International Civil Aviation Organization

World-wide CNS/ATM Systems

Implementation Conference

Rio de Janeiro, 11 – 15 May 1998

WW/IMP–WP/11

11/5/98

Item 5

Agenda Item 5:	Legal Aspects

5.2	Legal Aspects of Certification

5.3	Liability

5.4	Legal Principles Related to Administration, Financing and Cost Recovery

5.5	Legal Aspects of GNSS Future Operating Structures

LEGAL ASPECTS OF CERTIFICATION AND OTHER MATTERS RELEVANT

TO GNSS SERVICES

(Presented by the Secretariat)

Action Paper

SUMMARY

This paper presents 16 Recommendations put forward by the Panel of Legal and Technical Experts which will be reported to the 32nd Session of the ICAO Assembly for further guidance.

1.	Introduction

1.1	The Panel of Legal and Technical Experts on the Establishment of a Legal Framework with Regard to GNSS (LTEP) has considered, in addition to the Draft Charter on the Rights and Obligations of States Relating to GNSS Services, the following legal issues related to GNSS:

(1)	certification;

(2)	liability;

(3)	administration, financing and cost recovery; and

(4)	future operating structures.

The Panel has put forward 16 Recommendations, which are set out in the Attachment to this Paper. These recommendations were considered by the Council during its 153rd Session and will be submitted, along with the report on the work of the Panel, to the 32nd Session of the Assembly of ICAO, through the Legal Commission, for further guidance.

2.	Recommendations of LTEP

•	Certification

Recommendations 1 to 8 put forward by LTEP are related to the legal aspects of certification. Attention has been given to the need for developing adequate safety standards for the use of GNSS, in the form of ICAO SARPs. The recommendations identify the role that States providing signals-in-space could play in the application of ongoing safety management processes. For instance, Recommendation 3 indicates that these States shall certify the signal-in-space by attesting that it is in conformity with SARPs. Further, it has been considered important to exchange information concerning the failure mode of the system. Accordingly, the ICAO forum referred to in Recommendation 8 would be used for this purpose.

•	Liability

Issues related to liability have been discussed in the LTEP and are reflected in Recommendations 9 to 11. Since there is no unanimous conclusion at this stage with respect to these issues, the recommendations identify a number of concepts in relation to the liability regime for GNSS which should be further studied. For instance, further studies are necessary in order to determine whether the GNSS service providers could insert a disclaimer of liability into their service contracts as the providers of satellite telecommunication services have done.

•	Administration, Financing and Cost Recovery

Recommendations 12 to 14 put forward by LTEP are related to the legal aspects of administration, financing and cost recovery of GNSS services. These recommendations refer to GNSS services as an international service for public use, identify the possible options for administrative mechanisms for GNSS, and consider the possible method of financing GNSS.

•	Future Operating Structures for GNSS

The term "future operating structures" is related to long-term GNSS, rather than the existing systems. It is ICAO's established policy that GNSS should be implemented as an evolutionary progression from existing global navigation satellite systems, including the United States' global positioning system (GPS) and the Russian Federation's global orbiting navigation satellite system (GLONASS), towards an integrated GNSS over which Contracting States exercise a sufficient level of control on aspects related to its use by civil aviation. Recommendations 15 to 16 put forward by LTEP address the related issues. Recommendation 15 refers to the coordinating role for ICAO, the concept of civilian control over the future GNSS primary signals, and the optimum use of existing organizational structures. Recommendation 16 indicates the need to develop initially national and/or regional operating structures for GNSS, and identifies certain possible fields of international action.

3.	Action by the Conference

3.1	The Conference is invited:

a)	to note this working paper; and

b)	to provide any views it may have on this matter to assist the 32nd Session of the Assembly in its consideration of the subject.

RECOMMENDATIONS

Adopted by the Panel of Legal and Technical Experts

on the Establishment of a Legal Framework with regard to GNSS (LTEP)

Certification

Recommendation 1

ICAO SARPs on GNSS should cover the system performance criteria of relevant satellite components, signal-in-space, avionics, ground facilities, training and licensing requirements, and the system as a whole.

Such ICAO SARPs should contain adequate system performance and failure mode information

to enable States to reasonably determine the safety impact on their air traffic service.

Recommendation 2

With respect to all ICAO SARPs on GNSS, signal-in-space provider States and provider international organizations should be involved in the proposed ICAO verification and validation process so that SARPs and supporting ICAO documentation will be of high integrity.

Recommendation 3

States providing signals-in-space, or under whose jurisdiction such signals are provided, shall certify the signal-in-space by attesting that it is in conformity with SARPs.

The State having jurisdiction under the Chicago Convention should ensure that avionics, ground facilities and training and licensing requirements comply with ICAO SARPs.

Recommendation 4

States providing signals-in-space, or under whose jurisdiction such signals are provided, should ensure application of ongoing safety management processes which demonstrate continued compliance with signal-in-space SARPs.

Recommendation 5

States providing signals-in-space, or under whose jurisdiction such signals are provided, should produce a safety management system document using the ICAO forum referred to in Recommendation 8 below. To the extent possible, such document should be consistent as regards format and content. ICAO should distribute such signal-in-space safety management system documentation.

Recommendation 6

Each State should define and ensure the application of safety regulations for the use of the signal-in-space as part of air traffic services in its own airspace.

Recommendation 7

For the purpose of authorization by a State of the use of the signal-in-space in its airspace, additional information which may be required for such authorization should be made available and distributed through ICAO. Other sources for obtaining such information may be used, including, inter alia, bilateral and multilateral arrangements, Safety Case and NOTAMs.

Recommendation 8

States recognize the central role of ICAO in co-ordinating the global implementation of GNSS and in particular:

a)	establishing appropriate Standards, Recommended Practices and procedures in accordance with Article 37 of the Chicago Convention in the implementation and operation of GNSS;

b)	co-ordinating and monitoring the implementation of GNSS on a global basis, in accordance with ICAO's regional air navigation plans and global co-ordinated CNS/ATM systems plan;

c)	facilitating the provision of assistance to States with regard to the technical, financial, managerial, legal and co-operative aspects of the implementation of GNSS;

d)	co-ordinating with other organizations in any matter related to GNSS, including the use of frequency spectrum bands in which GNSS constituent elements operate in support of international civil aviation; and

e)	carrying out any other function related to GNSS within the framework of the Chicago Convention, including functions under Chapter XV of the Convention.

More specifically, the ICAO forum for exchange of information on GNSS certification could have the following functions:

a)	to provide liaison between State ATS providers, regulatory authorities, and signal-in-space providers;

b)	to provide liaison between signal-in-space providers and other States with respect to the format and contents of safety management system documents;

c)	to identify the failure modes of the signal-in-space and their impact on the safety of air traffic services nationally, and to refer them to an appropriate body as determined by the Council;

d)	to identify what States require from signal-in-space providers in order to be confident that performance and risks associated with the signal-in-space are adequately managed over the life cycle of the system;

e)	to facilitate information-sharing between signal-in-space providers and other States as to the continued compliance with the relevant SARPs, in order to maintain confidence in the reliability of the system.

Liability

Recommendation 9

The following concepts, among other matters, should be considered in relation to the liability regime for GNSS which should be further studied:

a)	Fair, prompt and adequate compensation;

b)	Disclaimer of liability;

c)	Sovereign immunity from jurisdiction;

d)	Physical damage, economic loss, and mental injury;

e)	Joint and several liability;

f)	Recourse action mechanism;

g)	Channelling of liability;

h)	Creation of an international fund (as an additional possibility or an option);

i)	The two-tier concept, namely strict liability up to a limit to be defined, and fault liability above the ceiling without numerical limits.

Recommendation 10

With regard to the fault liability portion, signals should be recorded for purposes of evidence in accordance with ICAO SARPs.

Recommendation 11

In conducting the studies on the liability regime for GNSS referred to in Recommendation 9, the following matters should, inter alia, be taken into account:

a)	How liability provisions concerning the operation, provision and use of GNSS services should ensure that damage arising from such services will be compensated in an equitable manner;

b)	The vital role of the signal transmitted by navigation satellites for the safety of international civil aviation could raise the question whether disclaimers of liability would be appropriate in the case of navigation satellites, particularly in cases involving accidental death or injury;

c)	Having due regard to Principles 3 and 4 on the Draft Charter on the Rights and Obligations of States Relating to GNSS Services, whether the doctrine of sovereign immunity should be excluded in liability claims based on GNSS so as to ensure adequate allocation of liability;

d)	The practical experience in the commercialization of GNSS services as they develop;

e)	Appropriate methods of risk coverage should be utilized so as to prevent the frustration of legitimate claims;

f)	Whether and to what extent liability provisions should reflect the joint liability of all parties involved in the operation, provision and use of GNSS services;

g)	Liability provisions should have due regard to and, where necessary, should supplement existing principles and rules of international law, including air and space law.

Administration, Financing and Cost Recovery

Recommendation 12

GNSS services should be considered as an international service for public use with guarantees for accessibility, continuity and quality of the services.

The principle of co-operation and mutual assistance, as enunciated in the Draft Charter on the Rights and Obligations of States Relating to GNSS Services, should be applicable, a fortiori, to the cost recovery of GNSS.

Recommendation 13

In the absence of a competitive environment regarding the provision of GNSS services, consideration should be given as to whether mechanisms should be desirable to prevent abuse of monopoly power on the part of GNSS providers.

The administrative mechanisms for GNSS should be at multilateral, regional and national level. The Danish-Icelandic Joint Financing Agreement could be a model but this would not exclude the use of other types of mechanisms, including existing regional arrangements.

Cost recovery schemes, if any, should ensure the reasonable allocation of costs among civil aviation users themselves and among civil aviation users and other system users.

Recommendation 14

The aviation user charges which may be considered as possible methods for financing of GNSS include the following:

a)	yearly subscription charges per using operator;

b)	yearly subscription charges per using aircraft;

c)	yearly/monthly licence fees;

d)	charges per flight;

e)	charges in respect of different phases of flight;

f)	charges based on total passenger-kilometres and tonne-kilometres;

g)	regular en-route charges; or

h)	a combination of the above.

The principles recommended in the ANSEP Report and in the ICAO Guidelines should in any event be taken into account.

Future Operating Structures

Recommendation 15

The future operating structures should include a co-ordinating role for ICAO with respect to the future GNSS, including the system providing the primary navigation signals in space.

The future GNSS primary signals in space should be civilian-controlled, with user States exercising an appropriate level of control over the administration and regulation of those aspects that relate to civil aviation.

To the extent practicable, the future systems should make optimum use of existing organizational structures, modified if necessary, and should be operated in accordance with existing institutional arrangements and legal regulations.

Recommendation 16

National and/or regional operating structures for GNSS should be developed initially. A single centralized operating structure does not appear to be needed at this stage but may be the subject of future study.

International co-ordination can be achieved through regional organizations operating under the umbrella of ICAO.

Possible fields of international action include:

a)	International audit;

b)	Monitoring of a seamless and universally accessible worldwide GNSS network;

c)	Monitoring of the stable provision of the international GNSS signals-in-space;

d)	Signal monitoring of the availability, continuity, accuracy and integrity of the GNSS signals-in-space.

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Text on 11 bis*

The Panel recommends to the Council that:

it should encourage the study of the concept of addressing liability through a chain of contracts between GNSS actors as an approach, in particular, at regional level;

a model for the future contractual arrangements should embody results of the work done in applying Recommendations 9 and 11;

the study and development, in the appropriate ICAO forum, of an instrument of international law in the context of the long term legal and institutional framework for GNSS should be initiated.

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