Res Communis

Symposium on Aviation Legal Capacity Building in Developing Countries

by P.J. Blount with the blog faculty

Today the National Center for Remote Sensing, Air, and Space Law hosts a Symposium on Aviation Legal Capacity Building in Developing Countries. The panel discussion will be live blogged from this post, with updates added to it in real time.

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Dean Samuel M. Davis, Dean, University of MS School of Law, Jamie L. Whitten Chair of Law and Government and Professor of Law, gave brief opening remarks that noted that this event is an outgrowth of the long tradition of Air and Space law at the University of Mississippi School of Law that started with scholars like Myers McDougal and Stephen Gorove.

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Joanne Irene Gabrynowicz, Director, National Center for Remote Sensing, Air, and Space Law; Editor-in-Chief of Journal of Space Law, gave opening remarks that briefly discussed Prof. Jaqueline Etil Serrao’s, Associate Director, National Center for Remote Sensing, Air, and Space Law and Executive Editor of the Journal of Space Law, expertise in drafting aviation laws in developing countries. She then introduced the speakers and handed the floor over to Prof. Serrao who will be moderating the panel.

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Prof. Serrao’s opening remarks discussed the meaning of the term “capacity building.” She stated that the term had evolved from simply meaning institutional development. She stated that a review by the UN Development Programme that capacity building is the “processes by which individuals organizations, institutions, and societies develop abilities (individually and collectively to perform functions, solve problems and set and achieve objectives.” She then asked the audience to think about this definition in relation to the countries that the respective speakers were being talked about and to think about whether the processes used by developed countries were suitable for application to developing countries.

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India Pinkney, International Affairs and Legal Policy Division, Office of the Chief Counsel, Federal Aviation Administration was the first speaker. She first discussed the FAA’s organization and why it was interested in doing this type of work. She stated that the FAA has numerous divisions, but that all of these divisions must work collaboratively so as to accomplish the goals of the FAA. She then stated that aviation is an “inherently global” activity, and that the FAA’s role is to ensure that things happen in a timely and safe manner. She stated that the framework for making civil aviation work on a global basis was established by the Chicago Convention, which established ICAO. She then stated that the FAA is satutorily required to audit countries with direct flights into the United States. The FAA must ensure that a countries aviation system meets minimum ICAO standards. She stated that this process involves a variety of actors including the State Department, but that the FAA focuses on technical standards. Ifa country does not meet these standards then the FAA engages in consultations to create a joint plan with a country.

She pointed to the closed case of South Africa in the years immediately after apartheid. She stated that the system was full of capable people, but that these individuals lacked the experience to meet ICAO minimum standards. She stated that the FAA worked with South Africa to give technical assistance to help the Nation meet standards. She did note that there is no penalty for a State if it chooses to get technical assistance from another country. She stated that the two countries worked collaboratively on an action plan and that today South Africa is a category I country.

Pinkney then spoke about the decision to pursue technical assistance with another country. She stated that one of the major factors in the decision is the political will of the nation. She stated that it was important for political will to be there not only to bring a nation up to ICAO standards, but also to sustain them.

She stated that challenges in this process include the long period of time involved, ensuring that the director general of civil aviation has the necessary power to make critical aviation decisions, issues with economic civil aviation boards that have a variety of interests in addition to safety, and relationship and trust building issues.

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The next speaker was Juan Carlos Salazar, Attorney, Air transport Advisor, United Arab Emirates, General Civil Aviation Authority. He began by briefly talking about his own expeience in this matters. Slazaar has a degree from the McGill’s Institute of Air and Space Law. After that he returned to his home country of Colombia to work for the Colombian Civil Aviation Authority, and now works for the United Arab Emirates, General Civil Aviation Authority.

He stated that doing this sort of work for developing countries was rewarding, in that it allows the practitioner to engage in a variety of issues in subject. However, he stated that a drawback from this was that it rarely allows for the ability to focus on an expertise.

Salazar noted that one of the major challenges involved in these processes was cultural differences between countries. He stated that these challenges were not only found in internal structures, but also in external perceptions of the culture, which can lead to misunderstandings by those coming in to assist in capacity building. He pointed out that most systems have the same sort of issues and problems with their aviation systems.

He stated that one of the most important aspects of capacity building was the development of the human resources side of operations. A state must be able to propagate the information gained from capacity building to successive generations of personnel. He pointed out that the UAE is particularly dependent on outside expertise, and that it is sometimes difficult to attract new personnel in from abroad.

Another issue that Salazar saw as important was dealing with the fact that every country has its own agenda. He said that sometimes it was important to get around these agenda’s in order to ensure safety.

Finally, he stated that there was a need in capacity building to put in place a system that is appropriate for that country involved and one that is compatible with the extent legal system. He emphasized that the system must be custom built for the system. This way the system will not only function properly, but also that the people who have to use the system will be invested in it.

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Short discussion then occurred which highlighted political constraints on capacity building and the difficulties that these constraints caused. Comments also highlighted the importance of ICAO. Pinkney highlighted regional agreements that help regional groups share resources in order to meet safety standards. Salazar expanded on this concept stating that reluctance to share information must be overcome in order for the system to operate effectively. Serrao stated that this problem is often aggravated when a state receives the technical training and then the personnel leave to go and work in another country for more money. Salazar noted that the global economic downturn may very well exacerbate this problem.

Salazar was asked what the effects of the economic downturn was on Colombia and its aviation system. Salazar stated that it was hurting exports and the tourism industry in Colombia. He stated that the airlines were in turn relying on the government to aid them through this time. He stated that this creates a host of issues.

Discussion then turned to the difficulties of separating economic issues from safety issues. It was noted that sometimes these two values conflict with each other and that the economic downturn could have a negative effect on safety regulations.

Salazar was then asked what the difficulties of dealing with different legal systems was like. This question was specifically addressed towards the differences between civil an common law systems. He stated that the differences could be seen in the implementation of different international conventions. For instance he stated that the Warsaw Convention was essentially based on civil law and that the Capetown Convention on Movable Assets was essentially based on common law. He stated that the implementation of these conventions can be difficult in legal systems that are not used to interpreting such legal documents.

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After the discussion Christy Hancock, a Student at the University of Mississippi School of Law, presented on her research into Malawi’s civil aviation system. Her research, done as an intern under Prof. Serrao, addresses Malawi’s legal framework and organizational structure. Specifically, she and her project partner researched the organizational structure, economic structure, and accident investigation structure on six African nations and how those systems compared to Malawi’s system.

She first addressed her research on Mozambique. She stated that this part of her project highlighted the difficulties of this sort of research because most of the material was unavailable. So that there was very little information available and most of it did not apply to civil aviation.

She then moved to addressing Egypt. She gave a short summary of the organization of the civil aviation authority, which does include a separate entity in charge of safety. She stated that little was available on the economic and accident investigation structures.

Finally, Hancock addressed Tanzania. She stated that there was a great deal of information available on Tanzania’s structures. She stated that the Tanzania civil aviation authority was very structured, the economic structure involved transparency measures, and that while the safety procedures were not available they were provided for in the legislation. She also stated that the website for the TCAA accident investigations arm was very thorough including a great deal of statistics.

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A short discussion occurred at this time that covered the difficulties of language in doing this work. The panel agreed that capacity building was often assisted by the ability not only for documents to be translated to assist in the capacity building, but for parties taking part in capacity building to put forth an effort to communicate in the language of the state where capacity building is taking place.

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Rebecca Beckett, Law Student at the University of Mississippi School of Law, rounded out the discussion on the Malawi research project. She also served as an intern under Prof. Serrao, and evaluated three African nations in order to give a comparison of their civil aviation systems to that of Malawi.

She first discussed the civil aviation system of Zambia. She stated that Zambia’s Department of Civil Aviation works through five sections. She stated that the Minister of this department had the ability to make regulations on fees, safety, and the industry in general. She then went on to describe the system and various conflicts that could arise due to conflicts that could occur due to the organization.

Next Beckett addressed the system of Kenya. She noted that the Kenyan system was also very structured, but that it may also suffer from safety and economic issues being intermingled within the system.

Finally, she addressed the system of South Africa. She noted that the South African CAA was established in 1998, after the passage of a law that shifted focus from economic development to that of safety. She did note however that there may still be oversight issues which could allow economic issues to be taken into account when making safety decisions. This is due to Ministry of Transportation control over Civil Aviation Authority.

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Prof. Serrao then requested participants to give advice to law students on how to pursue a career in aviation law. Pinkney stated that she was in a large private firm, and saw an opening at the FAA, but that she did want to pursue international issues. She took the opportunity and then worked to move her way into the international division. She stated that the experience on the litigation side at the FAA allowed her to work closely with the technical side which is very important for what she does now. She emphasized that the first job out of law school school should be used to gain the fundamentals of law, and then these should be used to move into the area in which one would like to practice.

Salazar stated that he was interested in international law. He stated that he was attracted to aviation law because of the diversity of people and cultures that it is possible to be exposed. He stated that it is very challenging and very rewarding.

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Prof. Serrao gave brief concluding remarks thanking the audience for their participation, and we thank you for following along on Res Communis.