Aviation Safety Legislative Aviation Safety Legislative Drafting; its Challenges and Drafting; its Challenges and OpportunitiesOpportunities

Jacqueline E. Serrao, J.D., LL.M. (McGill)Jacqueline E. Serrao, J.D., LL.M. (McGill)Abu Dhabi, U.A.E. Abu Dhabi, U.A.E.

15 April 200915 April 2009

National Center for Remote Sensing, Air and Space Law2

Drafting Aviation Safety Drafting Aviation Safety LegislationLegislation

• ““Drafting laws is like making sausages. You never Drafting laws is like making sausages. You never want to see how they are made.”want to see how they are made.”

National Center for Remote Sensing, Air and Space Law3

General thoughtsGeneral thoughts

• Law constitutes a government’s principal tool for changing aviation safety.

• Uncertain or non-existent aviation laws and regulations are factors leading to a lack of overall aviation safety oversight.

• This problem is compounded by an unstable legal/political environment which can create the ineffective and arbitrary enforcement of existing aviation laws and regulations, and lead to corruptive practices.

National Center for Remote Sensing, Air and Space Law4

Prerequisites for good aviation Prerequisites for good aviation legislation draftinglegislation drafting

Drafting solid aviation legislation requires good…Drafting solid aviation legislation requires good…

1.1. policy policy

2.2. processprocess

3.3. politicspolitics

4.4. formform

5.5. fitfit

6.6. stylestyle

National Center for Remote Sensing, Air and Space Law5

Civil Aviation Safety legislative Civil Aviation Safety legislative drafting… one size fits all? Not at drafting… one size fits all? Not at all.all.

How do you strike a balance between:

1. Creating a aviation safety legal structure which, in all respects, is consistent with the best practices elsewhere, and

2. adapting the new legal structure to local legal/social/economic/political conditions (but running the risk that doing so may dilute the power of the new instruments).

National Center for Remote Sensing, Air and Space Law6

Mozambique:Mozambique:Safety/Humanitarian Safety/Humanitarian issueissue

National Center for Remote Sensing, Air and Space Law7

Mozambique – Annex 17 (Security of Mozambique – Annex 17 (Security of the aircraft and passengers)the aircraft and passengers)

National Center for Remote Sensing, Air and Space Law8

Three recurring challenges and Three recurring challenges and opportunities in aviation safety legal opportunities in aviation safety legal capacity buildingcapacity building

political will

indigenous ownership &

control

institutional arrangements and

sustainability

National Center for Remote Sensing, Air and Space Law9

Some legislative challengesSome legislative challenges

• Separating safety oversight from economic Separating safety oversight from economic oversight.oversight.

• Board of DirectorsBoard of Directors

• Accident Investigation UnitAccident Investigation Unit

• PenaltiesPenalties

• Funding sourcesFunding sources

National Center for Remote Sensing, Air and Space Law10

Some final thoughts…Some final thoughts…

• Every country needs a champion.Every country needs a champion.

• If the government itself is unstable, or constantly If the government itself is unstable, or constantly changing, this may lead to inconsistent development of changing, this may lead to inconsistent development of reforms. reforms.

• If the organizational infrastructure is weak, or non-If the organizational infrastructure is weak, or non-existent, even having the proper legal framework will not existent, even having the proper legal framework will not be enough to support a safe aviation industry. be enough to support a safe aviation industry.

―However, the legal framework can be the driver of However, the legal framework can be the driver of imposing proper institutional organization and imposing proper institutional organization and aviation safety oversight .aviation safety oversight .

National Center for Remote Sensing, Air and Space Law11

Safety has no language Safety has no language barrier…barrier…