Jeffrey N. Shane, IATA’s General Counsel, argues that the 737 Max controversy must not be allowed to destroy confidence in the global regulatory system

This year marks the 75th anniversary of the signing of the Chicago Convention—the global treaty that established the governing legal framework for international aviation. The signing took place on 7 December 1944, at the Stevens Hotel—today’s Chicago Hilton—after more than a month of negotiations.

It is impossible to overstate the magnitude of what was achieved in Chicago on that day, particularly given what was happening elsewhere at the time. The D-Day invasion had taken place less than six months before, intense fighting continued around the world, and the end of the conflict was still nine months away.

The Chicago Convention is civil aviation’s charter; it is our constitution. At the ceremony, the American president of the conference, Adolf A. Berle, said it was the “foundation for freedom under law in air transport.”  

That it has enabled the astonishing growth of the industry globally while taking its safety record to unimagined levels is a tribute to the remarkable prescience and wisdom of the treaty’s authors. They somehow were able to see beyond the terrible fog of war and understand the contribution that civil aviation would make to peace and prosperity in the years ahead. It should remind us all that we have a vital interest in ensuring that its principles endure. That’s why there is reason to be troubled by the potential implications of the Boeing 737 Max controversy.

Controversy

It has become clear that well-meaning and highly competent regulators, doing what they do best, and doing it for the right reasons, can unwittingly destroy the public’s confidence not just in a particular aircraft model, but more importantly in the global regulatory framework itself. We must do all we can to avoid that result.

We grieve for all those who died in the two accidents—346 souls—and for their families and loved ones. Accidents of this kind are increasingly rare, and when they happen, they affect all of us very deeply. These things are not supposed to happen. And they certainly aren’t supposed to happen twice in five months.

It is clear that those who grounded the 737 Max first were operating without real data to support the decision, but simply decided to pursue the most conservative approach

So, perhaps it is understandable that different civil aviation administrations (CAAs) responded differently. Everyone was in a state of shock. It’s clear that those who grounded the aircraft first were operating without real data to support the decision but simply decided to pursue the most conservative approach. For safety regulators, it was not an irrational decision.

The problem is that other civil aviation authorities—more determined to ensure that any regulatory decision was wholly supported by actual data—did not ground the aircraft immediately.

The US Federal Aviation Administration (FAA) was in this latter category, explaining that it is, and always has been, a data-driven agency. Given that the 737 Max had flown something like 57,000 flights in US airspace without an incident and that the actual cause of the two accidents was still unknown, the FAA felt it had no legitimate basis for grounding the aircraft. Eventually that data was obtained both from the second accident site and through satellite surveillance, following which both Canada and the US grounded the plane.

Consistency

Every agency carried out its responsibilities in keeping with its best judgment, but the flying public was left uncertain and confused. The intention of the drafters of the Chicago Convention was that international aviation would be governed by global harmonization, standardization, and consistency in the content and quality of regulatory oversight. That’s not what the public saw after the second Max accident.

Instead, the public saw what appeared to be a strange competition among aviation regulatory agencies. Stories in the press merely reinforced the impression that the old order had given way to a new disorder—with CAAs everywhere forming their own views unconstrained by any need for a global consensus. Frankly, it was not a pretty picture.

We are now approaching the end of the story. Regulators everywhere are considering whether, when, and how to safely restore the aircraft to service. Every government not only has the right but also the obligation to certify the airworthiness of aircraft operated by carriers registered in their territory. Nobody questions that.

If one or more CAAs declare the 737 Max airworthy and restore it to service while others remain unpersuaded, the viability of the global regulatory framework will be placed at grave risk

But the expectation within the Chicago Convention system is that the state of manufacture of the aircraft will have the primary responsibility for establishing the airworthiness of a new aircraft type, and other states will merely validate that certification—a less arduous undertaking. It is meant to be a coordinated and collaborative process. Moreover, Article 33 of the Convention requires that contracting states recognize as valid the airworthiness certificates of other contracting states, as long as the certification process in question complies with ICAO standards.

If one or more CAAs declare the 737 Max airworthy and restore it to service while others remain unpersuaded, the viability of the global regulatory framework will be placed at grave risk. Such disagreements would compromise further the public’s confidence in the continued integrity of a system that has served the world extremely well for the past 75 years. We don’t have to guess what the consequences would be: if the public lacks confidence in the integrity of the system, they are unlikely to have much confidence in an aircraft recertified by the system.

Credit

As the 737 Max is restored to service, it is essential that air travelers are assured that there are no lingering disagreements among CAAs regarding the criteria to be applied or whether the requirements have been met. If there are genuine professional differences among regulators—it certainly wouldn’t be the first time—they should be resolved quickly.

It is not the 1950s. Thanks to the spread of liberalization more people are flying internationally than ever before. Demand for air travel is expected to double over the next two decades. Today’s air passengers do not want to hear that one CAA or another is the gold standard, thereby implying that others are something less.

They want every CAA to follow and represent the gold standard. ICAO, the FAA, the European Aviation Safety Agency, and other CAAs deserve great credit for all they have done over the past few decades to raise the quality of aviation safety regulation everywhere. These efforts have worked. It’s time to acknowledge that success, to celebrate it, but most importantly, to demonstrate confidence in it.

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