A Legal Framework for CNS/ATM

Michael B. Jennison

Assistant Chief Counsel, International Affairs

Federal Aviation Administration, Washington DC

14 May 1998

I have extraordinarily good news for you. You may have heard or read that satellite navigation faces legal problems. That it is lacking a legal framework. That GNSS has legal defects and it cannot be implemented until a legal framework is constructed for it.

Well, the good news it that GNSS not only has a legal framework, it has a legal framework that is adequate to the task. Not only does its implementation not have to be delayed on account of legal issues, ICAO has declared that there are no legal obstacles to it. On top of that, ICAO is determined that that study of legal issued must not be permitted to delay implementation.

Let me explain. We have all the basic, constitutional law that we need (the kind that takes many years to develop and to bring into effect), and we have the ready means to make additional law—both binding rules and nonbinding guidance—to fill in any significant gaps that might emerge. (And no significant gap has emerged so far.)

Speaking as a lawyer, I know how we can be seized with the urge to regulate. But we need to resist that urge and exercise a policy of what I would call "legal parsimony." We should provide CNS/ATM with only the new law necessary to resolve concrete problems as they appear.

I am going to describe to you the legal framework for CNS/ATM, and recount briefly the work that has been done in the legal field.

Satellite navigation is revolutionary, of course, in terms of its positioning accuracy, its global coverage and the flexibility it will give to operators and to control agencies. It will increase system capacity everywhere through its pinpoint precision, and it will bring cost-effective, all-weather approaches to airports around the globe that have never had them before

Nevertheless, despite the apparent quantum leap in capabilities, satellite navigation, in the legal and institutional issues that it presents, has had its precursors in both short-range and long-range navigation systems in use for many years. Even short-range systems—like VORs, TACANs, and ILSs—operate across national boundaries. For example, an aircraft of country A, flying in the airspace of country B, can be directed by an air traffic controller in country C, while relying for its positioning on a navigation aid located in, and owned and operated by, the government of country D. This can present complicated factual issues to be sorted out by civil courts, for example, in the case of an accident caused by an air traffic management failure, but that is what courts do. This potential complexity has existed for many years.

Long-range navigation systems, such as LORAN and OMEGA, with signals that can be received tens of thousands of miles from the transmitter, have also been in use for decades.

All those navaids, by the way, were first developed by the military and then gradually came under increased civil control. The long-range systems have typically been controlled by one country—either the entire system or individual chains of transmitters covering an oceanic region—while they have been relied on by operators of all nations.

The current legal regime was developed in 1944, before the advent of the turbojet transport. That legal framework has adapted and adjusted over the years to much bigger technical developments than satellite navigation. It has admirably accommodated the transtion from piston-engined transports that could not fly non-stop between North America and Europe first to long-range turbojets, then to jumbo jets with intercontinental range, then to twin-engined, aircraft with trans-oceanic range. This legal framework has also adapted to the the development of increasingly sophisticated navaids, the widespread introduction of radar for positioning and surveillance, and the introduction of radio communications with global range.

The heart of this legal framework, which is the legal framework for CNS/ATM, is a treaty, the Chicago Convention. It governs international air navigation, including the air traffic management responsibilities of States, and it establishes ICAO as a rule-making organization.

Briefly, the Convention recognizes that States have sovereignty over their airspace. Art 1. They have authority to promulgate rules for entry, departure, and operation. Art 11. States must enforce their rules and strive to keep them uniform. Art 12.

The most important provisions for CNS/ATM are in Article 28. States must provide airports, radio, weather, and mapping services, and air navigation facilities. Furthermore, they must provide these services in accordance with Standards and Recommended Practices (known as SARPs) issued by ICAO. Art 28(a), (c). States must also establish communications and operations standards and procedures. Art 28(b).

The Convention empowers ICAO to make rules (SARPs) to keep up with social, economic, political, and technical developments, including technical breakthroughs like a satellite-based CNS/ATM. Arts 37-38.

Finally, there is an exception for war or national security emergency, Art. 89. States may depart from the rules automatically in case of war. In case of a national security emergency, a State must declare the emergency and notify ICAO to suspend any provisions of the Convention.

Now, this legal framework is ready for a move to reliance on satellite-based means for each of the three mainstays of air traffic management (the "C" and "N" and "S" in CNS/ATM).

First, as we have heard, communications will be increasingly satellite based, just as international telephony coming to rely primarily on satellite-based transponders. Next, surveillance—the process whereby ground controllers keep track of the location of aircraft and their compliance with air traffic direction—will also rely on high-tech means, including VHF datalink and satellite-based data transmission equipment.

Finally—and this is the only area that has even attracted any attention at all in the ICAO Legal Committee—aircraft in flight will be relying on satellite-based navaid transmitters to determine their position in three geometric dimensions, along with an extremely accurate time signal, to make four dimensions. Having the third geometrical dimension (altitude) available from the same navaid used for primary enroute position is really the only entirely new capability of satellite navigation. Aircraft have had altimeters from the earliest days, of course, and altitude information has been linked together with surveillance, by indicating a code on the controller's surveillance radar, for many years.

We are fortunate indeed for the foresight of the framers of the Convention. They gave us a framework for the ages, along with the necessary mechanism to keep it updated to meet technical—and social and economic—developments. We have also been blessed with extraordinary leadership in ICAO, including generations of capable and industrious representatives of member States—both developed and developing, elected leadership in the form of visionary Council Presidents and Secretaries-General, and an able and innovative professional staff, especially, for present purposes, in the Legal Bureau. All these opinion leaders and makers of law and policy have worked tirelessly to ensure that ICAO's legal framework remains responsive to the concrete needs of the world's civil aviation authorities, air carriers, and the flying public.

Let me say a little more about the principal means by which ICAO adapts the legal framework to change.

As I have already noted, we can readily shape new rules when they are needed. ICAO has a flexible and time-tested mechanism for making binding rules—or Standards—which are presumptively valid on every ICAO member State, now numbering 185. Standards (along with nonbinding Recommended Practices) are issued in every technical field of aviation safety and security, and collected in eighteen volumes of Annexes to the Chicago Convention.

Every State must abide by Standards, or notify ICAO that it cannot, for whatever reason. ICAO also has the capacity to issue nonbinding—but no less useful, guidance materials—in a number of forms.

Now I will describe some of the steps ICAO has taken in the legal field with respect to satellite navigation. (These steps are described in more detail in your conference papers.) Two rapporteurs have prepared studies. Two ICAO Assemblies have promulgated resolutions declaring the organization's commitment to GNSS and finding that there are no legal obstacles to its implementation. The Council has issued statements of principle having to do with satellite navigation, and also with respect to the right of States to recover their costs in providing navigation services. ICAO has consistently applied an important proviso to these developments—we will not let work in the legal field impede the actual, technical implementation of GNSS.

What legal work remains to be done in ICAO on satellite-based air traffic management? SARPs are under development in technical bodies. The panel of legal and technical experts has adopted a draft charter of rights and responsibilities. Even though the charter merely restates and elaborates principles already firmly established in existing international law (primarily the Chicago Convention), it might usefully be adopted as an Assembly resolution.

There is also plenty of need for lawyers to do what they do best. Lawyers' stock in trade is to apply the law to the facts and advise their technical and policy-making clients on the implications of technical developments and the expected legal consequences of various alternative actions.

My observations apply equally to the so-called interim GNSS be based on GPS, GLONASS, and local or regional augmentation systems we've been hearing about this week, and the long-term CNS/ATM system.

In the long run, however, it is simply too early to know what new law might be needed for the long-term GNSS. Nobody knows what that system will look like. No one has even made concrete proposals for the follow-on to the system being establsihed for the immediate future—GPS and GLONASS and regional augmentation systems includ5ng the so-called WAAS in the United States, EGNOS in Europe, MSAS in the Western Pacific, and so forth.

Only when we have a clear conception of what may constitute the long-term GNSS, can lawyers and policy makers then contemplate whether additional law, in whatever form, may be needed. Indeed, the development of the law typically follows social, economic, and technical developments, to assist in adjusting dislocations for changes in the other fields.

Finally, a word about liability. I have shattered a persistent myth, I believe, that there is no legal framework for GNSS (or for CNS/ATM, for that matter). Let me take on another one. This myth is that just because there is no multilateral system of rules having to do with liability of air traffic control agencies and systems, that does not mean that there are no liability rules. It does not mean that persons who are harmed by negligent failures of air traffic management, including contributors to air traffic management in the form of navaid signals, cannot pursue remedies in courts of law and other fora.

Note again that each sovereign State is responsible under Article 28 of the Convention for providing air navigation services in its airspace, regardless of whether—and the extent to which—it relies on the contributions of others to provide those services. The United States, for example, is providing GNSS signals world wide, but will be providing Article 28 services employing those signals only in U.S. airspace, and the oceanic areas for which it is responsible.

Most states have waived sovereign immunity to a greater for lesser degree (the United States did so many years ago), and most self-insure. Privatized or quasi-privatized air traffic agencies typically are subject to the same liability regimes as other providers of similar services to the public. They might be indemnified, or they might carry commercial insurance in the even that they are brought into litigation.

In the case of international claims, governments may consent to be sued in their territories, or the governments of the victims may present claims on behalf of their injured nationals.

Liability systems have been criticized for being inconsistent and inefficient, but those perceived weaknesses substantially predate GNSS. That is, the features that are criticized were not caused by the advent of satellite navigation.

Liability of air traffic agencies has been on the agenda of the Legal Committee for more than three decades, and there is a draft convention. But ICAO has done no work in the field for many years. A distinguished legal commentator (and former ICAO Legal Director) has suggested that the consideration of a liability regime for air traffic agencies has lain dormant because there has been no demonstrated practical need. States have simply not felt impelled to begin the arduous process of negotiating and attempting to bring into force a controversial convention.

A liability convention of whatever scope will surely be controversial, since the duty to protect the health and welfare and safety of nationals is at the heart of sovereignty, and States take a wide variety of approaches to it. I note that unanimously adopted revisions to the Warsaw system of carrier liability rules for passengers (which date from the mid-1970s) still languish unratified and are not in effect. Thew other Warsaw enhancements are just now going into effect.

Let me recap very briefly. GNSS has been determined to be fully consistent with the Chicago Convention by an eminent legal scholar who served as rapporteur, by the Legal Committee of ICAO, and by successive Assemblies of all the member States. We have available to us all the law-making facilities we need to fill in any gaps—with both binding standards and nonbinding guidance—although no major gaps have yet been identified. And, with respect to liability, there is no global regime, but there is a functioning liability regime in every major legal system. And neither any perceived weaknesses in those systems nor the lack of global uniformity was created by GNSS.

Thank you for the opportunity to come and share my views on the important legal issues facing us, and to bring you this good news.