Following press attention in recent months surrounding the publication of the names of individual airlines and of countries whose airline operations have been banned by certain states, it is easy to lose sight of where the legal responsibilities lie for the certification and approval of an air operator and its aircraft.
A state will inevitably come under fire in the event of an accident for permitting "unsafe" carriers to land at its airports, despite the legal regime which puts responsibility for certification on to the home states of the operators concerned. We explain here the legal background to where the certification obligations lie and the drawbacks in the system of safety regulation which over recent years have led to much greater emphasis on safety oversight and auditing at an international and regional level – an emphasis which might conceivably lead to greater exposure for aviation authorities around the world.
The starting point – as for any issue which concerns the organisation, regulation and operation of international civil aviation – is the Chicago Convention 1944 and, more particularly, its 18 annexes. Annexes 6 (operation of aircraft) and 8 (airworthiness of aircraft) put the onus squarely onto the state in which an operator has its principal place of business and the state in which an aircraft is registered (frequently one and the same) to certify both the operator as competent to carry out commercial air transport operations and the aircraft as meeting airworthiness requirements. In many states, the procedures for obtaining the necessary certification are lengthy and onerous. The responsibility for certification therefore decidedly does not rest upon the states into which a foreign carrier operates its foreign-registered aircraft.
However, the system of international aviation safety regulation established by Chicago has its drawbacks. The obligation placed upon the now 188 contracting states to Chicago is to give effect to the international standards and recommended practices (SARPS) set out in the Annexes to the Convention by means of their own domestic legislation. Where there are aspects of the standards to which contracting states have not conformed, they are obliged to notify "differences"; the individual annexes to Chicago each contain a list of states which have notified ICAO that differences exist between their national regulations and the provisions of the annex in question. Subject to the notification of differences, the system assumes that all contracting states are fully implementing the SARPs and is based on a principle of mutual recognition; so that an air operator certificate or a certificate of airworthiness issued by one contracting state will be recognised as valid without further inquiry by other states. The system only works effectively however if all contracting states either fully implement ICAO SARPs or are rigorous in notifying any differences which might exist in their own domestic regulations. In practice however experience over the years showed that a great many countries simply did not provide any information to ICAO as to the extent to which they were conforming with the SARPs; a significant concern for a system based effectively on trust and mutual recognition.
ICAO’s concerns have been broadly that the civil aviation authorities in some states are inadequately established and resourced so that there are insufficient qualified technical personnel and insufficient oversight of safety, that there are no or inadequate civil aviation regulations and that there is a lack of government commitment to civil aviation concerns. All these concerns are of course inter-linked and lead to inadequate implementation of ICAO SARPs.
The first proactive response to these concerns however came not from ICAO but from the US which has had in place an International Safety Assessment Programme (IASA) since 1991. Concerned with the safety of operators flying into the US and run by the Federal Aviation Administration, IASA is aimed at assessing the compliance of those operators’ home countries with the ICAO annexes and the level of safety oversight provided by the local civil aviation authorities responsible for issuing air operator certificates to the operators concerned. An IASA investigation results in a state being placed into one of three categories: (1) states which meet ICAO standards, (2) states which do not meet standards but are subject to ongoing consultation and (3) states not meeting ICAO’s standards and in respect of whose airlines it is therefore recommended that a foreign carrier permit be denied.
The US initiative with IASA and concern that the policing of safety regulation implementation, whilst undertaken for entirely legitimate purposes by the US, should not be the preserve of one country gave the impetus to ICAO to develop its own Safety Oversight Programme in 1995 which would enable assessment of compliance with SARPs to be conducted under the aegis of a more international body. The main purpose of this programme was to assess the extent to which ICAO states had implemented certain safety-related SARPs and to assist states in addressing those areas where compliance was deficient. The programme started life as a voluntary and confidential process but has since grown into ICAO’s mandatory Universal Safety Oversight Audit Programme (USOAP) which came into being in 1999. USOAP – very much an ICAO success story – has focused so far on audits of the implementation in contracting states of Annexes 1 (personnel licensing), 6 (operation of aircraft) and 8 (airworthiness). To date USOAP has conducted safety oversight audits in 181 ICAO states, as well as 120 audit follow-up missions, its findings resulting in action plans being developed by the states in order to address safety concerns highlighted by the audit process. Now that audits have been conducted of virtually all ICAO member states, the programme is being expanded so that annexes 11 (air traffic services), 14 (aerodromes) and 13 (accident investigation) and subsequently most of the remaining annexes will be included in the auditing process. The results of ICAO’s audits are made available to contracting states who can therefore obtain information on the level of implementation of ICAO standards worldwide.
Safety oversight continues to develop at a regional level also. The European Civil Aviation Conference (ECAC) which comprises 41 states has developed its own programme of ramp inspections of aircraft arriving at European airports. These inspections focus chiefly on ICAO annexes 1, 6 and 8 and consist of checks of the aircraft and crew documentation, the apparent condition of the aircraft and the carriage of mandatory cabin equipment. States carry out inspections either on a spot check random basis or try to target specific airlines. The results of the inspections – which put findings into one of three categories depending on the significance from a safety perspective of any deficiencies revealed – are held on a database set up by the JAA which can be accessed by ECAC member states and ICAO. The database now contains over 17,000 reports. In addition, ECAC publishes an annual report giving an overview of the inspections conducted and any trends indicated by the findings.
Through the US, ICAO and now ECAC programmes, as well as the increasing trend for airlines to investigate the safety operations of their code-share partners, there is now a welter of information available to states and airlines as to the standard of safety regulation operating in other countries and as to the safety of individual carriers. From the perspective of international civil aviation and the fostering of a system based on mutual recognition of licences and approvals, that can only be good.
However, it might be suggested that with increased knowledge and availability of data arguably comes greater legal responsibility and one wonders whether aviation authorities around the world might find themselves more exposed to potential claims in the event of an air accident. Significant issues of causation as well as the hurdles of establishing the existence and breach of a duty of care will always arise in any claim which is sought to be brought against a regulatory body following an accident and will invariably stop the claim in its tracks. However, those difficulties will not necessarily prevent a regulatory authority from coming under fire if circumstances suggest that knowledge of safety deficiencies was available but not acted upon.
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