Volume 34 (2009)

Volume 34 (2009) / Issue 6

Harold Caplan, 'The Crime of Flying The Way Forward to 1784' (2009) 34 Air and Space Law, Issue 6, pp. 351–370


Despite remarkable improvement in the overall civil aviation safety record over the last sixty years, a world-renowned Judge, with unrivalled experience of aviation law and policy-making, reports that safety is more difficult to ensure today than in the past. Amongst contributory factors, he notes serious deficiencies in around forty States, some of which register aircraft or companies over which they have practically no control.

The practical and legal problems identified by the Judge can only be resolved by Member States under the auspices of the International Civil Aviation Organization (ICAO). An economical approach would be to re-examine and further develop a wise Council Resolution of 1948 – leading to a project for ‘Uniform Law’ governing every aspect of civil aviation safety. The United States paved the way in 1926. Uniform Law would enable all 190 States (parties to the 1944 Chicago Convention) – big and small, to rely always on unique minimum Standards and Manuals of Good Practice established under the aegis of ICAO. Most of the hard work has already been done.

Any higher standards said to be required on a national or regional basis should be exceptional, and would have to be science-based, subject to the informed consent of all stakeholders.

In order to enforce the Uniform Law there would be need for only one crime of flying – acting without an appropriate license or permit. This would be the twenty-first Century international version of the world’s first aeronautical regulation in Paris, 1784. Without the slightest compromise in the preservation or development of safety standards, this simple step would dramatically reduce the number of criminal prosecutions in aviation, both before and after serious accidents. And if this feature of the Uniform Law was treated as a complete substitute for all other possible prosecutions arising out of aircraft accidents, it would be consistent with the aims of those who argue for a ‘Just Society’ – most cogently represented by the internationally respected Flight Safety Foundation. It would represent an unprecedented consensus between civil law and common law jurisdictions.

Those accused in the forthcoming criminal trial in France arising out of Concorde’s last tragedy in 2000 include both French and US citizens. Hence this trial should yield ample material for a constructive debate within ICAO about what is truly necessary to ensure long-term, worldwide, public confidence in the continuing safety of civil aviation. The results of that debate should vitalize the Uniform Law project.

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ISSN: 0927-3379
ID: AILA2009034