Aviation regulation: towards a “health safety” future

But the COVID-19 crisis has exposed a gap in its safety protocols: health safety.

Patrick Ky, executive director of the European Union Aviation Safety Agency, EASA, explains that “EASA believes that health safety has become an integral part of the sustainability of aviation as a consequence of the COVID-19 crisis. This means we need to address not only aviation safety, security and the environmental impact but also health safety issues.”

“The question is,” Ky asks, “who is best placed to do it?”

Who needs to establish and uphold health safety?

From a regulatory perspective, part of the answer would seem to be UN body ICAO, the International Civil Aviation Organization. Article 14 of the Chicago Convention of 1944, which created ICAO, states, in both its original and 2006 updated versions:

Each contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate, and to that end contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft. Such consultation shall be without prejudice to the application of any existing international convention on this subject to which the contracting States may be parties.

Three points immediately jump out in our current context.

Firstly, that this is a responsibility for individual states. Secondly, that this dates back to a time where smallpox and plague were enough of a concern to merit specific mention. And thirdly, that states will consult closely with health agencies on the matter: specifically, the World Health Organization (WHO).

Airbus’ Bruno Fargeon, leader of its Keep Trust In Air Travel initiative, highlights the work of the ICAO/WHO Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA), set up in 2006, and the COVID-19 specific ICAO Council Aviation Recovery Task Force, which is currently in phase II of its work.

“In that task force, you find representatives from airlines, with IATA, from airports, ACI, and from OEMs with ICCAIA,” Fargeon explains. “We are all represented in this taskforce to try to find the best solution, to ensure safe here on board and in air travel. ‘Air travel’ means kerb to kerb, which includes the airport as well as the aircraft.”

“Health safety has always been an integral part of aviation — and indeed perhaps even more so since the start of the COVID pandemic,” Fargeon notes. “And of course in order to ensure the sustainability of our industry, health safety will remain a key pillar going forward.”

Yet a key challenge is consistency here. At present, variables include the existence of testing requirements, the multiple kinds of test available or required by individual governments, the time window permitted between testing and either departure or arrival, pre-departure testing versus on-arrival testing, the formats and/or language(s) in which results must be produced, the presence of quarantine, duration of quarantine, location of quarantine, testing to release from quarantine, and much more.

Fundamentally, this inconsistency is incompatible with the predictability required for effective international air transportation.

“Health has traditionally been seen as a domestic responsibility with a purely domestic approach,” EASA’s Patrick Ky says. “As we have seen, this does not work in a pandemic for an industry such as aviation, where you need an international approach. This had to be addressed by an aviation regulator, with support from other expert areas.”

Working with the European Centre for Disease Prevention and Control, ECDC, EASA has developed and implemented the Aviation Health Safety Protocol to ensure the health safety of air travellers once flights resume after COVID-19.

However, Ky notes, there is a regulatory gap here: “we could not mandate these measures. So in parallel EASA set up a voluntary Charter programme, whereby airports and airlines could sign up to say they would be applying the measures defined. As part of that agreement they also reported data back to EASA on the success of the implementation.”

This Charter covers airlines from Aegean to Wizz — not quite A to Z, but nearly — with Ky noting that “the industry responded very positively to this offer of a voluntary charter, which is evidence that to a large extent self-regulation is possible.”

That extent may well be up for debate, including by many national governments, which have shown little agreement with EASA on a number of topics, including its 2 December 2020 statement that “People travelling during the COVID-19 pandemic should not automatically be considered as high-risk for spreading infection”.

It should be noted that this statement predated the mid-December announcement of gene-sequenced variants including the UK (B1.1.7), South Africa (B.1.351), and Brazil (P.1) lineages, which are currently causing grave concern worldwide.

How quickly can this happen globally?

Indeed, a key element of the problem is the fast-moving nature of COVID-19 and the slow-moving nature of regulators. Airline lobbying body Airlines For Europe was as recently as February 2021 citing that 2 December statement, clearly superseded by events, as a key part of its arguments against national health protection measures including quarantine.

More widely, “aviation has a strong track record of stepping up and efficiently deploying harmonized measures on a global scale,” Airbus’s Bruno Fargeon emphasises, “and Airbus certainly welcomes the initiatives put in place by EASA to establish guidelines for health safety across the European air travel in a coordinated manner.”

However, he notes, “moving to formally regulating health measures, at international level, would require a globally coordinated approach by governments worldwide.”

And there’s the rub. There are questions of scalability, predictability and equity that arise, even while questions of accountability remain unanswered. Questions of responsibility also arise, even nationally — in Germany, say, disease control and prevention are the responsibility of the federal-level Robert Koch Institute but implementation is at Land (state) level.

At the same time, opportunities exist for the digital world to underpin a globally coordinated approach that boosts the resilience of both public health safety regulation and its application to aviation. But, of course, there is a quagmire of unharmonised data privacy regulations to navigate as well.

Aviation offers an example here: what Fargeon calls “a minimum harmonised level of safety in air travel”. But he sounds a cautious note when suggesting regulations.

“There is one drawback that we have to be careful on regulation: it’s that it’s easy to build, it’s very much more difficult to remove.” Fargeon gives as an example “security in the post-90s and post-September 11 regulations: we have built up quite a number of steps. Are all these steps necessary today? And can we change them? I’m not sure, because once it’s written in the regulation, it’s difficult to go back.”

One thing seems clear: continued discussion how — and where, and by whom — aviation health safety should be regulated is likely to remain a hot topic for years to come.

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We’re talking about this in our industry challenges area – How, where, by whom and why should aviation “health safety” be regulated?