ICAO’s Authoritarian Test

The International Civil Aviation Organization (ICAO), the UN agency charged with upholding global aviation standards, recently concluded a session of its 36-member council, which received an update on this acute challenge.

But it isn’t the first time ICAO has had to grapple with a high-profile political crisis.

On January 8, 2020, Iran’s Islamic Revolutionary Guard Corps (IRGC) fired two surface-to-air missiles at Ukraine International Airlines Flight PS752 as the plane departed an airport near Tehran. One hundred and seventy-six passengers and crew members were killed.

While still unfinished, the rapid and unified international response — including at ICAO — to the forced diversion of the Ryanair flight has been promising. It should serve as a model for the organization to revisit the PS752 case.

In May, President Joe Biden and European leaders condemned Minsk’s actions. And on June 21, the U.S. Department of State — in coordination with Canada, the European Union, and the United Kingdom — sanctioned dozens of Belarusian individuals and entities, in part due to the Lukashenko regime’s “affronts to international norms.”

The chairs of 15 national legislatures’ foreign affairs committees, including Senator Bob Menendez (D-NJ), chairman of the U.S. Senate Foreign Relations Committee, called for a swift ICAO investigation and the imposition of sanctions on Belarus immediately after the interception.

Indeed, the ICAO Council held a special session on May 27, during which it agreed to initiate an investigation to determine whether the Lukashenko regime violated international aviation law.

The European Union banned all Belarusian carriers from utilizing EU airspace or landing at EU airports, and U.S. Department of Transportation subsequently banned air travel between the United States and Belarus.

The international response to Lukashenko’s abuse of civil aviation is warranted. Coordinated pressure to enforce norms is critical and should complement strong ICAO-led actions.

But unlike with the Ryanair crisis, the ICAO Council did not convene a special session after the IRGC shot down PS752. In fact, ICAO never condemned Iran or the downing itself, despite precedent in its condemnation of the 2014 downing of Malaysia Airlines Flight MH17.

In an address to the council, Omar Alghabra, Canada’s transportation minister, drew a connection between the Ryanair diversion and the PS752 downing, arguing the former should “serve as a reminder that the international community must remain vigilant” in safeguarding global aviation.

Both cases challenge ICAO’s model of relying on diplomatic and technical engagement to encourage compliance with treaty commitments. Over the long term, ICAO should consider large-scale institutional reforms, such as allowing the council to suspend or expel derelict members. But even now, there are ways ICAO can strengthen its legitimacy as the standard-bearer for safe civil aviation.

To do so, the UN agency must revisit its response to PS752. According to Annex 13 of the Convention on International Civil Aviation, known as the Chicago Convention, the state in which a downing occurs leads the mandated investigation process. Iran’s “investigation” was woefully inadequate; ICAO must not accept it as credible. Alghabra urged ICAO to improve its investigative mechanism, but these reforms alone will not result in accountability in the PS752 case. Instead, the council should initiate an impartial international investigation into Iran’s actions, as is allowed under Article 55(e) of the Chicago Convention. This overdue step is crucial to securing accountability and preventing future attacks.

A ban on Iranian airspace, like the European Union’s new prohibition on utilizing Belarusian skies, is necessary to ensure the safety of civilian aircraft. While some airlines briefly rerouted around Iranian airspace following the PS752 downing, others maintained their original routes. Canada’s Transportation Safety Board, however, could not confirm that Iran’s claimed safety reforms improved the safety of its airspace. That is, what happened to PS752 in the skies above Tehran in January 2020 could happen again today. Canada and Ukraine should encourage airlines to avoid Iranian airspace, and the United States should endorse their efforts.

Currently, Tehran collects lucrative overflight fees when foreign airlines use its skies, but Iran should not be allowed to profit from these fees until it can prove its airspace is safe. To do so, the regime must identify the senior officials whose decision-making led to the downing of PS752.

Now is the time for ICAO to take a decisive stand against authoritarian leaders — in Minsk, Tehran, and everywhere else. For too long, the Islamic Republic has abused ICAO’s procedures with impunity. At its next session in September, the ICAO Council will receive a report on the Lukashenko regime’s likely breach of the Chicago Convention. The council should add PS752 to the docket as well. With dictators around the world watching, ICAO must take strong actions in the interest of safe and secure global aviation.

Toby Dershowitz is senior vice president for government relations and strategy at the Foundation for Defense of Democracies (FDD), where Dylan Gresik is a government relations analyst. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy. Follow them on Twitter @tobydersh and @dylangresik.