Aviation Law

Commercial Aviation’s Sterling Safety Record – Law, Economics, or Trump?

By January 3, 2018 No Comments

Before taking to Twitter yesterday to issue a rather controversial message to North Korea regarding nuclear weapons, United States President Donald Trump issued this curious tweet:

On one score, President Trump is absolutely right: 2017 was the safest year on record for commercial aviation. According to the Dutch aviation consulting firm To70 and the Aviation Safety Network, there were no commercial jet fatalities in 2017. How much did his administration have to do with it? Well, that’s debatable. The United States, which has always been one of the global leaders in aviation safety, provides strong (albeit imperfect) aviation oversight in the form of the Federal Aviation Administration (FAA). Beyond U.S. borders, the FAA also monitors the air transport infrastructure of foreign states through its International Aviation Safety Assessment (IASA) program. Countries which fall short of certain safety norms under IASA risk losing valuable commercial traffic rights to and from U.S. airports, though certain international legalists have questioned the right of the U.S. to unilaterally police foreign air transport.

Beyond the FAA, international commercial aviation is governed in part by the 1944 Convention on International Civil Aviation (commonly referred to as the “Chicago Convention”). One of the purposes of the Chicago Convention is to establish best practices for commercial aviation safety, both through the articles of the Convention itself and a series of regularly updated annexes which address, inter alia, air traffic control, maintenance, and, to a limited extent, security. The Chicago Convention has proven surprisingly durable over the pasts seven decades and despite calls for replacing it, states have been content to retain the treaty while augmenting it by annexes and ancillary bilateral and multilateral agreements. Legalists like to boast about the power of the Convention’s legal provisions, but they seem to be missing the bigger picture. One of, if not the, primary reasons states are so willing to comply with the Chicago Convention is because it is in their rational self-interest to do so. By resolving a number of complex coordination and cooperation problems on technical and safety matters related to global aviation, the Convention saves states the cost of either renegotiating for a new treaty or dealing with these matters on a state-by-state basis. Moreover, economically powerful states such as the U.S. and European Union have the capacity to go beyond the Chicago Convention’s express terms to pressure their aviation trade partners to upgrade their respective safety systems, even beyond those contemplated under the Convention.

In addition to national regulation and public international law, international aviation is also subject to a series of civil-liability treaties, the most recent of which is the 1999 Montreal Convention. The Montreal Convention established uniform rules of civil liability for injuries or deaths arising from international air transport and imposed strict liability up to a proven adjusted amount (originally approximately $100,000), plus liability for proven damages after that. Given the potential liability involved, airlines performing international carriage have a powerful monetary incentive to take all necessary measures to ensure the safety of their passengers and crews. An air carrier which finds itself legally liable for accidents will meet mounting insurance costs that could very well drive it out of the marketplace.

Beyond legal measures, airlines have a more fundamental motivation for high-level safety standards: economics. Though airline accidents and deaths are rare, they tend to draw heavy public attention. After the 9/11 catastrophe, for instance, airlines around the world suffered huge financial losses, with American carriers U.S. Airways and United Airlines filing for bankruptcy. Commercial self-interest, raw though it may be, may have just as powerful of a motivating effect on airlines as the law does.

Author Gabriel Sanchez

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