INTERNATIONAL LEGAL IMPACT ON NATIONAL IMPLEMENTATION OF GLOBAL NAVIGATION SATELLITE SYSTEM (GNSS)

Address given by Mr. Trond V. Nordeng, Advisor to the Norwegian Civil Aviation Administration, to the ICAO World-Wide CNS/ATM System Implementation Conference, Rio de Janeiro 11 - 15 May 1998.

Distinguished delegates, Ladies and Gentlemen!

The two presiding speakers have discussed legal and institutional affairs related to future international regulation of GNSS, reviewing the work of ICAO within the legal field as of to day. We may see the contours of an acceptable international legal regime, although it is too early to foresee a date when such legal regime comes into force. Disregard the work of ICAO within the legal fields, satellite technology has reached such an advanced stage that it seems ready for certification. Technically it is justified to state that satellite systems are ready to service civil aviation in a manner which improves the safety in the air and at the airports. At the same time - due to the reliability and precision of the satellite systems - the utilization of the airspace can be improved by reducing the minima for aircraft separation. Certain regions are already experiencing capacity problems and so-called "flow-controls" are activated too frequently, imposing unnecessary costs and time-constraints on airlines, airports and passengers. I dare submit that any deviation from established air traffic control procedures is a safety hazard and should therefore be avoided. Aviation industry is about to enter a new technological evolution and national civil aviation administrations are looking for the possibilities to achieve early benefits stemming from this new technology.

It may be premature to discuss international legal impact on national implementation of GNSS, since such "tailor-made" legal regime does not exist for the moment. Furthermore, technical and operational international standards and recommended practices and certification criteria is still missing. Nevertheless, satellite signals are available for civil aviation and States/airlines may wish to make use of their availability. Until ICAO has completed its work, individual States have to rely on FAA-approved standards, which must be assumed to be pursuant to the Chicago Convention.

The global character of GNSS calls for an international legal regime and there should be no doubt that sooner or later such international regime will be adopted. It is in the interest of any Provider State and - in the future - Provider Organization, as well as for any User State and its airlines. Being convinced of the benefits - improved safety, lower investments and operational costs - every ICAO Member State should contribute to the development of an international legal regime in a pragmatic manner. However, in the absence of an international legal regime, national civil aviation administrations considering implementation of ADS and Differential GPS will ask what guarantee can be provided for system functionality.

Now, who can guarantee system availability and undisrupted functionality as satellites were some kind of "Perpetum Mobile?"

ICAO or any other existing multinational organization?

Hard to believe so. They do not provide satellite signals themselves and are certainly not ready to accept economic liability.

Provider States or System Owners, being the sole owner of the satellite system making the signal-in-space available free of charge?

They may simply say to operating regional augmentation system or user States; You may make use of our satellite system on your own merits and at your own risk. We do not guarantee anything, since technical failures can occur as well as human errors or unlawful interference. Even the satellites have limited life cycles and furthermore in the future, we should even take into account criminal activities done by terrorist groups wishing to cause global chaos. Apparently, the only guarantee which the Provider States or System Owners may give, is non-disruption except due to "Act of God"events, even though the satellite's environment is in heaven.

Neither can a regional organization operating augmentation system guarantee availability and undisrupted functionality, since they are not providers of signal-in-space.

Due to the global nature of GNSS involving major political, economic and legal implications, it seems to me that the only viable solution is the establishment of a supra- national organization with sufficient strength in all fields. Since the Chicago Convention basically places safety responsibility on individual States, it may appear necessary to make an amendment to the Convention in this respect. It should be envisaged that quite some time will pass before a long-term international legal instrument will be adopted. In the meantime, States have no other choice than accepting the traditional legal regime, which put all responsibility for air traffic control activities on individual ICAO Member States.

Understandably, any State considering early implementation of GNSS, should scrutinize the possibility to obtain maximum guarantees for availability, continuity, accuracy and integrity of signals-in-space. Without having an international legal instrument available, the alternative is to establish a chain of contracts, firstly between Primary Signal Provider and a Regional Augmentation Service Provider, secondly between the Regional Augmentation Service Provider and the State which have authorized the use of GNSS in their airspace and which may also supply local augmentation service or equipment. ICAO has already embarked on developing model agreements, which could be helpful for States. A contractual regime is commercial by nature and the liability issues should be agreed herein. On the user side, the National Civil Aviation Administration should be one party to the relevant contract. The political impact on such contractual negotiations should be limited to the decision concerning implementation of GNSS and its financial implications. It goes without saying that if individual States should negotiate such contracts, a prohibitive administrative burden will be placed on the service provider State or organization. For that reason, States within a defined geographical region should agree on establishing an interface body who is empowered to negotiate on their behalf. Whether such an interface body is an already established international organization or the group of States wish to establish a new GNSS entity, should be a question of rationality.

It should be assumed that any ICAO Member State is by its own national legislation obliged to establish air navigation services in a manner which provide maximum safety to passengers and crew. Furthermore, that States are obliged to make every effort to increase safety at its airports be introducing new technology when such technology is duly certified. This attitude can be derived from the principles of the Chicago Convention and should therefore be respected. One may even submit the opinion that if States neglect the technical possibility to improve aviation safety, for whatever reason, that State may be subject to stricter judgement by courts.

In conclusion, I submit that each individual State has the obligation to adopt and put into operation the appropriate standard systems of air navigation facilities and operational procedures as developed by ICAO. Furthermore - in the context of GNSS - that individual States have the responsibility to ascertain that ICAO is successful in its endeavours to develop an international legal regime and the relevant SARPS.

Assuming that the political decision in principle is made - if necessary - to implement a satellite-based navigation system which includes communication, navigation hereunder precision approach and surveillance, how could this be done?

Firstly, a national "tailor-made" study must be developed, which includes

I. Technical issues

1. Technical aspects related to satellite navigation, including

a. en-route as primary means in non-controlled air-space and supplementary means	in controlled air-space, terminal area and non-precision approach,

b. precision approach, and

c. possible scenarios for implementation of glide path.

2. GPS/GLONASS coverage for SCAT-1 usage, including off-shore oil installations,

3. Technical aspects to be considered in an evaluation of SCAT-1, in particular for regional airports, including

a. General presentation of DO-217 and TSO-C129,

b. Main requirements in DO-217 for SCAT-1 approach, in particular as regards	accuracy, availability, continuity and integrity. Satellite coverage at each airport	must be monitored, but this can be simulated.

c. Technical evaluation at system level, including SCAT-1 message types and
troposphere effects on GPS/GLONASS pseudoranges for SCAT-1,

d. Specification of ground equipment requirements,

e. Technical evaluation of VHF-Link,

f. Avionics.

II. Operational issues

1. GNSS operational requirements, hereunder

a. operational requirements for the total system,

b. GNSS support of present capabilities,

c. current requirements, and

d. conditions applicable for meeting the GNSS operational requirements.

2. Operational approach procedures - design criteria, hereunder

a. precision approach procedures for SCAT-1, including FAA interim operational	procedures and design criteria, Specific characteristics of the Differential GPS
derived vertical position, earth curvature, height difference between WGS-84	Ellipsoid and Geoid such as "MSL" and "Geoid Undulation" or "Geoid/Ellipsoid	Separation",

b. Effect on minima.

3. Non-precision approach, including

a. core FAA criteria

b. core PANS OPS criteria and

c. improvement potential regarding control of descent.

4. Distribution of NOTAMs.

III. Certification issues

Provided that the airborne equipment and the ground equipment is duly certified by FAA or another State Authority, each User State should undertake its own testing of the system and ultimately give its airworthiness approval for en-route use and for non-precision approaches.

IV. Legal issues

The necessity to scrutinize the legal obligations based on national legislation relevant to implementation of a global navigation system should be apparent, since national Civil Aviation Authorities make themselves dependant on a system which is not under their total control. Economic liability and the legal possibilities to take recourse actions should be discussed.

V. Financial issues

The performance of air navigation services are one of the heaviest burden on any civil aviation budget, both as regards investments in technology and operation. The motivation for implementing a new system should not only be related to higher degree of safety and regularity, but also improved cost-effectiveness for Authorities and airlines.

Assuming that the investments and costs related to the current operation with the traditional air navigation system, the study should as precise as possible identify the initial cost concerning the transition to a new system, planning, development of procedures and related regulations, procurement of equipment, maintenance and training of the air traffic controllers and engineers. Thereafter a comparison can be done, showing the short and long term economic consequences.

A similar study should be done by airlines, although if their aircraft is already equipped with TSO-129C avionics, it should not be necessary with further investments.

Norway has completed its preparations for the implementation of GNSS 2, and has made the decision to install SCAT-1 groundstation at 25 of its 56 airports within a three-year period. Furthermore, it is expected that the oil companies operating production platforms in the North Sea and Northern Atlantic Ocean will do the same.

Conclusions:

1. ICAO should be encouraged to complete its work related to an international long- term legal regime.

2. States have pursuant to the principles of the Chicago Convention, the obligation to ascertain the success of ICAO's aim to establish such international regime and the relevant SARPS as soon as possible.

3. A regional GNSS entity should be established sufficiently empowered by States to negotiate the contracts necessary to guarantee availability of signal-in-space, continuity, accuracy, integrity, financing and liability.

4. States and airlines should together prepare and implement the new satellite based air navigation system by making available the necessary "know how" and financial means.

Thank you for your attention.