to that agreement, the scheme risks being seen as illegitimate.
A detailed look at whether disclosure of EU ICAO documents is required pursuit to the Aarhus Convention, concluded affirmatively.
“Of the exemptions that could apply to prevent the disclosure of CORSIA documents – international relations, commercial interests or protection of information from third parties – none is particularly convincing and each has substantial reasons for why the exemption does not apply,” according to Transparency and ICAO’s Aviation Offsetting Scheme: Two Separate Concepts? by Aoife O’Leary, published in November 2017 by the Sabin Center for Climate Change Law Columbia Law School.
“If the public cannot access information on why and how the final agreement was reached, nor present information relevant to that agreement, the scheme risks being seen as illegitimate,” she commented.
Reform?
Despite criticisms from NGOs and some members of the European Parliament, there appears to be no internal appetite to open up.
“Closed meetings,” ICSA told ICAO in a 2016 submission to the ICAO Assembly, “… contribute to misunderstandings as to how CAEP recommendations are developed, as these recommendations ‘emerge’ over a three year period without any understanding of why certain options were chosen or discarded.”
“Openness will, as a general rule, make Council more productive and transparent, and therefore enhance the legitimacy of its decision-making,” ICSA said.
The ICAO’s tight regime “has provided difficulty for many states and observers, and has restricted their ability to contribute to CAEP’s work,” ICSA said in a June 2018 submission to the CAEP Steering Group. The coalition made a number of transparency reform suggestions.
ICSA recommended that the CAEP Secure Portal should only be used for those documents “which have a high degree of commercial confidentiality.” This is a rare occurrence. Besides, ICSA noted, the rule makes limited sense. Commercially sensitive information from manufacturers that wouldn’t be seen by the public, would be seen by competitors and governments.
In addition, ICSA suggested the common practice, even at many international organizations, of inviting public comments. “Public consultations can be relatively administratively easy to manage, with draft recommendations made publicly available and with a specified time period and format for the public to comment,” ICSA stated.
ICSA’s recommendations were not discussed.
ICSA representative at ICAO, Tim Johnson, director of the UK-based The Aviation Environment Federation, told EYE, “ICSA’s view is that the quality of ICAO’s environmental work, especially when it considers wider policy issues unrelated to technology standards (like carbon markets and alternative fuels), would be greatly enhanced by allowing experts in these fields to comment and interact with the process.”
In a 2017 report, ICSA member Carbon Market Watch wrote, “With the celebration of its 70th anniversary following the establishment of ICAO in 1947, it is time for ICAO members to revisit the interpretation of its rules and procedures for public participation and access to documents with the goal to put the ICAO processes on par with similar international processes that can offer a wealth of experience on how to engage the public in environmental decision making.”
Gilles Dufrasne, the Policy Officer – Carbon Pricing for Carbon Market Watch, told EYE, “ICAO seems to treat discussions on environmental issues with a level of secrecy that would be more appropriate for matters related to security.”
He elaborated on the pinch of the constraints:
The fact that NGOs are bound by confidentiality agreements is a clear hindrance to their mission of informing the public and prevents them from engaging effectively in the process. Transparency is a key element in discussions related to environment and climate since climate change affects each and everyone of us. It is hard to build trust in an agency which gives a strong voice to industry groups while making it impossible for the public to be informed about ongoing discussions.
Despite the criticism, little suggests that change is in the offing.
Asked about the US position on ICA transparency, the FAA spokesman replied:
We are not able to generalize about the U.S. position on ICAO confidentiality requirements, given the variety of bodies that operate within the ICAO governance structure on safety, security and environment issues. With respect to CAEP, we support a transparent approach while taking into account the need to protect proprietary and commercially sensitive information.
Regarding the EU, O’Leary, the author of the legal article, observed dryly, “If the parties to the Aarhus Convention are promoting its principles within ICAO, they clearly have not succeeded.”
One environmental activist sighed, “It’s such a difficult nut to crack that it is hard to put much effort into it.”
Ironic CAEP Advice
Ironically, the ICAO in 2017 published guidance for national civil aviation authorities recommending transparency and public consultation. The Circular (free!) was developed by CAEP. Two of the six lessons:
– Providing an open and transparent exchange of information as the basis for building long-term trust.
– Ensuring the process is as inclusive and collaborative as possible, informing and seeking input from as many stakeholders as appropriate and practicable, taking into consideration the scale and scope of the project.
