BLACKLISTING:BLACKLISTING:THE CONFLICT BETWEEN NATIONAL AND THE CONFLICT BETWEEN NATIONAL AND

INTERNATIONAL AVIATION SAFETY INTERNATIONAL AVIATION SAFETY STANDARDSSTANDARDS

Professor Dr. Paul Stephen DempseyProfessor Dr. Paul Stephen DempseyDirector, Institute of Air & Space LawDirector, Institute of Air & Space Law

McGill UniversityMcGill UniversityCopyright Copyright ©© 2008 by the author.2008 by the author.

••What are the means by which legal obligations in the area of aviWhat are the means by which legal obligations in the area of aviation ation safety have become binding upon States?safety have become binding upon States?••What are the substantive conventional international laws and staWhat are the substantive conventional international laws and standards ndards governing international aviation safety?governing international aviation safety?••What has been the level of national compliance with and implemenWhat has been the level of national compliance with and implementation tation of such laws and standards?of such laws and standards?••What means have been employed, unilaterally and multilaterally, What means have been employed, unilaterally and multilaterally, to to monitor compliance and sanction noncompliance?monitor compliance and sanction noncompliance?

Issues to be Addressed:Issues to be Addressed:

Politically Motivated BlacklistsPolitically Motivated Blacklists

Blacklisting a State's aircraft from one's Blacklisting a State's aircraft from one's skies is nothing new. During war, the skies is nothing new. During war, the airlines of a belligerent State are banned. airlines of a belligerent State are banned. During most of the Cold War, the US During most of the Cold War, the US refused to allow the world's largest refused to allow the world's largest airline, Aeroflot, to fly to the US, while the airline, Aeroflot, to fly to the US, while the Soviet Union banned most western Soviet Union banned most western aircraft from its vast airspace. After Fidel aircraft from its vast airspace. After Fidel Castro came to power in Cuba, its Castro came to power in Cuba, its airlines were banned from serving US airlines were banned from serving US cities.cities.[1][1]

[1][1] OverflightOverflight rights also were denied Cuba's rights also were denied Cuba's airlines until Cuba brought a complaint before airlines until Cuba brought a complaint before the ICAO Council. Both the US and Cuba had the ICAO Council. Both the US and Cuba had ratified the multilateral Air Transit Agreement, ratified the multilateral Air Transit Agreement, conferring First and Second Freedom rights to conferring First and Second Freedom rights to the other; hence, the US ban on Cuban flights the other; hence, the US ban on Cuban flights was unlawful. Ultimately, the US capitulated.was unlawful. Ultimately, the US capitulated.

••Article 12 of the Chicago Convention requires every contracting Article 12 of the Chicago Convention requires every contracting State to keep its regulations uniform, to the greatest extent poState to keep its regulations uniform, to the greatest extent possible, ssible, with those established under the Convention. with those established under the Convention.

••Article 37 of the Convention attempts to achieve uniformity in aArticle 37 of the Convention attempts to achieve uniformity in air ir navigation, by requiring that every contracting State cooperate navigation, by requiring that every contracting State cooperate in in achieving "achieving "…… the highest practicable degree of uniformity in the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relationregulations, standards, procedures, and organization in relation to to aircraft personnel, airways and auxiliary services in all matteraircraft personnel, airways and auxiliary services in all matters in s in which uniformity will facilitate and improve air navigation. Towhich uniformity will facilitate and improve air navigation. To this this end [ICAO] shall adopt and amend from time to time...internationend [ICAO] shall adopt and amend from time to time...international al standards and recommended practices and procedures" addressing standards and recommended practices and procedures" addressing various aspects of air safety and navigation.various aspects of air safety and navigation.

The Chicago Convention of 1944The Chicago Convention of 1944

Articles 12 & 37Articles 12 & 37

Chicago Convention Article 38 provides that any Article 38 provides that any State finding it State finding it impracticable to comply impracticable to comply with with SARPsSARPs, or which has , or which has or adopts regulations or adopts regulations different different therefromtherefrom, "shall , "shall give immediate give immediate notification" to ICAO of the notification" to ICAO of the differences. The Council is differences. The Council is then obliged immediately to then obliged immediately to notify other States of such notify other States of such noncompliance.noncompliance.

Article 37 gives ICAO the authority to Article 37 gives ICAO the authority to promulgate Annexes to the Chicago promulgate Annexes to the Chicago Convention. Member States must Convention. Member States must comply with the Annex standards and comply with the Annex standards and procedures, unless they promptly object procedures, unless they promptly object under Article 38. Most do not exercise under Article 38. Most do not exercise their right to object under Article 38. their right to object under Article 38. Thus, a State has an affirmative duty to Thus, a State has an affirmative duty to harmonize its domestic law with the harmonize its domestic law with the SARPsSARPs. But this duty is emasculated by . But this duty is emasculated by the ability of a State to optthe ability of a State to opt--out if it out if it deems it impracticable to comply. deems it impracticable to comply.

Blending Articles 37 and 38Blending Articles 37 and 38

Under Article 33, States are obliged to recognize the Under Article 33, States are obliged to recognize the validity of the certificates of airworthiness and personnel validity of the certificates of airworthiness and personnel licenses issued by the State in which the aircraft is licenses issued by the State in which the aircraft is registered, so long as the standards under which such registered, so long as the standards under which such certificates or licenses were rendered are at least as certificates or licenses were rendered are at least as stringent as those established under the Chicago stringent as those established under the Chicago Convention.Convention.The negative implications of Article 33 are that if a State The negative implications of Article 33 are that if a State fails to comply "with the minimum standards which may fails to comply "with the minimum standards which may be established from time to time pursuant to this be established from time to time pursuant to this Convention", then other States are not obliged to Convention", then other States are not obliged to recognize the validity of the Certificates of Airworthiness recognize the validity of the Certificates of Airworthiness issued by the delinquent State, and may therefore ban issued by the delinquent State, and may therefore ban such aircraft from their skies, even when they have such aircraft from their skies, even when they have conferred traffic rights to the State pursuant to Article 6 of conferred traffic rights to the State pursuant to Article 6 of the Convention.the Convention.

Article 33 of the Chicago ConventionArticle 33 of the Chicago Convention

Article 6 of the Chicago Convention Article 6 of the Chicago Convention provides that "[provides that "[n]on]o scheduled international scheduled international air service may be operated over and into air service may be operated over and into the territory of a contracting State, except the territory of a contracting State, except with the special permission or other with the special permission or other authorization of that State, and in authorization of that State, and in accordance with the terms of such accordance with the terms of such permission or authorization."permission or authorization."

Article 6 of the Chicago Article 6 of the Chicago ConventionConvention

In addition to traffic rights, Bermuda I also addressed various "soft rights" issues, such as safety. Article 4 provides that the certificates of airworthiness, competency and licenses issued byone contracting State shall be honored as valid by the other.

The The BilateralsBilaterals::

Bermuda IBermuda I

A typical, modern approach is found in the so-called "APEC Multilateral Agreement”. It repeats Bermuda I's reciprocal recognition clause, but adds that such recognition is contingent on the requirements for such licensing or certification are at least as stringent as those set forth in the Chicago Convention and its Annexes, echoing Article 33 of the Chicago Convention

MALIATMALIAT

““If doubts about airworthiness exist, one If doubts about airworthiness exist, one country may refuse to recognize another country may refuse to recognize another country's certificate of airworthiness, but only country's certificate of airworthiness, but only if the certificating nation has not observed the if the certificating nation has not observed the minimum standards of airworthiness minimum standards of airworthiness established in Annex 8 pursuant to Articles established in Annex 8 pursuant to Articles 33 and 37 of the Chicago Convention.33 and 37 of the Chicago Convention.””

British CaledonianBritish Caledonian v. v. BondBond

On the afternoon of May 25, 1979, American Airlines DCOn the afternoon of May 25, 1979, American Airlines DC--10 Flight 191 crashed on take10 Flight 191 crashed on take--off off from Chicago's O'Hare International Airport, killing all 271 perfrom Chicago's O'Hare International Airport, killing all 271 persons on board. Early sons on board. Early reports indicated that the left wing pylon and the engine attachreports indicated that the left wing pylon and the engine attached to it had separated ed to it had separated from the wing as the aircraft took off. Later investigations shfrom the wing as the aircraft took off. Later investigations showed that as the engineowed that as the engine--pylon assembly tore loose from the wing, it severed hydraulic anpylon assembly tore loose from the wing, it severed hydraulic and electrical lines, which d electrical lines, which caused one set of wing slats to retract. The retraction of thescaused one set of wing slats to retract. The retraction of these slats, which govern slow e slats, which govern slow speed lift, in turn caused asymmetrical lift of the aircraft.speed lift, in turn caused asymmetrical lift of the aircraft.

At various times, the DOT has decertified and At various times, the DOT has decertified and recertified various foreign airportsrecertified various foreign airports——including Lagos, Bogotincluding Lagos, Bogotáá, Athens, Manila, Port, Athens, Manila, Port--auau--Prince and BeirutPrince and Beirut——on the basis of FAA security audits.on the basis of FAA security audits.

US Foreign Airport US Foreign Airport Security Act of 1985Security Act of 1985

The US The US launched the launched the International International Aviation Safety Aviation Safety Assessment Assessment Program Program [IASA] in 1991[IASA] in 1991

IASA CategoriesIASA Categories

Category 1, Does Comply with ICAO Standards:Category 1, Does Comply with ICAO Standards: A A country's civil aviation authority has been assessed by FAA country's civil aviation authority has been assessed by FAA inspectors and has been found to license and oversee air inspectors and has been found to license and oversee air carriers in accordance with ICAO aviation safety standards.carriers in accordance with ICAO aviation safety standards.

Category 2, Does Not Comply with ICAO Standards:Category 2, Does Not Comply with ICAO Standards:The Federal Aviation Administration assessed this The Federal Aviation Administration assessed this country's civil aviation authority (CAA) and determined that country's civil aviation authority (CAA) and determined that it does not provide safety oversight of its air carrier it does not provide safety oversight of its air carrier operators in accordance with the minimum safety oversight operators in accordance with the minimum safety oversight standards established by the International Civil Aviation standards established by the International Civil Aviation Organization (ICAO). Organization (ICAO). Source: FAASource: FAA

Category 2 StatesCategory 2 States

This rating is applied if one or more of the following This rating is applied if one or more of the following deficiencies are identified: deficiencies are identified: the country lacks laws or regulations necessary to the country lacks laws or regulations necessary to support the certification and oversight of air carriers in support the certification and oversight of air carriers in accordance with minimum international standards; accordance with minimum international standards; the CAA lacks the technical expertise, resources, and the CAA lacks the technical expertise, resources, and organization to license or oversee air carrier operations; organization to license or oversee air carrier operations; the CAA does not have adequately trained and qualified the CAA does not have adequately trained and qualified technical personnel; technical personnel; the CAA does not provide adequate inspector guidance the CAA does not provide adequate inspector guidance to ensure enforcement of, and compliance with, to ensure enforcement of, and compliance with, minimum international standards; minimum international standards; AND AND the CAA has insufficient documentation and records of the CAA has insufficient documentation and records of certification and inadequate continuing oversight and certification and inadequate continuing oversight and surveillance of air carrier operations.surveillance of air carrier operations.

FAA Flight Standards FAA Flight Standards Service: Service:

IASA Category 2 StatesIASA Category 2 States(2008) (2008)

http://www.faa.gov/safety/programs_initiatives/oversight/iasa/mehttp://www.faa.gov/safety/programs_initiatives/oversight/iasa/media/iasaws.xlsdia/iasaws.xls ““Category 2 States do not meet Category 2 States do not meet ICAO StandardsICAO Standards

BangladeshBangladeshBelizeBelizeCote Cote DD’’IvorieIvorieDemocratic Republic of the CongoDemocratic Republic of the CongoGambiaGambiaGuyanaGuyanaHaitiHaitiHonduras Honduras IndonesiaIndonesiaKirabitiKirabitiNicaraguaNicaraguaNauruNauruParaguayParaguayPhillipinesPhillipinesSerbia and MontenegroSerbia and MontenegroSwazilandSwazilandUkraneUkraneUruguayUruguayZimbabweZimbabwe

””

20042004

June June –– EgyptEgypt’’s Flash Airline jet crashes s Flash Airline jet crashes in Red Sea, killing 133 French nationalsin Red Sea, killing 133 French nationals

August August –– West Caribbean Airways jet West Caribbean Airways jet crashes in Venezuela killing 160 (152 crashes in Venezuela killing 160 (152 French)French)

August August –– Helios Airways crashed near Helios Airways crashed near Athens, killing 121Athens, killing 121

Prior European BlacklistsPrior European Blacklists

Several European States had previously blacklisted certain Several European States had previously blacklisted certain airlines from their skies. airlines from their skies. The United Kingdom had banned aircraft operated by airlines The United Kingdom had banned aircraft operated by airlines from Equatorial Guinea, The Gambia, Liberia and Tajikistan, from Equatorial Guinea, The Gambia, Liberia and Tajikistan, as well as Sierra Leone's Star Air and Air Universal, Cameroon as well as Sierra Leone's Star Air and Air Universal, Cameroon Airlines, Albanian Airlines and the Democratic Republic of Airlines, Albanian Airlines and the Democratic Republic of Congo's Central Air Express. Congo's Central Air Express. France banned North Korea's Air France banned North Korea's Air KoryoKoryo, the United States' , the United States' Air Saint Thomas, Liberia's International Air Services, Air Saint Thomas, Liberia's International Air Services, LineasLineasAerAer de Mozambique, and Thailand's de Mozambique, and Thailand's PhuketPhuket Airlines. Airlines. Belgium banned airlines from the Ukraine, Republic of Belgium banned airlines from the Ukraine, Republic of Central Africa, Egypt, Armenia, Democratic Republic of Central Africa, Egypt, Armenia, Democratic Republic of Congo, Libya, Nigeria, Ghana and Rwanda. Switzerland Congo, Libya, Nigeria, Ghana and Rwanda. Switzerland banned airlines from Azerbaijan, Egypt, Bulgaria, Lebanon banned airlines from Azerbaijan, Egypt, Bulgaria, Lebanon and Nigeria.and Nigeria.

THE EU REGULATIONSTHE EU REGULATIONSTHE EU PROMULGATED THE EU PROMULGATED REGULATIONS GOVERNING REGULATIONS GOVERNING OPERATING BANS ON FOREIGN OPERATING BANS ON FOREIGN CARRIERS IN LATE 2005.CARRIERS IN LATE 2005.THE REGULATION PROVIDES THE REGULATION PROVIDES THAT BANS ARE TO BE IMPOSED THAT BANS ARE TO BE IMPOSED "ACCORDING TO THE MERITS OF "ACCORDING TO THE MERITS OF EACH INDIVIDUAL CASE", EACH INDIVIDUAL CASE", EVALUATING "WHETHER THE EVALUATING "WHETHER THE AIR CARRIER IS MEETING THE AIR CARRIER IS MEETING THE RELEVANT SAFETY RELEVANT SAFETY STANDARDS". STANDARDS". THE PHRASE "RELEVANT THE PHRASE "RELEVANT SAFETY STANDARDS" IS SAFETY STANDARDS" IS DEFINED AS "DEFINED AS "THE THE INTERNATIONAL SAFETY INTERNATIONAL SAFETY STANDARDS CONTAINED IN THE STANDARDS CONTAINED IN THE CHICAGO CONVENTIONCHICAGO CONVENTION AND ITS AND ITS ANNEXES . . . ANNEXES . . . AS WELL ASAS WELL AS,, WHERE WHERE APPLICABLE, APPLICABLE, THOSE IN THOSE IN RELEVANT COMMUNITY LAW.RELEVANT COMMUNITY LAW.””

EU CriteriaEU CriteriaThree broad areas are Three broad areas are

assessed under the assessed under the Regulation: Regulation:

1.1. evidence of serious evidence of serious safety deficiencies; safety deficiencies;

2.2. the lack or the lack or willingness of an air willingness of an air carrier to address carrier to address safety deficiencies; safety deficiencies; and and

3.3. the lack or ability or the lack or ability or willingness of the willingness of the governmental governmental authorities authorities responsible for safety responsible for safety oversight to address oversight to address safety deficiencies. safety deficiencies.

11.4.200811.4.2008

LEGAL NOTICELEGAL NOTICE

The civil aviation authorities of The civil aviation authorities of Member States of the European Member States of the European Community are only able to inspect Community are only able to inspect aircraft of airlines that operate flights aircraft of airlines that operate flights to and from Community airports; to and from Community airports; and in view of the random nature of and in view of the random nature of such inspections, it is not possible to such inspections, it is not possible to check all aircraft that land at each check all aircraft that land at each Community airport.Community airport.The fact that an airline is not The fact that an airline is not included in the Community list does included in the Community list does not, therefore, automatically mean not, therefore, automatically mean that it meets the applicable safety that it meets the applicable safety standards.standards.Where an airline which is currently Where an airline which is currently included in the Community list included in the Community list deems itself to be in conformity with deems itself to be in conformity with the necessary technical elements and the necessary technical elements and requirements prescribed by the requirements prescribed by the applicable international safety applicable international safety standards, it may request the standards, it may request the Commission to commence the Commission to commence the procedure for its removal from the procedure for its removal from the list. list. Source: EUSource: EU

The EU ActsThe EU Acts

On March 22, 2006, the On March 22, 2006, the European Union published European Union published a consolidated blacklist of a consolidated blacklist of 92 airlines to be banned 92 airlines to be banned from EU skies. from EU skies.

The blacklist is updated every The blacklist is updated every three months. three months.

The list is dominated by The list is dominated by African airlines and African airlines and includes 50 carriers from includes 50 carriers from the Democratic Republic of the Democratic Republic of Congo, 13 from Sierra Congo, 13 from Sierra Leone, 11 from Equatorial Leone, 11 from Equatorial Guinea, 6 from Swaziland, 3 Guinea, 6 from Swaziland, 3 from Liberia as well as from Liberia as well as airlines in Kazakhstan, airlines in Kazakhstan, Thailand, and North Korea.Thailand, and North Korea.

Liberia Liberia International Air Services International Air Services SatgurSatgur Air Transport, Corp. Air Transport, Corp. WeasuaWeasua Air Transport, Co. Ltd. Air Transport, Co. Ltd. Sierra Leone Sierra Leone ��AeroliftAerolift, Co. Ltd. , Co. Ltd. AfrikAfrik Air Links Air Links Air Leone, Ltd. Air Leone, Ltd. Air Rum, Ltd. Air Rum, Ltd. Air Air SaloneSalone, Ltd. , Ltd. Air Universal, Ltd. Air Universal, Ltd. Destiny Air Services, Ltd. Destiny Air Services, Ltd. First Line Air (SL), Ltd. First Line Air (SL), Ltd. HeavyliftHeavylift Cargo Cargo Paramount Airlines, Ltd. Paramount Airlines, Ltd. Star Air, Ltd. Star Air, Ltd. TeebahTeebahWest Coast Airways Ltd. West Coast Airways Ltd. Swaziland Swaziland African International Airways, (Pty) African International Airways, (Pty) Ltd. Ltd. AirlinkAirlink Swaziland, Ltd. Swaziland, Ltd. Jet Africa Jet Africa Northeast Airlines, (Pty) Ltd. Northeast Airlines, (Pty) Ltd. Scan Air Charter, Ltd. Scan Air Charter, Ltd. Swazi Express AirwaysSwazi Express Airways

Democratic Republic of CongoDemocratic Republic of Congo��Africa One Africa One African Company Airlines African Company Airlines AigleAigle Aviation Aviation Air Air BoyomaBoyomaAir Kasai Air Kasai Air Air NavetteNavetteAir Air TropiquesTropiques s.p.r.ls.p.r.l. . AtoAto——Air Transport Office Air Transport Office Blue Airlines Blue Airlines Business Aviation Business Aviation s.p.r.ls.p.r.l. . ButemboButembo Airlines Airlines CAACAA——CompagnieCompagnie AfricaineAfricaine dd’’AviationAviationCargo Bull Aviation Cargo Bull Aviation ��Central Air Express Central Air Express CetracaCetraca Aviation Service Aviation Service CHC CHC StelaviaStelaviaComair Comair CompagnieCompagnie AfricaineAfricaine dd’’AviationAviationC0C0--ZA Airways ZA Airways Das Airlines Das Airlines DorenDoren AircargoAircargoEnterprise World Airways Enterprise World Airways FilairFilairFree Airlines Free Airlines Galaxy Corporation Galaxy Corporation ��GR Aviation GR Aviation Global Airways Global Airways GomaGoma Express Express Great Lake Business Company Great Lake Business Company I.T.A.B.I.T.A.B.——International Trans Air BusinessInternational Trans Air BusinessJetairJetair——Jet Aero Services, Jet Aero Services, s.p.r.ls.p.r.l. . Kinshasa Airways, Kinshasa Airways, s.p.r.ls.p.r.l. . Kivu Air Kivu Air LacLac——LignesLignes AAéériennesriennes CongolaisesCongolaisesMaluMalu Aviation Aviation MalilaMalila Airlift Airlift Mango Mat Mango Mat RwabikaRwabika ““BushiBushi ExpressExpress””��Safari Logistics Safari Logistics Services Air Services Air TemboTembo Air Services Air Services ThomThom’’s Airways s Airways TMK Air Commuter TMK Air Commuter TracepTracepTrans Air Cargo Services Trans Air Cargo Services Transports Transports AeriennesAeriennes CongolaisCongolais ((TracoTraco) ) UhuruUhuru Airlines Airlines VirungaVirunga Air Charter Air Charter WaltairWaltair Aviation Aviation WimbiWimbi DiriDiri Airways Airways

North KoreaNorth KoreaAir Air KoryoKoryoComoros Comoros Air Service Air Service ComoresComoresAfghanistan Afghanistan ArianaAriana Afghan Airlines Afghan Airlines Kazakhstan Kazakhstan BGB Air BGB Air GST Aero Air Company GST Aero Air Company KyrghizstanKyrghizstanPhoenix Aviation Phoenix Aviation ReemReem Air Air Thailand Thailand PhuketPhuket Airlines Airlines Rwanda Rwanda Silverback Cargo Freighters Silverback Cargo Freighters ��Air Consul Air Consul SA SA Equatorial GuineaEquatorial GuineaAvirexAvirex GuineeGuinee EquatorialeEquatorialeCOAGECOAGE——CompagnieCompagnie AereeAeree de de GuineeGuineeEquatorial Equatorial EcuatoEcuato GuineanaGuineana de de AviacionAviacionEcuatorialEcuatorial Cargo Cargo GEASAGEASA——Guinea Guinea EcuatorialEcuatorial Airlines SA Airlines SA GETRAGETRA——Guinea Guinea EcuatorialEcuatorial de de TransportesTransportes Ae5eos Ae5eos JetlineJetline Inc. Inc. KNG KNG TransaviaTransavia Cargo Cargo Prompt Air GE SA Prompt Air GE SA UTAGEUTAGE——Union de Transport Union de Transport AereoAereo de de Guinea Guinea EcuatorialEcuatorial

The EU Blacklist The EU Blacklist (2006)(2006)

The EU List is Updated Every The EU List is Updated Every Three MonthsThree Months

By 2008, the EU had blacklisted all the By 2008, the EU had blacklisted all the airlines of the Democratic Republic of the airlines of the Democratic Republic of the Congo, Congo, EquitorialEquitorial Guinea, Indonesia, the Guinea, Indonesia, the Kyrgyz Republic, Liberia, Sierra Leone, Kyrgyz Republic, Liberia, Sierra Leone, and Swaziland, as well as:and Swaziland, as well as:AIR KORYO Democratic People Republic of AIR KORYO Democratic People Republic of KoreaKoreaAIR WEST CO. LTD SudanAIR WEST CO. LTD SudanARIANA AFGHAN AIRLINES AfghanistanARIANA AFGHAN AIRLINES AfghanistanMAHAN AIR Islamic Republic of IranMAHAN AIR Islamic Republic of IranSILVERBACK CARGO FREIGHTERS SILVERBACK CARGO FREIGHTERS RwandaRwandaTAAG ANGOLA AIRLINES AngolaTAAG ANGOLA AIRLINES AngolaUKRAINE CARGO AIRWAYS UkraineUKRAINE CARGO AIRWAYS UkraineUKRAINIAN MEDITERRANEAN AIRLINES UKRAINIAN MEDITERRANEAN AIRLINES UkraineUkraineVOLARE AVIATION ENTREPRISE UkraineVOLARE AVIATION ENTREPRISE Ukraine [1][1]http://ec.europa.eu/transport/airhttp://ec.europa.eu/transport/air--ban/pdf/list_en.pdfban/pdf/list_en.pdf (visited May 27, (visited May 27, 2008).2008).

EU CRITERIA FOR BLACKLISTINGEU CRITERIA FOR BLACKLISTINGwith respect to Bangladesh, the with respect to Bangladesh, the Democratic Republic of Korea, Democratic Republic of Korea, Kyrgyzstan and Libya a finding that they Kyrgyzstan and Libya a finding that they had "not exercised an adequate had "not exercised an adequate oversightoversight…… in accordance with their in accordance with their obligations under the Chicago obligations under the Chicago Convention"; Convention"; with respect to the Democratic Republic with respect to the Democratic Republic of the Congo, Equatorial Guinea and of the Congo, Equatorial Guinea and Swaziland, a finding that they did not Swaziland, a finding that they did not "have the ability to provide adequate "have the ability to provide adequate oversight tooversight to……airlines and ensure that airlines and ensure that they operate in accordance with ICAO they operate in accordance with ICAO standards"; and standards"; and with respect to Equatorial Guinea, with respect to Equatorial Guinea, Kyrgyzstan and Sierra Leone, a finding Kyrgyzstan and Sierra Leone, a finding was made that their airlines had a was made that their airlines had a principal place of business in another principal place of business in another State, in contravention of Annex 6 to the State, in contravention of Annex 6 to the Chicago ConventionChicago Convention..[1][1][1][1] Commission Regulation (EC) of 474/2006 (Mar. 22, 2006).Commission Regulation (EC) of 474/2006 (Mar. 22, 2006).

Angolan Airlines Plane Crashes on Angolan Airlines Plane Crashes on Landing, 5 DeadLanding, 5 DeadTHURSDAY, JUNE 28, 2007THURSDAY, JUNE 28, 2007

LUANDA, ANGOLA LUANDA, ANGOLA —— An Angolan airlines plane crashed on landing at an airport in noAn Angolan airlines plane crashed on landing at an airport in northern rthern Angola on Thursday, killing five people on the same day the EuroAngola on Thursday, killing five people on the same day the European Union said it was pean Union said it was blacklisting the airline due to safety concerns.blacklisting the airline due to safety concerns.The BThe Boeing 737oeing 737 plane crashed and broke in half when it landed at an airport inplane crashed and broke in half when it landed at an airport in M'banzaM'banza Congo, a Congo, a town about 180 miles north of the capital, Luanda.town about 180 miles north of the capital, Luanda.The airline, called TAAG, said in a statement that 79 passengersThe airline, called TAAG, said in a statement that 79 passengers had been on board when the had been on board when the accident occurred. The plane landed halfway down the runway and accident occurred. The plane landed halfway down the runway and bounced out of control before bounced out of control before crashing into a house, crashing into a house, The European Union announced Thursday it was adding the airline The European Union announced Thursday it was adding the airline to its revised international to its revised international blacklist. The airline would be barred from flying to blacklist. The airline would be barred from flying to eueu nations because of safety concerns, the nations because of safety concerns, the European Commission said. Earlier this year, the European union European Commission said. Earlier this year, the European union unilaterally banned 62 African unilaterally banned 62 African airlines from flying into airlines from flying into eueu airspace following a string of air disasters, including the Kairspace following a string of air disasters, including the Kenya enya AirwaysAirways B737 crash that killed 114 people.B737 crash that killed 114 people.On Thursday, African governments inaugurated the civil aviation On Thursday, African governments inaugurated the civil aviation agency, based in Namibia with agency, based in Namibia with regional offices in South Africa, Ethiopia, Libya, Nigeria and Cregional offices in South Africa, Ethiopia, Libya, Nigeria and Cameroon. The body aims to ameroon. The body aims to streamline aviation regulations and licensing throughout Africa streamline aviation regulations and licensing throughout Africa at a time when the continent has at a time when the continent has the worst accident record in the world. About 3 percent of air tthe worst accident record in the world. About 3 percent of air traffic worldwide currently takes raffic worldwide currently takes place over Africa. place over Africa.

TRADE WARS ERUPTTRADE WARS ERUPT

Angola Threatens Reprisals for AirlineAngola Threatens Reprisals for AirlineLUANDA, Angola (AP) LUANDA, Angola (AP) —— The Angolan government The Angolan government

warned it may ban European airlines from its warned it may ban European airlines from its airspace in response to the airspace in response to the EU'sEU's blacklisting of the blacklisting of the country's flagcountry's flag--carrier.carrier.

The EU said last week it had added the Angolan airline, The EU said last week it had added the Angolan airline, TAAG, to its international blacklist, barring it from TAAG, to its international blacklist, barring it from flying to EU nations because of safety concerns.flying to EU nations because of safety concerns.

Angolan Deputy Transport Minister Angolan Deputy Transport Minister HelderHelder PrezaPreza said said late Sunday the decision was "groundless.late Sunday the decision was "groundless.““ "We "We will have to study the decision and act accordingly," will have to study the decision and act accordingly," PrezaPreza told Radio told Radio NacionalNacional de Angola, adding that de Angola, adding that the government would "use the principle of the government would "use the principle of reciprocity."reciprocity."

TAAG flies to Paris and Lisbon, Portugal. Air France, TAAG flies to Paris and Lisbon, Portugal. Air France, British Airways and TAP Air Portugal all fly to the British Airways and TAP Air Portugal all fly to the Angolan capital, Luanda.Angolan capital, Luanda.

ICAO OversightICAO OversightIn 1994 the ICAO General Assembly passed In 1994 the ICAO General Assembly passed Resolution A32Resolution A32--11, which established 11, which established ICAO'sICAO'sSafety Oversight Safety Oversight ProgrammeProgramme [SOP] [SOP]

ICAO in 1999 replaced the SOP with a more ICAO in 1999 replaced the SOP with a more meaningful and mandatory Universal Safety meaningful and mandatory Universal Safety Oversight Audit Oversight Audit ProgrammeProgramme [USOAP]. [USOAP].

By 1997, ICAO had found that By 1997, ICAO had found that though 75% of States had laws though 75% of States had laws establishing a CAA, only 51% establishing a CAA, only 51% had given it adequate legal had given it adequate legal status, 22% had adequate status, 22% had adequate staffing, and 13% had adequate staffing, and 13% had adequate inspector training.inspector training.By 2004, ICAO had audited 181 By 2004, ICAO had audited 181 States for safety compliance and States for safety compliance and performed 120 audit followperformed 120 audit follow--up up missions.missions.In 2005, ICAO began a In 2005, ICAO began a comprehensive systems audit of comprehensive systems audit of all Annexes.all Annexes.By April 2008, 90 member States By April 2008, 90 member States had been audited.had been audited.Lack of implementation of Critical Lack of implementation of Critical Elements of Safety Oversight was Elements of Safety Oversight was 41.6%.41.6%.

In 2005, the USOAP was expanded to cover the safetyIn 2005, the USOAP was expanded to cover the safety--related provisions in all safetyrelated provisions in all safety--related Annexes (all with the exception of Annex 9 related Annexes (all with the exception of Annex 9 —— FacilitationFacilitation and Annex 17 and Annex 17 ——SecuritySecurity) and also to implement a comprehensive systems approach for the) and also to implement a comprehensive systems approach for the conduct conduct of safety oversight audits. The new approach consists of three of safety oversight audits. The new approach consists of three phases:phases:

PrePre--audit phase.audit phase. During this phase, the information provided by the State in theDuring this phase, the information provided by the State in theState Aviation Activity Questionnaire (SAAQ) and Compliance ChecState Aviation Activity Questionnaire (SAAQ) and Compliance Checklists (CCs) is klists (CCs) is reviewed by SOA to analyze the type of organization for safety oreviewed by SOA to analyze the type of organization for safety oversight established versight established by the State, the implementation of Annexes provisions and the dby the State, the implementation of Annexes provisions and the differences from ifferences from SARPsSARPs identified by the States. This allows ICAO to tailor the audit identified by the States. This allows ICAO to tailor the audit in accordance in accordance with the level and complexity of aviation activities in the Statwith the level and complexity of aviation activities in the State and determine the e and determine the duration of the audit and the size and required composition of tduration of the audit and the size and required composition of the audit team.he audit team.

OnOn--site phase.site phase. During this phase, the State is visited by an ICAO audit team tDuring this phase, the State is visited by an ICAO audit team to o validate the information provided by the State and conduct an onvalidate the information provided by the State and conduct an on--site audit of the site audit of the StateState’’s system and overall capability for safety oversight. This inclus system and overall capability for safety oversight. This includes an audit of des an audit of the organization, processes, procedures and the organization, processes, procedures and programmesprogrammes established and maintained established and maintained by the State to help it by the State to help it fulfilfulfil its safety oversight obligations.its safety oversight obligations.

PostPost--audit phase.audit phase. This phase encompasses all the activities following the onThis phase encompasses all the activities following the on--site site audit, including the preparation of the audit interim report, thaudit, including the preparation of the audit interim report, the development by the e development by the State of its corrective action plan and the completion of the auState of its corrective action plan and the completion of the audit final report. In dit final report. In accordance with Assembly Resolution A35accordance with Assembly Resolution A35--6, the audit final reports are made 6, the audit final reports are made available to Contracting States in their entirety through a secuavailable to Contracting States in their entirety through a secure website, along with re website, along with information derived from the AFDD. information derived from the AFDD. Source: ICAOSource: ICAO

The Eight Critical Elements The Eight Critical Elements of USOAP Auditsof USOAP Audits

1.1. Primary Aviation LegislationPrimary Aviation Legislation

2.2. Specific Operating RegulationsSpecific Operating Regulations

3.3. Civil Aviation System and Safety Oversight FunctionsCivil Aviation System and Safety Oversight Functions

4.4. Qualification and Training of Technical StaffQualification and Training of Technical Staff

5.5. Procedures and Technical GuidanceProcedures and Technical Guidance

6.6. Licensing and Certification ObligationsLicensing and Certification Obligations

7.7. Surveillance ObligationsSurveillance Obligations

8.8. Resolution of Safety ConcernsResolution of Safety Concerns

ICAO ICAO SAFETY OVERSIGHT AUDITSAFETY OVERSIGHT AUDITThe comprehensive systems approach for the conduct of safety oveThe comprehensive systems approach for the conduct of safety oversight audits rsight audits

consist of the following safety related annexes:consist of the following safety related annexes:–– Annex 1 Annex 1 Personnel Licensing, Personnel Licensing, –– Annex 2 Annex 2 Rules of the Air, Rules of the Air, –– Annex 3 Annex 3 Meteorological Service for International Air Navigation, Meteorological Service for International Air Navigation, –– Annex 4 Annex 4 Aeronautical Charts, Aeronautical Charts, –– Annex 5 Annex 5 Units of Measurement to be Used in Air and Ground Operations, Units of Measurement to be Used in Air and Ground Operations, –– Annex 6 Part I Annex 6 Part I Operation of Aircraft, Operation of Aircraft, –– Annex 6 Part II Annex 6 Part II Operation of Aircraft, Operation of Aircraft, –– Annex 6 Part III Annex 6 Part III Operation of Aircraft, Operation of Aircraft, –– Annex 7 Annex 7 Aircraft Nationality and Registration Marks, Aircraft Nationality and Registration Marks, –– Annex 8 Annex 8 Airworthiness of Aircraft, Airworthiness of Aircraft, –– Annex 10 Volume I Annex 10 Volume I Aeronautical Telecommunications, Aeronautical Telecommunications, –– Annex 10 Volume II Annex 10 Volume II Aeronautical Telecommunications, Aeronautical Telecommunications, –– Annex 10 Volume III Annex 10 Volume III Aeronautical Telecommunications, Aeronautical Telecommunications, –– Annex 10 Volume IV Annex 10 Volume IV Aeronautical Telecommunications, Aeronautical Telecommunications, –– Annex 10 Volume V Annex 10 Volume V Aeronautical Telecommunications, Aeronautical Telecommunications, –– Annex 11 Annex 11 Air Traffic Services, Air Traffic Services, –– Annex 12 Annex 12 Search and Rescue, Search and Rescue, –– Annex 13 Annex 13 Aircraft Accident and Incident Investigation, Aircraft Accident and Incident Investigation, –– Annex 14 Annex 14 -- Volume I Volume I Aerodromes, Aerodromes, –– Annex 14 Annex 14 -- Volume II Volume II Aerodromes, Aerodromes, –– Annex 15 Annex 15 Aeronautical Information Services, Aeronautical Information Services, –– Annex 16 Annex 16 -- Volume I Volume I Environmental Protection, Environmental Protection, –– Annex 16 Annex 16 -- Volume II Volume II Environmental Protection, Environmental Protection, –– Annex 18 Annex 18 The Safe Transport of Dangerous Goods The Safe Transport of Dangerous Goods

Principal Issues of AssessmentPrincipal Issues of AssessmentIs there a clear policy governing Is there a clear policy governing regulation of airworthiness, regulation of airworthiness, operations, and personnel operations, and personnel licensing?licensing?Is there an appropriate system Is there an appropriate system for certification of aircraft for certification of aircraft operators and maintenance operators and maintenance organizations?organizations?Are inspectors and licensing Are inspectors and licensing personnel given periodic personnel given periodic training?training?Is appropriate reference Is appropriate reference material available?material available?Do provisions exist for license Do provisions exist for license and certificate revocation if and certificate revocation if deficiencies are identified?deficiencies are identified?Does the CAA have an Does the CAA have an adequate budget to accomplish adequate budget to accomplish its mission?its mission?

Principal DeficienciesPrincipal Deficiencies

Absence of basic Absence of basic aviation laws;aviation laws;Failure of the CAA to Failure of the CAA to enforce safety laws and enforce safety laws and regulations;regulations;Failure of national laws Failure of national laws to conform to to conform to SARPsSARPs..

SAFETY OVERSIGHT AUDIT RESULTS UNDER SAFETY OVERSIGHT AUDIT RESULTS UNDER THECOMPREHENSIVE SYSTEMS APPROACHTHECOMPREHENSIVE SYSTEMS APPROACH

Level of Implementation of the Critical Elements of a Safety Level of Implementation of the Critical Elements of a Safety Oversight SystemOversight System

CRITICAL ELEMENT CRITICAL ELEMENT 1 Not implemented 10 = Fully implemented 1 Not implemented 10 = Fully implemented = Global average= Global average

1234567891012345678910Primary aviation legislationPrimary aviation legislationSpecific operating regulationsSpecific operating regulationsState civil aviation system and safety oversight functionsState civil aviation system and safety oversight functions

Technical personnel qualification and trainingTechnical personnel qualification and trainingTechnical guidance, tools and the provision of safetyTechnical guidance, tools and the provision of safety--critical informationcritical information

Licensing, certification, authorization and approval obligationsLicensing, certification, authorization and approval obligations

Surveillance obligationsSurveillance obligationsResolution of safety concernsResolution of safety concerns

IATA Regional Accident RatesIATA Regional Accident RatesRegionRegion 20052005 20062006 20072007AfricaAfrica 9.219.21 4.314.31 4.094.09Asia & Pacific 1.00Asia & Pacific 1.00 0.670.67 2.762.76Russia & C.I.S. Russia & C.I.S. 0.000.00 8.608.60 0.000.00Europe Europe 0.330.33 0.320.32 0.290.29Latin AmericaLatin America 2.592.59 1.801.80 1.611.61Mid. East & N. Africa3.84Mid. East & N. Africa3.84 0.000.00 1.081.08North AmericaNorth America 0.190.19 0.490.49 0.090.09North AsiaNorth Asia 0.000.00 0.000.00 0.880.88IndustryIndustry 0.760.76 0.650.65 0.750.75

ICAO Security AuditsICAO Security Audits

The 33rd ICAO General Assembly passed several The 33rd ICAO General Assembly passed several resolutions strongly condemning the use of aircraft as resolutions strongly condemning the use of aircraft as weapons of mass destruction.weapons of mass destruction.””One such resolution called upon ICAO to establish a One such resolution called upon ICAO to establish a security audit program modeled on USOAP. security audit program modeled on USOAP. In 1994, ICAO had inaugurated the Safety Oversight In 1994, ICAO had inaugurated the Safety Oversight ProgrammeProgramme [SOP] to assess State compliance with [SOP] to assess State compliance with SARPsSARPs..In 2001, ICAO launched the Universal Security In 2001, ICAO launched the Universal Security Audit Audit ProgrammeProgramme [USAP] to assess State [USAP] to assess State compliance with Annex 17 (security).compliance with Annex 17 (security).

••In 2005, the ICAO Council approved a procedure for disclosing inIn 2005, the ICAO Council approved a procedure for disclosing information about a formation about a State having significant State having significant SARPsSARPs deficiencies in its aviation safety obligations. deficiencies in its aviation safety obligations. ••In 2006, aviation DirectorsIn 2006, aviation Directors--General from 153 of 189 member States agreed that by General from 153 of 189 member States agreed that by March 23 2008, the names of those States that fail to agree to fMarch 23 2008, the names of those States that fail to agree to full transparency of ull transparency of their USOAP audits will be posted on the ICAO website. their USOAP audits will be posted on the ICAO website. ••More than 100 States have already agreed to transparency. By SepMore than 100 States have already agreed to transparency. By September 2006, 79 tember 2006, 79 States had made their USOAP audits publicly available on the ICAStates had made their USOAP audits publicly available on the ICAO web site. By O web site. By JulyJuly 2008, 2008, 163163 State audit results were posted at: State audit results were posted at: http://www.icao.int/fsix/auditRep1.cfmhttp://www.icao.int/fsix/auditRep1.cfm••ICAO and IATA also signed a MOU "to share safetyICAO and IATA also signed a MOU "to share safety--related information from their related information from their respective audit programs to better identify potential safety rirespective audit programs to better identify potential safety risks and prevent aircraft sks and prevent aircraft accidents", as well as share accident and incident monitoring. accidents", as well as share accident and incident monitoring. The two have agreed The two have agreed that "experts from each organization will be allowed to participthat "experts from each organization will be allowed to participate as observers in ate as observers in audit missions of the other, upon request.audit missions of the other, upon request.””

ICAO Audits & TransparencyICAO Audits & Transparency

An Example of Audit Executive An Example of Audit Executive Summaries (one paragraph)Summaries (one paragraph)

Côte dCôte d’’Ivoire has not made noticeable progress in its civil aviation Ivoire has not made noticeable progress in its civil aviation organization and in the development of safety oversight qualificorganization and in the development of safety oversight qualifications. The ations. The areaarea’’s organization has not yet been reviewed in order to reinstate is organization has not yet been reviewed in order to reinstate in the n the NCAA the regulatory functions granted to other units operating iNCAA the regulatory functions granted to other units operating in the area, n the area, created since 1995. Also, the delegation which is essential to tcreated since 1995. Also, the delegation which is essential to the Director of he Director of the NCAA and to civil aviation inspectors has not yet been identthe NCAA and to civil aviation inspectors has not yet been identified or ified or carried out. The NCAA has qualified technical personnel to carried out. The NCAA has qualified technical personnel to fulfilfulfil safety safety oversight tasks and the related process is welloversight tasks and the related process is well--managed by the technical managed by the technical personnel. However, on account of its public establishment statupersonnel. However, on account of its public establishment status, the s, the NCAA cannot provide its management staff with adequate working aNCAA cannot provide its management staff with adequate working and nd remuneration conditions and has great difficulty maintaining keyremuneration conditions and has great difficulty maintaining keyqualifications within the agency. The NCAA does not have the essqualifications within the agency. The NCAA does not have the essential ential rights and means to develop and implement a structured training rights and means to develop and implement a structured training programmeprogramme. The current training provided by the NCAA to its technical . The current training provided by the NCAA to its technical personnel does not take into account the policy to develop qualipersonnel does not take into account the policy to develop qualifications or fications or the need to develop individual or collective technical qualificathe need to develop individual or collective technical qualifications according tions according to service priorities, the evolution of flight equipment activitto service priorities, the evolution of flight equipment activities and ies and technology as well as the tasks to be provided to that end. technology as well as the tasks to be provided to that end.

BLACKLISTING:BLACKLISTING:THE CONFLICT BETWEEN NATIONAL AND THE CONFLICT BETWEEN NATIONAL AND

INTERNATIONAL AVIATION SAFETY INTERNATIONAL AVIATION SAFETY STANDARDSSTANDARDS

Professor Dr. Paul Stephen DempseyProfessor Dr. Paul Stephen DempseyDirector, Institute of Air & Space LawDirector, Institute of Air & Space Law

McGill UniversityMcGill UniversityCopyright Copyright ©© 2008 by the author.2008 by the author.