LEGAL AND INSTITUTIONAL CHALLENGES FOR GNSS -

THE NEED FOR FUNDAMENTAL OBLIGATORY NORMS

A Presentation by the Honourable K.O. Rattray, Q.C.

Solicitor General of Jamaica

Fifty-four (54) years ago, the founding fathers of the Chicago Convention recognised that international co-operation was indispensable in order to ensure the safe and orderly development of international civil aviation. The creation of the International Civil Aviation was established as the Organisational Framework within which mechanisms would be promoted and devised in order that in the language of the Chicago Convention

"international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically".

At the very heart of the Chicago Convention is the concept of sovereignty proclaimed in Article 1 of the Convention that:

"The Contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory".

The fundamental challenge therefore was to reconcile the concept of sovereignty with the need to secure uniformity and order in the skies in pursuit of safety and orderly development. The Chicago Convention enabled the establishment of International Standards and recommended Practices dealing with a wide range of matters all concerned with the SAFETY, REGULARITY and EFFICIENCY of AIR NAVIGATION (Chapter VI – Articles 37 – 42 of the Chicago Convention). A whole network of standards and recommended practices contained in 18 technical annexes have been developed as a framework for Aviation safety.

During the last 50 years there has been a phenomenal growth in Civil Aviation. Air transport has served to transform the world into a virtual global village. The explosion in air travel has witnessed a growth perhaps unimaginable in 1944 rising from approximately 9 million to approximately 2 billion at the turn of the century.

Side by side with this explosion in the growth of air transport has been the technological development in design and aircraft capacity. New and sophisticated jet aircraft with jumbo capacity with super-sonic speed has posed a formidable challenge to airport and airspace capacity and air traffic management.

Congested airspace, congested airports and air traffic management and navigation based on line-of-sight technologies have all exposed the inherent limitations of existing technologies in meeting the challenge of the contemporary air traffic demand and the need for global consistency in the provision of air traffic services.

The International Civil Aviation Organization (ICAO) recognising the challenge posed for the future Air Navigation System established the FANS Committee which accepted that the basic communications, navigation and surveillance (CNS) for civil aviation had in many respects reached its limits for expansion and that a satellite based CNS system, together with enhancements to ground based systems is essential to meet the growing requirements of civil aviation world-wide. In the order to give integrity to the new satellite system it was necessary to develop a comprehensive plan for the future global system and institutional arrangements for transition and implementation planning of this GLOBAL SATELLITE NAVIGATON SYSTEM (GNSS).

It is useful at this stage to identify and summarize:

- the limitations in the existing system;

- the benefits to be derived from the introduction of a GNSS;

- The challenges to be faced in the introduction of a new GNSS;

- The legal and institutional framework required to meet the challenges.

LIMITATIONS OF THE EXISTING SYSTEM

The FANS Committee identified the following limitations in the existing system in meeting the challenges of the present and growing air traffic demand and that harmonization in the provision of global navigation and air traffic services:

the line of sight propagation of current terrestrial based systems and/or the accuracy and reliability constraints resulting in the propagation characteristics of other systems. Present communications systems rely on Voice Communications or VHF frequencies;

The difficulty, for a variety of reasons, in implementing present CNS systems and operating them in a consistent manner in large parts of the world;

The limitations of voice communications and lack of digital air-ground data interchange systems;

Lack of route flexibility and harmonized system development.

The Fans Committee concluded that use of satellite technology enabled the identified limitations to be met within the context of global implementation system which could be applied with consistency and uniformity. It was also recognised that there was need for smooth transition between Flight Information Region so as to allow for an evolution to a truly seamless exercise or "Free Flight" arising from harmonisation and consistency in air traffic services globally. All these factors emphasized the need for ICAO to monitor and coordinate the global harmonisation of planning and implementation of the NEW CNS/ATM systems.

THE BENEFITS TO BE DERIVED FROM GNSS

The new GNSS are expected to produce the following benefits:

Reduction in operating cost of Airlines by ability to plan and operate on more direct flight profile. There will be greater automation and flexibility in flight profiles;

Improved safety arising from improved data handling and transfer among operators, aircraft and airtraffic service providers;

Greater non-precision approach capabilities;

Improved capabilities to deal with Congestion in the skies by increased technological capability for separation of aircraft both vertically and horizontally;

Service provides will benefit from a level of standardization that will facilitate connectivity between ATC systems and support the seamless transition between flight information regions (FIRs).

Improved Air Traffic Management

Air traffic management currently depends on limited information derived from flight plans, their updates and current means of surveillance. The flow of information between ATC units is often inadequate. ATC does not work with optimized flight profiles but uses simplified aircraft performance data. The route structures are inflexible. The implementation of the new CNS systems will provide the capability for closer interaction between ground-based systems and airspace users, before, during and after flight. This closer interaction will in turn make it feasible to improve ATM by enhancing the safety and predictability of flight, permitting the flexible and efficient use of airspace, and improving economies of operation. In general, the new ATM system will enable aircraft operators to meet their planned times of departure and arrival and adhere to their preferred flight profiles with minimum constraints and no compromise to safety. Sophisticated models that can accurately predict congestion and delay will be used to formulate effective real-time strategies for coping with demand.

Other Areas of Improved Traffic Management

Flow Management;

Tactical Control - change in flight path and separation.

Oceanic Operation - Greater flexibility;

En-Route Terminal Operations –

The flow management process will monitor available capacity and demand at airports throughout en-route and terminal airspace, and will implement flow management strategies as required to prevent excessive levels of congestion from developing.

Airport Operations:

The new ATM system will help increase airport capacity. They will accomplish this through techniques, procedures, and technologies that will allow higher traffic throughput in order to fully utilise airport resources to their full capacity. Traffic flows will be structured to maximize both approach and departure operations.

THE CHALLENGES TO BE FACED IN THE INSTITUTION OF A NEW GLOBAL NAVIGATION SATELLITE

The Challenge to Sovereignty:

The airspace over a States Territory remains under the complete and exclusive sovereignty of the State. The reaffirmation of this right is merely declaratory of the position in international law. Consistent with this sovereign position it remains the responsibility of each state to decide how to provide air navigation facilities. This has been achieved in the overwhelming majority of States through Civil Aviation Departments, Agencies or Authorities owned, controlled and operated by ATC bodies either directly by a Department or through autonomous Civil Aviation Authorities.

Even where ATC functions are privatised the ultimate responsibility remains with the State to determine operations in and over its sovereign territory. In addition, Contracting States to the Chicago Convention are under an obligation to provide in their territory air navigation facilities in accordance with Article 28 of the Convention For a large number of States, the GNSS facilities, at least as far as space segments are concerned, would be controlled and operated by one or more foreign countries representing a dramatic step away from past practice in the provision of air navigation services in the application of the principle of sovereignty.

This fundamental departure from territorially based air navigation systems to extra-territorial based poses not only a challenge to sovereignty simpliciter but more importantly to the confidence in the integrity of the system and the geo-political influences which could undermine the credibility of the system. These concerns have been accentuated by the fact that the GNSS services now available and on offer for the international aviation community originated from systems designed and operated for military purposes.

The fundamental challenge is - what will be the Bankable Guarantees that will give the assurances for the preservation of the integrity of a system outside of sovereign control.

As elements of this Absolute need for assurance are the following:

Universal Accessibility

It is essential that for the sustainability and global acceptability of GNSS there must be universal accessibility for all states and the aircraft of all states without discrimination of any kind. The development of a seamless exercise with integrity makes this essential. Global safety in Aviation cannot be compromised by exceptions or discriminating treatment. The simple truth is that the CUBA's of the world cannot be discriminated against on the basis of political consideration. The legal framework for GNSS must protect the principle of Universal Accessibility and neither a model contractual arrangement with service providers nor national legislation nor SARPS nor Presidential Declaration would be adequate for this purpose. An International Convention is the best means of achieving this objective.

Reliability and Continuity of the Service

Three elements must be assured:

technical performance criteria must be assured, including integrity, fault warning, accuracy and protection from interference, and

effective arrangements to minimize the operational impact of unavoidable system malfunctions or failure to achieve expeditious service recovery;

continuity of the total system to perform its function without interruption during the intended operation and in particular that they are not to be interrupted, modified, altered or terminated for military, budgetary or other non-technical reasons.

Some of the above elements of a technical nature can be assured through the development of SARPS through ICAO. But in respect of the assurances required it is necessary for bankable assurances to be given which will require an International Convention engaging the obligations, responsibility and liability of States and service providers within their jurisdiction.

Affordability – The Determination of User Charges

The introduction of the new system of GNSS must provide assurances to the international community of the ability to participate on an affordable basis. Most administrations especially in developing countries will now have to make significant economic and budgetary decisions regarding the aviation communication and navigation infrastructure in the short, medium and long-term. They will be faced with the difficult decision as to whether contemplated investments in Inertia Navigation System

(INS) or Microwave Landing System (MLS) should be abandoned and instead a quantum leap be made to hook into GNSS and to invest in the Augmentation systems which will be required.

Without the necessary bankable assurances to be provided by an International Convention it would be extremely difficult for the confidence required for objective decisions to be made in respect of substantial financial investment.

An essential element of the regulatory frame work would therefore be to provide in such a Convention that user charges would be determined in accordance with criteria determined by ICAO, in accordance with Article 15 of the Chicago Convention and that user charge would be:

non-discriminatory;

directly related to the services being provided, and

equitably apportioned among all categories of users.

One area which could generate considerable controversy and affect the revenue potential of many developing countries will be the apportionment of user charges for en-route navigation throughout its Flight Information Region (FIR). To the extent that such navigation is essentially related to signals in space outside the control of the territory of the State a serious question of determining the relationship of the services provided by the State will arise.

LIABILITY

One of the most important challenges which must be addressed for the universal acceptability of the new system of GNSS is the issue of liability:-

Who will be liable if an accident occurs?

What system of liability will apply – Will it be strict liability,

Liability based on fault or presumption of fault.

Will there be a system of limitation of liability

What Court will have Jurisdiction over Liability Issues

Will principles of Sovereign Immunity apply so as to exclude the State from jurisdiction.

Will waiver of liability clauses be permitted.

Whether and to what extent liability provisions should reflect the joint liability of all parties involved in the operation and provision of GNSS services.

Should there be mandatory insurance risk coverage so as to prevent the frustration of legitimate clauses.

Should there be a "channeling" of liability between the various actors in the chain of providers. All these issues relating to liability must be resolved in order to inspire confidence, give credibility to the system and establish the foundations for universal acceptability on a sustainable basis. An International Convention which establishes the legal obligations and liabilities of States and service providers is necessary in order to provide the necessary guarantees.

THE ROLE OF ICAO AND ACHIEVING UNIFORMITY

The introduction of GNSS highlights the need for international cooperation in securing the highest practical degree of uniformity in the provision and operation of GNSS services. To this end States must recognize the control role of ICAO in coordinating the global implementation of CNSS and in particular:

the responsibility of ICAO for establishing appropriate Standards, Recommended Practices and Procedures in accordance with Article 37 of the Chicago Convention in the implementation and operation of GNSS by provider States and User States.

Coordinating and monitoring the implementation of GNSS on a global basis, in accordance with ICAO's regional air navigation plans and global coordinated CNS/ATM systems plans;

Facilitating the provision of assistance to States with regard to the technical, financial, managerial, legal and cooperative aspects of the implementation of GNSS;

Coordinating with other international organisations in any matter related to GNSS, including the use of frequency spectrum in respect of communications and navigation in support of international civil aviation.

Compatibility with the Chicago Convention

International Cooperation – Mutual Assistance

It was essential for the integrity of the system, including the need for coordinated Global Planning and Implementation, that States should be guided by the principle of cooperation and mutual assistance.

It was essential that there should be machinery for consultations and cooperation between States as main stakeholders in the GNSS system:

In view of the inter-relationship and interdependence of States within the Global system of the new GNSS it was essential that States should conduct its GNSS activities with due regard to the interests of other States.

The Legal and Institutional Framework Required to meet the Challenge

It is evident from the challenges illlustrated above that there is the need for a framework of uniform fundamental norms to govern the future operations of GNSS and that the relations between States should give the necessary assurances to guarantee the universal accessibility, reliability and continuity, affordability, liability, international cooperation and oversight by ICAO.

All these fundamental concerns will require:

the establishment of Fundamental Norms by means of a Charter on the Rights and Obligations of States relating to GNSS and

An International Convention as the Legal Framework for enshrining the principles governing GNSS and the Rights on Obligations and States.

The simple assertion that GNSS is not inconsistent with the Chicago Convention's provides no assurance or comfort for the implementation of the system with integrity. The principles contained in the International Air Law Conventions such as those relating to Aviation Security (Tokyo/Hague/Montreal) and the Warsaw Convention are all compatible with the Chicago Convention. But compatibility of principles have never been regarded as an adequate basis for engaging the responsibility of States. A Convention is necessary for this purpose. In the field of GNSS it is more so necessary because many of the elements of the system will be outside the sovereign control of States. It is absolutely essential that the foundation of GNSS on a World- wide basis to be constructed on:

pillars of political confidence

pillars of financial confidence

pillars of technical and technological confidence

The three pillars must be anchored and secured by legal and institutional foundations which can only be provided by an International Convention which spells out in detail the fundamental principles governing the implementation of GNSS. The fundamental challenge which we face today is how to get the World Community to be politically committed and the financial community to be financially committed to make the political commitment required for the implementation phase and for the resources to be provided. If the next steps are to be taken there must be adequate legal, financial and political security. It's well to remind ourselves that the United States offer to make available GPS on a continuous world-wide basis free of direct user charges was expressly made "subject to the availability of funds" as required by U.S. Law and the Russian offer was also made "subject to the allocation of resources, as required under the legislation of the Russian Federation". And two days ago, we heard from both the US and the Russian Federation of the budgetary constraints which have affected the modernization of their systems. Clearly, goodwill is not enough; goodwill is an inadequate foundation on which to build the required confidence. In this regard, it is relevant to recall the sobering reminder of Dr. Donald Bunker on Tuesday that: Financiers are very risk averse; they do not take chances. Banks have to be made comfortable. That exhortation applies equally to goverments of sovereign States. An International Convention is needed to provide that comfort.

The thesis has been advanced that the market place will ultimately determine when GNSS is accepted and the degree to which it's relied upon. But GNSS is akin to a public utility. It is regarded as essential to the future air navigation system and decisions will have to be made shortly by States. Those decisions cannot be left to the turbulence of the market place. Even in the domestic sphere, the market place has to be regulated in order to sustain its integrity. The simple fact is that the market place is an inadequate mechanism to provide the necessary guarantees which will inspire world-wide CONFIDENCE and provide comfort on issues relating to sovereign and provide the necessary assurances for

universal accessibility without discrimination

reliability and continuity

affordability

liability

international co-operation, and

oversight by ICAO.

The Charter on the Rights and Obligations of States relating to GNSS services is a first step constituting an important link in a chain leading to the adoption of a Convention. In this period of transition it could provide a bridge for further action by States as an interim measure provided it is endorsed by an Assembly Resolution or Declaration which requires States to accept its provisions as obligations as a transitional measure, leading to an International Convention. It is hoped that as a purely transitional measure, the Charter adopted by an Assembly Resolution or DECLARATION could provide the necessary foundations of confidence for the transition planning for the implementation of GNSS. But in order to provide the necessary guarantees that this bridge will lead to require that the true foundation pillars of political security, financial security and technical and technological security it must be adopted as an integral part of a timetable with benchmarks requiring:

the adoption of the Assembly Resolution or Declaration of the Charter on the rights and obligations of States relating to GNSS and the ICAO Assembly in September/October 1998;

the preparation of an International Convention under the auspice of ICAO for presentation to a Diplomatic Conference

the convening of the Diplomatic Conference for the consideration and adoption of the convention by the end of 2000.

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