Thursday, July 2, 2009

A Global Blacklist for Unsafe Airlines?

A number of news sources, including the Financial Times and The Daily Telegraph, are reporting that European Commisioner for Transport Antonio Tajani is calling for a global blacklist of unsafe airlines following the crash of a Yemeni passenger jet which is responsible for the deaths of up to 152 persons.  According to the FT story, Dominique Bussereau, France's Transport Minister, told her country's parliament that "the government would 'fight' for a worldwide blacklist system to ensure passengers did not fly in 'rubbish planes.'" 

As most of the stories concerning the call point out, the European Community established its own blacklist regulation in late 2005 following a series of high-profile crashes involving carriers from Egypt, Columbia, and Cyprus.  See Council Regulation 2111/05, 2005 O.J. (L 344) 15.  Under the Regulation, the EC may impose an operating ban on foreign aircraft which fail to meet "relevant safety standards," i.e., "international safety standards contained in the Chicago Convention [on International Civil Aviation] and its Annexes as well as, where applicable, those in relevant Community law."  Id. art. 2(j).  As some critics have opined, however, this proviso, which accords "relevant Community law" equal footing with the Chicago Convention's "international safety standards," appears incongruous with the latter's mandate for reciprocal recognition of its State parties' airworthiness certificates so long as they adhere to the Convention's safety standards.  See [Chicago] Convention on International Civil Aviation, Dec. 7, 1944, art. 33, 15 U.N.T.S. 295; cf. id. arts. 12 & 37. 

It's unclear at the moment how the EC plans--if there indeed are concrete plans--to pursue its call for a global blacklist.  International initiatives, such as the International Civil Aviation Organization's Universal Safety Audit and the International Air Transport Association's Operational Safety Audit, already exist to monitor and support safety transparency.  A global blacklist forged outside of the context of the Chicago Convention and without ICAO will likely draw criticism similar to what has already been levied against the EC.  Whether that would translate into an actual legal challenge to the blacklist is also uncertain.  Assuming the U.S., Canada, and Australia would join the EC's call, the pressure for the rest of the world to fall-in and comply will be immense.  But blacklists are not panaceas for slack airline safety.  Airlines denied meaningful market access will lose substantial revenues and may continue to fail to properly invest in maintaining and updating their fleets.  What, then, becomes of those consumers who must continue to rely on these unfit carriers for domestic transport?

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