International Civil Aviation Organization

World-wide CNS/ATM Systems

Implementation Conference

Rio de Janeiro, 11 – 15 May 1998

WW/IMP–WP/12

11/5/98

Item 5

Agenda Item 5:	Legal Aspects

A EUROPEAN VIEW ON THE LEGAL AND INSTITUTIONAL ISSUES

RELATING TO GNSS

(Presented by 36 Contracting States*, Members of the European Civil Aviation Conference)

Action Paper

SUMMARY

This paper outlines the legal and institutional issues that need to be addressed to ensure the timely implementation of GNSS. The paper describes the approach being adopted in Europe to deal with these issues with regard to EGNOS.

Recommendations for action by the Conference appear in paragraph 7.

1.	Introduction

1.1	GNSS raises a whole range of complex legal and institutional issues because of its multiple providers, extra territorial ownership and control, and its multi-purpose character. The issues relate, inter alia, to operating structures, liability and certification. The absence of a legal and institutional framework to deal with these issues will result in unduly delaying the much needed implementation of the system especially in certain parts of the world.

1.2	Work is progressing slowly at a global level on the required framework. An ICAO Panel of Legal and Technical Experts (LTEP), created by the ICAO Council in 1996, has drafted a Charter on the Rights and Obligations of States relating to GNSS services and several Recommendations relating to certification, liability, financing and future operating structures. As Europe's augmentation satellite system, EGNOS, is currently foreseen to be operational by the year 2002, the European region requires urgent decisions on the institutional and legal set-up and therefore is in the process of developing a regional framework.

.	Moreover, the institutional structure of satellite augmentation systems can be conceived with relatively less difficulty and in more concrete terms at regional rather than at global level. This is an important aspect as the institutional structure is closely related to the relevant legal framework.

1.4	It is expected that this paper which sets out a proposed European solution could contribute to the development of a global institutional and legal framework with regard to long-term GNSS.

2.	Institutional issues

2.1	Before GNSS signals can become part of an air traffic service, they must be approved against operational safety standards. The Chicago Convention basically places this responsibility on the States. However, as well as being extra-territorial, the signals are generated by an infrastructure whose components are widely dispersed, of varied ownership and diverse control. An institutional framework is therefore necessary to provide sufficient guarantees on these issues so that States may approve the incorporation of the signals in their air traffic services provision as well as aircraft operations based on their use.

2.2	Work undertaken in EUROCONTROL (The European Organisation for the Safety of Air Navigation) identified the need, at regional level, for a European entity to be established to organise and co-ordinate the installation and operation of satellite navigation infrastructure in Europe in support initially of EGNOS and thereafter development of future satellite navigation infrastructure. The core of such an infrastructure would be to link the safe use of air traffic services to the operation of the overall system and its components by a series of contractual arrangements.

2.3	This link is referred to as "channelling" or "the contractual chain". It would ensure that the overall infrastructure guarantees the delivery of a signal-in-space which satisfies the operational requirements of the air traffic services providers with regard to availability, reliability, integrity and accuracy. At each stage in the chain, contractual arrangements should provide performance guarantees, thereby identifying the extent of liability of the various actors. In this way, liability between the various actors would eventually fall on the actor who committed the acts/omission that caused the accident. It is envisaged that there would be contractual arrangements between the primary signal providers and the augmentation signal providers; between GNSS service providers and user States, and between GNSS service providers and industry, which would provide for firm performance and service guarantees and determine liability.

2.4	However, it would be impractical for each service provider to sign a contract with each of the relevant players and the administrative burden would be enormous. The European approach has been to propose the establishment of an interface between the States, service providers and users on the one hand, and system operators on the other. This interface would be covered by a GNSS entity. This entity would act as the focal point in the series of contractual arrangements concluding the necessary contracts with the relevant actors to ensure the operation of the overall system.

3.	Regional Augmentation System in Europe

3.1	Eurocontrol, the European Space Agency and the European Community are working together as the European Tripartite Group to jointly develop a European component of GNSS namely EGNOS (European Geostationary Navigation Overlay Service), Europe's augmentation system for satellite navigation.

3.2	The Tripartite group was established as a result of decisions taken at the fourth meeting of ECAC Ministers on the Air Traffic System in Europe (Copenhagen 10 June 1994) when the three organisations together with the member states of ECAC were invited to develop and jointly pursue proposals for a European component of an initial global satellite system for navigation and to take appropriate action to place Europe in a position to contribute to the next generation of global civil satellite navigation systems.

3.3	The scope of the cooperation between the three organizations, as set out in the Tripartite Agreement, covers the development and validation of an operational capability of a European contribution to GNSS1, using existing satellite systems and any appropriate augmentation to fulfil users requirements, coordination of actions to attain a full operational capability of GNSS1 and liaison with regard to GNSS2.

3.4	The EGNOS system is an augmentation of existing satellite-based radio navigation and positioning systems (GPS and GLONASS) using geostationary satellites that will enhance the performance of these systems over Europe and more generally over the whole geostationary broadcast areas.

3.5	By using navigation transponders on geostationary satellites and processing data from a network of terrestrial monitoring stations, EGNOS will provide additional satellite ranging capability, service integrity and wide area differential correction data. The EGNOS system will improve the overall satellite navigation service availability.

4.	Liability

4.1	An important element of a European GNSS legal framework is the issue of liability for any failure or malfunction of the augmentation systems. Any such failure or malfunction with regard to the quality of information or the monitoring and warning system may result in death, personal injury, loss of property and economic loss.

Such a failure may result from a number of causes, which could include :

intrinsic defects in the design of the system, or in the hardware or software used in it;

failure with regard to the operation of the system, which may range from inadequate maintenance to human error insofar as the system is subject to personal control;

external causes such as a collision in space or failure of a power supply, possibly exacerbated by the lack of an adequate back-up system;

interference by the military or by hostile action;

denial of supply by the owner of the equipment or the system operator.

Each of these causes may give rise to different kinds of liability.

4.2	In general terms, legal liability (other than criminal liability) can arise out of either a contractual or non contractual situation. Several features of the EGNOS system will be provided on a contractual basis, in particular, the management of the system on a day to day basis by the operators of the ground and space segments providing the signal-in-space. The liability of these operators will be governed by contracts with the entity responsible for ensuring that the different elements making up the overall system are provided in accordance with operational performance requirements. In addition, the relationship between the aforementioned entity and the various service providers will also be regulated by contract. However, the aviation users would not be in a contractual relationship with the service providers or, indeed, any of the other participants in the system.

4.3	Accordingly, the user will be obliged to rely on non-contractual liability. With the implementation of GNSS, liability for aviation accidents will increasingly turn out to be a shared liability, involving several actors, spread over several States. Although the existing means for compensation (basically the national law of the parties involved) could be availed of in the event of a GNSS related accident, they are complex, cumbersome and fragmented. In the absence of an international liability framework, GNSS accidents are likely to lead to a multiplicity of actions in several different countries as well as many third party actions with the risk of less-than- full compensation for the victim(s).

4.4	The European view is that the establishment of new international rules, possibly in the form of a convention under which liability issues could be resolved by a simple, clear and speedy procedure, is necessary. Such new liability rules would moreover help to strengthen confidence in GNSS as a more accurate and safer system than any system based solely on terrestrial aids. A convention however is realistically only a long-term solution. Contractual arrangements specifying the liabilities of each party should therefore be considered as an intermediate solution. Discussions are well underway in Europe to address the implementation of both solutions.

4.5	Notwithstanding the advantages of a regional approach, it is essential that global consistency between the various elements of the system exist from the very beginning. With this in mind, the recommendations adopted by the ICAO Panel of Legal and Technical Experts on the establishment of a legal framework with regard to GNSS could serve as a check list to ensure that all the relevant issues are covered and that the solutions worked out, although they may vary from one area to another, are compatible. Global consistency between the technical elements of the GNSS system could be achieved through implementation of the ICAO SARPS to ensure interoperability and seamless operations.

5.	Safety Regulation

5.1	Before GNSS can be used for safety-critical applications, it needs to be approved by an appropriate body. This includes the signal-in-space, the ground network and user equipment. As a European system, EGNOS will have to be approved at European level although it will still remain the responsibility of States pursuant to Article 28 of the Chicago Convention to regulate within their territorial boundaries. One of the methods being considered at present to regulate the extraterritorial provision of satellite services to ensure the international interoperabilty of the system is the so-called "Safety Case".

5.2	A "Safety Case" provides a forum for the demonstration of safety and safety management, the continuous assessment of equipment and operation and evidence that hazards with the potential to cause major accidents have been identified, their risks evaluated and appropriate measures taken to reduce risks to as low as reasonably practicable. A Safety Case will therefore provide the means for States involved to assess their confidence in the GNSS signals and exercise their regulatory and operational responsibilities accordingly.

5.3	The proposed European entity referred to in paragraph 2.4 above should have a principal role with regard to the Safety Case. It should act as the single point of authority for all Safety Case material and it should be responsible for the upkeep of the Safety Case according to the system requirements as laid down in the SARPS. It would also ensure that the service provision functions related to GNSS are exercised independently of the relevant regulatory functions. However, regulation and approval of the regional infrastructure, the user equipment and the signals-in-space would still be carried out by the national aviation regulatory authorities. The proposed body would be expected therefore to co-operate with the States and the other responsible safety authorities (such as the JAA) in the safety regulation of GNSS.

5.4	This approach would seem to fit in very well with the proposed role for ICAO in the field of certification. The LTEP identified as possible roles for ICAO the auditing of regional and national regulation processes and the monitoring of a seamless and universally accessible world-wide GNSS network.

6.	Conclusion

6.1	The European region has recognised the benefits that can be obtained from satellite navigation in particular for aviation and is actively developing EGNOS with a view to its planned implementation.. The absence of a legal and institutional framework for GNSS would seriously hamper this development. While recognising that the ideal situation would be for Europe to develop a civil GNSS jointly with its international partners, the lack of progress at global level has led to the need for parallel action at a regional level bearing in mind that regional developments must be compatible. This is not necessarily disadvantageous to a global solution but rather should be viewed as a positive step and starting point for the development and implementation of a long-term global GNSS solution. ICAO should continue to play a central role in this regard by developing technical and operational SARPS and by monitoring and co-ordinating the development of GNSS related projects at regional level.

7.	Recommendation

The Conference is invited to :

a)	recognise that regional solutions, provided that they are compatible, contribute to the development of a global legal and institutional framework with regard to the long-term GNSS; and

b)	endorse the central role of ICAO towards the implementation of a long-term global GNSS system by developing technical and operational SARPS and by monitoring and co-ordinating the development of GNSS-related projects at regional level.

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