BLACKLISTING:BLACKLISTING:THE CONFLICT BETWEEN THE CONFLICT BETWEEN

NATIONAL AND INTERNATIONAL NATIONAL AND INTERNATIONAL AVIATION SAFETY STANDARDSAVIATION SAFETY STANDARDS

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 What are the means by which legal obligations in the area of aviation safety have become binding upon States?of aviation safety have become binding upon States?•What are the substantive conventional international laws What are the substantive conventional international laws and standards governing international aviation safety?and standards governing international aviation safety?•What has been the level of national compliance with and What has been the level of national compliance with and implementation of such laws and standards?implementation of such laws and standards?•What means have been employed, unilaterally and What means have been employed, unilaterally and multilaterally, to monitor compliance and sanction multilaterally, to monitor compliance and sanction noncompliance?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 airlines of a belligerent State are banned. During most of the Cold War, banned. During most of the Cold War, the US refused to allow the world's the US refused to allow the world's largest airline, Aeroflot, to fly to the US, largest airline, Aeroflot, to fly to the US, while the Soviet Union banned most while the Soviet Union banned most western aircraft from its vast airspace. western aircraft from its vast airspace. After Fidel Castro came to power in After Fidel Castro came to power in Cuba, its airlines were banned from Cuba, its airlines were banned from serving US cities.[1] serving US cities.[1]

[1] Overflight rights also were denied Cuba's [1] Overflight 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 ratified the multilateral Air Transit Agreement, conferring First and Second Agreement, conferring First and Second Freedom rights to the other; hence, the US Freedom rights to the other; hence, the US ban on Cuban flights was unlawful. ban on Cuban flights was unlawful. Ultimately, the US capitulated.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 possible, State to keep its regulations uniform, to the greatest extent possible, with those established under the Convention. with those established under the Convention.

•Article 37 of the Convention attempts to achieve uniformity in air Article 37 of the Convention attempts to achieve uniformity in air navigation, by requiring that every contracting State cooperate in navigation, by requiring that every contracting State cooperate in achieving "… the highest practicable degree of uniformity in achieving "… the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to regulations, standards, procedures, and organization in relation to aircraft personnel, airways and auxiliary services in all matters in aircraft personnel, airways and auxiliary services in all matters in which uniformity will facilitate and improve air navigation. To this which uniformity will facilitate and improve air navigation. To this end [ICAO] shall adopt and amend from time to time...international end [ICAO] shall adopt and amend from time to time...international 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 The Chicago Convention of 19441944

Articles 12 & 37Articles 12 & 37

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

Article 37 gives ICAO the Article 37 gives ICAO the authority to promulgate authority to promulgate Annexes to the Chicago Annexes to the Chicago Convention. Member States Convention. Member States must comply with the Annex must comply with the Annex standards and procedures, standards and procedures, unless they promptly object unless they promptly object under Article 38. Most do not under Article 38. Most do not exercise their right to object exercise their right to object under Article 38. under Article 38. Thus, a State has an Thus, a State has an affirmative duty to harmonize affirmative duty to harmonize its domestic law with the its domestic law with the SARPs. But this duty is SARPs. But this duty is emasculated by the ability of a emasculated by the ability of a State to opt-out if it deems it State to opt-out if it deems it impracticable to comply. 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 Article 33 of the Chicago ConventionConvention

Article 6 of the Chicago Convention Article 6 of the Chicago Convention provides that "[n]o scheduled international provides that "[n]o 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 by one contracting State shall be honored as valid by the other.

The Bilaterals:The Bilaterals:

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 DC-10 Flight 191 crashed on take-off On the afternoon of May 25, 1979, American Airlines DC-10 Flight 191 crashed on take-off from Chicago's O'Hare International Airport, killing all 271 persons on board. Early from Chicago's O'Hare International Airport, killing all 271 persons on board. Early reports indicated that the left wing pylon and the engine attached to it had separated from reports indicated that the left wing pylon and the engine attached to it had separated from the wing as the aircraft took off. Later investigations showed that as the engine-pylon the wing as the aircraft took off. Later investigations showed that as the engine-pylon assembly tore loose from the wing, it severed hydraulic and electrical lines, which assembly tore loose from the wing, it severed hydraulic and electrical lines, which caused one set of wing slats to retract. The retraction of these slats, which govern slow caused one set of wing slats to retract. The retraction of these 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 recertified At various times, the DOT has decertified and recertified various foreign airports—various foreign airports—including Lagos, Bogotá, Athens, Manila, Port-au-Prince including Lagos, Bogotá, Athens, Manila, Port-au-Prince and Beirut—and Beirut—on the basis of FAA security audits.on the basis of FAA security audits.

US Foreign Airport Security Act US Foreign Airport Security Act of 1985of 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 country's civil aviation authority has been assessed by FAA inspectors and has been found to license and FAA inspectors and has been found to license and oversee air carriers in accordance with ICAO aviation oversee air carriers in accordance with ICAO aviation safety standards.safety standards.

Category 2, Does Not Comply with ICAO Category 2, Does Not Comply with ICAO

Standards:Standards: The Federal Aviation Administration The Federal Aviation Administration assessed this country's civil aviation authority (CAA) assessed this country's civil aviation authority (CAA) and determined that it does not provide safety and determined that it does not provide safety oversight of its air carrier operators in accordance with oversight of its air carrier operators in accordance with the minimum safety oversight standards established the minimum safety oversight standards established by the International Civil Aviation Organization (ICAO). by the International Civil Aviation 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 organization to license or oversee air carrier operations; operations;

the CAA does not have adequately trained and the CAA does not have adequately trained and qualified technical personnel; qualified technical personnel;

the CAA does not provide adequate inspector the CAA does not provide adequate inspector guidance to ensure enforcement of, and compliance guidance to ensure enforcement of, and compliance with, minimum international standards; with, 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 (2009) (2009)

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

BangladeshBangladeshBelizeBelizeCote D’IvorieCote D’IvorieDemocratic Republic of the CongoDemocratic Republic of the CongoGambiaGambiaGuyanaGuyanaHaitiHaitiHonduras Honduras IndonesiaIndonesiaIsraelIsraelKirabitKirabitNicaraguaNicaraguaNauruNauruParaguayParaguayPhillipinesPhillipinesSerbia and MontenegroSerbia and MontenegroSwazilandSwazilandUkraneUkraneUruguayUruguayZimbabweZimbabwe

””

20042004

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

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

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

Prior European BlacklistsPrior European Blacklists

Several European States had previously blacklisted Several European States had previously blacklisted certain airlines from their skies. certain airlines from their skies.

The United Kingdom had banned aircraft operated by The United Kingdom had banned aircraft operated by airlines from Equatorial Guinea, The Gambia, Liberia airlines from Equatorial Guinea, The Gambia, Liberia and Tajikistan, as well as Sierra Leone's Star Air and and Tajikistan, as well as Sierra Leone's Star Air and Air Universal, Cameroon Airlines, Albanian Airlines Air Universal, Cameroon Airlines, Albanian Airlines and the Democratic Republic of Congo's Central Air and the Democratic Republic of Congo's Central Air Express. Express.

France banned North Korea's Air Koryo, the United France banned North Korea's Air Koryo, the United States' Air Saint Thomas, Liberia's International Air States' Air Saint Thomas, Liberia's International Air Services, Lineas Aer de Mozambique, and Thailand's Services, Lineas Aer de Mozambique, and Thailand's Phuket Airlines. Phuket Airlines.

Belgium banned airlines from the Ukraine, Republic Belgium banned airlines from the Ukraine, Republic of Central Africa, Egypt, Armenia, Democratic of Central Africa, Egypt, Armenia, Democratic Republic of Congo, Libya, Nigeria, Ghana and Republic of Congo, Libya, Nigeria, Ghana and Rwanda. Switzerland banned airlines from Azerbaijan, Rwanda. Switzerland banned airlines from Azerbaijan, Egypt, Bulgaria, Lebanon and Nigeria.Egypt, Bulgaria, Lebanon and Nigeria.

THE EU THE EU REGULATIONSREGULATIONS THE 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 Three broad areas

are assessed are assessed under the under the Regulation: Regulation:

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

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

3.3. the lack or ability the lack or ability or willingness of or willingness of the governmental the governmental authorities authorities responsible for responsible for safety oversight safety oversight to address safety to address safety deficiencies. 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 aircraft of airlines that operate flights to and from Community flights to and from Community airports; and in view of the random airports; and in view of the random nature of such inspections, it is not nature of such inspections, it is not possible to check all aircraft that possible to check all aircraft that land at each Community airport.land at each 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 deems itself to be in conformity with the necessary technical with the necessary technical elements and requirements elements and requirements prescribed by the applicable prescribed by the applicable international safety standards, it international safety standards, it may request the Commission to may request the Commission to commence the procedure for its commence the procedure for its removal from the list. removal from the 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, Guinea, 6 from Swaziland, 3 from Liberia as well as 3 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 Satgur Air Transport, Corp. Satgur Air Transport, Corp. Weasua Air Transport, Co. Ltd. Weasua Air Transport, Co. Ltd. Sierra Leone Sierra Leone Aerolift, Co. Ltd. Aerolift, Co. Ltd. Afrik Air Links Afrik Air Links Air Leone, Ltd. Air Leone, Ltd. Air Rum, Ltd. Air Rum, Ltd. Air Salone, Ltd. Air Salone, 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. Heavylift Cargo Heavylift Cargo Paramount Airlines, Ltd. Paramount Airlines, Ltd. Star Air, Ltd. Star Air, Ltd. Teebah Teebah West Coast Airways Ltd. West Coast Airways Ltd. Swaziland Swaziland African International Airways, (Pty) African International Airways, (Pty) Ltd. Ltd. Airlink Swaziland, Ltd. Airlink 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 Aigle Aviation Aigle Aviation Air Boyoma Air Boyoma Air Kasai Air Kasai Air Navette Air Navette Air Tropiques s.p.r.l. Air Tropiques s.p.r.l. Ato—Air Transport Office Ato—Air Transport Office Blue Airlines Blue Airlines Business Aviation s.p.r.l. Business Aviation s.p.r.l. Butembo Airlines Butembo Airlines CAA—Compagnie Africaine d’Aviation CAA—Compagnie Africaine d’Aviation Cargo Bull Aviation Cargo Bull Aviation Central Air Express Central Air Express Cetraca Aviation Service Cetraca Aviation Service CHC Stelavia CHC Stelavia Comair Comair Compagnie Africaine d’Aviation Compagnie Africaine d’Aviation C0-ZA Airways C0-ZA Airways Das Airlines Das Airlines Doren Aircargo Doren Aircargo Enterprise World Airways Enterprise World Airways Filair Filair Free Airlines Free Airlines Galaxy Corporation Galaxy Corporation GR Aviation GR Aviation Global Airways Global Airways Goma Express Goma Express Great Lake Business Company Great Lake Business Company I.T.A.B.—International Trans Air BusinessI.T.A.B.—International Trans Air Business Jetair—Jet Aero Services, s.p.r.l. Jetair—Jet Aero Services, s.p.r.l. Kinshasa Airways, s.p.r.l. Kinshasa Airways, s.p.r.l. Kivu Air Kivu Air Lac—Lignes Aériennes Congolaises Lac—Lignes Aériennes Congolaises Malu Aviation Malu Aviation Malila Airlift Malila Airlift Mango Mat Mango Mat Rwabika “Bushi Express” Rwabika “Bushi Express” Safari Logistics Safari Logistics Services Air Services Air Tembo Air Services Tembo Air Services Thom’s Airways Thom’s Airways TMK Air Commuter TMK Air Commuter Tracep Tracep Trans Air Cargo Services Trans Air Cargo Services Transports Aeriennes Congolais (Traco) Transports Aeriennes Congolais (Traco) Uhuru Airlines Uhuru Airlines Virunga Air Charter Virunga Air Charter Waltair Aviation Waltair Aviation Wimbi Diri Airways Wimbi Diri Airways

North KoreaNorth Korea Air Koryo Air Koryo Comoros Comoros Air Service Comores Air Service Comores Afghanistan Afghanistan Ariana Afghan Airlines Ariana Afghan Airlines Kazakhstan Kazakhstan BGB Air BGB Air GST Aero Air Company GST Aero Air Company Kyrghizstan Kyrghizstan Phoenix Aviation Phoenix Aviation Reem Air Reem Air Thailand Thailand Phuket Airlines Phuket Airlines Rwanda Rwanda Silverback Cargo Freighters Silverback Cargo Freighters Air Consul Air Consul

SA SA Equatorial GuineaEquatorial Guinea Avirex Guinee Equatoriale Avirex Guinee Equatoriale COAGE—Compagnie Aeree de Guinee COAGE—Compagnie Aeree de Guinee

Equatorial Equatorial Ecuato Guineana de Aviacion Ecuato Guineana de Aviacion Ecuatorial Cargo Ecuatorial Cargo GEASA—Guinea Ecuatorial Airlines SA GEASA—Guinea Ecuatorial Airlines SA GETRA—Guinea Ecuatorial de GETRA—Guinea Ecuatorial de

Transportes Ae5eos Transportes Ae5eos Jetline Inc. Jetline Inc. KNG Transavia Cargo KNG Transavia Cargo Prompt Air GE SA Prompt Air GE SA UTAGE—Union de Transport Aereo de UTAGE—Union de Transport Aereo de

Guinea Ecuatorial Guinea Ecuatorial

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, Equitorial Guinea, Indonesia, the Congo, Equitorial 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 AIR KORYO Democratic People Republic of Koreaof Korea

AIR WEST CO. LTD SudanAIR WEST CO. LTD Sudan ARIANA AFGHAN AIRLINES AfghanistanARIANA AFGHAN AIRLINES Afghanistan MAHAN AIR Islamic Republic of IranMAHAN AIR Islamic Republic of Iran SILVERBACK CARGO FREIGHTERS SILVERBACK CARGO FREIGHTERS

RwandaRwanda TAAG ANGOLA AIRLINES AngolaTAAG ANGOLA AIRLINES Angola UKRAINE CARGO AIRWAYS UkraineUKRAINE CARGO AIRWAYS Ukraine UKRAINIAN MEDITERRANEAN AIRLINES UKRAINIAN MEDITERRANEAN AIRLINES

UkraineUkraine VOLARE AVIATION ENTREPRISE UkraineVOLARE AVIATION ENTREPRISE Ukraine

[1][1] http://ec.europa.eu/transport/air- http://ec.europa.eu/transport/air-ban/pdf/list_en.pdf (visited May 27, ban/pdf/list_en.pdf (visited May 27, 2008).2008).

BY APRIL 2009 BY APRIL 2009 ThE EU HAD ThE EU HAD BLACKLISTED:BLACKLISTED:

And all the airlines of:And all the airlines of:

ANGOLAANGOLA BENINBENIN D.R. CONGOD.R. CONGO KYRGYZ REPUBLICKYRGYZ REPUBLIC EQUITORIAL GUINEAEQUITORIAL GUINEA INDONESIAINDONESIA LIBERIALIBERIA GABONGABON SIERRA LEONESIERRA LEONE SWAZILANDSWAZILAND

CERTAIN AIRLINES CERTAIN AIRLINES OF:OF:

KAZIKSTANKAZIKSTAN

D.R. KOREAD.R. KOREA

SUDANSUDAN

AFGHANISTANAFGHANISTAN

UKRANEUKRANE

CAMBODIACAMBODIA

RWANDARWANDA

EU CRITERIA FOR BLACKLISTINGEU CRITERIA FOR BLACKLISTING with respect to Bangladesh, the with respect to Bangladesh, the

Democratic Republic of Korea, Democratic Republic of Korea, Kyrgyzstan and Libya a finding that Kyrgyzstan and Libya a finding that they had "not exercised an adequate they had "not exercised an adequate oversight… in accordance with their oversight… in accordance with their obligations under the Chicago obligations under the Chicago Convention"; Convention";

with respect to the Democratic with respect to the Democratic Republic of the Congo, Equatorial Republic of the Congo, Equatorial Guinea and Swaziland, a finding that Guinea and Swaziland, a finding that they did not "have the ability to they did not "have the ability to provide adequate oversight to…provide adequate oversight to…airlines and ensure that they operate airlines and ensure that they operate in accordance with ICAO standards"; in accordance with ICAO standards"; and 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 State, in contravention of Annex 6 to the Chicago Conventionthe Chicago Convention.[1].[1] [1] Commission Regulation (EC) of 474/2006 (Mar. 22, 2006).[1] Commission Regulation (EC) of 474/2006 (Mar. 22, 2006).

Angolan Airlines Plane Crashes Angolan Airlines Plane Crashes on Landing, 5 Deadon Landing, 5 Dead

THURSDAY, JUNE 28, 2007THURSDAY, JUNE 28, 2007

LUANDA, ANGOLA  —  LUANDA, ANGOLA  —  An Angolan airlines plane crashed on landing at an airport in northern An Angolan airlines plane crashed on landing at an airport in northern Angola on Thursday, killing five people on the same day the European Union said it was blacklisting Angola on Thursday, killing five people on the same day the European Union said it was blacklisting the airline due to safety concerns.the airline due to safety concerns.

The Boeing 737 plane crashed and broke in half when it landed at an airport in M'banza Congo, a town The Boeing 737 plane crashed and broke in half when it landed at an airport in M'banza Congo, a town about 180 miles north of the capital, Luanda.about 180 miles north of the capital, Luanda.

The airline, called TAAG, said in a statement that 79 passengers had been on board when the accident The airline, called TAAG, said in a statement that 79 passengers had been on board when the accident occurred. The plane landed halfway down the runway and bounced out of control before crashing into a occurred. The plane landed halfway down the runway and bounced out of control before crashing into a house, house,

The European Union announced Thursday it was adding the airline to its revised international blacklist. The European Union announced Thursday it was adding the airline to its revised international blacklist. The airline would be barred from flying to eu nations because of safety concerns, the European The airline would be barred from flying to eu nations because of safety concerns, the European Commission said. Earlier this year, the European union unilaterally banned 62 African airlines from Commission said. Earlier this year, the European union unilaterally banned 62 African airlines from flying into eu airspace following a string of air disasters, including the Kenya Airways B737 crash that flying into eu airspace following a string of air disasters, including the Kenya Airways B737 crash that killed 114 people.killed 114 people.

On Thursday, African governments inaugurated the civil aviation agency, based in Namibia with On Thursday, African governments inaugurated the civil aviation agency, based in Namibia with regional offices in South Africa, Ethiopia, Libya, Nigeria and Cameroon. The body aims to streamline regional offices in South Africa, Ethiopia, Libya, Nigeria and Cameroon. The body aims to streamline aviation regulations and licensing throughout Africa at a time when the continent has the worst accident aviation regulations and licensing throughout Africa at a time when the continent has the worst accident record in the world. About 3 percent of air traffic worldwide currently takes place over Africa. record in the world. About 3 percent of air traffic worldwide currently takes place over Africa.

TRADE WARS ERUPTTRADE WARS ERUPT

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

warned it may ban European airlines from its warned it may ban European airlines from its airspace in response to the EU's blacklisting of the airspace in response to the EU's blacklisting of the country's flag-carrier.country's flag-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 Helder Preza said Angolan Deputy Transport Minister Helder Preza said late Sunday the decision was "groundless.“ "We late Sunday the decision was "groundless.“ "We will have to study the decision and act accordingly," will have to study the decision and act accordingly," Preza told Radio Nacional de Angola, adding that Preza told Radio Nacional 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 A32-11, which established ICAO's Safety Resolution A32-11, which established ICAO's Safety Oversight Programme [SOP] Oversight Programme [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 Programme [USOAP]. Oversight Audit Programme [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% had establishing a CAA, only 51% had given it adequate legal status, given it adequate legal status, 22% had adequate staffing, and 22% had adequate staffing, and 13% had adequate inspector 13% had adequate inspector training.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 follow-up performed 120 audit follow-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 safety-related provisions in all In 2005, the USOAP was expanded to cover the safety-related provisions in all safety-related Annexes (all with the exception of Annex 9 — safety-related Annexes (all with the exception of Annex 9 — FacilitationFacilitation and and Annex 17 — Annex 17 — SecuritySecurity) and also to implement a comprehensive systems ) and also to implement a comprehensive systems approach for the conduct of safety oversight audits. The new approach approach for the conduct of safety oversight audits. The new approach consists of three phases:consists of three phases:

Pre-audit phase.Pre-audit phase. During this phase, the information provided by the State in During this phase, the information provided by the State in the State Aviation Activity Questionnaire (SAAQ) and Compliance Checklists the State Aviation Activity Questionnaire (SAAQ) and Compliance Checklists (CCs) is reviewed by SOA to analyze the type of organization for safety (CCs) is reviewed by SOA to analyze the type of organization for safety oversight established by the State, the implementation of Annexes provisions oversight established by the State, the implementation of Annexes provisions and the differences from SARPs identified by the States. This allows ICAO to and the differences from SARPs identified by the States. This allows ICAO to tailor the audit in accordance with the level and complexity of aviation tailor the audit in accordance with the level and complexity of aviation activities in the State and determine the duration of the audit and the size and activities in the State and determine the duration of the audit and the size and required composition of the audit team.required composition of the audit team.   

On-site phase.On-site phase. During this phase, the State is visited by an ICAO audit team to During this phase, the State is visited by an ICAO audit team to validate the information provided by the State and conduct an on-site audit of validate the information provided by the State and conduct an on-site audit of the State’s system and overall capability for safety oversight. This includes an the State’s system and overall capability for safety oversight. This includes an audit of the organization, processes, procedures and programmes established audit of the organization, processes, procedures and programmes established and maintained by the State to help it fulfil its safety oversight obligations.and maintained by the State to help it fulfil its safety oversight obligations.   

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

The Eight Critical Elements of The Eight Critical Elements of USOAP AuditsUSOAP Audits

1.1. Primary Aviation LegislationPrimary Aviation Legislation

2.2. Specific Operating RegulationsSpecific Operating Regulations

3.3. Civil Aviation System and Safety Oversight Civil Aviation System and Safety Oversight FunctionsFunctions

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 SAFETY OVERSIGHT AUDITICAO SAFETY OVERSIGHT AUDIT

The comprehensive systems approach for the conduct of safety oversight audits The comprehensive systems approach for the conduct of safety oversight audits consist of the following safety related annexes:consist of the following safety related annexes:

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

Principal Issues of AssessmentPrincipal Issues of Assessment Is there a clear policy Is there a clear policy

governing regulation of governing regulation of airworthiness, operations, and airworthiness, operations, and personnel licensing?personnel 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 SARPs.to conform to SARPs.

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 legislation Specific operating regulationsSpecific operating regulations State civil aviation system and safety oversight functionsState civil aviation system and safety oversight functions

Technical personnel qualification and trainingTechnical personnel qualification and training Technical guidance, tools and the provision of safety-critical informationTechnical guidance, tools and the provision of safety-critical information

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

Surveillance obligationsSurveillance obligations Resolution of safety concernsResolution of safety concerns

IATA Regional Accident RatesIATA Regional Accident Rates

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

ICAO Security AuditsICAO Security Audits The 33rd ICAO General Assembly passed The 33rd ICAO General Assembly passed

several resolutions strongly condemning the several resolutions strongly condemning the use of aircraft as weapons of mass use of aircraft as weapons of mass destruction.” destruction.”

One such resolution called upon ICAO to One such resolution called upon ICAO to establish a security audit program modeled on establish a security audit program modeled on USOAP. USOAP.

In 1994, ICAO had inaugurated the Safety In 1994, ICAO had inaugurated the Safety Oversight Programme [SOP] to assess State Oversight Programme [SOP] to assess State compliance with SARPs.compliance with SARPs.

In 2001, ICAO launched the Universal Security In 2001, ICAO launched the Universal Security Audit Programme [USAP] to assess State Audit Programme [USAP] to assess State compliance with Annex 17 (security).compliance with Annex 17 (security).

•In 2005, the ICAO Council approved a procedure for disclosing In 2005, the ICAO Council approved a procedure for disclosing information about a State having significant SARPs deficiencies in its information about a State having significant SARPs deficiencies in its aviation safety obligations. aviation safety obligations. •In 2006, aviation Directors-General from 153 of 189 member States In 2006, aviation Directors-General from 153 of 189 member States agreed that by March 23 2008, the names of those States that fail to agreed that by March 23 2008, the names of those States that fail to agree to full transparency of their USOAP audits will be posted on the agree to full transparency of their USOAP audits will be posted on the ICAO website. ICAO website. •More than 100 States have already agreed to transparency. By More than 100 States have already agreed to transparency. By September 2006, 79 States had made their USOAP audits publicly September 2006, 79 States had made their USOAP audits publicly available on the ICAO web site. By July 2008, 163 State audit results were available on the ICAO web site. By July 2008, 163 State audit results were posted at: http://www.icao.int/fsix/auditRep1.cfmposted at: http://www.icao.int/fsix/auditRep1.cfm•ICAO and IATA also signed a MOU "to share safety-related information ICAO and IATA also signed a MOU "to share safety-related information from their respective audit programs to better identify potential safety from their respective audit programs to better identify potential safety risks and prevent aircraft accidents", as well as share accident and risks and prevent aircraft accidents", as well as share accident and incident monitoring. The two have agreed that "experts from each incident monitoring. The two have agreed that "experts from each organization will be allowed to participate as observers in audit missions organization will be allowed to participate as observers in audit missions of the other, upon request.”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 d’Ivoire has not made noticeable progress in its civil aviation Côte d’Ivoire has not made noticeable progress in its civil aviation organization and in the development of safety oversight qualifications. The organization and in the development of safety oversight qualifications. The area’s organization has not yet been reviewed in order to reinstate in the area’s organization has not yet been reviewed in order to reinstate in the NCAA the regulatory functions granted to other units operating in the area, NCAA the regulatory functions granted to other units operating in the area, created since 1995. Also, the delegation which is essential to the Director of created since 1995. Also, the delegation which is essential to the Director of the NCAA and to civil aviation inspectors has not yet been identified or the NCAA and to civil aviation inspectors has not yet been identified or carried out. The NCAA has qualified technical personnel to fulfil safety carried out. The NCAA has qualified technical personnel to fulfil safety oversight tasks and the related process is well-managed by the technical oversight tasks and the related process is well-managed by the technical personnel. However, on account of its public establishment status, the personnel. However, on account of its public establishment status, the NCAA cannot provide its management staff with adequate working and NCAA cannot provide its management staff with adequate working and remuneration conditions and has great difficulty maintaining key remuneration conditions and has great difficulty maintaining key qualifications within the agency. The NCAA does not have the essential qualifications within the agency. The NCAA does not have the essential rights and means to develop and implement a structured training rights and means to develop and implement a structured training programme. The current training provided by the NCAA to its technical programme. The current training provided by the NCAA to its technical personnel does not take into account the policy to develop qualifications or personnel does not take into account the policy to develop qualifications or the need to develop individual or collective technical qualifications according the need to develop individual or collective technical qualifications according to service priorities, the evolution of flight equipment activities and to service priorities, the evolution of flight equipment activities 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 THE CONFLICT BETWEEN

NATIONAL AND INTERNATIONAL NATIONAL AND INTERNATIONAL AVIATION SAFETY STANDARDSAVIATION SAFETY STANDARDS

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.