That Was The Week That Was 21-25 February 2022
From 1944 to 2022
In 1944, the world gathered in Chicago to pave the way for civil aviation in the post-World War II era. We all know the story – how amazing this moment was; how prescient the allied powers, particularly the United States and the then-Great Britain, were; the spirit of cooperation to reduce trade barriers and replace warfare with economic competition; that swords-to-plowshares moment we wish we could just replicate for nuclear and space technologies. True, the intercontinental ballistic missile did not then exist, and the Luftwaffe had proven the aircraft the deadliest instrument warring States had ever seen. True, the Chicago system, set up even prior to the end of World War II, would endure and prove instrumental for making international civil aviation safe for generations. But that warm, fuzzy feeling one gets when reading L. Welch Pogue has become cloying.
An international market for aviation has limped along since Chicago due to nationalism enshrined in the Convention. The spirit of cooperation at Chicago was ephemeral. Markets are protected by substantial ownership and effective control provisions, not in the Convention, but in Air Services Agreements, by default a part of the Chicago system. The rationales articulated for those provisions are always murky and never quite line up with their effects. The airline industry is one of only a handful of industries wherein cross-border mergers are prohibited. Few industries are so capital intensive with such narrow margins, and yet the classic model for growth and increase of consumer benefits – consolidation of fractured markets – is prohibited, and this for an industry that is innately international in scope.
Proof that the system’s best days are behind it came in the response to the Covid-19 pandemic. ICAO was powerless to deal with a fractured legal and regulatory response. Pandemic mitigation measures varied wildly from State to State, with even local government responses within States varying and capturing in their snare pilots and crew on layovers, making fleet management nearly impossible. Worst still, ICAO prioritised getting passengers back in the air and ignored the special needs of cargo operators which were essential for delivery of PPE and vaccines. Never was there clearer evidence that the system does not work than the Covid-19 pandemic.
Having been toothless in the face of Covid, ICAO is fundamentally supine in the current Ukrainian crisis. From the Soviet era to modern overflight fees, Russia has always had something of a fraught relationship with the Chicago Convention. The Soviet Union abstained from attending the Chicago Conference. They had sent a delegation, which made it all the way to Quebec before being called back, purportedly because Switzerland and Spain were participating – the Soviets saw those states as being antithetical to its communist ambitions and, in the case of the latter State, downright fascist, which it was. The Conference produced the Chicago Convention cementing the United States and remains of the British Empire as drivers of the aviation agenda for decades to come. The Soviet Union did not join the Chicago Convention until the early 1970s. And now, today, its provisions are being leveraged in response to Russian aggression whilst ICAO stands idly by.
Civil aviation should be above the fray, figuratively and literally, yet, because ASAs are trade agreements, they go first into the breach. In a game of lawfare, plowshares are refashioned into swords. Still, it’s better than World War III. If the aviation-related measures work to isolate Russia, States will be doubling down on the post-WWII system that inhibits growth of the aviation industry. National security trumps yet again a free market, which is antithetical to the spirit of post WWII measures that sought to break down trade barriers in order to avoid future conflict.