INTERNATIONAL LAW AND REGULATION OF AERONAUTICAL …

INTERNATIONAL LAW AND REGULATION OF AERONAUTICAL PUBLIC CORRESPONDENCE BY SATELLITE

The commercial edition of this book is published as volume 3 in the Essential Air and Space Law Series: Tare Brisibe, Aeronautical Public Correspondence by Satellite isbn-10 90-77596-10-0, isbn-13 90-77596-10-4, © Eleven International Publishing

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INTERNATIONAL LAW AND REGULATION OF AERONAUTICAL

PUBLIC CORRESPONDENCE BY SATELLITE

Proefschrift

ter verkrijging van

de graad van Doctor aan de Universiteit Leiden,

op gezag van de Rector Magnifi cus Dhr Prof.dr. D.D. Breimer,

hoogleraar in de faculteit der Wiskunde en Natuurwetenschappen

en die der Geneeskunde,

volgens besluit van het College van Promoties

te verdedigen op donderdag 28 November 2006

te klokke 13.45 uur

door

Tare Charles Brisibe

geboren te Benin, Nigeria in 1968

PROMOTIECOMMISSIE

Promotores: Prof. Dr. P. P. C. Haanappel Dr. F. G. von der Dunk

Referent: Prof. Dr. F. Lyall (University of Aberdeen)

Overige leden:Prof. Dr. E. Back-Impallomeni (University of Padua) Judge G. Guillaume (Former President, International Court of Justice) Prof. Dr. A. H. J. Schmidt Prof. Dr. G. J. Zwenne Dr. P. M. J. Mendes de Leon Dr. O. M. Ribbelink (Asser Instituut) Prof. Dr. H. A. Wassenbergh (Emeritus Prof. University of Leiden) Prof. Dr. I. H. Ph. Diederiks-Verschoor (Emeritus Prof. University of

Utrecht)

Table of Contents

Acknowledgments ix

List of Abbreviations xi

Chapter OneIntroduction 1

Chapter TwoThe Operational Environment 5

1. AERONAUTICAL SATELLITE COMMUNICATIONS – AN OVERVIEW 52. AERONAUTICAL COMMUNICATIONS AND TERRESTRIAL INFRASTRUCTURE 8

2.1. The Origins of Satellite-Based Aeronautical Public Correspondence 13

2.2. ICAO Aviation Review Committee Recommendations 162.3. Communications Aspects of the ICAO CNS/ATM System 192.4. Aeronautical Public Correspondence and the Aeronautical

Telecommunication Network 213. SATELLITE AERONAUTICAL PUBLIC CORRESPONDENCE AND MARKET

OPPORTUNITIES 214. NETWORKS, INFRASTRUCTURE, SERVICE AND CONTENT PROVISION 22

4.1. Inmarsat 264.2. Connexion-By-Boeing 314.3. Other Systems 34

5. EVOLVING TOWARDS BROADBAND AND WIRELESS S-APC 355.1. High Speed Data Services 355.2. Wireless Access to Broadband Satellite Aeronautical Public

Correspondence Services 38

TABLE OF CONTENTS vi

Chapter ThreeInstitutional Authorities, Legal and Regulatory Frameworks 41

1. OVERVIEW OF THE LEGAL AND REGULATORY FRAMEWORKS 411.1. International Law 411.2. Municipal Law 431.3. The Regulation of Telecommunications, Aviation, Trade in

Services, Copyrights and the Protection of Programme Content 441.4. Technical Standards and Operational Procedures/Guidelines for

Civil Aviation 492. INTERNATIONAL SPACE LAW 513. RULES OF INTERNATIONAL SATELLITE TELECOMMUNICATIONS 56

3.1. International Telecommunication Union – Structure and Jurisdiction 56

3.2. Satellite Aeronautical Public Correspondence – Frequency Allocation, Assignment and the Radio Regulations 59

3.3. Satellite Aeronautical Public Correspondence Services – Frequency Use and Regulation 61

4. RULES OF INTERNATIONAL AVIATION 664.1. The Chicago Convention of 1944 664.2. The Future Air Navigation Systems Committees 684.3. The ICAO Air Navigation Commission and the Aeronautical

Communications Panel 694.4. Article 30 of the Chicago Convention Revisited 714.5. The 29th ICAO Assembly Resolution A29-19/1 75

5. RULES OF INTERNATIONAL TRADE IN SERVICES 786. INTERNATIONAL COPYRIGHT AND PROTECTION OF PROGRAMME CONTENT 80

6.1. Berne Convention for the Protection of Literary and Artistic Works 81

6.2. WIPO Copyright Treaty 826.3. Concluding Remarks on Copyrights and Programme Content

Protection 877. OPERATIONAL REGULATIONS AND TECHNICAL STANDARDS 88

7.1. Telecommunications Standards, Recommendations and Non-binding Rules 88

Chapter FourState Sovereignty 91

1. AIRSPACE AND TERRITORIAL WATERS 911.1. Sovereignty, Territoriality and Airspace 961.2. Nationality of Aircraft 104

2. STATE JURISDICTION IN THE AIRSPACE OVER HIGH SEAS AND POLAR REGIONS 105

2.1. Airspace above the High Seas 105

TABLE OF CONTENTS vii

2.2. Airspace over the Arctic Region 1122.3. Antarctic Airspace 117

3. RIGHT OF STATES TO CONTROL TERRITORIAL COMMUNICATIONS 1203.1. Case Studies on the Concept of Sovereignty in International

Telecommunications 1204. INTERNATIONAL TRADE LAW ASPECTS OF INTERNATIONAL ECONOMIC LAW 1235. OUTER SPACE 1286. CONCLUDING REMARKS 129

Chapter FiveCurrent International Legal and Regulatory Regime 133

1. INTERNATIONAL TELECOMMUNICATION UNION REGULATIONS AND RECOMMENDATIONS IN FORCE 1331.1. International Telecommunications World Radio Conference 2003 1331.2. International Telecommunication Union Recommendation D-94 1361.3. The GMPCS MoU and Arrangements 139

2. ICAO SARPS AND STANDARDS OF OTHER TECHNICAL ORGANIZATIONS 1403. NATIONAL PROCEDURES ON THE USE OF PORTABLE ELECTRONIC DEVICES

ON-BOARD AIRCRAFT 1463.1. Title 14 of the United States Code of Federal Regulations (14

CFR) part 91, Section 91.21 1483.2. Joint Aviation Authorities Regulations JAR-OPS 1.110 and

Temporary Guidance Leafl et JAR-OPS No 29 1513.3. Australia – Civil Aviation Amendment Regulations 2002 (No.) 10 and Advisory Circular AC 91-050(0) 1533.4. Canada – Air Carrier Advisory Circular ACAC 0106R

(2001.07.04) 1564. GENERAL REMARKS ON REGULATING THE USE OF PORTABLE ELECTRONIC

DEVICES ON-BOARD AIRCRAFT 158

Chapter SixLiability 161

1. GENERAL REMARKS 1612. PORTABLE ELECTRONIC DEVICE RELATED INCIDENTS ON-BOARD AIRCRAFT 1623. CRIMINAL LIABILITY AND PENAL AIR LAW 1654. PASSENGERS AND THE LIABILITY OF THE AIR CARRIER – FROM WARSAW TO MONTREAL 172

TABLE OF CONTENTS viii

5. COLLISIONS, SURFACE DAMAGE AND LIABILITY 1816. SOME CONSIDERATIONS ON STATE RESPONSIBILITY AND LIABILITY 183

Chapter SevenInstitutions, State Practice and Regulation in the 21st Century 193

1. MOVING INTO THE 21ST CENTURY 1932. INTERNATIONAL INSTRUMENTS, INSTITUTIONS, GEO-POLITICS AND INDUSTRY 199

2.1. Relevant Legal and Regulatory Instruments 1992.2. Applying the Regimen – A Bird’s Eye View 2002.3. Re-inventing Pertinent Aspects of the Regimen 2042.4. The CNS/ATM Institutional and Legal Framework – The Long Road to Utopia 208

3. CONCLUDING REMARKS AND MOVING TOWARDS UNIFORMITY 2103.1. Drawing Upon the Lessons From the Past 212

Conclusions and Summary 215

Draft Agreement 217

Appendices 225

Bibliography 245TREATIESCASESBOOKSARTICLESDOCUMENTS

Acknowledgments

I am grateful to Professor Dr. P. P. C. Haanappel, Professor of Air & Space Law at the International Institute of Air and Space Law, Leiden University; and Dr. Frans G. von der Dunk, Director of Space Law Studies at the International Institute of Air and Space Law, Leiden University, for the supervision provided during the course of writing this book. I am equally indebted to Professor Francis Lyall of the University of Aberdeen and Professor Dr. Ludwig Weber, (former Director, Legal Bureau, ICAO) Institute of Air & Space Law, McGill University, for their critical comments, suggestions and clarifi cation.

I also wish to thank the following who have been of assistance with various matters: Professor Robert Ajayi Boroffi ce, Director General, Nigerian National Space Research and Development Agency; Ms. Mirjam van der Heide, Eleven International Publishing, Utrecht; Dr. Boakye Donkwa Kofi Henaku, Consultant, London; Mr. Terence Jeacock, of the former United Kingdom Radiocommunications Agency; Mr. Eyal Trachmann, Inmarsat Limited London; Ms. Paula van der Wulp, International Institute of Air and Space Law, Leiden University; staff of the libraries of both the International Institute of Air and Space Law, Leiden University, and of the Institute of Advanced Legal Studies, University of London.

Tare Charles Brisibe Abuja, September 2006

List of Abbreviations

AAC Aeronautical Administrative Communications AC Advisory Circular (Australia)ACP Aeronautical Communications PanelACARS Aircraft Communications Addressing and Reporting SystemAEEC Airlines Electronic Engineering CommitteeAES Aircraft Earth StationsADIZ Air Defence Identifi cation ZoneAJIL American Journal of International LawAMC Aeronautical Mobile CommunicationsAMCP Aeronautical Mobile Communications PanelAMS (OR) S Aeronautical Mobile-Satellite Off-Route ServiceAMS (R) S Aeronautical Mobile-Satellite Route ServiceAMSS Aeronautical Mobile Satellite serviceANC Air Navigation CommissionAOC Aeronautical Operational ControlAPC Aeronautical Public CorrespondenceAPU Auxiliary Power UnitARC Aviation Review CommitteeARINC Aeronautical Radio Inc.ASRS Aviation Safety Reporting SystemASTRA Application of Space Technology Relating to AviationATN Aeronautical Telecommunications NetworkATS Air Traffi c ServicesBATS Bilateral Air Transport AgreementsBGAN Broadband Global Area NetworkBTA Basic Telecommunications AgreementBYIL British Yearbook of International LawCAA Civil Aviation AuthorityCAG Customer Advise Group (Inmarsat)CAR Canadian Aviation RegulationCASA Australian Civil Aviation Safety AuthorityCASR Australian Civil Aviation Safety Regulation

LIST OF ABBREVIATIONS xii

CASS Commercial Air Service StandardsCBAAC Commercial and Business Aviation Advisory CircularCCIR International Radio Consultative CommitteeCENPAC Central Pacifi cCEPT Conference Européenne des Administrations Postes et

TélécommunicationsCIS Commonwealth of Independent States (of the former USSR)CNS/ATM Communication, Navigation, Surveillance / Air Traffi c

ManagementDBS Direct Broadcast ServicesDSB Dispute Settlement Body (WTO)EASA European Aviation & Safety AgencyEC European CommunityECAC European Civil Aviation ConferenceEEZ Exclusive Economic ZoneEJIL European Journal of International LawELDO European Launcher Development OrganizationEMI ElectroMagnetic InterferenceERC European Radiocommunications CommitteeESA European Space AgencyESRO European Space Research OrganisationETSI European Telecommunications Standards InstituteEUROCAE European Organization for Civil Aviation EquipmentFAA Federal Aviation Administration FANS Future Air Navigation Systems FAR Federal Aviation RegulationsFCC Federal Communications CommissionFDMA Frequency Division Multiplexing AccessFS Fixed ServiceFSS Fixed Satellite ServiceGATS General Agreement on Trade in ServicesGATT General Agreement on Tarrifs and TradeGES Ground Earth StationGMPCS Global Mobile Personal Communications by SatelliteGNSS Global Navigation Satellite SystemGSM Global System for Mobile CommunicationsGSMA GSM AssociationHSD High Speed DateIATA International Air Transport Association ICAO International Civil Aviation OrganizationICE Information Communications and EntertainmentICJ International Court of JusticeICLQ International and Comparative Law Quarterly

LIST OF ABBREVIATIONS xiii

ICT Information and Communications TechnologyIFE In-Flight EntertainmentIISL International Institute of Space LawILC International Law CommissionIMO International Maritime OrganizationINMARSAT International Maritime Satellite OrganizationISDN Integrated Services Digital NetworkISP Internet Service ProviderITU International Telecommunication UnionIWP Interim Working PartyJAA Joint Aviation AuthoritiesJALC Journal of Air Law and CommerceJAR Joint Aviation RegulationsJCAB Japanese Civil Aviation BureauLAN Local Area NetworkLES Land Earth StationMES Mobile Earth stationMFN Most Favoured NationMoU Memorandum of UnderstandingMPDS Mobile Packet Data ServiceMMSS Maritime Mobile-Satellite ServiceMSS Mobile Satellite ServiceMTSAT Multi-functional Transport SatelliteNASA National Aeronautics and Space AdministrationNCS Network Coordination StationNOPAC North Pacifi cNTRA National Telecommunications Regulatory AuthorityPANS Procedures for Air Navigation ServicesPDA Personal Digital AssistantPED Portable Electronic DevicePCIJ Permanent Court of International JusticePCS Personal Communication SystemsPIC Pilot-in-CommandPSA Point of Service ActivationPSTN Public Switched Telephone NetworksRF Radio FrequencyRIAA United Nations Reports of International Arbitral AwardsRTCA Radio Technical Communication AssociationS-APC Satellite Aeronautical Public CorrespondenceSARP Standards and Recommended Practices SDM System Defi nition ManualSDR Special Drawing RightSI Service Integrator

LIST OF ABBREVIATIONS xiv

SITA Société Internationale de Télécommunications Aéronautiques

SUPPS Regional Supplementary ProceduresTAPC Terrestrial-based Aeronautical Public CorrespondenceTCP/IP Transmission Control Protocol/Internet ProtocolTDMA Time Division Multiple AccessTFA Table of Frequency AllocationsTFTS Terrestrial Flight Telecommunication SystemTRIPS Agreement on Trade Related Aspects of Intellectual Property

RightsTSB Telecommunications Standardization BureauUHF Ultra High FrequencyUMTS Universal Mobile Telecommunication ServiceUN United NationsUNCLOS United Nations Convention on the Law of the SeaUNESCO United Nations Economic Social and Cultural OrganizationUSSR Union of Soviet and Socialist RepublicsVHF Very High FrequencyVoIP Voice over Internet ProtocolVPN Virtual Private NetworkWARC World Administrative Radio ConferencesWARC-MOB World Administrative Conference for the Mobile ServicesWIPO World Intellectual Property OrganizationWLAN Wireless Local Area NetworkWP Working PartyWRC World Radiocommunications ConferenceWSC World Standardisation ConferenceWTDC World Telecommunications Development ConferenceWTO World Trade Organization

1

CHAPTER ONE

Introduction

On 16 October 1909, Count Ferdinand von Zeppelin formed Delag (Die Deutsche Luftschiffahrt Aktiengesellschaft), the world’s fi rst commercial airline company. Between 1910 and 1913 the company carried 34,000 passengers. Barely two years later, on 21 January 1911, Lieutenant Paul W. Beck sent the fi rst wireless-telephonic message from on-board a Wright biplane over Selfridge Field in Michigan.1 These seemingly unrelated events underscore the statement that the airplane is a unique vehicle. No land or sea going vehicle is so dependent on the use of radiocommunications for safe, effi cient and economical operation. Simply, because radio frequency devices provide the means by which most airplanes navigate, are kept separated from each other, are advised of conditions affecting their operation and are operationally controlled. It is of note that Sir Charles Chaplin stated in 1940 that “[t]he aeroplane and the radio have brought us closer together. The very nature of these things cries out for the goodness in man; cries out for universal brotherhood; for the unity of us all.”2

With the passage of time, infrastructural and technological developments in the fi elds of aviation and telecommunications have been enormous. Whilst the provision of communications to aviation traditionally ensured the safe, effi cient, and regular conduct of fl ight, by the 1980s, aeronautical communications began to include non-safety aspects. In other words, that form of communications which enables the passenger or crew to enjoy communications facilities as they would on the ground. Driven by three factors, in this new millennium, aeronautical communications for non-safety purposes is poised to expand signifi cantly. These factors include fi rstly, the

1 The Royal Air Force Museum, London.2 Dialogue from “The Great Dictator”, a fi lm directed by and starring Charlie Chaplin. First released on 15 October 1940.

2 CHAPTER ONE

growth in international travel by air. Secondly, the dominant role and inherent advantage of satellites over ground based communications infrastructure, as the most appropriate means for global communications coverage. Thirdly, the run-away growth in consumer demand for communications services. That said, the combination of international fl ight with international communications comes with challenges arising in law, policy and regulation. These challenges constitute the subject matter of this work. In addressing these challenges one is immediately faced with the perennial question as to whether international law, policy and regulation ought to respond to immediate problems or attempt to prevent problems from occurring. Put another way, is it appropriate to be content with the law as it is, rather than make recommendations relating to what the law as it is ought to be if the rules were changed to accord with good policy? This work is dedicated to dealing with the latter. This comprehensive study provides a detailed analysis of the past, current and future perspectives of international law and regulation applicable to non-safety aeronautical mobile-satellite communications. Concluding with what the law ought to be if the current rules were changed to accord with good policy, the book covers the following issues: the history and development of satellite based aeronautical public correspondence; the institutional authorities and relevant regulations developed thereto; the effects of State sovereignty; the regimen in force; and questions on liability. Commencing with a comparative chronology of the evolution in both terrestrial and satellite based aeronautical public correspondence, the technologies currently deployed (or planned) offering the broad range of aeronautical mobile-satellite communications services are discussed. The scope of relevant international legal and regulatory instruments is then examined and activities of pertinent international institutional authorities such as the International Civil Aviation Organization (ICAO), the International Telecommunication Union (ITU), the World Trade Organization (WTO), and the World Intellectual Property Organization (WIPO), are detailed. The pivotal nature of the State sovereignty principle within the scheme of this work justifi es the thorough impact analysis of the said principle on telecommunications, air transport, and trade in services, being simultaneously undertaken in the airspaces of national territories, the North Pole, Antarctica and the high seas. As far as the current state of the international laws and regulations in force is concerned, albeit acknowledging their technical orientation, particular attention is given to the International Telecommunication Union Radio Regulations and Sector Recommendations, International Civil Aviation Organization Council Resolutions, international copyright laws, and national operational procedures and statutes. The incidence and scope of liability as well as its private and public international legal ramifi cations are considered in-depth, alongside judicial precedents and provisions of the most recently formulated international

INTRODUCTION 3

instruments in force. Drawing upon preceding parts of the study, forward looking recommendations are offered, proposing an appropriate legal and regulatory framework, designed to govern a mobile-satellite communications industry sector, now considered to be the next growth area. In so doing, the operational character of the present environment is thoroughly investigated, the raison d’être, structure and functioning of the combined and currently applicable international laws, regulations and policies are analysed critically, based upon which an alternative body of primarily legal norms is proposed. A recurring theme in this work is the reference to the relevant technologies, communications and business models, without which a legal issue cannot be adequately addressed. In chapter two the evolution of satellite based aeronautical public correspondence is traced and the operational environment in which related services are currently being offered is described. Setting the stage for the legal and regulatory analysis provided in chapters four, fi ve, six and seven, chapter three presents an overview of legal and regulatory frameworks, developed through a number of international institutions such as the ICAO, ITU, WTO and WIPO. Common to international civil aviation and international telecommunications is the fact that they both originate in one country and terminate in another. However, it must also be noted that while telecommunications signals may traverse outer space over satellites, aircraft traditionally traverses the airspace of States. The entry and exit of both services in the territories of States would normally be subject to the national regulations issued by that entity capable of enjoying supreme political authority otherwise known as the sovereign. Whilst the effectiveness and concept of absolute sovereignty, even in the present time continue to attract debate, they remain central to the legal and regulatory framework laid out in chapter three. For this reason, chapter four is devoted to set forth the effect of the State sovereignty concept within the various jurisdictions where non-safety aeronautical communications services can be provided. Chapters fi ve and six deal with the current state of applicable international law and regulation. It is acknowledged that the underlying factors are driving non-safety aeronautical communications in a state of fl ux. Moreover, some of the perceived problems, such as liability for damage caused by incidents related to the provision of such services, for which this works seeks to provide solutions, are examined in a hypothetical context. As this work is dedicated to making recommendations relating to what the law as it is, ought to be if the rules were changed to accord with good policy, a diligent process through which recommendations can be reached as well as a set of reasoned proposals constitute the thrust of chapter seven.

5

CHAPTER TWO

The Operational Environment

This chapter traces the evolution of satellite based aeronautical public correspondence and the operational environment in which related services are currently being offered. An in-depth description is provided of the technologies currently deployed (or proposed), offering a broad range of satellite aeronautical public correspondence services within the context of communications satellite network architectures. Attention is given to the evolved range of commercially oriented high-speed data, broadband and proposed wireless services. This rapidly developing sector of the mobile-satellite industry is examined against the backdrop of increased privatisation and competition, characterised by a shift from government owned/operated airlines and satellite systems, such as the former International Maritime satellite organization (INMARSAT), to one with increased private sector participation.

1. Aeronautical Satellite Communications – An Overview

Within the broad scope of satellite communications to and from aircraft, four types of aeronautical communications as stated by ICAO could be identifi ed.1 These include: Air Traffi c Service (ATS); Aeronautical Operational Control (AOC); Aeronautical Administrative Communications (AAC); and Aeronautical Public Correspondence (APC). These acronyms, defi ned by the ICAO Future Air Navigation Committee (discussed hereinafter in Section 4.2.), of are summarized below.

1 W. Guldimann & S. Kaiser, Future Air Navigation Systems – Legal and Institutional aspects 154 (1993). For statutory defi nitions of the four types of aeronautical communications, see Annex 10 to the 1944 Convention on International Civil Aviation, Volume III July 1995, at 4.

6 CHAPTER TWO

Air Traffi c Services – a generic term meaning variously fl ight information service, alerting service, air traffi c advisory service, air traffi c control service, area control service, approach control service or aerodrome control service. Air Traffi c Services (hereinafter referred to as ATS) requires a mix of high priority, safety critical but short exchanges between controllers and pilots and lower priority, higher volume information fl ows between centres. Aeronautical Operational Control – communications required for the exercise of authority over the initiation, continuation, diversion or termination of a fl ight in the interest of the safety of the aircraft and the regularity and effi ciency of fl ight. Aeronautical Operational Control (hereinafter referred to as AOC) supports the safe and effi cient management of fl ight operations. More precisely, it allows the cockpit crew to benefi t from continued support provided by the Ground Dispatch and Flight Operations departments of an airline, and to interface as needed with other departments of the airline, including Engineering, Maintenance, Scheduling and Commercial departments. Use of AOC varies between airlines. Further, the on-board systems may be highly customised by the equipment manufacturer to meet an airline’s requirements. Typical AOC applications include the transmission of weather requests/updates, fuel status, fl ight status, crew and aircraft schedule, fl ight plans, etc. Aeronautical Administrative Communications – communications used by aeronautical operating agencies related to the business aspects of operating their fl ights and transport services. These communications are used for a variety of purposes, such as fl ight and ground transportation bookings, deployment of crew and aircraft, and scheduling and seat reservation. Aeronautical Administrative Communications (hereinafter referred to as AAC) is allowed by ICAO to be provided over the same communication systems as ATS and AOC, but are related neither to fl ight safety nor effi ciency. AAC is given a lower priority than ATS and AOC in all the systems where ATS, AOC and AAC share capacities (e.g. the Inmarsat system which is discussed hereinafter in greater detail). AAC encompass all communications with the commercial crew of an aircraft (working in the cabin) or with cabin systems, to exchange of information for several purposes such as: passenger care, passenger management (passenger list, passenger complaints) and cabin management (defect reports, cleaning requests etc.). Aeronautical Public Correspondence – constituting the focus of this work and considered as being the most recent development in aeronautical communication, Aeronautical Public Correspondence (hereinafter referred to as APC) consists primarily of connections of on-board facilities with existing fi xed networks, e.g. domestic telephone

•

•

•

•

THE OPERATIONAL ENVIRONMENT 7

networks, in addition to permitting the switching of connections to other aeronautical passenger facilities (via a ground station), thus enabling personal communications by/for passengers and crew. Quite like AAC, APC is related neither to fl ight safety nor effi ciency.

The four user groups identifi ed above, within which aeronautical communications is offered, are collectively referred to as the Aeronautical Mobile Satellite Service (AMSS) when considered in the context of satellite infrastructure. In turn, these groups are defi ned by the ITU Radio Regulations as “a mobile-satellite service in which mobile earth stations are located on board aircraft”2 bearing in mind the fact that a “mobile earth station” (MES) is “an earth station in the mobile-satellite service intended to be used while in motion or during halts at unspecifi ed points.”3 AMSS can be further sub-divided into Aeronautical Mobile-Satellite (R)4 service, i.e., “an AMSS service reserved for communications relating to safety and regularity of fl ights, primarily along national or international civil air routes”5 or Aeronautical Mobile-Satellite (OR)6 service, i.e., “an AMSS service intended for communications, including those relating to fl ight coordination, primarily outside national and international civil air routes.”7 The Radio Regulations themselves, being a set of international instruments have the force of a treaty, as we shall come to see later in this work. Whilst the four user groups (ATS, AOC, AAC, APC) are collectively referred to as the Aeronautical Mobile Satellite service (AMSS), the primary distinction between Aeronautical Mobile-Satellite (R) and Aeronautical Mobile-Satellite (OR) lies in whether the communications takes place in en-route airspace or off-route airspace, falling within the different classes of airspace. The scope and nature of different classes of airspace is, however, outside the scope of this work. Although the defi nition of AMSS is also stated to include “survival craft stations” and “emergency position-indicating radio beacon stations”, due to the non-safety and commercially oriented scope of this work, our studies and investigation shall be restricted to the use of those MESs which are located on-board aircraft. At the outset, it is necessary that the reader is able to distinguish between MESs located on board aircraft as opposed to MESs which may be located on other non-stationary platforms, such as maritime vessels or land based craft. This distinction is clearly set out under the ITU’s Radio Regulations

2 Article 1 para. 35, 2001 International Telecommunication Union, Radio Regulations, adopted by the WRC-1995 (Geneva), revised and adopted by WRC-1997 (Geneva), WRC-2000 (Istanbul), WRC-2003 (Geneva), (hereinafter Radio Regulations).3 Article 1 para. 66, Radio Regulations.4 (R): Route. 5 Article 1 para. 35A, Radio Regulations.6 (OR): Off-route.7 Article 1 para. 35B, Radio Regulations.

8 CHAPTER TWO

which defi nes MESs located on aircraft as, “Aircraft Earth Stations” (AESs) i.e., “ a mobile earth station in the aeronautical mobile-satellite service located on board an aircraft.”8 The AMSS provides digital voice and data services using geostationary satellites and operates in the mobile satellite service radio frequency bands 1,545-1,555 MHz and 1,646.5-1,656.5 MHz. To ensure adequate protection for safety and regularity of fl ight messages, provisions are included in the ICAO Standards and Recommended Practices (discussed in chapter 5) to ensure that these messages have priority and pre-emption over other non-safety aeronautical users. The AMSS itself is designed to be a sub-network of the Aeronautical Telecommunications Network, and it can also support Aircraft Communications Addressing and Reporting System (ACARS) messages. For instance, in the South Pacifi c area, where AMSS is used to support ATS, the requirements are for a mean transfer delay for data messages of typically less than 30 seconds while 95 per cent of all messages are delivered within 60 seconds. In the North Atlantic, AMSS is enabled to support about 30 per cent of fl ights that use the Automatic Dependent Surveillance – Communications waypoint reporting service. The digital voice component of the AMSS is designed to interface with terrestrial public switched telephone networks (PSTN)9 and with dedicated ATS voice networks, as well as to provide high quality telephone service both for APC, ATS and AOC. Several ATS communication service providers have published telephone numbers that may be accessed using the AMSS for emergency and non-routine communications. It is contended that approximately 3,000 aircraft have been equipped with satellite communications systems. The majority being confi gured for APC, though a large number is also capable of ATS and AOC satellite voice communications.10

2. Aeronautical Communications and Terrestrial Infrastructure11

In as much as the scope of this work dwells on the non-safety aspects and commercially oriented satellite-based communications to and from aircraft, some time needs to be spent highlighting other forms of infrastructure through which APC can be performed. An important point to note because communications services to aircraft have traditionally been provided through

8 Article 1 para. 79, Radio Regulations.9 PSTN refers to the local, long distance and international phone system.10 ICAO Doc. AN-Conf/11-IP/1.11 See Business Requirements for Aeronautical High Speed Mobile Satellite Services (BRAHMSS) project (European Space Agency contract n°14444/00/NL/DS). Ref: 00-251/CG/CR, Rev.:2.1 (hereinafter Brahmss Study).


ground-based (i.e., terrestrial rather than satellite) technologies involving the use of High Frequency (HF) radio waves i.e., 2-23 MHz, or Ultra High Frequency (UHF) also known as Very High Frequency (VHF) radio waves, i.e., 118-137 MHz, although certain other radio frequencies may be used by national administrations for communications to military aircraft. The HF system is used for long distance communications between aircraft in fl ight and ground stations. Prior to 1930, oceanic fl ights were rare and air-to-ground communications was not a priority.12 At present and because HF signals propagate terrestrially over long distances, HF radio provides most communications with aircraft over ocean routes and in some developing countries. Traditional long range and some medium range aircraft are equipped with a dual HF system including an antenna common to both transmitters, while short range aircraft may or may not be equipped with a single UHF system (including an antenna). A typical dual HF system comprises: two transceivers, two antenna couplers, and an antenna located on the edge of the aircraft’s fi n. Frequency selection is done with one of the three radio management panels, which are the common frequency selection means for all aircraft radio equipment. HF communication systems are currently employed to offer voice services for ATSC and AOC. It is also anticipated that they will be used for data link communications in the future. Note that even if HF systems were to allow for the exchange of data, the characteristics of HF make it a low speed service at a maximum of 2.4 kbps, 600 bps on average.13 The use of the VHF part of the electromagnetic spectrum on the other hand arrived in the 1940s and is defi ned as the range of frequencies between 30 and 300 MHz.14 Within these frequencies, as stated earlier, the band from 118 to 137 MHz is dedicated to aeronautical mobile communications applications. There are two operational services that currently exist in the aeronautical VHF band. Firstly, VHF radio/telephony voice communications, which are an essential component of ATS and are also used by airlines for AOC and AAC purposes. Secondly, data communications based upon the ACARS standards. ACARS is commonly used for AOC applications even though it is now increasingly being used to provide ATS. As far as the provision of terrestrial-based APC (TAPC) is concerned there have been various activities in both Europe and the US, albeit with varying degrees of success. In Europe, following the 1987 World Administrative Conference for the Mobile Services (WARC MOB-87), spectrum was designated for both satellite and terrestrial APC. Limitations in the use of this spectrum, both in the bandwidth available and incompatibility with

12 L. Norrish, Satellite Communications Have Evolved to Support a Wide Range of Safety Services, 57 (3) ICAO Journal, at 11 (2002).13 Bits may be calculated as kilobits (one thousand bits per second); megabits (one million bits per second) or gigabits (one billion bits per second) etc.14 Norrish, supra note 12.

10 CHAPTER TWO

the existing services, prevented the introduction of operational systems. Recognizing what was perceived as an urgent requirement for APC and the diffi culties associated with the spectrum allocated by WARC MOB-87, the European Radiocommunications Committee (ERC) undertook a study to identify a suitable alternative spectrum as part of its preparations for the World Administrative Conference 1992 (WARC 92). In advance of the outcome of WARC 92, the ERC adopted Recommendation T/R 42-01 E which designated frequency bands for Terrestrial Flight Telecommunications System (TFTS), which would include 1,670-1,675 MHz (ground to air), 1,800-1,805 MHz (air to ground). It was anticipated that the spectrum would be made available for TFTS in a phased way i.e., 2 x 1 MHz in 1993, 2 x 3 MHz in 1994 and the complete band in 1998, in accordance with market demands. This would serve as what was hoped to be the forerunner to a standard for TAPC in Europe. A standard that would be produced by the European Telecommunications Standards Institute (ETSI) in association with the European Aeronautical Electronics Committee and the Airlines Electronic Engineering Committee. The said frequency bands were then incorporated in the ERC European Common Proposal (No. 5) for WARC 92 and were indeed adopted by the WARC 92 as an additional footnote in the ITU Radio Regulations (No 740A). ERC Decisions giving effect to these developments were formally adopted.15 Although TFTS networks were licensed in many countries, the poor growth in subscriber numbers revealed them not to have been an economic success in Europe. In a “survey carried out by the ERO the vast majority of CEPT administrations indicated that there is no further interest in TFTS in the bands 1,670-1,675 MHz / 1,800-1,805 MHz.”16 Thus, in order to allow for new applications in those bands which were reserved for TFTS, the existing ERC Decisions were abrogated and withdrawn in 2002 and 2003 respectively.17

In contrast to developments in Europe, the story emerging from the US has been a remarkable one of success and growth. Verizon Airfone, a US based company and subsidiary of Verizon Communications Inc., began offering TAPC services in 1984 with the introduction of the fi rst cordless air-to-ground telephone system.18 The company installed the fi rst seatback telephone in 1987 and then deployed a nationwide, end-to-end digital system starting in 1993.

15 ERC/DEC/(92)01, ERC Decision of October 1992 on frequency bands to be designated for the coordinated introduction of the Terrestrial Flight Telecommunication System and ERC/DEC/(97)08, ERC Decision of 30 June 1997 on Management of Schierer plan for the Terrestrial Flight Telecomunications system. See also R. Bekkers & J. Smits, Mobile Telecommunications: Standards, Regulation, and Applications 339-340 (1999).16 ECC/DEC/(03)03. ECC Decision of 17 October 2003 on the withdrawal of ERC Decision (97)08 “Decision on Management of the Schiever plan for Terrestrial Flight Telecomunications system”, at 2.17 Id. 18 See http://www22.verizon.com/airfone/fi les/FactSheet.pdf (last accessed on 26th July 2006)


In 2002, the fi rst messaging and content service on commercial airlines in the US was installed. Verizon Airfone’s service offerings include “JetConnect” and “Airfone”. JetConnect offers passengers in-fl ight messaging, news, and entertainment services. For US$ 15.98 per fl ight, passengers with laptop computers can send and receive e-mail. Data in excess of 5kb per message and attachments incur a cost of US$ 0.10 per kB. JetConnect is currently available on all Continental Airlines and United Airlines domestic aircraft, over 700 planes in all, with more added daily. In addition, for US$ 5.99 per fl ight, passengers can send and receive instant messages, send text messages, get the latest news, stocks, sports, and weather information, play games and view city guides for their destination. The Airfone telephony service on the other hand, enables travellers to place and receive calls, conduct conference and three-way calls and send faxes for a US$ 3.99 connection fee and US$ 3.99 per minute in the US The system’s technology allows a passenger to be called from the ground, and even supports call forwarding. Airfone audio service enables travellers to check e-mail and listen to news. It is claimed that more than 2,000 commercial aircraft are equipped with Airfones. Airline customers include Continental Airlines, Delta Air Lines, Midwest Express Airlines, United Airlines, and US Airways. Verizon Airfone has not always been the sole provider of TAPC services in the US As a matter of fact, in 1991, the US Federal Communications Commission (FCC) invited applications for and subsequently awarded new licences to operate digital TAPC services in the US Verizon Airfone (previously GTE Airfone), AT&T Wireless Services (previously Claircom Communications), and InFlight Phone Inc. were awarded licenses. These three US service providers, through their respective TAPC networks ensured coverage of the major part of North America and accounted for over 3,000 aircraft equipped to access either one of the currently operational systems. With the passage of time, both AT&T Wireless Services and InFlight Phone Inc. withdrew their service offerings. The success of TAPC in the US has no doubt encouraged the most recent decision, contained in a news release19 dated 15 December 2004, by the FCC to adopt what has been regarded as a fl exible approach for licensing the 4 MHz of spectrum in the 800 MHz band currently dedicated to TAPC services in the US In this regard, the FCC decided to auction new licenses for this spectrum in three possible band plan confi gurations and proposed auction rules. The ultimate band confi guration will be determined based on the results of the auction. However, in order to further competition and ensure maximum use of the frequency band for TAPC, the FCC imposed an eligibility limitation to prevent a single entity from holding new licenses for all 4 MHz of air-ground

and http://www22.verizon.com/airfone/fi les/CorporateProfi le.pdf (last accessed on 26th July 2006).19 FCC Paves the Way for New Broadband Services in the Air, FCC NEWS, 15 December 2004, available at http://www.broadbandwirelessreports.com (last visited on 26 September 2006).

12 CHAPTER TWO

spectrum. It is believed that the FCC’s action will help bring broadband services to the traveling public on-board aircraft and lead to greater technical, economic, and marketplace effi ciency for this spectrum. Under the licensing approach adopted by the FCC, the fi nal band confi guration will be determined by the winning bidders at auction. New licenses will be awarded to high bidders for the two licenses comprising the confi guration that receives the highest aggregate gross bid, subject to review of post-auction license applications. Bidders will have three options, which are based on proposals submitted to the FCC, described as follows:

Band Plan 1 – two overlapping, cross-polarized 3 MHz licenses (licenses “A” and “B”) Band Plan 2 – an exclusive 3 MHz license and an exclusive 1 MHz license (licenses “C” and “D”)Band Plan 3 – an exclusive 1 MHz license and an exclusive 3 MHz license (licenses “E” and “F”), with the blocks at opposite ends of the band from Band Plan 2

Under the eligibility limitation, no more than 3 MHz of spectrum (either shared or exclusive) under the new rules could be acquired at auction or post-auction by a single entity. It is anticipated that the new TAPC services to be provided in US airspace, using the newly allotted spectrum, may be of any type (e.g., voice, data, broadband internet, etc.) and may be provided to any or all aviation markets (e.g., commercial, military, and general). To ensure protection to adjacent public safety operations in the 800 MHz band, the same interference rules and other specifi c protections adopted earlier in 2004 pertaining to the 800 MHz public safety proceeding were applied. In particular, ground stations in the air-ground 800 MHz service will be subject to the same interference abatement obligation rules adopted for cellular services in the 800 MHz public safety order (an issue we shall return to later in some detail). In the same news release of 15 December 2004 it was reported that Verizon Airfone has been granted a non-renewable 5-year license, subject to existing narrowband technical limits. Noting that the provision of high-speed broadband services to consumers onboard aircraft by one or more new licensees will require at least 3 MHz of the 4 MHz band, it was decided that following the grant of the new license, Verizon Airfone must limit operations of the existing narrowband Airfone system under the 5 year non-renewable license to the remaining 1 MHz of spectrum. It is hoped that the reduced spectrum for the incumbent system would be suffi cient to maintain current service levels because the narrowband plan was originally intended to accommodate up to 6 licensees, and as stated earlier, only the Verizon Airfone system is in operation in the US at the time of writing this work. A somewhat different but closely related development pertaining to TAPC service offerings in US airspace pertains to the provision of airborne cellular

•

•

•


services in the 800 MHz band. In this respect, and as we shall read later in this work, FCC rules currently require that cellular handsets be turned off over US airspace once an aircraft leaves the ground to avoid interfering with terrestrial cellular systems. In addition, the US Federal Aviation Administration (FAA) regulations restrict the use of mobile telephones and other portable electronic devices on aircraft to ensure against interference to on-board communications and navigation equipment. However, in a news release20 dated 15 December 2004, it is stated that the FCC proposed to permit the airborne operation of “off the shelf” wireless handsets and other devices so long as the device operates at its lowest power setting under control of a “pico cell” located on the aircraft, and the operation does not allow unwanted radio frequency emissions to interfere with terrestrial cellular systems. The FCC has asked for public comment on whether the proposal should apply only to devices operating in 800 MHz cellular spectrum, or whether devices operating in other spectrum bands, such as the PCS band or Advanced Wireless Services bands, should be included. Public comment is also being sought on ways that the 800 MHz cellular spectrum could be used to provide a communications “pipe” between airborne aircraft and the ground. This could include the replacement of the current FCC restriction by an industry-developed standard that would guard against harmful interference to both airborne and terrestrial systems through appropriate technical and operational limitations. A call was also made for comments on whether to allow cellular carriers to provide services on a secondary basis to airborne devices subject to technical limitations aimed at preventing harmful interference. Ultimately this would allow consumers to use their own wireless devices during fl ight. The developments chronicled above can only serve to fuel the growth of a rapidly expanding TAPC market in US airspace.

2.1. The Origins of Satellite-Based Aeronautical Public Correspondence

Having looked briefl y at the terrestrial aspects of APC, we now turn to the satellite-based context which constitutes the focus of this work, and is referred to hereinafter as S-APC. At HF and VHF, the amount of bandwidth available is very limited thus causing the use of these frequencies to deliver very low data rates. These frequencies are also severely impacted by the ionosphere, which can twist, bend, attenuate, and refl ect these wavelengths. Communications systems using VHF/UHF must allow for signifi cant fading and other disruption of the transmission, often on a random basis. This situation is more

20 FCC to Examine Ban on Using Cellular Telephones on Airborne Aircraft, FCC NEWS, 15 December 2004, available at http://www.broadbandwirelessreports.com (last visited 26 September 2006).

14 CHAPTER TWO

pronounced in the tropics around the geomagnetic equator, particularly during the spring and fall equinoxes.21 Technical constraints arising from the use of HF and UHF/VHF frequencies catalysed the evolution towards the use of other microwave applications involving communications between AESs mounted on aircraft frames and satellites, in radio frequencies (RF) above 1 GHz. This can be attributed to the fact that signals in the range above 1 GHz are capable of travelling nearly by line-of-sight propagation and are less hampered by the ionosphere. Furthermore, these frequencies have greater bandwidth and more stable propagation under most conditions than frequencies below 1 GHz.22 It has been contended that the earliest attempts to provide satellite based communications services to aircraft dates back to the early 1960s when the US National Aeronautics and Space Administration (NASA) and Pan American Airlines conducted experiments to demonstrate the feasibility of satellite communications to aircraft.23 On a related note and in 1965, at its 15th Session, the ICAO Assembly adopted Resolution A15-1. This ICAO Resolution has been continuously reviewed over the years, and in its current form, it is set forth in ICAO Assembly Resolution A29-11 which states inter alia:

1. That ICAO continue to be responsible for: a) stating the position of international civil aviation on all related outer

space matters; and b) monitoring and co-ordinating the work performed by States on regional

and global planning on these matters in order that the introduction of the future ICAO CNS/ATM systems takes place in an orderly and effi cient manner globally and in a balanced way taking due account of safety as well as economic considerations;

2. Requests the Council to continue its work to determine the operational, technical, fi nancial, managerial and legal institutional requirements for global satellite systems for civil aviation purposes, taking due account of the provisions of Resolution A27-10, Appendix J, regarding the co-ordination of aeronautical systems and sub-systems;

3. Urges that Contracting States continue keeping the Organization informed regarding the programmes and the progress achieved in the exploration and use of outer space that are of interest to international civil aviation;

4. Requests the Secretary General to ensure that the international civil aviation positions and requirements are made known to all organizations dealing with relevant space activities and to continue to arrange for the Organization to be represented at appropriate conferences and meetings connected with or affecting the particular interests of international civil aviation in this fi eld.

21 B. R. Elbert, Introduction to Satellite Communication 29-30 (1999).22 Id.23 W. D. Von Noorden, Space Communications to Aircraft: A New Development in International Space Law, 15/1 Journal of Space Law 25 (1987), at 30; W. Park, Satellite Application for Aviation Requirements, XIV(1) Air Law 17 (1989); B. D. K. Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System 65-70 (1998).


The relevance of ICAO Resolution A29-II adopted in the context of the future Communication, Navigation, Surveillance / Air Traffi c Management (CNS/ATM) System, to S-APC is discussed further in Section 2.3 of this chapter. Furthermore, it is on record that efforts were also made in 1966 by the ICAO Communications Divisional Meeting which led to the formation of the Application of Space Technology Relating to Aviation (ASTRA) Panel by the ICAO Air Navigation Commission in 1968. Investigations were conducted by the ASTRA Panel and meetings convened between 1970 and 1972. The objectives were to inter alia:

identify those applications of space techniques which offer improvements in the safety, regularity and effi ciency of international air operations more economically than can be realised by non-space techniques, and the dates by which the techniques concerned would be suffi ciently developed for practical application together with a statement of the related desired system characteristics.24

Although the ASTRA Panel was dissolved in 1972, at the 7th Air Navigation Conference of ICAO held in the same year, its work was reviewed and the application of satellite techniques to civil aviation was discussed leading to the recommendation that Contracting States in a position to do so should proceed with the launch and evaluation of a fi rst experimental system. In 1974, responding to this recommendation, the governments of the United States, Canada, and ten European countries in concert via the medium of the European Space Research Organization (ESRO) established a joint programme for the launch and pre-operational evaluation of a multiple satellite system which would provide improved long range air-ground communications and surveillance. We will recall that the foundation of what is known today as the European Space Agency (ESA) was laid with the formation of the ESRO in 1962 and of the European Launcher Development Organization (ELDO) in 1964. ESRO consisted of ten European countries and Australia, which placed its Woomera rocket-fi ring range at the organization’s disposal. Thus the AEROSAT programme was conceived and formalised in a Memorandum of Understanding in respect of the provision of a “space segment” and of a co-ordinated programme dealing with the test, aeronautical and evaluation elements. It was controlled by an AEROSAT council, comprised of representatives of the participating countries and of ESA, together with observers from Australia, Japan and the International Air Transport Association (IATA). Due to the sharp increase in the cost of oil in 1975, the consequent recession in the air transport industry and a number of additional reasons, the programme collapsed in 1977 from lack of funding.25

24 United Nations, Space Activities and Resources, UN Review, UN Doc. A/AC.105/193 (1977), at 107.25 ICAO Doc. AN-WP/5380, Use of Space Technology in the Field of Air Navigation (Review

16 CHAPTER TWO

2.2. ICAO Aviation Review Committee Recommendations

In spite of the collapse of the AEROSAT programme, the partners of the project retained the AEROSAT Council and embarked on a re-appraisal of the potential of satellites in the changed circumstances of the 1980s and beyond. Thus the defunct AEROSAT Council re-emerged in the form of an Aviation Review Committee (ARC) albeit with a different mandate, composition and working procedure.26 In particular, the report prepared by the ARC and submitted to the Air Navigation Commission on 25 and 28 June 1982, made a number of pertinent recommendations, as part of a future work programme, based upon which the 106th ICAO Council agreed inter alia:

that ICAO should avail itself of the opportunity to provide input to the design of the second generation INMARSAT space segment, with a view to providing for the possible future use by civil aviation of sharing options utilizing satellites; that ICAO should avail itself of the opportunity to participate in the experimental evaluation programmes being undertaken by several states (utilizing a MARECS space segment), being provided by INMARSAT.

However, it is important to note that the International Maritime Organization (IMO) had decided to start work on the establishment of a new maritime satellite communications system in 1973. The IMO Assembly adopted two resolutions which were to form the basis of the organization’s future work in this area – one authorizing its Maritime Safety Committee to develop a distress system, and the other calling a conference to establish a maritime satellite organization. The conference fi rst met in 1975 and held three sessions, the last of which, in 1976, resulted in the adoption of the Convention on the Establishment of the International Maritime Satellite Organization (INMARSAT).27 The INMARSAT Convention entered into force in 1979 and, the organization became operational in February 1982, when it took over the system operated by the MARISAT Joint Venture. MARISAT itself being an American company which had pioneered the use of satellites for merchant shipping. Note, however, that in 1999 INMARSAT was privatized and the whole INMARSAT satellite system, including its business, headquarters and staff, were transferred to a UK based wholly owned operating company called Inmarsat Limited, in which the former signatories held ordinary shares. Therefore, the original purpose of INMARSAT was:

of Technical Aspects of Aerosat Council Recommendations) 13 September 1982; Aviation Review Committee, Final Report, Volume I, 31 January 1982, at S-1.26 Id. at S-1 to S-4.27 Final Acts of International Conference on the Establishment of an International Maritime Satellite System, Inter Governmental Maritime Consultative Organization, London, 1976.

•

•


to make provision for the space segment necessary for improving distress and safety of life at sea communications, effi ciency and management of ships, maritime public correspondence services and radiodetermination capabilities.28

On the other hand and with regards to aeronautical services, the developments leading up to the provision of aeronautical services (including S-APC) began in the 1960s under the auspices of the ASTRA Panel instituted by ICAO. More particularly the involvement of INMARSAT in the provision of aeronautical services was only made for the fi rst time following recommendations made in 197629 and the 1980s.30 In order to give effect to these recommendations substantial amendments to the INMARSAT Convention and Operating Agreement were required. The said amendments were approved at the Fourth Session of the INMARSAT Assembly convened in October 1985 and read as follows:

to make provision for the space segment necessary for improving maritime communications and, as practicable, aeronautical communications, thereby assisting in improving communications for distress and safety of life, communications for air traffi c services, the effi ciency and management of ships and aircraft, maritime and aeronautical public correspondence services and radiodetermination capabilities.31

As far as the distinction and effect between maritime and aeronautical services was concerned, the following contention has been put forward by Von Noorden.32 As regards maritime services, INMARSAT had a limited degree of protection from competition under Article 8 of the Convention. That article provided that a Party is to notify the Organization in the event that it or any person within its jurisdiction intends to make provision for, or initiate the use of, separate space segment facilities to meet any or all of the purposes of the INMARSAT space segment. The stated object is “… to

28 Art. 3(1) of the Convention on the International Maritime Satellite Organization (INMARSAT), adopted 3 September 1976 and amended on 16 October 1985, January 1989 and December 1994, 1143 (UNTS) 10S and 213; (1976) UKTS No. 94 (md. 7722); 3UST 1 and 135, TIAS 9605; (1976) 15 ILM 10S1-7S. See also Von Noorden, supra note 23, Part II, at 147.29 The Final Act of the International Conference on the Establishment of a Maritime Satellite System recommended that

arrangements should be made to undertake at an early date the study, without prejudice to programmes in planning, of the institutional, fi nancial, technical and operating consequences of the use by INMARSAT of multi-purpose satellites providing both maritime mobile and aeronautical mobile capacity. In connection therewith, the advice participation and cooperation of the appropriate aeronautical authorities should be sought.

30 Upon the recommendation of the AEROSAT programme, which concluded that civil aviation might be able to share satellite systems operated for other purposes. In this respect the INMARSAT system was proposed as suitable for such a sharing arrangement. 31 Article 3(1) of the INMARSAT Convention as amended.32 Supra note 23, at 151.

18 CHAPTER TWO

ensure technical compatibility and to avoid signifi cant economic harm to the INMARSAT system.”33 Article 8 had its origins in a concern that the market for maritime satellite communications might be modest in relation to the cost of providing the necessary space segment and that INMARSAT might not be viable fi nancially if unrestrained competition were allowed. With regards to aeronautical services, however, it was never envisaged that INMARSAT should enjoy such protection from competition. The international civil aviation community had made no commitment whatsoever to use INMARSAT services, and ICAO had expressly disclaimed any such commitment by itself, its Member States or users.34 This may well be the reason why the sphere of application of the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 198535 (attached herewith as Appendix A) is restricted to the use of INMARSAT Ship Earth Stations as opposed to Aircraft Earth Stations (AESs). Accordingly, at the Fourth Session of the INMARSAT Assembly, held in October 1985, various amendments were adopted to the INMARSAT Convention and Operating Agreement. We will recall that the entity currently known as Inmarsat Ltd was formed in 1979 as an intergovernmental cooperative to provide mobile satellite services to the maritime community. INMARSAT evolved into a full service global mobile satellite service provider. That organization had 84 member countries. Following its privatization, as of February 2005, Inmarsat Ltd operates a fl eet of geostationary satellites providing worldwide coverage. Prior to its privatization, INMARSAT had been funded by member countries and/or its signatories in accordance with their usage of the INMARSAT system of satellites. It is contended that in order to remain viable in the increasingly competitive market for mobile satellite services, the INMARSAT Assembly endorsed a plan to restructure INMARSAT as a commercial corporation. Specifi cally, in September 1998 the INMARSAT Assembly agreed to proceed with a rapid privatization plan for INMARSAT that resulted in the privatization of the organization at the beginning of the second quarter of 1999.36

33 See Art. 8(1) of the INMARSAT Convention as amended.34 ICAO Doc. C-WP/8126, attachment 1, para 2.35 The Inmarsat Agreement of 1985 entered into force on 12 September 1993 after its 25th Member State became a party to it.36 For discussions on the history and evolution of the entity now known as Inmarsat Limited, see B. Gallagher (Ed.), On the Air in Never Beyond Reach – The World of Mobile Satellite Communications (1989); S. Doyle, INMARSAT: The International Maritime Satellite Organization – Origins and Structure, 5 Journal of Space Law 45 (1977); N. Jasentuliyana The International Maritime Satellite System, in N. Jasentuliyana & R. Lee (Eds.), Manual on Space Law 439 (1979); F. Lyall, Law and Space Telecommunications 209-243 (1989); D. Sagar, Inmarsat Goes Private, 1999 (18) ECSL News 2; A. Auckenthaler, Recent Developments at Inmarsat, 38 Coll. L. Outer Space 149 (1995); D. Sagar, The Privatisation of Inmarsat, 41 Coll. L. Outer Space (1998); L. J. Milton, Developments in the Privatisation of Inmarsat, IBA Section on Business Law, 2 Outer Space Newsletter 12 (1999).


The effect of the 1985 amendments to the INMARSAT Convention mentioned above was to confer on INMARSAT the competence to provide aeronautical satellite communications on a global basis. More importantly and as far this work is concerned, this competence was also applicable to S-APC as can be seen in the provisions of the said amendments which included the words “aeronautical public correspondence services.” The new competencies were a substantial addition to the original remit of INMARSAT which had been mandated:

to make provision for the space segment necessary for improving distress and safety of life at sea communications, effi ciency and management of ships, maritime public correspondence services and radiodetermination capabilities.37

The cumulative effect of these amendments and new competencies vested upon INMARSAT in 1985 can be said to constitute the point marking the creation of the fi rst international institutional framework for aeronautical satellite communications.38

2.3. Communications Aspects of the ICAO CNS/ATM System39

At the 10th Air Navigation Conference held in Montreal on 5-20 September 1991, the conference considered Agenda Item 2 – Consideration of the future air navigation systems (FANS) concept for the future air navigation system, and its capability of correcting the shortcomings of the present communications, navigation, and surveillance (CNS) system. The conference was presented with an overview of the FANS concept for the future air navigation system. In this respect the shortcomings of the prevailing air navigation system was discussed consequent upon which a communication, navigation, and surveillance and traffi c management (ATM) concept for FANS was proposed. The shortcomings which had been identifi ed by the FANS Committee (see further chapter three) were stated in Appendix A to the report on Agenda Item 2 as being:

a) the propagation limitations of current line-of-sight systems and/or accuracy and reliability limitations imposed by variability of propagation characteristics of other systems;

b) the diffi culty, caused by a variety of reasons, to implement present CNS systems, and operate them in a consistent manner in large parts of the world;

c) the limitations of voice communications and the lack of digital air-ground data interchange systems in the air and on the ground.

37 INMARSAT Convention, Art. 3(1). See also Von Noorden, supra note 23, Part II, at 147-160.38 Van Noorden, supra note 23, Part I.39 Guldimann & Kaiser, supra note 1, at 78.

20 CHAPTER TWO

The report also pointed out that most of the aforementioned limitations were intrinsic to the systems themselves and that although the effects are not the same for every part of the world, it is evident that one or more of these factors inhibit the further development of air navigation almost everywhere. Therefore new CNS systems should surmount these limitations to become more responsive to users’ needs. Thus, the new CNS systems should provide inter alia: (a) global communications, navigation, and surveillance coverage from very low to very high altitudes, also embracing remote, off-shore and oceanic areas; and (b) digital data interchange between air-ground systems to fully exploit the automated capabilities of both. In this respect the FANS Committees concluded that the exploitation of satellite technology appeared to be the only viable solution to overcome the shortcomings of the present CNS system and also to fulfi l the global needs and requirements in the foreseeable future. Consequently the Committee developed “an overall long-term projection for the coordinated evolutionary development of air navigation for international civil aviation over a period of the order of twenty fi ve years”,40 in which complementary to certain terrestrial systems, satellite based CNS systems will be the key to worldwide improvements. The main features, set forth in the Appendix to the Report on Agenda Item 2, of the communications aspect within the global concept of the CNS system, to be implemented over a period of twenty-fi ve years, predicts inter alia that satellite data and voice communications will be available for at least the larger part of the world. Initially HF may have to be maintained over Polar Regions until such time as satellite communication is available. In the future, aeronautical mobile communication will extensively use digital modulation techniques to permit high effi ciency information fl ow; optimum use of automation both in aircraft and on the ground; and economical frequency spectrum utilization. Except in high density areas within the coverage of terrestrial based systems, AMSS (data and voice) will use satellite-relay, operating in the frequency bands allocated to the AMS (R) S. Terrestrial based air-ground communications will continue to serve in terminal areas and in other high density airspace. Finally, the aeronautical telecommunication network concept through the use of an agreed communication protocol structure will provide for the interchange of digital data packets between end-users of dissimilar air-to-ground and ground-to-ground communications networks.

2.4. Aeronautical Public Correspondence and the Aeronautical Telecommunication Network

Considering that the AMSS is a component of the Aeronautical Telecommunication Network (ATN) it requires a brief examination. The ATN

40 Guldimann & Kaiser, supra note 1, at 82-83.


is defi ned within the ICAO as a digital data communications network for the aeronautical community, and forms part of the satellite-supported components of the CNS/ATM concept, which includes inter alia enhanced communications capabilities. The ATN could allow the interconnection of a diverse collection of air-to-ground and ground-to-ground communications systems to provide global information transfer among computers used for air traffi c management, airline operations, general fl ight information services (such as weather), and passenger services i.e., S-APC. Building the ATN requires special communications components, called ATN routers, both in the aircraft and on the ground. These routers will interconnect the various communications systems and ensure that communications paths between all users, including aircraft in fl ight, are available throughout the network. The ATN is intended to serve as a worldwide internetwork based on international data communications standard protocols for maintaining communications paths between users, allowing communications paths to be established between civil aviation authorities; between aircraft and the air traffi c management system or aircraft owners’ operations centers; and between civil aviation authorities and aircraft owners’ operations centers. As an internetwork, the ATN could therefore incorporate a diverse set of networks, including those provided by National Civil Aviation Authorities and commercial communication service providers.

3. Satellite Aeronautical Public Correspondence and Market Opportunities

It is believed that the market for delivering S-APC services is one with strong growth prospects. That market includes large commercial, passenger and cargo aircraft (commercial air transport) as well as small aircraft for business and recreation aviation and private hire, specialist air services (photography etc), fi xed wing, helicopters, air ambulances and police aircraft (general aviation). While in theory this presents a large market, in reality only a small part of this environment will be available to APC services (in terms of suitability, need and willingness to pay). To validate this belief, various market assessment studies, applying differing methods have been adopted. In this context, one methodology (Market Assessment of Mobile Satellite Systems) conducted by ESYS plc, for the European Space Research and Technology Centre on behalf of the Advanced Satellite Mobile Systems Task Force focused on the commercial air transport sector, and in particular the large business jets and passenger aircraft, assuming that the addressable market is based on world passenger fl eets derived from Boeing’s ‘Current Market Outlook 2001’ and the Airbus ‘Global Market Forecast 2000-2019’. This methodology contends that although the market is dominated by single aisle aircraft, the majority of

22 CHAPTER TWO

which are used for short-haul fl ights, the twin aisle, 747 and larger categories will have the biggest requirement for S-APC services and concludes that the available market today would consist of 1,980 aircraft. A second methodology (Market Research undertaken by Northern Sky Research) utilised a ‘build-up’ approach to determine the addressable market, using airlines commitments made to date as a starting point, including an assessment of the number and timing of additional airlines that will commit to equipping their aircraft with S-APC services. By considering other variables such as passenger loads, penetration rates, service features, average amount of use and pricing, an indication of the S-APC service can be given, resulting in a weighted average that places S-APC service revenues at $1.4 billion in 2007 and at $4.0 billion in cumulative 2001-2007 revenues. Suffi ce it to say, there is the belief41 that next generation mobile satellite services will be based on the consumption of high-speed data, and not narrowband voice. In this respect, revenues for 2003 were estimated at US$ 63.9 million and are expected to reach close to US$ 1.3 billion by 2010 yielding cumulative revenues of US$ 3.7 billion over an eight-year period. What is crucial about these seemingly optimistic projections is the fact that revenue growth, it is anticipated, will be driven largely by, inter alia, the commercial airline industry. In other words “for next-generation growth, particularly for the retail business, the aeronautical sector, and specifi cally usage in the commercial airline industry, will drive revenue generation in this market. The business proposition hinges on tapping the international business traveller, a seemingly precarious proposition since past experience in narrowband mobile voice services led to market failure. However, the two applications, narrowband voice and broadband data, are highly different when applied to the commercial airline industry.”42

4. Networks, Infrastructure, Service and Content Provision

As far as the satellite based infrastructure is concerned, certain facts need to be established from the outset. Firstly, communications takes place through three major components or segments. Secondly, the responsibility of ownership and/or operation of the respective components or segments as well as the separate but pivotal task of service provision do not always lie in the same entity. With regards to the components and segments, these would typically be comprised

41 Northern Sky Research, Next Generation Mobile Satellite Services – Evaluating opportunities in Land, Air and Sea Segments, December 2004; Thales Avionics Limited and ESYS plc, Study of Requirements for Wideband Aeronautical Services: European Satellite Testing Centre contract number 14443/00/NL/DS, Final Report, 2001.42 Northern Sky Research, supra note 41, Executive Summary, at 2.


of the space segment (consisting of satellites in orbit), the ground earth station (GES) and AES or the PSTN. Broadly speaking, the AES, i.e., the avionics suite that transmits, receives and processes satellite communications, is controlled remotely by the GES, while the satellite itself provides a transparent relay having great reach between the two stations. Connection requests are passed over the satellite between the two basic elements by pre-arranged, automatic signalling on the radio channels that the AES and GES will use. The actual call or message content may be set up for data or voice transmission in either direction at the choice of the initiator. This choice also depends upon aircraft equipment and service arrangements, which provide a wide range of fl exibility. The network coordination station (NCS) controls resources among the GES, principally allocating radio channels as needed.43 With regards to ownership and operation the following functions have, inter alia, been identifi ed:44

Owning and operating communications satellites by providing the capability for ground originated or air originated communications to be channelled through the satellite(s) provided;Owning and operating a GES through which satellite communications are routed to the terrestrial system or re-transmitted to a satellite(s);Owning and operating an AES which receives and transmits various forms of communications through the satellite(s);Providing satellite communications services, with or without an entities’ own space segment, GES or AES.

In other words,45 the value chain for the provision of S-APC services needs to be thoroughly understood. Not only is the number of participants involved greater than in the terrestrial scenario, but the offering of services requiring licensing and the fact that the network is moving across national and international boundaries, further complicates matters. Thus, the customers, or in this case passengers, are the focus of the value chain. They will probably have a contractual relationship with a communications service provider (UMTS operator, ISP or wireless services operator) and with the airline from whom they have bought a ticket and with which they are fl ying. The airline is promoting the service in order to collect revenues directly from charges levied for service access or indirectly through increasing market shares. The airlines themselves may also become major users of S-APC services. For instance, in non-mission critical communications, crew communications,

43 ICAO Doc. AN-CONF/10, 3A-3. (1991). See also Henaku, supra note 23, at 126.44 Henaku, supra note 23, at 82.45 See Report ST-2001-37466 Wireless Cabin Deliverable 5 Market Survey and Recommendations, 28 August 2003, produced as part of the Wireless Cabin Project, part-funded by the European Commission.

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24 CHAPTER TWO

maintenance operations, downloading of the In-Flight Entertainment System and for additional security (e.g. “virtual black box”). Furthermore an airline may choose to own the infrastructure or may choose to give a third party the right to operate the on-board network. The latter option represents a major business opportunity for mobile telephone operators and ISPs. The aircraft manufacturer is an important part of the overall business model. Manufacturers can expect to sell more aircraft that are certifi ed to operate with S-APC systems. The aircraft manufacturer may also choose to be more ambitious and decide to operate and run the telecommunications infrastructure on board the aircraft on its own or on behalf of the airline. This was the case for Boeing which created a subsidiary company, Connexion- By-Boeing (discussed hereinafter), offering data connectivity to airlines and their passengers. The S-APC service provider could be a terrestrial service provider such as a mobile operator or wireless LAN operator. Alternatively, a different type of operator, specializing in services to mobile vehicles, might be created. The satellite operator will always remain an essential part of the value chain as they provide the communications link between ground and air. The content provider will provide multimedia content to the passengers and crew and perhaps material for use with the on-board in-fl ight entertainment system. Tax entities may be required to collect tax on services. Finally the terrestrial network operators would need to be positioned as gateways to terrestrial networks, providing connectivity. With regards to the provision of services and content a bit more needs to be said at this stage especially with regards to content provision, on which the prevailing international copyright and programme content protection laws have a direct impact. We shall return to the issue of international copyright laws and programme content protection in chapter three where an overview is provided and chapter fi ve where the current state of the law is detailed. At this stage however, suffi ce it to state that the provision of content and services, described as involving three functional areas, is contended46 to include:

Content/Service Acquisition and Aggregation.47 Content acquisition being the process of acquiring or understanding the rights to display or use the copyrighted work(s) in the in-fl ight venue. Content acquisition involves understanding where the content originates, i.e. from the original producer, or through a content provider, and the details of the association between the content producer and a content provider, whether contractual or by way of common ownership. An understanding of this relationship determines what rights exist to use the content in the in-fl ight venue. Ultimately, who the copyright owner is and how the rights

46 World Airline Entertainment Association, White Paper: Internet Working Group Content and Services, Version 1.0, Adopted August 2001, at 10.47 Id., at 11.

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are distributed is what needs to be determined if caching, modifying or re-hosting this content in-fl ight and providing distribution access to airline passengers is permissible. Content aggregation on the other hand, describes the practice of packaging or offering content acquired from individual sources. The business relationship, rights to change, modify or otherwise represent the content as part of the package for the in-fl ight market needs to be determined. Content aggregation has other aspects such as advertising insertion/modifi cation and fi ltering. Content aggregation activities may include editing, fi ltering, encoding and packaging the copyrighted work(s) for the in-fl ight environment.Ground Operations Management.48 This encompasses the functions required to provide content and services through a ground based or terrestrial source. In the case of pre-stored content, this may be the management capability to update content on a regular basis, using varying off-board communications methods to perform the updates. With live content, such as television, this would include the management, monitoring and editing of the content. With in-fl ight delivery, the ground operations management function may also involve the tracking and network management of information to aircraft. Other possible functions of the ground operations management element may include passenger profi le storage, the management of in-fl ight content and services periodic updates, a credit processing, billing and customer care service center or gateway functions to corporate e-mail system, internet-based content or other off-net sources. If content and services are delivered through direct internet access, with little to no ground operations management of intranet content, this function may only include the collection of metrics and statistics that may be collected regarding passenger uses.On-board Content/Service Delivery.49 This encompasses the on-board functions required to deliver content and services to the passenger. The key aspect of this element is the role of the on-board server. This role may range from providing basic connectivity to off-board communications systems for direct internet access, or provide web content using caching techniques and periodic information updates, as well as housing games and other passenger applications.

4.1. Inmarsat

At present, the Inmarsat system provides a platform of geostationary satellites for the provision of two-way communications pertaining to fl ight safety and

48 Id., at 12.49 Id.

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26 CHAPTER TWO

regularity on national or international civil air routes.50 It is important to note that the geostationary orbit consists of a circular orbit in the equatorial plane, any point on which revolves around the Earth in the same direction and with the same period as the Earth’s rotation. A satellite in a geostationary orbit will remain directly above a fi xed point on the equator at a distance of approximately 42,164 km from the centre of the Earth, i.e. approximately 35,787 km above mean sea level. The four types of aeronautical applications mentioned before including S-APC, are provided over the Inmarsat system of communications satellites. Using the Inmarsat system, radio signals are transmitted in a dedicated set of frequencies which are broken down by Frequency Division Multiplexing Access (FDMA) into a number of discrete channels comprised of:

A single P-channel which provides a uni-directional dedicated communications channel from a GES to the aircraft. Data packets are broadcast over this channel and addressed to a specifi c aircraft; A single R-channel which provides a uni-directional dedicated communications channel from the aircraft to a GES. Access to this channel is contention mode using the Slotted Aloha procedure, with the timing of the signal (for the transmission of the slots) being provided by the P-channel; A number of T-channels, each providing a uni-directional dedicated communications channel from the aircraft to GES. T-channels are used to convey longer messages without the risk of confl ict that arises on the R-channel. T-channels are allocated by a GES following a request received over the R-channel; A number of C-channels which each provide a bi-directional communications channel between the ground and the air. C-channels are typically used for voice communications.

To date, Inmarsat has handled the vast majority of satellite based civil aeronautical communications traffi c including, inter alia, S-APC services. The various segments of the Inmarsat aeronautical mobile-satellite network51 include:

50 ICAO Working Group A: Report of the feasibility Study on the use of the Next generation Satellite systems for Aeronautical Mobile Satellite (On Route) Service [AMS (R) S], Aeronautical Mobile Communications Panel, Fifth Meeting Montreal, April 1998 (Cited in O. Ercetin, M. O. Ball & T. Leandros, Next Generation Satellite Systems for Aeronautical Communications, National Centre of Excellence in Aviation Operations Research NEXTOR, Technical Report 2000-1 (ISR T.R. 2000-20)).51 ITU-T Recommendation Q.1151, Interworking with Satellite Mobile Systems – Interfaces for Interworking Between the Inmarsat Aeronautical Mobile Satellite system and the International Public switched Telephone Network ISDN, 03/93.

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Space segment, comprised of the satellite communication transponders and associated frequency bands assigned for use by the aeronautical satellite system;AESs which are in accordance with the relevant technical requirements, and which interface with the space segment at L-band radio frequencies for communications with ground earth stations, and which interface in the aircraft with data equipment and with crew and passenger voice equipment. In general, the L-band is comprised of the frequencies 1.626-1.6605 GHz (aircraft to satellite) and 1.525-1.529 GHz (satellite to aircraft links). More specifi cally, the Inmarsat system is operated in bands 1.626-1.6605 GHz; 1.530-1.559 GHz.GESs which interface with the space segment and with the fi xed networks, and which are operated in accordance with the relevant technical and operational requirements for communications with AESs. NCSs located at designated earth stations, for the purpose of allocating satellite channels, and also for system control and monitoring.

The Inmarsat aeronautical system was traditionally made up of independent communication networks for each satellite ocean region. Ocean regions are classifi ed as: Pacifi c Ocean Region; Atlantic Ocean Region-West; Atlantic Ocean Region-East; and Indian Ocean Region. Each network is comprised of the operational satellite and associated ground control facilities, the AESs and GESs operating within that area, and a NCS. The system design permits GESs to establish communications on a stand-alone basis with AESs without the intervention of the NCS, except in cases of satellite channel shortage. Each AES is equipped with a capability to receive a medium rate forward channel transmitted from a GES with a transmission rate of 600 bit/s (bits per second) carrying signalling and data messages in packet form. Each AES is primarily equipped to transmit a return carrier in burst mode at a transmission rate of either 600 bit/s or 1200 bit/s controlled by signalling messages received via the forward 600 bit/s channel. This dual capability is required to enable some advantage to be taken of the variations in aircraft antenna pattern and in spacecraft receiver sensitivity, which will be encountered during a fl ight. AESs may also be equipped with pairs of transmit/receive voice channel equipment and data channel equipment for higher bit rates. Each GES is equipped with at least the following data-only transmission capabilities: one 600 bit/s transmitter for the forward channel; four 600 bit/s receivers for the slotted random access channels (this is the minimum to be provided for diversity protection against interference and burst re-collisions); and a receiver for its 600 bit/s forward channel as well as the forward channels of each other GES working to the same satellite. At the GES owner’s discretion, GESs may also be equipped with: pairs of transmit/receive voice channel equipment; 600 bit/s receiver(s) for a Reservation (Time Division

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28 CHAPTER TWO

Multiple Access) (TDMA) channel(s); or 600 bit/s and 1200 bit/s receiver(s) for Reservation TDMA channel(s); and additional data channel equipment for the same or higher bit rates. TDMA is one of several technologies used to separate multiple conversation transmissions over a fi nite frequency allocation of through-the-air bandwidth. As with FDMA, TDMA is used to allocate a discrete amount of frequency bandwidth to each user, in order to permit many simultaneous conversations. The system provides for voice communications by means of the voice channels. Signalling and user data communications is carried on the medium rate (600/1200 bit/s) data channels. This signalling and user data is formatted into fi xed length signal units of either 96 bits (12 octets) or 152 bits (19 octets), which are combined as necessary to support various message sizes according to user requirements.52

S-APC in its simplest form conducted within a network such as Inmarsats’ follows distinct calling procedures53 depending on whether the call made is in the direction air-to-ground, or in the direction ground-to-air. In case of the former, and with regards to passenger telephony, the equipment may consist of the AES, cabin telephone equipment consisting of a fi xed piece of equipment and a handset, which may be “cordless”. The fi xed cabin telephone equipment would be provided with a credit card reader. When a passenger wants to make a call, the typical sequence of events would be as follows: key-in seat number; when this is accepted, insert credit card; and when this is accepted, remove handset and return to seat. At the cabin telephone location, if a credit card, which corresponds to the recognized card format, is inserted into the equipment, the handset shall be released after validation of the check bits and expiry date. In the event that either of these checks fails, the card shall be returned and the handset not released. Upon obtaining the handset the customer returns to his seat and can commence making one or more telephone calls. Where telephones and associated credit card readers are located at the passengers’ seats, a somewhat different procedure may apply. However, the procedure still involves reading the credit card, validating the check bits and checking expiry date, before making calls. With regards to crew telephony, credit card validation procedures are not required. Airline crew have access to special telephone services and networks, according to requirements and procedures developed by the airline industry. The capabilities include at least the following: access to the full PSTN as for passengers, but without the need for a credit card (billing would be direct to the aircraft operator); access to specialized voice services via private networks, with or without address digits; ability to preempt an existing (passenger) call if necessary to make AES voice circuit equipment, a satellite channel or GES

52 Id.53 Id.


voice circuit equipment available; ability to seize the next available AES voice circuit equipment, but without clearing any calls in progress. In the case of procedures for calls in the reverse direction, i.e., ground-to-air, selected fi xed network users are able to access aircraft automatically by using the aircraft ID in the address digits. Operator connected access is also available pursuant to the numbering plans enabling a PSTN subscriber to call the AES.54 The technical capabilities of the Inmarsat network have continued to evolve and currently offers a diverse range of APC services depicted in the Table 1 below.

Aero I Designed for short and medium-haul aircraft. Offers inter alia passenger phone and fax communications, and packet data from 600bit/s to 4.8kbit/s, and online access to ground-based information sources and services.

Mini-m Aero

Designed for small corporate aircraft and general aviation users, for voice, fax and 2.4 kbit/s data. Externally mounted antenna links to a small terminal weighing about 4.5kg. Particularly useful in areas beyond the reach of VHF radio.

Aero H Provides aircraft with simultaneous two-way digital voice and real-time data communications capability. Developed to meet the communications requirements of the fl ight crew, cabin crew and passengers.

Aero C Designed for messaging and data reporting service. The service provides aircraft with store-and-forward satellite communications.

Aero L Provides aircraft with a real-time two-way, data communications capability. Developed to match the needs of aircraft operators requiring a highly reliable data communications capability for their fl ight crew, cabin crew and passengers.

SWIFT 64

Supports the full range of Integrated Digital Services Network (ISDN) compatible communications and TCP-IP Internet connectivity virtually wherever it is needed.

Table 1 – Inmarsat aeronautical service portfolio

Whilst Inmarsat operates the satellites and ground networks, actual service is provided by entities contracted by Inmarsat who then provide the services to airline operators amongst others. Some of the largest providers of S-APC services based on the Inmarsat aeronautical network today include, inter alia, ARINC, SITA, Telenor Satellite Services, and Stratos Global Corporation. As far as the future is concerned, Inmarsat’s role in S-APC related activity is certain. This follows upon the successful launch of the fi rst 4th generation (I-4) satellite on an Atlas V launch vehicle from Cape Canaveral, Florida on 11 March 2005. A second I-4 satellite was launched in the third quarter of 2005 with a geostationary spacecraft, located over the Atlantic Ocean at 53° West thereby providing service for the Americas. The two I-4 satellites will then cover 85 percent of the world’s land mass. It is assumed that the I-4 satellites will be registered in the United Kingdom’s Registry of Space Objects in 54 ITU-T Recommendation E.215, Telephone/ISDN numbering plan for the mobile-satellite services of Inmarsat, (05/97).

30 CHAPTER TWO

accordance with Section 7 of the United Kingdom’s Outer Space Act of 1986 and the 1976 Convention on Registration of Space Objects.55 Consequently the company will be able to forge ahead with its plans to deliver what is currently referred to as Aero-BGAN (Broadband Global Area Network). Aero-BGAN is designed to operate in conjunction with existing safety services (ATSC and AOC) as well the S-APC oriented Swift 64. The service will provide data rates up to 432kbps per channel, offering both circuit switched and TCP/IP data. It is anticipated that the service will be supported through high, intermediate and low gain antennas, developed with the assistance of four avionics manufacturers. The satellite coverage area will be serviced by three types of beams:

Approximately 200 narrow spot beams per satellite covering a signifi cant area of continental landmasses within the satellite(s) fi eld of view. These narrow spot beams will allow the new BGAN multimedia services to be accessed via BGAN AESs;19 wide spot beams per satellite will also be provided giving coverage over the entire satellite fi elds of view for existing Inmarsat services. These spot beams have a higher performance level than is currently provided on the Inmarst-3 satellites;one global beam per satellite, which corresponds to the coverage of each of the two satellites to be launched and deployed at Inmarsat’s existing Indian Ocean Region orbital location (around 65° East) and Atlantic Ocean Region-West (around 54° West) orbital locations, with a third satellite currently being planned as a ground spare.56

4.2. Connexion-By-Boeing

The S-APC satellite system established by the Boeing Company constituted the main rival to Inmarsat’s service, at least until very recently when the service was withdrawn. More precisely, on 17 August 2006, the Boeing Company announced that a detailed business and market analysis of Connexion-By-Boeing had been completed, and that the company had decided to withdraw

55 Convention on Registration of Objects Launched into Outer Space New York, adopted 12 November 1974, opened for signature 14 January 1975, entered into force 15 September 1976, 1023 UNTS 15 (hereinafter Registration Convention). On the need to register satellites in accordance with the provisions of the Registration Convention, see further V. Kopal, The 1975 Convention on Registration of Objects Launched into Outer Space in View of the Growth of Commercial Space Activities, in M. Benkö & W. Kroll (Eds.), Air and Space Law in the 21st Century, 372 (2001).56 Presentation of Inmarsat to the Eurocontrol NexSat Steering Group 5 – Brussels November 2004 (http://www.eurocontrol.int/wacs/steering_grp/steering_grp.html) last accessed on 26

July 2006.

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from the high-speed broadband communications connectivity markets. The company would therefore work with its customers to facilitate an orderly phase-out of the service. In a statement posted on the company’s website the Boeing Chairman, President and CEO Jim McNerney said

over the last six years, we have invested substantial time, resources and technology in Connexion-By-Boeing, […] Regrettably the market for this service has not materialized as had been expected. We believe this decision best balances the long-term interests of all parties with a stake in Connexion-By-Boeing.

The statement further expressed that, as initially disclosed in the company’s second-quarter 2006 fi nancial results on 26 July 2006, Boeing expects to recognize a pre-tax charge of up to $320 million, or $0.26 per share, in the second half of 2006, of which approximately $290 million will be taken in the third quarter and the balance in the fourth quarter. The company also expects a benefi t to earnings of approximately $0.15 per share starting in 2007 without further investment in Connexion. The charge relates to writing down certain assets, payments of early termination fees and other costs related to shutting down the service. Despite its discontinuance at the time of authoring this work, the pivotal position of Connexion-By-Boeing with regards to S-APC justifi es a further discussion. Connexion-By-Boeing was established to offer real-time access to the internet, e-mail and information content, and to enable Virtual Private Network (VPN) secure access to company intranets and e-mail accounts. Connexion-By-Boeing claimed57 to offer airline operators the ability to improve operational effi ciency and enhance security in addition to meeting the connectivity needs of travellers. This is because the broadband capability of the Connexion-By-Boeing service makes it possible to monitor from the ground the performance of airplane systems, enabling timely maintenance and reducing delays. Future applications would include distribution of in-fl ight entertainment content (reducing inventory, storage and update costs), and the ability to have passengers who are ill, assessed remotely by qualifi ed medical professionals on the ground. The system was stated58 to have been developed with the assistance of eighteen of the world’s leading airlines to ensure that it had the features, functionality and ease of use they and their passengers require. Service began on some trans-oceanic and trans-continental fl ights offered by Lufthansa, Scandinavian Airline System, Japan Airlines and All Nippon Airways. Coverage expanded to other airlines and routes. Service to routes covering Mexico, the Caribbean, Central America, South America, Africa and the Pacifi c Ocean Region began in 2005. 57 Bringing Broadband to Aircraft, a brief introduction, (http://www.apectelwg.org/apecdata/telwg/28tel/bw/telwg28-BB-07.htm) last accessed on 2 November 2004.58 Id.

32 CHAPTER TWO

The communication service to each aircraft in the system consists of two parts, comprised of one or more forward links and a return link. Each forward link carries data from the GES, via satellite, to the AES at a nominal data rate of approximately 10 Mbps. Multiple AESs shared a forward link transponder signal, and each AES could receive signals from multiple forward links on the same satellite. The return link carried data from the AES to the GES, via satellite, and used transponders that are separate from the forward link. Each AES could also transmit at a data rate between 16 kbps and 1.024 Mbps. Return link transponders were shared by multiple AESs. Note that this system utilized leased capacity on-board operational Fixed Satellite Service (FSS) systems for AMSS service rather than using a dedicated AMSS space segment. The Connexion-By-Boeing network architecture was divided into four principal segments:

An AES consisting of a pair of phased array antennas or a mechanically steered refl ector antenna and other on-board subsystems;A space segment consisting of leased satellite transponders on existing in-orbit geostationary satellites;A GES segment consisting of one or more satellite land earth stations linked by leased capacity on terrestrial networks;A network operations centre.

The AES segment was composed of three subsystems comprised of an antenna subsystem which includes the airborne antennas and support electronics, a receive and transmit subsystem, which includes the modem and system controller, and an interface to the cabin distribution subsystem, that links the system to aircraft passengers and crew. The aircraft cabin distribution subsystem itself is specifi c to the airline and may be wired or wireless. A passenger is thus able to use a personal laptop computer or other device, such as a PDA, to connect to the cabin distribution system. Once this connection is made and billing information is exchanged, the passenger can access the internet. Reception and transmission of the data by the AES is accomplished using either a pair of transmit and receive phased-array antennas or a mechanically steered refl ector antenna, which are affi xed to the fuselage of the aircraft. The radio frequency link between the AES and the space segment is accomplished using spectrum in the 10.7 to 11.7 GHz bands and the 12.2 to 12.75 GHz bands for reception (space-to-Earth) (limited to 11.7 to 12.2 GHz in ITU Region 2) and 14 to 14.5 GHz frequency bands for transmission (Earth-to-space). This is further discussed below in the section on the various ITU Regions. Note that the 12 GHz range is also known as the “Ku band”. The international regulatory processes leading up to the allocation of the said radio frequencies are discussed in chapters three and fi ve respectively.59

59 For a description of the regulatory processes undertaken by Connexion-By-Boeing to obtain radio frequency authorisations in the US see Federal Communications Commission, Order

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It is reported that the Connexion-By-Boeing space segment utilized previously coordinated transponders with existing landing rights. Forward link data was thus uplinked from a GES to the satellite using the 14 GHz band and then downlinked from the satellite to the AES in the 10/11/12 GHz band. Similarly, return link data was uplinked from the AES to the satellite using the 14 GHz band and then downlinked from the satellite back to the GES using the 10/11/12 GHz band. The forward and return links used full transponders or fractional transponders depending on the demand in the region. Each satellite from which capacity is leased provided coverage in one geographical region. Satellite coverage areas were selected to provide a small amount of overlap at the region boundary so that the system coverage is contiguous. The GES segment utilized leased capacity on existing commercial earth stations in each region. The GESs provided the up and down links to the space segment and were connected to the Network Operations Centre using leased capacity on a private terrestrial network. In some cases internet traffi c was connected to the internet directly from the GES. Connexion-By-Boeing also contracted for LES services in Littleton, Colorado USA, Leuk, Switzerland, Moscow, Russia, and Ibaraki, Japan. The Network Operations Centre served as the central monitoring and management facility for the Connexion-By-Boeing system. The Networks Operation Centre was connected to all the GESs in the system using leased capacity on private terrestrial networks and served all of the satellite coverage regions within the system. The Network Operations Centre also coordinated the handover of aircraft transitioning between two satellite coverage regions. Furthermore, the Network Operations Centre remained connected to the internet and the various customer care and billing centres needed to support Connexion-By-Boeing by using leased capacity on private terrestrial networks. Connexion-By-Boeing claimed to offer its services on a contractual basis to commercial airlines, private aircraft owners, corporate business jets and government agencies, which would be fl exible in how they marketed the service to passengers.

4.3. Other Systems

Whilst the Inmarsat and Connexion-By-Boeing systems are currently operational, and although the latter is in the process of being terminated, there are also a number of systems that have reached an advanced stage of development and are worth mentioning. In 1994, the Japanese Council for Civil Aviation, a consultancy body for the Minister of Transport, forecasted that air traffi c in the North and Central Pacifi c (NOPAC and CENPAC) in

and Authorization, DA 01-3008, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-3008A1.pdf (last accessed on 26 July 2006).

34 CHAPTER TWO

1992 would double by 2000 and triple by 2010. The Council considered that the existing air navigation systems could not cope with the increasing NOPAC and CENPAC traffi c, and that new air navigation systems, based on satellite technology, should be implemented for Japan to cater to future traffi c in Japan and the adjacent airspace. The Council also considered that in order to make the air navigation systems safer and more reliable, suffi cient system redundancy was required. According to recommendations developed by the Council, the Japanese Civil Aviation Bureau (JCAB) decided to launch a new aeronautical satellite, integrating aeronautical missions into the meteorological observation mission of the geostationary meteorological satellite, currently being utilized for providing meteorological information to the Asia/Pacifi c States since the 1970s. JCAB considered that the new satellite should be designed to be widely utilized for aircraft operators and ATS providers in the Asia/Pacifi c Region in addition to the existing satellites. This new satellite is to be known as Multi-functional Transport Satellite (MTSAT). In order to provide services continuously, two aeronautical satellite centres have been implemented at different locations in Japan, i.e. Kobe (approximately 500 km west of Tokyo) and Hitachi-ota (approximately 100 km northeast of Tokyo). The AMSS functions of MTSAT will enable the provision of all the aeronautical communications defi ned by ICAO, i.e. ATS, AOC, AAC, and more importantly, APC. When the MTSAT system becomes operational, it will cover most of the Asia-Pacifi c airspace using a combination of global and spot beams.60 Another contender in the S-APC scheme of affairs is AirTV which is expected to provide live television, e-mail and internet service on a global basis. The AirTV satellite network will offer 60 channels or more of real-time video content. Live sporting events, news, multi-language programs, movies and much more will be available throughout the aircraft from the economy cabin to fi rst class. AirTV plans to launch its initial satellite in 2007 over the North Atlantic Ocean. This satellite will cover airline routes from Europe and the Middle East to North America (this is presumed to be roughly a third of all airline traffi c). AirTV’s subsequent three satellites will be launched soon after, intended to offer global coverage. In 2003, Italian fl ag carrier Alitalia began passenger demonstrations of AirTV’s in-fl ight internet access following the service’s successful validation on one of the airline’s Boeing 767s. The Italian airline eventually plans to equip its long-haul fl eet with the AirTV internet service. AirTV’s goal is to build its service into a global communications system carried via a dedicated network of four AirTV high-capacity S-band

60 See ICAO DOC. ALLPIRG/4-WP/29 1/2/01, Agenda Item 2.1: Interregional coordination and harmonization mechanism – Harmonization of air navigation systems, Presented by the Civil Aviation Bureau, Japan at the Fourth meeting of the ALLPIRG advisory group (Montreal, 6 – 8 February 2001); ICAO Doc. AN-Conf/11-WP/202, Report of Committee B to the Conference on Agenda Item 7, Montreal, 22 September to 3 October 2003, at 7-3 to 7-4.


satellites – each providing 60 channels of video/audio entertainment, along with 40 Mbps of e-mail, internet and data connectivity. The AirTV system is being developed by a team of strategic partners and investors including Alcatel Space, Arianespace, EADS and CMC Electronics. Licensing agreements for TV programming to be carried on the AirTV service are reported to have been concluded with Bloomberg Television and BBC World. On 23 September 2004, AirTV signed a launch services agreement with Arianespace to place into orbit its fi rst broadband spacecraft. The signifi cant difference between AirTV and other operational and/or planned systems is the intention to operate a satellite system dedicated exclusively to the provision of aeronautical communications services.61 It is also important to note that all of the systems described before currently provide services or anticipate providing S-APC services in the radio frequencies from within the L, C, S, and Ku Bands. These deployments have considerable regulatory implications discussed in chapter three.

5. Evolving towards Broadband and Wireless S-APC62

5.1. High Speed Data Services

The evolution of voice and low/medium rate data S-APC services to higher data rate (broadband/multimedia) services refl ects the data rate requirements of applications for the aeronautical satellite communications market which is believed to be expanding. For the sake of clarity, broadband, also known as 3G, is a transmission capacity that is faster than primary rate ISDN at 1.5 or 2.0 Megabits per second (Mbits/s). The primary rate is a multiple standard 64 Kilobits per second (Kbits/s) telephone connection and because different conventions have been adopted, there are two primary rates. In North America and Japan the primary rate is equal to 1.5 Mbit/s. In other parts of the world the primary rate is 2Mbit/s. Driven by enthusiastic estimations envisaging a lucrative market, several steps have already been taken aimed at evolving aeronautical communications technologies towards a broadband infrastructure for airline passengers.

61 See http://www.airtv.net (last accessed on 26th July 2006).62 See M. Holzbock, et al., Aeronautical Channel Characterisation Measurements at K band, in Proceedings of the 4th Ka band utilisation conference, Venice, Italy, 1998, 263 (Referred to in M. Werner & M. Holzbock, Aeronautical Broadband Communications via Satellite, in Proceedings DGLR Workshop, Airbus, Hamburg, Germany, May 2001, 103-116.) See also M. Holzbock, et al., Aeronautical Multimedia Demonstration at K/Ka band, in Sixth International Mobile Satellite Conference, Ottawa, June 1999, 5; J. Broughton, & J. Nemes, Multimedia Services for Aeronautical Satellite Applications, in Sixth International Mobile Satellite Conference, Ottawa, June 1999; Brahmss Study (Task 1 Report – Critical Review of Existing Systems), supra note 11, at 1-117; A. Jahn et al., Evolution of Aeronautical Communications for Personal and Multimedia Services, 41(7) IEEE Communications Magazine 2003, 36-43.

36 CHAPTER TWO

Technological advances by existing and planned satellite systems means, for instance, that Inmarsat extended its new high-speed data (HSD) technology with the ability to reuse existing Aero-H antennas and high power amplifi ers. In this respect, two different types of high-speed data channels were developed on the basis of the circuit mode service and packet data service.63 The circuit mode channel uses 16QAM modulation and turbocoding to deliver a user bit rate of 64 kb/s. Users will access the circuit HSD channel via either dial up modems or by an ISDN interface. Using the former technique, which is most likely for an airline passenger with a laptop computer, the air and ground based modems will train and connect at some rate determined by the nature and quality of the entire communications path. While it is possible that 56.6 kb/s connectivity can be achieved, it is more likely that rates will be in the range of 33.4 to 14.4 kb/s. Applications that will use the circuit channel have been identifi ed as including, inter alia, weather map broadcast, in-fl ight entertainment, audio content, large fi le transfer, and e-mail. The packet data channel on the other hand is intended to operate at a user bit rate of 32 kb/s and, using the same technologies as the circuit channel, achieves a per kilobit resource effi ciency 260% better than the current aeronautical packet data service. The packet channel will support both internet traffi c and connections to private networks. Applications for the packet channel have been identifi ed as including: internet and intranet access; real time credit card validation; e-mail; engine data; packet based interactive tele-services. At present this higher data rate service is available and is referred to by Inmarsat as Swift 64, described in Table 1 above. The Connexion-By-Boeing system (discussed before), in contrast to Inmarsat’s, leased multiple transponders of existing geostationary satellites with a view to providing two-way broadband connectivity, based on antenna technology. Aircrafts were equipped with a phased array receive and transmit antenna providing on-board data rates of 5Mbps nominal (11.7-12.75 GHz) and off-board rates of 1 Mbps nominal (14.0-14.5 GHz) directly to airline seats offering passengers personalized and secure access to various forms of content via laptop computers and other portable electronic devices. It is contended that a combination of both circuit and packet modes permits multiple users in an aircraft to access HSD S-APC services on a shared basis and by charging only for data transmitted or received, make internet browsing and similar server applications economically viable.64 On the strength of this combination two user groups are distinguished as illustrated in the fi gures below.

63 Broughton & Nemes, supra note 62, at 38.64 Id., at 3.


Figure 1Confi guration for commercial transport aircraft showing

on-board server for local point of presence65

In the illustration above, access to the S-APC service occurs via the passenger’s laptop PC connecting to the RJ11 jack which is now standard in in-seat telephone handsets, or through the in-fl ight entertainment system. Given that the laptop computer is the primary mode of access, and since the dial-up modem appears set to remain the main mode of communication for some time to come, it is expected that this will be using a dial up connection. It is not necessarily the case, however, that the connection would be to a termination point on the ground. With the inevitable progression towards installation of fi le servers on aircraft, it is possible that passengers could connect to a proxy server hosting an internet point of presence and access a wealth of locally stored content. They would then occasionally reach beyond the local point of presence to the Internet for additional information, most probably using the packet data channel. In the fi gure below, an ethernet LAN could be used instead of local dial-up connections.

65 Adapted from Broughton & Nemes, supra note 62.

38 CHAPTER TWO

Figure 2Example of a confi guration for corporate aircraft

using both circuit and packet services.66

5.2. Wireless Access to Broadband Satellite Aeronautical Public Correspondence Services

Within the evolving aeronautical communications scheme, extensive consideration is also being given to improving aircraft cabin technology through the development of a user-friendly environment for personal and multimedia communications. This improvement, however, will need to address several communication segments simply because a variety of services will be provided to consumers and these varied services possess individually different bandwidth requirements and communication protocols. In addition, although the said services will be available to passengers through cabin-installed equipment, such as TV screens, a rescue compartment with tele-medicine equipment, or fi xed installed satellite phones, consumers are, as we have seen, becoming increasingly accustomed to using personal communications devices and equipment, such as mobile phones and laptops with internet connection, either through a network interface card or dial-in access through modems. As a result, it is assumed that the typical customer will demand wireless access to communication services. For this reason, it is pertinent to note that the current and most important wireless access technologies are GSM, UMTS with UTRAN air interface, Bluetooth™, and W-LAN IEEE 802.11x. The

66 Adapted from Broughton & Nemes, supra note 62.


architecture and components of such on-board wireless communications infrastructures, it is contended, will be comprised of (see fi gure 3 below):

Several wireless access segments in the aircraft cabin, namely a wireless LAN according to IEEE 802.11b standard for IP services, a GSM/UMTS pico-cell for personal and data communications, and Bluetooth™ 1.1, as well as a standard wired IP LAN;A satellite segment for interconnection of the cabin with the terrestrial telecom networks. The different cabin services must be integrated and interconnected using a service integrator (SI), which allows the separation and transportation of the services over a single or several satellite bearers;A communications service provider segment supporting the integrated cabin services. The communications service provider segment would provide the interconnection to the terrestrial personal and data networks as well as the internet backbone. For the GSM/UMTS cabin service, part of the core network must also be available.67

The different wireless access services of GSM/UMTS, W-LAN and Bluetooth all require different architectures from a protocol and networking perspective and thus the central part of any service portfolio will require a SI designed to provide the interfaces for wireless and wired service access points in the cabin, as well as the interface to the terrestrial networks at the S-APC provider site. All services will be therefore bundled and transported between a pair of SIs. One important characteristic of this concept is the design of the network architecture in the ground segment. In this instance it is foreseen that the GES will be connected to the ground SI, belonging to an S-APC provider. The service provider will be used to support integrated cabin services and provide interconnection to the IP backbone, private intranet and the PSTN networks. To establish global satellite coverage, constellations of satellites from different systems are preferable, thus permitting aircraft belonging to the same fl eet to be located in several service areas of different satellite providers. In order to achieve this, the SI on-board an aircraft would maintain its connection to the ground SI even when the aircraft moves into another satellite system coverage with handover being supported between different satellite systems fi rstly, when the aircraft moves outside the coverage area of the current satellite system but into the coverage area of another satellite system and secondly, when the aircraft is in the coverage area of the current satellite system but needs to change to another satellite system due to adverse network or operating conditions. Because the SI acts as the intelligence unit on-board the aircraft, no modifi cation would be required on the consumer’s

67 Jahn, et al., supra note 62.

•

•

•

40 CHAPTER TWO

equipment and consequently the SI would be able to predict the location of the aircraft and perform any inter-satellite handover procedures before leaving the coverage area of its present satellite system.

Figure 3 Future Wireless/Broadband Satellite and Service Provider Architecture68

© IEEE

68 Adapted from Jahn, et al., supra note 62.

Publi

cNet

works

Gateway forSat-System X

GroundStation

Airline B

GroundSIs

Airline A

Sat-System X

Sat-System Y

Sat-System Z

Gateway forSat-System Y

Gateway forSat-System Z

GroundSIs

Sat-System X

Aircraft 1 Airline B

Aircraft 2 Airline B

Aircraft 1 Airline A

Aircraft 2 Airline A

41

CHAPTER THREE

Institutional Authorities, Legal and Regulatory Frameworks

This chapter addresses the legal and regulatory frameworks, developed especially by the international institutions, of relevance to the provision of S-APC, including the International Civil Aviation Organization, the International Telecommunication Union, the World Trade Organization, as well as the World Intellectual Property Organization. This chapter examines the broad range of binding and non-binding rules of international aviation, international satellite telecommunications, trade aspects of international economics, and international copyrights (including the protection of programme content) applicable to the provision of satellite-based aeronautical public correspondence services.

1. Overview of the Legal and Regulatory Frameworks

1.1. International Law

Assessing the legal and regulatory frameworks applicable to S-APC requires an examination of the inconsistencies surrounding the use by passengers of communications facilities for non-safety purposes, on-board aircraft relying upon space-based satellite platforms and earth-based ground infrastructure, within legal and regulatory regimes that govern:

outer space; the airspace of the oceans and polar regions; international air transport; international satellite telecommunications;

••••

42 CHAPTER THREE

trade aspects of international economics; the international protection of copyrights and programme content; the State where the aircraft is certifi ed and registered; the State being fl own over; and the State where the ground facilities may have been established.

The provision of S-APC therefore rests upon a global system architecture functioning within a legal and regulatory framework subject to that interdependence which exists between nation states. An interdependence that, it is claimed, international law addresses by analysing the legal principles arising from interactions between States, actions by States and certain actions by individuals, corporations, international organizations and other actors on the international plane.1 International law itself comprises an entire legal system, i.e. the international legal system by which legal rules are created in order to structure and organise societies and relationships. A system, which acknowledges the infl uence of political, economic, social and cultural processes upon the development of legal rules.2 The statements made before may, for instance, provide some insight to the reason why States are deemed responsible for the authorization, certifi cation or the provision of services in the airspace for which they are accountable and thus have complete and exclusive sovereignty in their territory and the airspace above it.3 This is because, as it has been contended,4 any function or obligation of a State to be involved in the provision, operation, or management of air navigation services beyond its territory can be based only on a specifi c commitment of that State, entered into through Regional Air Navigation plans or under international agreement. Furthermore, the ‘space segment’ or satellite aspect of the S-APC system architecture where signals are received and re-transmitted, as opposed to the ‘ground segment’ based on earth, remains subject to an international space law treaty regime that makes provisions guiding the use and exploration of outer space. Whilst the extent to which both statements are applicable to S-APC, as will be examined further in this work, it is clear from the preceding chapter that the operational aspects of S-APC constitute an activity which subjects the provision of international satellite communications services to passenger’s on-board aircraft to the legal and regulatory regimen, governing interstate relations. International law being the body of rules which are legally binding on States in their relations with each other. These rules are primarily those which

1 B. Cheng, Introduction to Subjects of International Law, in M. Bedjaoui (Ed.), International Law: Achievements and Prospects 23 (1991).2 M. Dixon & R. McCorquodale, Cases and Materials on International Law 1 (1991).3 See infra, chapter four.4 W. Guldimann & S. Kaiser, Future Air Navigation Systems – Legal and Institutional aspects 9 (1993).

•••••

INSTITUTIONAL AUTHORITIES, LEGAL AND REGULATORY FRAMEWORKS 43

govern the relations between States.5 In this respect it is fundamental to our discussion that we recall the sources6 of international law which are generally agreed to include: international treaties; customary international law; general principles of law; declarations, resolutions and decisions of international intergovernmental organizations; judicial decisions of international courts and tribunals; and doctrines of legal specialists in international law. Lastly, S-APC is subject to technical standards and operational procedures of international scope, stemming from the realms of both international satellite communications and international air transport.

1.2. Municipal Law

One common theme underlying some of the legal and regulatory regimes applicable to the provision of S-APC – such as the law of the State where the aircraft is certifi ed and registered; the law of the State being fl own over; the law of the State where the ground facilities may have been established; and national copyright laws – is that they all derive from the national legal systems of States. The basis for this, as has already been stated and examined in greater detail during the course of this work, is that fi rstly, States are responsible for the authorization, certifi cation or the provision of services in the airspace for which they are accountable in addition to having complete and exclusive sovereignty in their territory and the airspace above it. Secondly, States retain the responsibility and right to control and regulate telecommunications taking place within their respective territories. The interaction of the aforementioned national legal and regulatory regimes with international legal and regulatory frameworks applicable to S-APC (stemming from outer space law; the law applicable to the airspace of the oceans and polar regions; international air law; international telecommunications law, international trade law aspects of international economic law, as well as the international protection of copyrights and programme content) presents a very complex relationship. This interaction between international law and national (or municipal or domestic) law has been referred to as a struggle between State sovereignty and the international legal order.7 It is not the purpose of this

5 In the SS Lotus Case (France v. Turkey) PCIJ Ser A (1927), No 9, the Permanent Court of International Justice stated, “international law governs the relations between independent States.” See also R. Jennings & A. Watts, Oppenheim’s International Law, vol. 1, at 4-7, 12-13 (1992).6 Art. 38 Statute of the International Court of Justice, 1945, in M. D. Evans (Ed.) International Law Documents 26 (2001). For discussions on the sources of international law, see H. Kelsen, Principles of International Law 437-530 (1966); G. von Ghan, Law Among Nations, An Introduction to Public International Law 15-26 (1986); Jennings & Watts, supra note 5, at 22-50; I. Brownlie, Principles of Public International Law 1-30 (2001).7 Dixon & McCorquodale, supra note 2, at 109.

44 CHAPTER THREE

work to dwell on this struggle or clash, and though the nature of the confl ict will be examined and illustrated in detail further on,8 it is pertinent at this stage, that some attention is given to the matter. In this respect, two schools of thought have dominated the debate over the years, namely the dualists versus the monists. Dualists contend that international law and the municipal law of States are essentially different from one another for three reasons. They differ as regards their sources; the relations they regulate; and their substance. Consequently, neither legal order has the power to change or alter rules of the other.9 Thus according to Brownlie

when municipal law provides that international law applies in whole or in part within its jurisdiction, this is merely an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. In case of a confl ict between international law and municipal law the dualists would assume that a municipal court would apply municipal law.10

The monistic view, on the other hand, rejects the three pronged justifi cation put forward by the dualists. They fi rstly deny that the subjects of the two systems of law are essentially different and maintain that in both it is ultimately the conduct of the individuals which is regulated by municipal law, the only difference being that in the international sphere the consequences of such conduct are attributed to the State. Secondly, that in both spheres law is essentially a command binding upon the subjects of the law independently of their will. Thirdly, both bodies of law must be regarded as manifestations of a single conception of law.11 The workings of this confl ict, as expounded by Brownlie and other writers, will reveal that in practice these theoretical assumptions are not strictly relied upon and that courts have decided cases in the context of particular constitutional rules and principles (i.e., municipal laws) of the relevant State and in accordance with that State’s laws.12

1.3. The Regulation of Telecommunications, Aviation, Trade in Services, Copyrights and the Protection of Programme Content

Telecommunications has traditionally been considered an inherently transnational technology and therefore, its development requires substantial

8 See infra, Chapter Six.9 H. Lauterpacht, Oppenheim’s International Law, vol 1, at 37-39 (1995) 10 Brownlie, supra note 5, at 31-33.11 Lauterpacht, supra note 9, at 110. 12 Brazilian Loans Case (France v. Brazil) PCIJ, Ser A, No. 21 (1929), 124; Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain) (Second Phase) ICJ Rep (1970) 3.


co-operation and agreement between nation states.13 Co-operation required between States in the area of telecommunications is particularly evident when satellites are employed to provide communications links across jurisdictions subject to both international and domestic laws. Satellites, being one of the most effective cross-border infrastructures for information and telecommunication, must also use the radio frequency spectrum to communicate from and to earth stations in order to operate. Consequently, in order for satellites to be operated using the appropriate radiocommunications links, which must be interference free, it is imperative that legal guarantees be provided against any such interference. Furthermore, due to the cross border nature of satellite footprints, such guarantees must be achieved at the international level, not only for the successful operation of satellites but also for terrestrial radio services which may be subject to harmful interference. The guarantees are comprised of international legal principles and rules which regulate access to and use of the radio frequencies that have been adopted through international organizations and conferences organised primarily by the International Telecommunication Union (ITU) in addition to recommendations and guidelines provided by other regional telecommunications organizations, such as the Conférence Européenne des Administrations Postes et des Télécommunications (CEPT) established in 1959 with a current membership comprised of 45 Administrations, and the Inter-American Telecommunications Commission.14 Aviation remains an activity that is conducted and regulated by both international as well as domestic legal and regulatory regimes. Quite like international satellite telecommunications, international air transport is characterised by a cross-boundary character that makes it an international activity regulated by that part of the international law regime governing interstate relations. The applicable regime in this instance constituting what has been defi ned as a “body of rules governing the use of airspace and its benefi ts for aviation, the general public and the nations of the world.”15 Air law being that part of the international law regimen which is determined by the special characteristics and demands of aviation, the sources of which have

13 I. Walden & J. Angel (Eds.), Telecommunications Law 346 (2001). 14 See J. H. Glazer, The Law-Making Treaties of the International Telecommunication Union through Time and in Space, 60 Michigan Law Review 269 (1962); G. A. Codding & A. M. Rutkowski, The International Telecommunication Union in a Changing World (1982); F. Lyall, Law and Space Telecommunications (1989); R. S. Jakhu & V. R. Serrano, International Regulation of Radio Frequencies for Space services, in Legal Framework for commercial satellite communications, Proceedings of the Project 2001 – Workshop on Telecommunications, 8/9 June 2000, Berlin, at 34.15 On the sources of Air Law, see J. G. Verplaetse, Sources of Private International Air Law, 7 ICLQ 405 (1958); C-J Cheng, New Sources of International Air Law, in C.-J. Cheng (Ed.), The Use of Airspace and Outer Space for All Mankind in the 21st Century, 277 (1995); I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law 1 (2001).

46 CHAPTER THREE

been identifi ed as including:16 multilateral conventions; bilateral agreements; national law; contracts between states and airline companies; contracts between airline companies; and general principles of international law.17 On a related note, Article 38 (1) (c) Statute of the International Court of Justice (1945) refers to the application of general principles of law recognized by civilised nations, by the court whose function it is to decide in accordance with international law such disputes as are submitted to it. Established in 1944, the focal point within this body of rules applicable to aviation and tasked with the objective of inter alia the planning and development of international air transport is the International Civil Aviation Organization (ICAO).18

Prior to 1996 the International Trade in Services and the regulation of such trade was the subject of bi-lateral agreements dealing with the treatment of the nationals of the parties thereto or regional agreements (which could also be bi-lateral) constituting free trade areas or customs unions. Recognising the growing importance of trade in services for the growth and development of the world economy, it became necessary to establish a multilateral framework of principles and rules for trade in services with a view to the expansion of such trade under conditions of transparency and progressive liberalization and as a means of promoting the economic growth of all trading partners and the development of developing countries.19 In this respect it has been contended that the fi rst prerequisite for an open, competitive market is a legal and regulatory structure that does not discriminate in favour of existing service providers, or otherwise limit the number of independent service providers that are permitted to provide services to consumers. Vigorous competition between a large number of service providers is believed to encourage investment in infrastructure, provision of new services, improvements in quality and availability of lower prices.20 With regards to the effect of International Copyright Laws and the Protection of Programme Content and as far as S-APC is concerned, the laws

16 Diederiks-Verschoor, supra note 15, at 2-3.17 Von Glahn, supra note 5, at 22-24; M. Akehurst, Equity and General Principles of International Law, 25 ICLQ 801 (1976); International Status of South-West Africa Case, Advisory Opinion ICJ Rep (1950) 128; River Meuse Case (Netherlands v. Belgium) PCIJ Ser A/B, (1973) No. 70, at 76-77; Frontier Dispute Case (Burkina Faso v. Mali) ICJ Rep (1985) 6. See generally Dixon & McCorquodale, supra note 2, at 45-49.18 Article 44 of the Convention on International Civil Aviation (Chicago Convention) Opened for signature on 7 December 1944, Chicago, 15 UNTS 295.19 Preamble to General Agreement on Trade in Services – Annex 1 B to the Agreement establishing the World Trade Organization, signed at Marrakesh, 1994 (hereinafter WTO-GATS). See further P. Malanczuk, The Relevance of International Economic law and the World Trade Organization (WTO) For Commercial Outer Space Activities, in Proceedings of the Project 2001 Workshop on legal Issues of privatising Space Activities, 19 July 1999, Vienna Austria, at 40-51.20 ITU Document RGQ17/1/029-E, 4 September 2003, Draft Final Report on ITU-D Question 17/1: Satellite Regulation in developing Countries, at 18-23.


impact on several aspects. Copyright protection, which dates back to the mid-nineteenth century, exists to protect original works of authorship that have been placed in some form of tangible expression.21 With the dramatic rise in internet traffi c in the 1990s, an equally dramatic problem with existing copyright law arose. In particular, those aspects of existing law that prohibited distribution and reproduction, it is presumed, stifl ed the effective fl ow of information and left internet service providers (ISPs) with signifi cant exposure to liability and little recourse. It is on record that, in the past, unauthorised use of literary, artistic and musical works led to the formulation of the 1886 Berne Convention for the Protection of Literary and Artistic Works.22 The aim of the Berne Convention, as indicated in its preamble, is “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” Whereas the existing copyright laws set forth in the Berne Convention generally forbade reproduction – that is, making copies – almost everything involved in internet connectivity required or depended on copies. Not only do personal computers make copies of information, but components of networks such as routers, switches and servers all make temporary copies to maximize the effi cient fl ow of information.23

Similarly, proposals aiming at the protection of producers of phonograms and performers at the international level were also based on copyright protection. The rights involved were discussed by the Berne Union for the Protection of Literary and Artistic Works at its Diplomatic Conference in Rome in 1928, where it was proposed that “when a musical work has been adapted to a mechanical instrument by the contribution of performing artists the latter should also benefi t from the protection granted to that adaptation.”24 The proposal came after a series of events occurring between 1934 and 1960 when a committee of experts, convened jointly by the World Intellectual Property Organization (WIPO), UNESCO and the International Labour Organization, met at The Hague and drew up a draft convention. This served as a basis for the deliberations in Rome, where a Diplomatic Conference agreed on the fi nal text of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) of 26 October 1961. For the record, in the 1970s and 1980s, a number of important new technological developments took place – reprography, video technology,

21 World Intellectual Property Organization, Intellectual Property Handbook: Policy Law and Use, Chapter 5, at 263.22 Completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and amended on September 28, 1979.23 World Airline Entertainment Association, White Paper: Internet Working Group Content and Services, Version 1.0, Adopted August 2001, at 20-21.24 World Intellectual Property Organization, supra note 21, Chapter 5, at 314-315.

48 CHAPTER THREE

compact cassette systems facilitating “home taping”, satellite broadcasting, cable television, the increase of the importance of computer programs, computer storage of works and electronic databases, etc. For a while, the international copyright community followed the strategy of “guided development” by study and discussion, rather than trying to establish new international norms. The recommendations, guiding principles and model provisions worked out by the various WIPO bodies (in the beginning, this was sometimes done in cooperation with UNESCO) offered guidance to governments on how to respond to the challenges of new technologies. Those recommendations, guiding principles and model provisions were based, in general, on the interpretation of existing international norms, particularly the Berne Convention (for example, concerning computer programs, databases, “home taping,” satellite broadcasting and cable television). But they also included some new standards (for example, concerning distribution and rental of copies).25

The guidance thus offered in the “guided development” period had an important impact on national legislation, contributing to the development of copyright all over the world. At the end of the 1980s, however, it was recognized that guidance would not suffi ce any longer. The preparation of new, binding international norms began in two forums: at the General Agreement on Tariffs and Trade (GATT), in the framework of the Uruguay Round negotiations, and at WIPO, fi rst, in one committee of experts and later, in two parallel committees of experts. After the adoption of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under the auspices of GATT, the preparatory work of new copyright and related rights norms in the WIPO committees was intensifi ed to deal with problems not addressed by the TRIPS Agreement. To this end, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty were adopted at a Diplomatic Conference convened in 1996.26 Note that the TRIPS addresses the following issues: the applicability of basic GATT principles and those of relevant international intellectual property agreements; the provision of adequate intellectual property rights; the provision of effective enforcement measures for those rights; multilateral dispute settlement; and transitional arrangements.27

On a somewhat similar note, in the 1970s the use of satellites to convey material had raised problems of protection which were not covered by the existing intellectual property conventions of the day. This led to the formulation of the 1974 Convention Relating to the Distribution of Programme–Carrying

25 World Intellectual Property Organization, supra note 21, Chapter 5, at 269.26 Adopted in Geneva on 20 December 1996.27 Summary on the Agreement Establishing the World Trade Organization - Annex 1C, Trade-Related Aspects of Intellectual Property Rights (http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#nAgreement), last accessed on 26 July 2006.


Signals Transmitted by Satellite (The Brussels Convention).28 Likewise, the 1971 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Phonograms Convention) was adopted.29 This was because, whilst a number of countries were preparing new legislation in the fi eld of related rights in view of the standards set by the Rome Convention, international piracy of sound recordings was growing. The total value of pirated sound recordings sold worldwide had been increasing steadily. This made it necessary, even in the early seventies, to establish a special convention without delay. The subject was raised in May 1970 in the Preparatory Committee for the revision of the two major copyright conventions, and the new Convention was signed in Geneva after less than 18 months.30

In the information environment under the Rules of the Berne and Rome Conventions, providers of information services had little, if any, ability to control the use or distribution of copyrighted material traversing their systems. It was further impractical to expect ISPs to “police” their customers’ traffi c because they had no way of knowing what information passing through their system was or was not copyright protected, and were even less apt to know who held the copyright to such information. This inequity between information fl ow and copyright law spurred a global restructuring of the law to meet the needs of the dawning information age. The detailed overview of applicable laws provided hereinafter in section 3 represents the current law and practice under international treaties in force. Specifi c attention will be given to both the Berne Convention and the WIPO Copyrights Treaty. This is in order to illustrate the relevance and effect of copyrights laws to the provision of S-APC.

1.4. Technical Standards and Operational Procedures/Guidelines for Civil Aviation

Aeronautical telecommunications satellite systems which are designed to be used for the purposes of inter alia providing S-APC have to comply with international safety regulations based upon a series of Technical Standards and Operational Procedures. These are set forth in documents produced by a three-tier top-down process which commences at the primary international level with documents produced mainly under the auspices of the ICAO and the ITU.31 That process becomes infl uenced at a secondary level by documents

28 Adopted in Brussels on 7 May 1974.29 Concluded in Geneva in October 1971.30 World Intellectual Property Organization, supra note 21, Chapter 5, Para. 5.527, at 321.31 i) Generic and system independent performance specifi cations known as International Standards and Recommended Practices (ICAO SARPs); ii) ITU Recommendations and Telecommunications Standards.

50 CHAPTER THREE

produced under the auspices of Technical Standards Organizations,32 notably: the European Organization for Civil Aviation Equipment (EUROCAE), the Radio Technical Communication Association (RTCA); the Airlines Electronic Engineering Committee (AEEC); and the European Telecommunications Standards Institute (ETSI). Established on 24 April 1963, EUROCAE initiated the preparation of minimum performance specifi cations for airborne electronic equipment. Noted and supported since 1967 by the European Civil Aviation Conference (ECAC), it was proposed to the European National Airworthiness Authorities to take EUROCAE specifi cations as the basis of their national regulations. Organized in 1935 as the Radio Technical Commission for Aeronautics, RTCA, Inc. develops consensus-based recommendations regarding communications, navigation, surveillance, and air traffi c management (CNS/ATM) system issues. RTCA functions as a Federal Advisory Committee whose recommendations are used by the US Federal Aviation Administration as the basis for policy, program, and regulatory decisions and by the private sector as the basis for development, investment and other business decisions. The AEEC establishes consensus-based, voluntary form, fi t, function, and interface standards that are published by ARINC and are known as ARINC standards. ARINC standards specify the air transport avionics equipment and systems used by more than 10,000 commercial aircraft worldwide. ETSI on the other hand was established in 1988 as an organization mandated to set telecommunications standards for the whole of Europe. Tertiary documents resulting from the legislative activities of national civil aviation authorities (CAAs) as well as national telecommunications regulatory authorities (NTRAs) complete the process. They are responsible for: fi rstly, the certifi cation of aircraft and avionics equipment, promulgated in conformity with guidelines set out by operational authorities including the European Joint Aviation Authorities (JAAs) and Federal Aviation Administration (FAA) of the US; and secondly, the national implementation of global/regional telecommunications regulations, recommendations and standards. The Joint Aviation Authorities being an associated body of the European Civil Aviation Conference is also worth mentioning. Founded in 1955 as an intergovernmental organization, ECAC’s objective was to promote the continued development of a safe, effi cient and sustainable European air transport system. In so doing, ECAC seeks to harmonise civil aviation policies and practices amongst its Member States, and to promote understanding on policy matters between its Member States and other parts of the world. Thus ECAC represents the civil aviation regulatory authorities of a number of European States who 32 i.) EUROCAE ED-14/RTCA DO 160 Environmental Conditions and Test Procedures for Airborne Equipment which defi ne the environmental test conditions for qualifi cation of equipment depending on their location in the aircraft; ii.) EUROCAE ED-12 / RTCA DO 178 Software Considerations in Airborne Systems and Equipment Certifi cation, which defi ne the software development rules and requirements for aircraft equipment, according to their certifi cation level; iii.) ARINC standards.


have agreed to co-operate in developing and implementing common safety regulatory standards and procedures. The co-operation between the JAAs was therefore intended to provide high and consistent standards of safety and a “level playing-fi eld” for competition in Europe. The JAAs currently have 36 member countries and emphasis was placed on harmonising the JAAs’ regulations with those of the USA. In 1992 the JAAs and FAA made a commitment to harmonize, where appropriate, to the maximum extent possible, the Federal Aviation Regulations (FAR)33 and Joint Aviation Regulations (JAR) requirements and associated material regarding, inter alia, operation and maintenance of civil aircraft and related products and parts as well as fl ight crew licensing. The application of JARs and FARs will certainly be impacted by the establishment on 15 July 2002 of a new European community system based upon the mandate of a European Aviation Safety Agency which commenced its operations in September 2003.34 Considering that the standards set by these aforementioned organizations are quite technical in nature, they will not be examined in great detail within this work. Nonetheless an overview of the operational guidelines/procedures set out by National Civil Aviation Authorities has been provided in chapter 5.

2. International Space Law

The body of laws relating to space and satellites located at and beyond a yet to be agreed altitude35 is commonly known as international space law comprising treaties and United Nations Resolutions.36 The basis for this body of laws dates back to the UN General Assembly Resolution 1721(XVI) on International Cooperation in Outer Space, which provided that:

33 US Code of Federal Regulations (CFR) Title 14, Aviation and Space.34 Regulation (EC) No 1592/2002 of the European Council and Parliament of the Council of 15 July 2002 on common rules in the fi eld of aviation and establishing a European Aviation Safety Agency. (Regulation (EC) No 1592/2002).35 For a summary of the question pertaining to the defi nition and delimitation of outer space see UN Doc. A/AC.105/769, Historical Summary on the Consideration of the Question on the Defi nition and delimitation of outer space – Report of the Secretariat. See also M. Benkö, W. de Graaff & G. C. M. Reijnen, Space Law in the United Nations 121-142 (1985); R. F. A. Goedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space (1996); A. Terekhov, Passage of Space Objects through Foreign Airspace: International Custom?, 25 J. Space L. 1 (1977).36 Namely: Treaty on Principles Governing Activities in the Exploration and Use of Outer Space, including the Moon and other Celestial bodies, London/Moscow/Washington, adopted 19 December 1966, opened for signature 27 January 1967, entered into force 10 October 1967 (hereinafter Outer Space Treaty), 610 UNTS 205; Convention on International Liability for Damage Caused by Space Objects, London/Moscow/Washington, adopted 29 November 1971, opened for signature 29 March 1972, entered into force 1 September 1972, 961 UNTS 187 (hereinafter Liability Convention); Convention on Registration of Objects Launched into

52 CHAPTER THREE

a) International Law, including the Charter of the United Nations, applies to outer space and celestial bodies;

b) outer space and celestial bodies are free for exploration and use by all States in conformity with international law and not subject to national appropriation.

The acceptance of the aforementioned basis is stated in the six guiding principles set forth pursuant to the 1962 United Nations General Assembly Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space as follows:

1.) The exploration and use of outer space shall be carried on for the benefi t and in the interests of all mankind;

2.) Outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law;

3.) Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;

4.) The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding;

5.) States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried on in conformity with the principles set forth in this declaration;

6.) In the exploration and use of outer space, States shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other States.

The Outer Space Treaty is considered as the vehicle that transformed the founding principles into a legally binding instrument, enjoying the widest acceptance by the international community from among all United Nations treaties pertaining to outer space. It has also become one of the signifi cant instruments of contemporary international law in general, making it possible to affi rm that its principles have been recognized by the international community as a whole and as forming a part of general international law. That fundamental role of the Outer Space Treaty is confi rmed by the fact that

Outer Space New York, adopted 12 November 1974, opened for signature 14 January 1975, entered into force 15 September 1976, 1023 UNTS 15 (hereinafter Registration Convention); Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962 (XVIII), of 13 December 1963, UN Doc. A/AC.105/572/Rev.1, at 37; Principles Governing the Use by States of Artifi cial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of December 1982, UN Doc. A/AC.105/572/Rev.1, at 39; Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefi t and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, UNGA Res. 51/122, of December 1996.


some of its principles created the basis for further steps in the progressive development of Outer Space law.37 Four other treaties have been concluded following the entry into force of the Outer Space Treaty, two of which may be of relevance to satellite communications in general and S-APC in particular. Namely, the Liability Convention and the Registration Convention. In this regard it has been contended, and rightly so, that both the Liability and Registration Conventions are extensions and elaborate on specifi c provisions of the Outer Space Treaty.38 It has further been stated that the Outer Space Treaty contains four articles which provide, what are referred to by von der Dunk as, ‘structural rules’ with regard to the application of public international space law to private space activities.39 The pertinent Articles are Articles II, VI, VII and VIII. Article II, on the legal status of outer space, provides as follows:

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or of occupation, or by any other means.

The other provisions include Article VI on international State responsibility which states that:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

37 See C. Q. Christol, The Modern International Law of Outer Space (1982); C. Q. Christol, The International Law of Outer Space (1966); C. Q. Christol, Space Law – Past, Present and Future (1991); M. Lachs, The International Law of Outer Space, 113 (III) Recueil des Cours 33 (1964); V. Kopal, Existing United Nations Treaties: Strengths and Needs, Discussion Paper, in United Nations Offi ce for Outer Space Affairs: Proceedings of the workshop on Space Law in the Twenty-First Century, UNISPACE III, Technical Forum, July 1999, at 13; N. M. Matte, Aerospace Law (1969); N. Jasentuliyana & R. S. K. Lee (Eds.), Manual on Space Law, Volume 1, Part One (1979); O. Ogunbanwo, International Law and Outer Space Activities (1975).38 F. G. von der Dunk, Existing United Nations Treaties: Strengths and Needs, Commentary Paper, in United Nations Offi ce for Outer Space Affairs: Proceedings of the workshop on Space Law in the Twenty-First Century, UNISPACE III, Technical Forum, July 1999, at 21.39 F. G. von der Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’ – Towards Harmonized National Space Legislation for Private Space Activities in Europe 12 (1998).

54 CHAPTER THREE

Article VII on international State liability representing a joint and/or several form of accountability, stipulating that:

Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.

And fi nally Article VIII, on jurisdiction with respect to outer space activities, stating as follows:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

In any event the activities of the main participants involved in the conduct of S-APC are private entities whose activities must also be conducted in accordance with international law as stated by the Outer Space Treaty’s Article III.40 This is considering that “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.” Still on the subject of international space law, the Liability Convention is considered to be an extension and elaboration of Article VI and Article VII of the Outer Space Treaty. The said extension and elaboration is also applicable to the Registration Convention, by virtue of relevant provisions set forth in the Outer Space Treaty’s Articles VI and Article VIII. As far as the subject of international space law is concerned it must be noted that from the treaty provisions described before, it was the intention of the parties that regulations for the exploration and use of outer space should be 40 For discussions on the extent to which the Outer Space Treaty and national law impacts on the activities of private entities, see K.-H. Bockstiegel, Legal Aspects of Space Activities By Private Enterprises, 19 Proc. Coll. L. Outer Space 234 (1976); H. Wassenbergh, Principles of Space Law in Hindsight 22-31 (1991); P. Dan, The Future Role of Municipal Law in Regulating Space Related Activities, in T. L. Zwaan & W. W. C. de Vries (Eds.), Space Law: Views of the Future, 125 (1988); See generally, Von der Dunk, supra note 39; F. G. Von der Dunk, Public Space and Private Enterprise – The Fitness of International Space Law Instruments for Private Space Activities, in Proceedings of the Project 2001 – Workshop on Legal Issues of Privatising Space Activities, 19 july 1999, at 28.


dealt with between nations. This scenario is hardly suitable for those activities which might have a commercial interest. In this respect it has been stated that “by their general nature, treaties usually lose part of their usefulness.”41 One would therefore need to look beyond the treaty basis and consider the provisions of other sources such as intergovernmental agreements or memoranda of understanding (bilateral or multilateral), national laws and regulations and fi nally customary law. On the infl uence of national laws and regulations, it is further submitted that their importance and effect on the development of customary international law42 in general must not be overlooked as though national laws are only applicable within the borders of the country where they have been promulgated, there are some exceptions where laws have extra-territorial effect and more importantly, there have been many instances where national courts have inferred the existence of rules of customary law from a comparison of the laws of different countries, on questions ranging from diplomatic immunity to ships’ lights, and the rights of enemy fi shing vessels.43 We will recall that States are generally assumed as free in the manner in which domestically, they put themselves in the position to meet their international obligations.44 What is of immediate relevance therefore to the scope of this work is the scope and content of the applicable national laws, some of which are described hereinafter in chapter fi ve.

41 R. Oosterlinck, Private Law Concepts in Space Law, in K. Tatsuzawa (Ed.), Legal Aspects of Space Commercialization, 42 (1992). 42 On the nature and elements of custom in international law, as well as space law, see M. S. Jaffe, Reliance upon International Custom and General Principles in the Growth of Space Law, 5 Proc. Coll. L. Outer Space 1 (1962); M. Akehurst, Custom as a Source of International Law, 47 BYIL 1 (1974-1975); L. Kopelmanas, Custom as a Means of the Creation of International Law, 18 BYIL 127 (1973); V. Vereshchetin & G. Danilenko, Custom as a Source of International Law of Outer Space, 13 J. Space L. 22 (1985); Jennings & Watts, supra note 5, at 25-31; M. Byers, Custom, Power and the Power of Rules – International Relations and Customary International Law 129-146 (1999); L. Condorelli, Custom, in M. Bedjaoui (Ed.), International Law: Achievements and Prospects 179 (1991); B. Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law, 5 Indian JIL 23 (1965).43 Akehurst, supra note 42, at 9.44 Art. 26 of the 1969 Vienna Convention on the Law of Treaties (1969) 8 ILM 679. See also Jennings & Watts, supra note 5, at 83; S. Marchisio, The 1983 Italian Law N. 23 on the Compensation for Damage Caused by Space Objects, 54 ZLW 261 (2005).

56 CHAPTER THREE

3. Rules of International Satellite Telecommunications45

3.1. International Telecommunication Union – Structure and Jurisdiction

It has now been established that the delivery of S-APC services is dependent upon radiocommunications (radio), i.e., telecommunications by means of radio waves. Although the versatility of radio as a telecommunications transmission medium is widely acknowledged, it must be appreciated that radio is prone to a number of potential disadvantages. Firstly, the operation of radio systems may be degraded or interrupted by natural events in the propagation path. Secondly, radio is not intrinsically private when compared with a message sent by cable, as someone, for whom it was not intended, leaving no trace, can more easily intercept a radio message. Thirdly, there is a risk of interruption or degradation of the functioning of a radio system due to interference from another radio system. Fourthly, while the radio spectrum is very wide and able to support enormous numbers of systems, its capacity is not limitless. Bearing these factors in mind and coupled with the cross-border nature of radio communications (including S-APC), the control of interference and managing the use of the radio frequency falls within the scope of duties assumed by individual nation states based substantially upon international law, derived from the ITU Constitution, Convention Annexed Radio Regulations, Administrative Regulations and internationally adopted technical recommendations.46 The ITU has in this respect provided the main forum for the drafting of international treaties, which specifi cally regulate the use of 45 S. White, S. Bate & T. Johnson, Satellite Communication in Europe – Law and Regulation 33-62 (1994); A. E. Noll, The International Telecommunication Union (ITU) and its Importance for Space Law and Activities, in Proc. 8th ECSL, Switzerland, August 29 – September 12 1999, at 257-258; R. S. Jakhu & V. R. Serrano, International Regulation of Radio Frequencies for Space services, in Legal Framework for commercial satellite communications, Proceedings of the Project 2001 – Workshop on Telecommunications, 8/9 June 2000, Berlin, at 34; D. J. Withers, Radio Spectrum Management 10-29 (1991); D. M. Leive, International Telecommunications and International Law: The Regulation of the Radio Spectrum 11-73 (1970); F. Lyall, The International Telecommunication Union Re-constructed, 36 Proc. Coll. L. Outer Space, 78 (1993); F. Lyall, The International Telecommunication Union: A World Communications Commission, 37 Proc. Coll. L. Outer Space 42 (1994); M. L. Smith, International Regulation of Satellite Communication 23-28 (1990); Walden & Angel, supra note 13; P. L. Meredith & G. S. Robinson, Space Law: A Case Study for the Practitioner – Implementing a Telecommunications Satellite Business Concept 158 (1992); Codding G. A.: The International Telecommunication Union: 130 years of Telecommunications Regulation, 23 Denver Journal of International Law & Policy 501 (1995).46 ITU Constitution and Convention of the ITU, Decisions, Resolutions and Recommendations, Final Acts of the Plenipotentiary Conference of the International Telecommunication Union (Kyoto, 1994), Instruments amending the Constitution and Convention of the International Telecommunication Union (Geneva, 1992) ITU, Geneva, 1995.


radio frequencies for space services and the geostationary orbit. Both the Constitution and Convention have been revised periodically,47 and are binding on those ITU member States, which have elected to ratify them.48 All of these instruments are administered, interpreted and enforced within the ITU framework, with a membership of 189 member States, and currently comprised mainly of: the Plenipotentiary Conference as supreme organ of the Union; the Council; the Radiocommunication Sector (ITU-R); the Telecommunications Standardisation Sector (ITU-T); the Telecommunications Development Sector (ITU-D); and the General Secretariat.49 In general the ITU is mandated to, inter alia:

Effect allocation of bands of radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments, for space services, of any associated orbital position in the geostationary-satellite orbit of any associated characteristics of satellites in other orbits, in order to avoid harmful interference between radio stations of different countries;Coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of radio-frequency spectrum for radiocommunication services and of the geostationary-satellite and other satellite orbits.50

Considered within the thrust of this work, the various ITU Sector activities and World Administrative Radio Conferences (WARCs) are pertinent to S-APC and therefore their legal and regulatory impact of their deliberations on S-APC are discussed in greater detail hereinafter and especially in chapter fi ve. The Radiocommunication Sector (ITU-R) is comprised of two elements: the sector itself which carries out the main responsibilities of this branch of the ITU and the Radio Regulations Board.51 The Radio Regulations Board serves as the guardian of the Radio Regulations. Its foremost task is to approve Rules of Procedure, which are then used in applying the Radio Regulations to register frequency assignments from ITU Member States. Furthermore the Radio Regulations Board participates in WARCs in an advisory capacity and

47 The fi rst ITU Convention was adopted at Madrid, Spain in 1932. Previous revisions have included those adopted at Atlantic City, USA 1947; Buenos Aires, Argentina 1952; Geneva, Switzerland 1959; Montreaux, Switzerland 1965; Torremolinos, Spain 1973; Nairobi, Kenya 1982; Nice, France 1989; Geneva, Switzerland 1992; Kyoto, Japan 1994; and Minneapolis, USA 1998; Marrakech, Morocco, 2001.48 Articles 6, 52 and 54 of the ITU Constitution.49 Article 7 of the ITU Constitution.50 Article 1 of the ITU Constitution.51 Chapter II (Articles 12-16) of the ITU Constitution and Section 5 (Articles 7-12) of the ITU Convention.

•

•

58 CHAPTER THREE

gives advice on diffi culties in the application of any regulatory provision in force under discussion at the conference. The most recent ITU Plenipotentiary Conference in Marrakech (September/October 2002) re-elected fi ve members from the previous Radio Regulations Board and seven new members. The twelve members are elected for up to two, four-year terms. The purpose of ITU-R is ensuring the rational, equitable, effi cient and economical use of the radio frequency spectrum by all radiocommunications services, including those using the geostationary orbit, and to carry out studies without limit of frequency range, in addition to adopting recommendations on radiocommunication matters on the basis of its studies.52 Consequently therefore, the ITU-R works through World Administrative Radiocommunications Conferences,53 Radiocommunication assemblies which are associated with WARCs,54 the Radio Regulations Board, study groups, and the Radiocommunications Bureau headed by an elected Director. WARCs are normally held every two years although that may be varied through the omission of a Conference or the scheduling of an additional one. A WARC may partially or in exceptional cases completely revise the Radio Regulations and also deal with any questions of a worldwide character. It may instruct the Radio Regulations Board or the radiocommunications bureau may put matters on the agenda for the future WARCs and refer questions to the Radiocommunications Assembly. The Radiocommunications Assembly on the other hand, is normally convened every two years to provide the technical basis for the work of the world conferences. It acts on the basis of reports provided by the study groups in addition to dealing with and issuing recommendations on questions adopted by its own procedures, or referred to it by a Plenipotentiary Conference or by any other conference, the Council or by the Radio Regulations Board. The Telecommunication Standardization Sector (ITU-T) mission is to ensure the effi cient and on-time production of high quality standards covering all fi elds of telecommunications.55 These standards defi ne how telecommunication networks operate and interconnect. Quite like the R-Sector, the T Sector works through World Standardisation Conferences (WSC’s hereinafter), Study Groups and the Telecommunications Standardization Bureau (TSB). WSC’s are convened every four years with the possibility for intercalating an

52 See Article 12.1.1 of the ITU Constitution.53 Articles 13.1 and 13.2 of the ITU Constitution; Article 7.1 of the ITU Constitution. Radiocommunications Conferences may also be convened in a Regional context.54 Article 8.1 of the ITU Convention.55 Chapter III (Articles 17-20) of the ITU Constitution and Section 6 Articles (13-15) of the ITU Convention.


additional conference should that prove necessary.56 Unlike the ITU-R and the ITU-D (discussed below), there is no provision for Regional Standardisation conferences. The Telecommunication Development Sector (ITU-D) has the responsibility of dealing with all telecommunications development matters – focusing on the developing nations of the world – within the ambit of the ITU’s activities and works through World Telecommunications Development Conferences Study Groups and the Development Bureau headed by a Director elected at the Plenipotentiary Conference.57 WTDCs are fora for discussion and consideration normally taking place within the 4-year cycle of arrangements adopted pursuant to the Constitution of the ITU in Article 22.3. These conferences do not produce fi nal acts, only resolutions, decisions, recommendations or reports in conformity with the ITU Constitution, Convention and Administrative Regulations. Development Conferences are also held at the regional level.

3.2. Satellite Aeronautical Public Correspondence – Frequency Allocation, Assignment and the Radio Regulations58

In order to examine the method by which the use of radio frequencies is regulated, it is pertinent that one understands some of its characteristics. Defi ned by Article 1 paragraph 6 of the Radio Regulations, radio waves or Hertzian waves are considered to be electromagnetic waves of frequencies arbitrarily lower than 3000 Gigahertz (GHz), propagated in space without artifi cial guide. Satellite communications employ electromagnetic waves to carry information between ground and space and the frequency of an electromagnetic wave has been stated to be the rate of reversal of its polarity in cycles per second, defi ned to be units in hertz (Hz). A particular range of frequencies is called a frequency band, while the full extent of all frequencies from zero to infi nity is called the spectrum. Thus, that part of the spectrum, which permits the effi cient generation of signal power, its radiation into free space, and reception at a distant point, is referred to as the radio frequency.59 In this respect the optimum piece of radio frequencies required for space radiocommunication (defi ned as any radiocommunication involving the use of one or more space stations or the use of one or more refl ecting satellites

56 Article 18.2 of the ITU Constitution.57 Articles 16-18 and Articles 21-24 of the ITU Constitution.58 B. R. Elbert, Introduction to Satellite Communication (1999); ITU Radio Regulations; Withers, supra note 45, at 30-76; International Air Transport Association: Bandwidth and Spectrum Requirements for Aeronautical Mobile Satellite Services (AMSS) in the Initial Decades of the 21st Century, 1st Edition Effective March 1991; Smith, supra note 45, at 5-14; White, Bate & Johnson, supra note 45, at 66-96.59 Article 2 of the Radio Regulations divides the radio spectrum into 9 frequency bands.

60 CHAPTER THREE

or other objects in space)60 intended to deliver space-to-earth applications, lie between 1 and 4 GHz. The potential disadvantages of using radio waves as a transmission medium, mentioned before, such as its susceptibility to man-made interference and its fi nite nature, underscore the method by which its use is regulated, albeit inter alia recognising the sovereign right of each State to regulate its telecommunication61 and the public to use the international telecommunication service.62 This fact justifi es the following provisions of the ITU Constitution which state as follows:63

In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, effi ciently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries.

Article 45 (1) (2) (3) provides that: All stations whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States or of recognized operating agencies, or of other duly authorized operating agencies which carry on a radio service, and which operate in accordance with the provisions of the Radio Regulations; Each member State undertakes to require the operating agencies which it recognizes and the operating agencies duly authorised for this purpose to observe the provisions in paragraph 1; Further, the Member States recognize the necessity of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications mentioned in paragraph 1.

Both disadvantages mentioned above have long been acknowledged and thus constitute the cornerstone for the worldwide regulation of this widely sought but scarce natural resource. As a result, frequency bands are allocated,64 on a regional65 or worldwide basis, and radio frequencies are allotted66 for various purposes by the ITU, all of which stand recorded on a Table of Frequency Allocations (TFA), contained in Article S5 of the Radio Regulations and specifying the different parts of the spectrum that have been allocated for each

60 Article 1 paragraph 9 Radio Regulations.61 Preamble of the ITU Constitution.62 Article 33 of the ITU Constitution.63 Article 44 (2) of the ITU Constitution.64 Article 1 paragraph 17 Radio Regulations65 The regions are comprised of Region 1 – Europe and Africa (including all of Russia); Region 2 – North America and South America; Region 3 – Asia and the Pacifi c. See Article 8 paragraph 2 Radio Regulations.66 Article 1 paragraph 18 Radio Regulations.


of the major radio services. This gives each administration the opportunity to assign67 frequencies with the propagation characteristics that suit each Aeronautical Earth Station (AES). The allocations possess a status which may be ‘primary’ ‘permitted’, or ‘secondary’. Therefore:

Permitted and primary services have equal rights, except that, in preparation of frequency plans, the primary service, as compared with the permitted service, shall have prior choice of frequencies.68

Stations of a secondary service: shall not cause harmful interference to stations of primary or permitted services to which frequencies are already assigned or to which frequencies may be assigned at a later date; cannot claim protection from harmful interference from stations of a primary or permitted service to which frequencies are already assigned or may be assigned at a later date; can claim protection, however from harmful interference from stations of the same or other secondary services(s) to which frequencies may be assigned a later date.69

This differentiation is founded on the need to facilitate the resolution of problems pertaining to interference between stations of different services when they occur. When a Member State of the ITU ratifi es the ITU instruments it does not undertake to implement the TFA in its entirety. The obligations of a State in this respect set forth in Article 6 (2) (4) paragraphs 340 and 342 of the Radio Regulations, permit a State to depart to a considerable extent from the TFA if it considers that it is in its national interest to do so. Consequently, many States prepare what are referred to as National Frequency Allocation Tables. Out of some forty-three radio services defi ned by Radio Regulations, the service of concern to this work, as we have already noted, is the MSS in general and the AMSS in particular.

3.3. Satellite Aeronautical Public Correspondence Services – Frequency Use and Regulation

The Radio Regulations as we noted earlier, have sub-divided AMSS into AMSS (R)70 and the AMSS (OR).71 Some radio frequency bands are allocated

67 Article 1 paragraph 19 Radio Regulations.68 Article 8 (8) (4) Radio Regulations.69 Article 8 (8) (3) Radio Regulations.70 “An AMSS service reserved for communications relating to safety and regularity of fl ights, primarily along national or international civil air routes”. Article 1 para. 35A Radio Regulations.71 “An AMSS service intended for communications, including those related to fl ight co-ordination, primarily outside national and international civil air routes”. Article 1 para. 35B Radio Regulations.

62 CHAPTER THREE

specifi cally to the AMSS (R) and thus reserved for ATS and other purposes primarily along national or international civil air routes. AMSS (OR) on the other hand, provides for communications, including those relating to fl ight co-ordination, which is primarily outside national or international civil air routes. The designator (R) indicating that the radio frequency allocation is intended for aeronautical communications and the equipment operating in this spectrum has been adapted for protection from interference. This radio frequency is normally used for communications related to safety and effi ciency of fl ight, but non-safety communications, such as S-APC, is permitted on a non-interference basis. In this respect, the principles of priority and pre-emption guarantee the precedence of communications for safety purposes. In other words, non-safety communications must cease immediately if necessary to permit transmissions of messages accorded a certain order of priority.72 The order of priority of communications include: distress calls, distress messages and distress traffi c; communications preceded by the urgency signal; communications relating to radio-direction fi nding; fl ight safety messages; meteorological messages; and fl ight regularity messages. The radio frequency allocation for AMSS lies in the L-band between 1,616-1,626.5 MHz. Note that at present, MSS spectrum at L-band (1.5-1.6 GHz) is fully assigned to operational geostationary MSS systems – in all, 10 mobile-satellite operators are assigned spectrum for twenty-two satellites within a 33 MHz block. The current mechanism utilised to assign spectrum to the mobile-satellite service on a global and regional basis is based on two Memoranda of Understanding (MoU) between the administrations operating L-band Geostationary MSS systems. The MoU process, which is based on annual spectrum planning meetings between the L-band operators, is claimed to have been successful in that the spectrum congestion that was imminent a few years ago has been staved off, and the short-term spectrum requirements of the operators have so far been satisfi ed. However, there is little scope for networks to expand in the future, or for new networks to get access to L-band MSS spectrum. In contrast, the traffi c in MSS systems continues to grow. New systems, some of which are planned for L-band, will therefore have to seek access to other bands, such as S-band (2.9-3.1 GHz).73 Prior to 1971, the entire band 1,535-1,660 MHz was allocated to the radionavigation service. At the 1971 ITU WARC, two sub-bands of 15 MHz, each of 1,543.5-1,558.5 MHz (space-to-earth) and 1,645-1,660 MHz (earth-to-space) were allocated exclusively to the AMSS (R) service, whilst the bands 1,542.5-1,543.5 MHz (Space-to-Earth) and 1,644-1,645 MHz (Earth-to-Space) was made available to the AMSS (R) service on a sharing basis with the Maritime Mobile-Satellite Service (MMSS). At that point in time,

72 Article 51 Radio Regulations.73 Radiocommunications Agency of the United Kingdom, Strategy for the future use of the Radio Spectrum (2002), at 46.


the conduct of S-APC in the AMSS (R) bands was strictly forbidden, this was because the applicable regulations clearly provided that “[a]dministrations shall not permit public correspondence in the frequency bands allocated exclusively to the aeronautical mobile service or to the aeronautical mobile-satellite service.”74 It was, however, permitted in certain circumstances and in this respect the Radio Regulations provide that:

Notwithstanding any other provisions of the Radio Regulations relating to restrictions in the use of the bands allocated to the aeronautical mobile-satellite (R) service for public correspondence, the bands 1545-1555 MHz and 1646.5-1656.5 MHz may be authorised by administrations for public correspondence with aircraft earth stations. Such communications must cease immediately, if necessary, to permit transmission of messages with priority 1 to 6 in Article 51.75

It is important to note that these exceptional circumstances were only permitted when using the MMSS allocations stipulated in the Radio Regulations as follows:

Article 9 (7) paragraph 962 – In certain circumstances provided for in Article 38, N 38 and 59, aircraft stations are authorized to use frequencies in the bands allocated to the maritime mobile service for the purpose of communications with stations of that service (No. 4148);Article 9 (7) paragraph 963 – Aircraft earth stations are authorized to use frequencies in the bands allocated to the maritime mobile-satellite service for the purpose of communicating, via the stations of that service, with the public telegraph and telephone networks;Αrticle 48 paragraph 3571 – Stations on-board aircraft may communicate, for purposes of distress and for public correspondence, with stations of the maritime mobile or maritime mobile-satellite services. For these purposes they shall conform to the relevant provisions of Chapter IX or N IX and Chapter XI, Articles 59 (Section III), 61, 62, 63, 65 and 66 (paragraphs 962, 963, 3633).76

At the 1979 WARC, the two aeronautical mobile satellite (R) sub-bands were reduced to 14 MHz each of 1,545-1,559 MHz (earth-to-space) and 1,646.5-1,660.5 MHz (space-to-earth) whilst the bandwidth allocated to MMSS (within which S-APC could be conducted) for both directions of transmission was increased as follows: 1,530-1,544 MHz (earth-to-space) and 1,626.5-1,645.5 MHz (space-to-earth) although the allocations 1,530-1,535 MHz did not enter into force until 1 January 1990.

74 Article 50(40 Paragraph 3633 Radio Regulations. 75 Article 8 Paragraph 729A Radio Regulations.76 See further Paragraphs 4143, 4144, 4145 Radio Regulations.

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64 CHAPTER THREE

At the WARC-MOB-87, it was intended that allocations be made for inter alia the growing interest in providing better facilities for S-APC. The agenda of WARC-MOB-87 did not permit the conference to increase the total bandwidth available for the various mobile-satellite allocations in the vicinity of 1600 MHz. To provide a long-term solution to these and other related problems, the Conference agreed to a Resolution, which called for the convening of another WARC not later than 1992, which would have authority to revise the TFA on a more general basis in that part of the spectrum. However, as a short term solution, a number of changes to the TFA were made including inter alia, the agreement of Radio Regulations paragraph 729A and Radio Regulations paragraph 3571 permitting administrations to authorise the use of the remaining AMSS (R) allocations in this part of the spectrum for S-APC purposes, provided that priority was to be given to urgent safety and fl ight control traffi c. These changes entered into effect on 3 October 1989. The WARC 1992 also dealt with providing frequency allocations particularly for space systems introducing several applications including inter alia S-APC, all of which are concentrated in the 1 - 3 GHz RF band. Prior to the decisions taken by the WRC 2003 (highlighted in chapter fi ve), plans to provide S-APC services using various band with the radio frequency spectrum have been described as ranging between the L, C, S, and Ku Bands.77 This description reported that in the L-band, there are allocations to the MSS both for the aircraft to satellite (1.626-1.6605 GHz) and satellite to aircraft links (1.525-1.529 GHz). These allocations are primary and are not shared with the fi xed service (FS), which ought to enable an easier coordination process. Some extra allocations have also been made in the ITU Region 2 between 1.675 and 1.710 GHz, but in this case the band is shared with the FS amongst others. With regards to the S-band, there are several allocations to the MSS, most of them as primary allocations but shared with the FS.78 With regards to the C-band, no allocation is made to the MSS. However, there are several frequency 77 Brahmss Study (Task 3 Report – System Requirements and Preliminary Design), at 51-56.78 Earth-to-space 1.980-2.010 GHz (and 2.010–2.025 GHz in Region 2) and space-to-earth 2.170–2.200 GHz (and 2.120–2.170 GHz in Region 2): These bands are intended for use, on a world-wide basis, by administrations wishing to implement IMT-2000 systems. The world-wide utilization of these bands for AMSS seems diffi cult taking into account that there is a primary allocation to the Mobile Service (MS) and that some Radio Regulations footnotes protect the FS and MS from interference caused by MSS in several countries; Space-to-earth 2.483.5–2.500 GHz: The band is allocated to the MSS as primary and shared with the FS. Therefore, it is contended that this band can be used for aeronautical communications; Space-to-earth 2.500–2.520 GHz: This is a primary allocation to the MSS, but its utilization for the AMSS is excluded by the footnote S5.403; Earth-to-space 2.670–2.690 GHz: The allocation to the MSS shall be effective from 1 January 2005; Finally, the 2.520–2.670 GHz band is allocated to the Broadcasting Satellite Service. This band could be used for reception even from aeronautical terminals in reception according to paragraph S4.4 (but no protection can be claimed from other services used in the same band). This is the band that will be used by AirTV.


bands allocated to the FSS service that it is contended these can be used for the satellite to aircraft direction (3.4-4.2 GHz, 4.5-4.8 GHz, 6.7-7.75 GHz, 8.4-8.5 GHz). It has to be taken into account that as the band is not directly allocated to the MSS, no protection from the interference from other systems can be claimed. Concerning the aircraft to satellite links, there are no allocations to the MSS and the reutilization of the allocations to the FSS (5.15-5.25 GHz, 5.85-5.925 GHz, 7.9-8.4 GHz) seems very diffi cult due to the fact that there is no on-going process to extend this band to the AMSS. Furthermore, the bands are shared with the FS, thus creating the potential problem of interference to terrestrial terminals that may be very challenging to resolve. With regards to the Ku band, in the range 11.7-12.75 GHz, there is no allocation to the MSS, and a fortiori to the AMSS. This means that pursuant to the current rules only operations conducted on non-interference, non-protection basis would be allowed. For the uplink Ku band 14.00-14.50 GHz there is a specifi c secondary allocation to MSS but the AMSS is excluded. Fortunately, as we shall see later on, the WRC 2003, had on its agenda the following item: to consider possible extension of the allocation to the mobile-satellite service (Earth-to-space) on a secondary basis in the band 14-14.5 GHz to permit operation of the aeronautical mobile-satellite service as stipulated in Resolution 216 (Rev. WRC-2000). We shall return to the decision of the WRC 2003 regarding this agenda item in chapter fi ve. Suffi ce it to state at this stage that irrespective of the radio frequencies in which current or planned S-APC services are offered, they must be compliant with the ITU Radio Regulations in force and specifi cally the TFA contained in Article S5 of those Regulations. Furthermore, although frequency allocations are made by the ITU, each country remains free to allocate the spectrum to any service within its territory provided that no interference is caused to the neighbouring countries. In this respect Paragraph S4.4 of the Radio Regulations provides:

[Administrations of the Member States] shall not assign to a station any frequency in derogation of either the Table of Frequency Allocations in this Chapter or the other provisions of these Regulations, except on the express condition that such a station, when using such a frequency assignment, shall not cause harmful interference to, and shall not claim protection from harmful interference caused by, a station operating in accordance with the provisions of the Constitution, the Convention and these Regulations.

Finally it must be noted that operational licenses would need to be obtained from administrations of those countries where the services are sought to be provided.79

79 Brahmss Study (Task 3 Report – System Requirements and Preliminary Design).

66 CHAPTER THREE

4. Rules of International Aviation

4.1. The Chicago Convention of 194480

The Chicago Convention of 1944 in its current form, to which 189 States are a party, together with two additional agreements including 18 Annexes81 set standards and recommended practices which constitute supplementary material in relation to the Convention’s Articles. The Convention, Agreements and Annexes collectively establish the basis for international civil aviation.82 Several aspects of the Convention’s provisions are considered applicable to the scope of this work. In its Articles 1 (on Sovereignty) and 2 (on Territory), the Convention recognises the complete and exclusive sovereignty of States over the airspace above their respective territories. It further provides for the obligation upon all aircraft operating within the territory of a State to comply with the laws of the State in question. In this respect, both aspects of the Convention are discussed further in chapter four. The Convention also provides pursuant to Article 12 that national laws, to the extent possible, be uniform with regulations established under the Convention. The extent to which States parties to the Convention meet this requirement is addressed hereinafter in chapter fi ve. Noting that Article 17 makes provision for aircraft to have the nationality of the State in which they are registered, the issue of nationality of aircraft is discussed hereinafter in chapter four. Furthermore, Article 31, obliges States which are responsible for the registration of aircraft to retain responsibility over the safety of that aircraft, its compliance with laws, its crew and all its operations. The complexities surrounding this responsibility when considered within the scope of an endeavour such as the provision of S-APC services, is nowhere more apparent than in the area of liability, a topic that is discussed hereinafter in chapter six. Primary rules applicable to the conduct of S-APC are set forth in Article 30 (Aircraft radio equipment) of the Convention which sets the stage for the discussion in chapter fi ve. The Convention also created the ICAO under Article 43. An interim agreement concluded during the Chicago Conference of 1944 saw the birth of the Provisional International Civil Aviation Organization, which was destined

80 1944 International Convention on Civil Aviation, Chicago, done 7 December 1944, entered into force 4 April 1947, 15 UNTS 296.81 See The International Air Services Transit Agreement, UNTS, Vol. 84 (1951) 389-409 and the International Air Transport Agreement, UNTS Vol. 171 (1953) 387-406.82 H. A. Wassenbergh, Post-War International Civil Aviation Policy and the Law of the Air 99-123 (1962); Lord McNair, The Law of the Air 3-14 (1964); Diederiks-Verschoor, supra note 15, at 9-56; T. Unmack, Civil Aviation: Standards and Liabilities 21-30 (1999); T. Buergenthal, Law-Making in the Civil Aviation Organization (1969).


to become the predecessor of the ICAO dating from 1947.83 The ICAO is mandated pursuant to Article 44 of the Convention as follows:

The aims and objectives of the Organization are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to:(a) Insure the safe and orderly growth of international civil aviation throughout

the world;(b) Encourage the arts of aircraft design and operation for peaceful purposes;(c) Encourage the development of airways, airports, and air navigation facilities

for international civil aviation;(d) Meet the needs of the peoples of the world for safe, regular, effi cient and

economical air transport;(e) Prevent economic waste caused by unreasonable competition;(f) Insure that the rights of contracting States are fully respected and that every

contracting State has a fair opportunity to operate international airlines;(g) Avoid discrimination between contracting States;(h) Promote safety of fl ight in international air navigation;(i) Promote generally the development of all aspects of international civil

aeronautics.

With regards to the functioning of ICAO and the promulgation of instruments pertaining to S-APC, the activities of certain elements within its structure notably the Council, the Legal Committee and other special Committees (particularly the Air Navigation Commission (ANC), the Future Air Navigation Systems (FANS) Committees, and the Aeronautical Mobile Communications (AMC) Panel)84 all require careful examination. The ICAO Assembly, which was responsible for the development and approval of ICAO Resolution A29-1985 (Legal aspects of the global air-ground communications) discussed hereinafter, is a permanent body consisting of 36 member State representatives, supported by a permanent Legal Committee.

83 Diederiks-Verschoor, supra note 15, at 39.84 Guldimann & Kaiser, supra note 4, at 148; B. D. K. Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System 66-72 (1998); W. Stoffel, Legal Aspects of Aeronautical Mobile Satellite Services – The ICAO FANS Concept, 36 Proc. L. Outer Space 116 (1993); S. Hong-kyun & H. Soon-Kil, Legal Aspects of Space Activities of ICAO in implementing FANS, 36 Proc. L. Outer Space 98 (1993); Wassenbergh, supra note 40, at 110-119; H. K. Athar, Aeronautical Communication, Navigation and Surveillance By Satellite – Towards a Global Framework for Civil Aviation, in T. Masson-Zwaan & P. M. J. Mendes De Leon (Eds.), De Lege Ferenda, Essays in Honour of Henri A. Wassenbergh, 43 (1992); M. Milde, Legal Aspects of Future Air Navigation Systems, XII Annals of Air & Space Law 87 (1987); M. Milde, Legal Aspects of Global Air-Ground Communication, in G. R. Bacelli (Ed.), Liber Amicorum Honouring Nicolas Mateesco Matte – Beyond Boundaries, 215 (1989).85 This Resolution was formerly known as ICAO Resolution 36-1.

68 CHAPTER THREE

4.2. The Future Air Navigation Systems Committees

The Special Committees referred to before have been instrumental to the development of the current S-APC legal regime and the regulatory framework in particular. The ICAO Council, in 1983, established the FANS Committee, mandated to:

Study technical, operational, institutional and economic questions including cost/benefi t effects, relating to future potential air navigation systems; to identify and assess new concepts and new technology; including satellite technology, which may have future benefi ts for the development of international civil aviation including the likely implications they would have for users and providers of such systems; and to make recommendations thereon for an over-all long-term projection for the co-coordinated evolutionary development of air navigation for international civil aviation over a period of the order of twenty-fi ve years.86

The FANS Committee convened on four occasions between July 1984 to May 1988,87 dissolved upon its own recommendation after the fourth meeting,88 and its work was reviewed by member States of the ICAO at the Tenth Air Navigation Conference.89 A crucial aspect of the work undertaken by the FANS Committee at its third meeting in November 198690 is outlined in ICAO Doc 9503, FANS/3 (Excerpt) Report on Agenda Item 6 at paragraph 6.2.9 on Aeronautical Passenger Communications and Aeronautical Administrative Communications. At that meeting, the Committee was of the opinion that an institutional aspect, which may require early consideration by the ICAO community, relates to radio transmissions from aircraft for purposes other than safety of air navigation, e.g., for aeronautical passenger communications (S-APC). Furthermore, there was growing evidence that such commercial (non-safety) air-ground communications are likely to achieve early implementation, either through terrestrial or satellite-based services. In this connection, it was noted that Article 30(a) of the Chicago Convention provides:

Aircraft of each contracting State may, in or over the territory of other contracting States, carry radio transmitting apparatus only if a license to install and operate such apparatus has been issued by the appropriate authorities of the

86 Council Minutes, 110th session, 14 Oct-16 Dec (1983) ICAO Doc 9527-C /1078 C-Min 110/ and C-Min 110/9.87 Report First Meeting, 9-13 July 1984; Report Second Meeting, 10-26 April 1985 ICAO Doc. 9458; Report Third Meeting, 3-21 November 1986 ICAO Doc. 9503, FANS/3; Report Fourth Meeting, 2-20 May 1988 ICAO Doc. 9524, FANS/4.88 Doc 9524, FANS/4 Recommendation 5/3.89 ICAO, Report of the Tenth Air Navigation Conference, Montreal 5-20 September 1991 ICAO Doc. 9583, AN-CONF/10, 1991.90 ICAO Doc 9503, FANS/3 (Excerpt) Report on Agenda Item 6, in Guldimann & Kaiser, supra note 4, at 251.


State in which the Aircraft is registered. The use of radio transmitting apparatus in the territory of the Contracting State whose territory is fl own over shall be in accordance with regulations prescribed by that State.

In accordance with Article 30(a), individual Contracting States had enacted national regulations which may effectively prohibit any radio transmissions from aircraft operating in or over national territories for purposes other than ATS and related air navigation applications or on radio frequencies other than those specifi cally notifi ed for aeronautical mobile safety services. National regulations may also require that such transmissions shall be conducted in accordance with prescribed technical standards and procedures. Similarly, Article 30(b) of the Chicago Convention provides that:

Radio transmitting apparatus may be used only by members of the fl ight crew who are provided with a special license for the purpose, issued by the appropriate authorities of the State in which the aircraft is registered.

The FANS Committee further noted that Article 30(b) and national regulations made by Contracting States would appear to prohibit persons other than licensed crew members (e.g. cabin staff or, in particular, aircraft passengers) to make radio transmissions via existing terrestrial systems or via satellite-based “aeromobile public correspondence” facilities that were under development for near-term implementation in airline and other operations. The Committee considered that possible applications and implications of Article 30 in the context of aeronautical passenger communications traffi c require early consideration by ICAO. Therefore, the third meeting of the FANS Committee in its Recommendation 6/1 on Enabling of non-safety air-ground communications on a global basis, stated that:

ICAO, in the light of the planned implementation of aeronautical administrative communications and aeronautical passenger communications services, as a matter of urgency, study the implications of Article 30(a) and (b) of the Convention on International Civil aviation, with a view to enabling, on a global basis non-safety air-ground communications.

4.3. The ICAO Air Navigation Commission and the Aeronautical Communications Panel 91

On 26 November 1987, the ICAO Air Navigation Commission (ANC) agreed to establish, the AMSS Panel, though by 19 March 1991 this name was changed from the AMSS Panel to the Aeronautical Mobile Communications (AMC) Panel. In May 2003, the name AMC Panel was changed once again to its current designation, i.e., Aeronautical Communications Panel (ACP). 91 Reports on the activities of the AMCP can be obtained on-line at: http://www.icao.int/ANB/PANELS/ACP/ (last accessed on 3rd January 2005).

70 CHAPTER THREE

In 1988, the fi rst meeting of the former named AMSS Panel (AMSSP/1) was convened to establish and review a detailed plan of action to accomplish the tasks associated with the development of Standards and Recommended Practices (SARP) and guidance material for the AMSS. In addition, the panel prepared the necessary material to be submitted to the International Radio Consultative Committee (CCIR)92 Interim Working Party (IWP) 8/14. In 1989 AMSSP/2 convened from 28 March to 7 April. The purpose was to explain the critical nature of the aeronautical safety services and the resulting need for the exclusive use of the associated frequency spectrum. The meeting also developed a model to be used in developing the ICAO position with regard to aeronautical mobile frequency spectrum requirements for presentation at WARC 1989. The results of that meeting were used to refi ne the ICAO contribution to IWP meetings, refi ne the study associated with frequency spectrum requirements in WARC 1992 in addition to executing tasks relating to the development of SARP and guidance material for AMSS. AMSSP/2 further articulated its material on the sharing of satellite resources with other non-aeronautical user groups thus forming the basis of the ICAO position used at the CCIR IWP meetings and subsequently at the CCIR Study Group 8 Meetings. SARP for AMSS progressed continually and a model to identify the frequency spectrum required to support the different AMSS applications was developed. In 1990, AMSSP/3 convened between 5 to 23 February and facilitated the development of AMSS SARP material. Furthermore, it fi nalized the AMSS frequency spectrum requirements and determined the technical criteria under which sharing of satellite resources with other non-aeronautical user groups could be envisaged. The panel also prepared the appropriate documentation used at the ITU CCIR IWP meetings in preparation for WARC 1992. The resulting reports, which served as source documents for the two IWP meetings, were used to support the ICAO position concerning satellite resource sharing and needs for Radio Frequency (RF) Spectrum. Subsequent meetings were held in 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001 and 2003. Whilst an overview of the SARP currently in force are outlined hereinafter, it can be expected that future work of the AMCP will concentrate on inter alia air-ground data links, maintenance of SARP, and spectrum management activities relating to future WRCs.

92 The CCIR was constituted as a permanent organ of the ITU under the ITU Convention of Nairobi 1982. The Convention has since being revised in Nice, France 1989; Geneva, Switzerland 1992; Kyoto, Japan 1994; and Minneapolis, USA 1998; Marrakech, Morocco, 2001.


4.4. Article 30 of the Chicago Convention Revisited93

As has been noted hereinbefore, the third meeting of the FANS Committee in its Recommendation 6/1 on Enabling of non-safety air-ground communications on a global basis, stated that: “ICAO, in the light of the planned implementation of aeronautical administrative communications and aeronautical passenger communications services, as a matter of urgency, study the implications of Article 30(a) and (b) of the Convention on International Civil Aviation, with a view to enabling, on a global basis non-safety air-ground communications.” In this respect a comprehensive Secretariat study on the subject was considered by the Council on 23 March 1989 and sent to States for comments. At the 27th Session of the Legal Committee, it was agreed that the subject deserved the urgent priority allocated to it by the Council and Assembly and that it would be advisable that a Rapporteur be appointed by the Chairman of the Legal Committee pursuant to Rule 17 of the Rules of Procedure of the Legal Committee. The result of the study conducted and reported to the 28th Session of the Legal Committee by the Rapporteur is widely known as the Poonoosamy Report,94 named after its author Mr. Vijay Poonoosamy. The Report contends that non-safety air-ground communications originating from aircraft over the high seas or over territory not subject to the sovereignty of any State have not given rise to any legal problems. It notes, however, that non-safety air-ground communications originating from a civil aircraft while in fl ight in the sovereign airspace of a State other than the State of Registry of the aircraft (or the State of the operator under the terms of Article 83 bis of the Chicago Convention)95 do give rise to legal problems. Article 83 bis provides that:

(a) Notwithstanding the provisions of Articles 12, 30, 31 and 32(a), when an aircraft registered in a contracting State is operated pursuant to an agreement for the lease, charter or interchange of the aircraft or any similar arrangement by an operator who has his principal place of business or, if he has no such place of business, his permanent residence in another contracting State, the State of registry may, by agreement with such other State, transfer to it all or part of its functions and duties as State of registry in respect of that aircraft under Articles 12, 30, 31, and 32(a). The State of registry shall be relieved of responsibility in respect of the functions and duties transferred.

93 ICAO Doc. LC/28-WP/4-1 4/1 – Report of the Rapporteur on the Legal Aspects of the Global Air-Ground Communications. For a detailed overview of the events leading up to the adoption and inclusion of Article 30 (a) (b) in the text of the 1944 Chicago Convention, see United States, Department of State, Publication 2820, International Organizations and Conferences Series IV, Proceedings of the International Civil Aviation Conference, Chicago Illinois, November 1 – December 7. 1944, Vol. I (pp. 203-219) & II (pp. 775-1398).94 ICAO Doc. LC/28-WP/4-1 4/1, supra note 93.95 Article 83 bis was included in the Chicago Convention on 6 October 1980 by the 23rd Assembly of ICAO.

72 CHAPTER THREE

(b) The transfer shall not have effect in respect of other contracting States before either the agreement between States in which it is embodied has been registered with the Council and made public pursuant to Article 83 or the existence and scope of the agreement have been directly communicated to the authorities of the other contracting State or States concerned by a State party to the agreement.

(c) The provisions of paragraphs (a) and (b) above shall also be applicable to cases covered by Article 77.

The Report’s reasoning is considered as having taken into account Article 30 of the Chicago Convention and is premised on fi rstly by Article 1 to the Chicago Convention which states that “every State has complete and exclusive sovereignty over the airspace above its territory” and secondly the preambular provisions of the ITU Convention which recognize the sovereign right of every State to regulate its telecommunications. With regards to Article 30 (a), it was submitted that a license issued by the appropriate authorities of the State of Registry of the aircraft (or under the terms of Article 83 bis of the Chicago Convention, the State of the operator) does no more than certify that the radio transmitting apparatus is technically suitable, that it may be installed in the aircraft for practical operation and that the operator is qualifi ed to operate the apparatus in accordance with the requirements of the licensing authority. Consequently it was concluded that the installation and operation of the radio transmitting apparatus are subject to a licensing requirement in order to promote the safety of international civil aviation. Albeit submitting in this respect that the license does not authorize or even deal with the actual use of the radio transmitting apparatus in the airspace of a foreign State. With regard to the actual use of the radio transmitting apparatus in the airspace of a foreign State, the matter is dealt with in the last sentence of paragraph (a) of Article 30 to the effect that “[t]he use of radio transmitting apparatus in the territory of the Contracting State whose territory is fl own over shall be in accordance with regulations prescribed by that State.” In this respect the contention was that such a clear and absolute requirement stating that the actual use of radio transmitting apparatus be in accordance with the regulations prescribed by the State whose territory is fl own over, is in recognition of the sovereignty of States and in compliance with the rules of general international law, but it also presents a major obstacle to the global introduction of public correspondence. For instance, due to a variety of security and/or commercial considerations, relevant national regulations may prohibit, restrict or impose various conditions on public correspondence and there is absolutely no unity in the relevant national legislations. On the use of radio transmitting apparatus by fl ight crew with a special license to use same, it was submitted by the Poonoosamy Report that Article 30 (b) required a purposive interpretation, considering that a literal interpretation would undoubtedly cut off the development of public correspondence by limiting its access only to members of the fl ight crew with special licenses.


Justifi cation for a purposive interpretation as opposed to a literal interpretation was premised on Article 31 of the 1969 Vienna Convention on the Law of Treaties96 and preambular provisions of the Chicago Convention confi rming that States party to the said Convention had “agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner.” Therefore, Article 30(b) purports to do no more than ensure that international air services are operated safely and it ought not therefore be an obstacle to developments, which do not threaten the safe operation of such services. For the sake of brevity, a purposive interpretation is also known as the teleological or ‘aims’ and ‘objectives’ approach. The school of thought which advocates this approach believes that it is the general purpose of a treaty itself that counts, considered to some extent as having, or as having come to have, an existence of its own, independent of the original intention of the framers. The main object is to establish its general purpose, and construe particular clauses in light of it: hence, it is such matters as the general tenor and atmosphere of the treaty in question, the circumstances in which it was made, the place it has come to have in international life.97 The Poonoosamy Report contented that state of the art technology for public correspondence would demonstrate the fact that operation of the transmitter system on-board the aircraft is either automatic or under the control of a licensed fl ight crew member. This contention relied upon the provisions of the Radio Regulations which expressly permit the use of radio telephone equipment and aircraft earth stations by anybody provided the station is controlled by a licensed operator. Thus, the mere use of the fully automated telecommunications apparatus, quite like the use of a common telephone, would not require any operational skill or technical knowledge since public correspondence is established on a pre-determined frequency. For these reasons it was concluded that Article 30(b) did not preclude the use of transmitting apparatus by unlicensed persons for purposes of public correspondence and that the only outstanding legal obstacle for public correspondence at the global level is therefore that transmissions be in accordance with the various and varied regulations prescribed by the States overfl own. Bearing the above issues in mind, a number of solutions were put forward in the Report:

fi rstly, the amendment of the Chicago Convention. In this respect Paragraph (a) of Article 30 would be amended to remove the obstacle it posed. It was submitted that this was neither realistic nor effective, considering the complex and time consuming rules and procedures that had to be complied with.

96 Opened for signature in Vienna, 23rd May 1969, 8 ILM 679.97 G. Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain other Treaty Points, 28 BYIL 1 (1951).

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secondly, a new multilateral Convention. This would be modelled, for instance, after the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1995, thereby giving Parties thereto the right for the aircraft of their registry to initiate public correspondence while in the airspace of any other party, subject to specifi ed conditions and limitations. It was submitted that such a multi-lateral solution would be procedurally too elaborate and time consuming considering the urgency of the problem at hand.thirdly, bilateral agreements. In this respect like-minded States could conclude bilateral agreements which would stipulate the conditions under which public correspondence would be permitted between them. Such agreements could either be in the form of specifi c instruments or they could be included as a special clause in air services agreements. Reference was made as an example to the ICAO model clause on aviation security developed in 1986 by the Council in consultation with member States. The model clause would provide for the right to use aeronautical communications in national airspace for public correspondence on a reciprocal basis subject to certain conditions. These conditions would take account of the requirements of paragraphs (a) and (b) of Article 30 and Article 50 of the Radio Regulations and would as far as relevant, be comparable to the conditions set forth in the INMARSAT Agreement of 1985.fourthly, unilateral action. In this respect, States could unilaterally authorise public correspondence under specifi ed conditions either to aircraft of all States or on the basis of reciprocity. Unilateral action would also be an effective solution if States were to use the model clause on public correspondence.

The idea of a model clause won the day, it is contended, when one considers its wide acceptance in current State practice and the fact that it was already a standard feature of many bilateral air services agreements. It was therefore recommended by the Poonoosamy Report that the text of a model clause on public correspondence be developed by the Council in consultation with Member States for subsequent insertion in air services agreements or separate bilateral agreements. To that effect a model clause was prepared with the recommendation to States to use the model clause when taking unilateral action or concluding separate bilateral agreements to authorise public correspondence.98

98 Doc 9588-lC/188 Legal Committee 28th Session Report, 1992, at 4-1, 4-5. See also LC/28-WP/4-2 presented by the Delegate of Argentina; LC/28-WP/4-3 presented by the Observer of INMARSAT; LC/28-WP/4-4 presented by the Delegation of the United Kingdom.

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4.5. The 29th ICAO Assembly Resolution A29-19/199

The model clause referred to in the preceding Section 4.4 which was annexed to the Poonoosamy Report, and delivered to the 28th Session of the ICAO Legal Committee was formally adopted by the ICAO Assembly at its 29th Session in 1992, as Resolution 36/1 (now known as Resolution A29-19). The text of the said Resolution states:

1.) that nothing in article 30(b) of the Chicago Convention shall be taken to preclude the use by unlicensed persons of the radio transmitting apparatus installed upon an aircraft where the use is for non-safety related air-ground radio transmissions;

2.) that all Member States should ensure that use of such apparatus shall not be prohibited in their airspace; and

3.) that use of such apparatus shall be subject to the conditions set out in the Annex hereto.

The Annex referred to, reads as follows:Whenever a Member State is the State of Registry (or State of the operator under the terms of Article 83 bis of the Convention on International Civil Aviation … and is applied to a specifi c case) of an aircraft, the radio transmitting apparatus on board that aircraft may, while in or over the territory of another Member State, be used for non-safety air-ground radio transmissions subject to the following conditions:(i) compliance with the conditions of the licence for the installation and

operation of that apparatus issued by the State of Registry (or State of the operator) of the aircraft;

(ii) any person may use that apparatus for non-safety air-ground radio transmissions provided always that control of that apparatus shall be by an operator duly licensed by the State of Registry (or State of the operator) of the aircraft;

(iii) compliance with the requirements of the International Telecommunication Convention and the Radio Regulations adopted thereunder as amended from time to time, including the applicable radio frequencies, the avoidance of harmful interference with other services and priority for aeronautical communications relating to distress, safety and regularity of fl ight; and

(iv) compliance with any technical and operating conditions set forth in the applicable regulations of the Member State in or over whose territory the aircraft is operating.

The thrust of this Resolution places an obligation to comply on the various parties involved in the provision of end-to-end APC services whilst its implementation and enforcement falls squarely within the ambit of States. For this reason the said Resolution will be discussed in greater detail in chapter fi ve.

99 Doc 9599, A29-LE Assembly, Legal Commission, 1992, Report and Minutes.

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On the question of interpreting the Resolution, some writers such as Milde, contended inter alia that three conclusions stemming from the literal interpretation (as opposed to the purposive interpretation) of the said Article 30 may be made, viz.:100

The State of registry of the aircraft (or, under the terms of Article 83 bis, the State of the operator)101 has jurisdiction to issue licenses for the installation and operation of the radio transmitting apparatus; these licenses only certify that radio equipment is technically suitable and may be installed in the aircraft for practical operation and that the operator is qualifi ed to operate the equipment in accordance with the requirements of the licensing authority; however, this license does not authorize in itself the actual use of the transmitter in the airspace of a foreign State;The actual use of the transmitter must be in accordance with the Regulations prescribed by the State overfl own; consequently, there is no a priori “freedom” of use of the transmitter in the national airspace and any legal prohibitions, limitations or conditions issued by the territorial sovereign must be respected;Only a duly licensed fl ight crew member may use the radio transmitting apparatus.

Milde concludes that the provisions of Article 30(b) do not represent a legal obstacle to passenger communications in which persons other than fl ight crew members use the radio transmitting apparatus. He rests his conclusion on the provisions of Article 44 of the ITU Radio Regulations (Regulations 3393 and 3394 respectively which he has interpreted to expressly permit the use of the radio telephone equipment and aircraft earth station by other persons provided the station is controlled by the holder of a certifi cate). He goes on to state that the third conclusion above, if literally interpreted would make it virtually impossible to even contemplate the introduction of passenger communications service when the transmitter would be used by a person other than a licensed crew member. He submits inter alia that such literal interpretation would not be reasonable and further that the fundamental question and legal condition for the non-safety radio transmissions from an aircraft in fl ight over a territory of a foreign State is that such transmission must be in accordance with the regulations prescribed by that State which may prohibit or restrict operation of a transmitter for such purposes or may impose various conditions. Other writers such as Henaku contend that the interpretation of Article 30 (a) leads one to conclude that APC is permissible, provided it has been expressly licensed, albeit subject to the prohibitions identifi ed in Radio Regulation 3363

100 See Milde (1989), supra note 84, at 215-218.101 Article 83 bis makes provision for the transfer of certain functions and duties (pertaining to State of Registry between contracting States under agreement or similar arrangements).

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which restricts administrations from permitting public correspondence in the frequency bands allocated exclusively to the aeronautical mobile service or aeronautical mobile-satellite service.102 Henaku’s assertion appears to be based on the provisions of Note 729A of the ITU Radio Regulations. The rationale being to safeguard safety communications. Therefore, radio transmitters may be used on board aircraft on the grounds that the operator has been licensed by the State of registry and usage approved by the State of registry and the State in the territory of which the transmission takes place. Taking this position further, Henaku argues that the requirement to have the regulations of the overfl own State (i.e. the State in the territory of which the transmission takes place) is somewhat illogical considering that such transmissions may be made independently of facilities located within the territory of the State. This leads to the assumption that should APC take place in the territory of a State, but that communications is not channelled through its facilities, no authorization is required. Thus the point will therefore be whether the aircraft should receive permission from all those States for a call that traverses their respective territories. In his view this would be impossible, nonsensical from an economic viewpoint and an incorrect interpretation of Article 30, because the said Article must be interpreted in light of modern developments which must be taken into consideration. Further justifi cation is put forward by relying on the opinion of the International Court of Justice to the effect that a treaty provision cannot remain independent of subsequent developments of the law. He bases this upon the fact that an international instrument has to be interpreted and applied within the framework of the entire regimen in force at the time of interpretation, relying on the case of Namibia (Legal Consequences) Advisory Opinion.103

Conclusively, he recommends that a correct interpretation of Article 30(a) will require the airline to seek authorization from the State of registration and from the State in whose territory the ground earth station is situated through which a call is channelled. On the contents of Article 30(b) Henaku aligns with the purposive interpretations of Kaiser and V. Poonoosamy which should ensure that persons other than licensed personnel can use radio communications facilities.104 What seems striking from the deliberations leading up to the adoption of the recommendations set forth in the Poonoosamy report is the constant reference to the need for urgency. In the light of the discussion above, this author submits that whilst the interpretation of the Chicago Convention’s Articles was appropriate at the time, a preferred solution should have been the conclusion of a multilateral agreement.

102 Henaku, supra note 84, at 148-150.103 ICJ Rep (1971), 31.104 Guldimann & Kaiser, supra note 4, at 151-152.

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5. Rules of International Trade in Services105

In total, 116 nations participated in the Uruguay Round negotiations. In December 1993, the Uruguay Round was concluded, having achieved a new legal framework for international trade in services that would be administered by the newly created WTO. Known as the General Agreement on Trade in Services (GATS), it represents a major achievement for the Uruguay Round. This is because the conclusion of the Uruguay Round in 1994 led to the execution of the GATS which operates on three levels:

1.) The main text contains general principles and obligations that all members have to apply on issues concerning total coverage of internationally traded services (Article I), the Most Favoured Nation principle of non-discrimination (Article II), national treatment (Article II), transparency (Article III), regulations (Article VI), international payments (ARTICLE XI), individual countries commitments (Part III, Articles XVI, XVII and XVIII) and progressive liberalisation (Article XIX);

2.) Annexes, dealing with rules for specifi c sectors; and3.) Specifi c commitments for individual countries to provide access to their

markets.The schedules of services are the means by which each WTO member makes legally binding commitments on market access (Article XVI) and national treatment (Article XVII). The schedules may contain additional commitments (Article XVIII) that create an open-ended possibility to negotiate commitments on measures affecting trade in services that are not captured by market access and national treatment. Whether full or limited access is granted, members may not take measures that reduce the level of access stated in their schedules. Because participating States concluded that issues concerning inter alia liberalization in the telecommunications sector were too sector specifi c to be fully addressed by the general regulatory principles set forth in the GATS, additional rules were agreed upon. On 15 February 1997 after negotiations representing sixty-eight countries the participating States concluded an agreement on basic telecommunications (BTA). This caused the regulatory disciplines contained in the GATS and the Telecommunications Annex of the GATS to become applicable to all telecommunications services that were then included in the WTO Member’s schedules, alongside further broad regulatory principles unique to the BTA, embodied in a document known as the “Reference

105 For discussions on the regimen relating to international trade in telecommunications services (including satellite based services) see A. F. Lowenfeld, International Economic Law 125-131 (2002).


Paper”. The Reference Paper was intended to address the issues summarized below:106

Competition safeguardsMembers are to take appropriate measures to prevent major suppliers from engaging in anti-competitive practices, including cross-subsidization, use of information obtained from competitors that provide such information in order to gain access to essential facilities, and withholding of technical information or other information necessary for the provision of telecommunications services.Interconnection Members are to ensure that foreign service suppliers may interconnect with the public-switched network: (i) in a timely fashion; (ii) under non-discriminatory terms, conditions, and rates; (iii) at rates that are cost-oriented, transparent, reasonable, and suffi ciently unbundled to ensure that service providers need not pay for unneeded components or facilities; and (iv) at any technically feasible point. Furthermore, Members are to ensure that procedures for interconnection are publicly available and that interconnection agreements or reference interconnection offers for each major supplier are publicly available. Finally, service providers are to be able to refer all disputes with respect to terms, conditions and rates for interconnection to an independent domestic body, which must resolve such disputes within a reasonable period.Universal serviceWhile acknowledging each Member’s right to defi ne the kind of universal service obligation it wishes to maintain, the regulatory principles require that such obligations are not more burdensome than necessary to achieve its universal service goals and are administered in a transparent, non-discriminatory, and competitively neutral manner.Transparency of licensingMembers must make publicly available all licensing criteria and the terms and conditions of all licences that are granted, and provide the reasons for a decision to deny a licence.Independence of regulatorsMembers must provide for a regulatory body that is separate from, and not accountable to, any supplier. The procedures and decisions of such regulatory body must be impartial.Scarce resource allocationProcedures for the allocation and use of scarce resources – including frequencies, telephone numbers, and rights of way – shall be objective, timely, transparent, and non-discriminatory.

106 P. L. Spector, The World Trade Organization Agreement on Telecommunications, 32 The International Lawyer 217 (1998).

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Furthermore, in February 1997, the commitments of sixty-nine governments (contained in fi fty-fi ve schedules) were annexed to the Fourth Protocol of the GATS.107 For satellite-related communications, thirty-nine schedules (fi fty-three governments) committed on some or all types of mobile satellite telecommunications services. In addition, ten governments scheduled commitments on value-added telecommunications services, which in some cases included satellite communications. On 5 February 1998, the results of the WTO negotiations on market access for basic telecommunications services formally entered into force.108 Post 1998, a fair number of countries have submitted lists of commitments and exemptions.109

The agreement has great signifi cance for the circulation of satellite user terminals (such as AESs) because fi fty-three governments committed on some or all types of mobile satellite services (including e.g., telephony, data, paging, and/or PCS) or transport capacity. Therefore it can be deduced that the BTA would greatly enhance the ability for inter alia global mobile satellite systems to surmount regulatory obstacles to the provision of telecommunications services on a global basis.

6. International Copyright and Protection of Programme Content

We stated earlier in this chapter that the provisions of the Berne Convention have been incorporated into the WIPO Copyright Treaty. This work focuses on the international legal framework therein established under the auspices of the WIPO that provides the basic top-level guidelines. Since 1974 WIPO has been recognized as a specialized agency of the United Nations system of organizations, with a mandate to administer intellectual property matters recognized by the Member States of the UN. What is of importance to the S-APC community today and to this work in particular, are the legal implications for airlines, service providers and equipment manufacturers driven by the new technologies described in chapter

107 WTO (Informal document), Highlights of the basic telecommunications commitments and exemptions, at http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_highlights_commit_exempt_e.htm (last accessed on 26 July 2006).108 M. E. Davis, The WTO Agreement on Basic Telecommunications Services, 19 PTR 10 (1997); Spector, supra note 106; T. Brisibe, Policy and Regulatory Developments in Asia-Pacifi c after the GMPCS-MoU and the WTO General Agreement on Trade in services: A Case for GMPCS System Operators, 21(3) PTR 28 (2000).109 A current list of new members and their commitments/exemptions can be obtained at http://www.wto.org/english/thewto_e/acc_e/completeacc_e.htm (last accessed on 26 July 2006). With regards to the Commitments and exemptions of European Union and information regarding the ten countries which joined the EU on 1 May 2004, see http://www.wto.org/english/tratop_e/serv_e/serv_commitments_e.htm (last accessed on 26 July 2006).


two which are being marketed and fi elded on airborne platforms. Technologies designed to provide a variety of applications including: internet e-mail, internet browsing, secure access to corporate e-mail and intranets, internet content, e-commerce, internet enabled entertainment (audio, movies, games) advertising, and live television.

6.1. Berne Convention for the Protection of Literary and Artistic Works

It is stated that the Berne Convention, which at January 2005 has 157 Contracting Parties, rests on three basic principles.110 Firstly, there is the principle of national treatment, according to which works originating in one of the Member States are to be given the same protection in each of the Member States as these grant to works of their own nationals. Secondly, there is automatic protection, according to which such national treatment is not dependent on any formality. In other words, protection is granted automatically and is not subject to the formality of registration, deposit or the like. Thirdly, there is independence of protection, according to which enjoyment and exercise of the rights granted is independent of the existence of protection in the country of origin of the work. With respect to our analysis, Articles 2, 9, 10, 11, and 13 of the Berne Convention are pertinent. Firstly, those works which the Convention seeks to protect are listed in Article 2 (1) that provides as follows:

The expression “literary and artistic works” shall include every production in the literary, scientifi c and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Secondly, Articles 9, 10, 11 and 13 make reference to the limitations on the minimum standards of protection accorded to rights. These provisions are important because, whilst the Berne Convention provides for the possibility of using protected works in particular cases without having to obtain authorization of the owner of the copyright and without having to pay any

110 World Intellectual Property Organization, supra note 21, Para. 5170, at 262-263.

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remuneration for such use, there are two instances where the Convention provides the possibility of compulsory licenses. These are:

Article 11 bis (2) for the right to broadcast and communicate to the public by wire, rebroadcasting or loudspeaker or any other analogous instrument, the broadcast of the work, and Article 13(1) for the right of recording musical works.

To illustrate this in the in-fl ight entertainment environment, passenger(s) could initiate an internet session on an individual basis from the aircraft. Given a pure direct internet access to an existing ISP account, the majority of functions associated with content/services acquisition and aggregation would be handled by the ISP. The ISP in question may be one who is able to grant the users access to direct internet services, in which case the rights associated with displaying and providing specifi c access to other web sites on the ground and based upon branded portal pages needs further consideration. On the other hand, passenger(s) could initiate an intranet session on an individual basis on the aircraft. This is assuming that a variety of content has been stored on-board the aircraft and provided to users on an intranet basis, thus implying that some level of content acquisition and aggregation is taking place. At a minimum, if the sites stored are copyrighted material, then permission of the copyright owner to represent the content under the ISP or airline brand is a likely requirement.111 For details of the two high speed data or internet access and transmission procedures described herein see chapter two, fi gures 1 and 2.

6.2. WIPO Copyright Treaty

At the start of this chapter, it was noted that technological developments led to the need to cater for inadequacies of the Berne Convention leading to adoption of inter alia the WIPO Copyright Treaty.112 This is not to mean that the provisions of the Berne Convention have become inapplicable. In fact the WIPO Copyright Treaty makes clear that no interpretation of its provisions may result in any lowering of the level of protection granted by the Berne Convention. Article 1 (1) of the Copyright Treaty states

This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.

111 World Airline Entertainment Association, supra note 23, at 16.112 At present, the WIPO Copyright Treaty has 50 Contracting parties.

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Article 20 of the Berne Convention on the one hand provides that The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.

Going even further on the subject of preserving the scope and applicability of the Berne Convention, Article 1(4) of the WIPO Copyright Treaty provides that “[c]ontracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.” In light of the above, the subject matter and scope of protection set forth in the Copyright Treaty’s Article 3 provides for the mutatis mutandis application of Articles 2 to 6 of the Berne Convention. We will recall that Article 2 defi nes works protected under the Berne Convention. With regards to the subject matter of this work and the investigation at hand, the WIPO Copyright Treaty is crucial as it addresses the storage and transmission of works in a digital form. This is because, the travaux preparatois (preparatory work) to the Copyright Treaty adopted a statement to the effect that

The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.

Meaning inter alia, that the concept of reproduction under Article 9(1) of the Convention, which extends to reproduction “in any manner or form” irrespective of the duration of the reproduction, must not be restricted merely because a reproduction is in digital form through storage in an electronic memory, and just because a reproduction is of a temporary nature.113

The Copyright Treaty’s preparatory work also agreed that the transmission of works on the internet and similar networks should be the object of an exclusive right of authorization of the author or other copyright owner, with appropriate exceptions. Despite the lack of consensus concerning the right or rights which should actually be applied, the rights of communication to the public and distribution were identifi ed as the two major possibilities. It was also noted, that although the Berne Convention does not offer full coverage for those rights, the former does not extend to certain categories of works, while explicit recognition of the latter covers only one category, namely that of cinematographic works. Furthermore and due to the differences in the legal characterization of digital transmissions, considering the fact that such transmissions are of a complex nature, and that the various experts considered

113 World Intellectual Property Organization, supra note 21, Para. 5219, at 271.

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one aspect more relevant than another, a specifi c solution had to be adopted. The solution which was eventually adopted provided that

acts of digital transmission should be described in a neutral way, free from specifi c legal characterization; such a description should not be excessively technical and, at the same time, should convey the interactive nature of digital transmissions; in respect of legal characterization of the exclusive right – that is, in respect of the actual choice of the right or rights to be applied – suffi cient freedom should be left to national legislation; and, fi nally, that the gaps in the Berne Convention in the coverage of the relevant rights – the right of communication to the public and the right of distribution – should be covered.

This solution was referred to as the “umbrella solution”. The WIPO Copyright Treaty applies this “umbrella solution” by extending applicability of the right of communication to the public to all categories of works, and clarifi es that that right also covers transmissions in interactive systems described in a manner free of legal characterization.114

Within the S-APC or in-fl ight entertainment environment, interactive systems could include any variety of games, static or interactive, that can be delivered to the passenger on-board and are typically serviced via the on-board infrastructure. They could also be comprised of in-fl ight satellite video/audio. In other words, real-time and/or live audio/video programming fed directly to the aircraft via satellite whereby passengers may independently access 25 to over 100 channels of digital-quality audio/video (similar to, or identical to, the programming they receive via home satellite dishes). Thus Article 8 of the WIPO Copyright Treaty reads as follows:

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

Another aspect of the WIPO Copyright Treaty which bears upon our discussion is the statement adopted in the preparatory work that “it is understood the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from applying Article 11bis(2).” It is contended that this statement clarifi es the issue of liability of service and access providers

114 Id., at 272.

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in digital networks like the internet: it is evident that, if a person engages in an act not covered by a right provided in the Convention (and in corresponding national laws), such person has no direct liability for the act covered by such a right.115

What this means in practical terms is that it enables the recognition of the unique and diffi cult positions of ISPs and provides a framework for ISPs to avoid monetary liability, for infringement activities by its customers.116 In other words, there is a degree of separation between the liabilities of the entities responsible of either the on-board infrastructure network and the off-board communications services through with entertainment is delivered to the passengers display device. We will recall that as far as the value chain in the provision of S-APC is concerned, passengers will probably have a contractual relationship with a communications service provider (UMTS operator, ISP or wireless services operator) and with the airline from whom they have bought a ticket and with which they are fl ying. Nonetheless, the aircraft manufacturer may choose to be more ambitious and decide to operate and run the telecom infrastructure on board the aircraft on its own or on behalf of the airline. This is the case for Boeing which has created a subsidiary company, Connexion-By-Boeing which offers data connectivity to airlines and their passengers. One fi nal aspect of the WIPO Copyright Treaty that should be of interest to our discussion is its reference to “technological measures of protection and rights management information”. In this respect it is contended that no rights in respect of digital uses of works, particularly uses on the internet, may be applied effi ciently without the support of technological measures of protection and rights management information necessary to license and monitor uses. (Emphasis mine).117 The application of such measures and information are left to the interested right-owners, but appropriate legal provisions are included in Articles 11 and 12 of the Treaty. Under Article 11 of the WIPO Copyright Treaty, Contracting Parties must provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” Article 12(1) of the WIPO Copyright Treaty obliges Contracting Parties to

provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

115 Id.116 World Airline Entertainment Association, supra note 23, at 22.117 World Intellectual Property Organization, supra note 21, Para. 5.229, at 272-273.

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(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

Article 12(2) further defi nes “rights management information” as meaning “information which identifi es the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.” The provisions of Articles 11 and 12 to the WIPO Copyright Treaty above set out the obligations of its Contracting Parties. However, the implications to S-APC service provision with its affi liated private industry entities, subject to national legislation, aiming to prevent copyright circumvention, could be onerous. A non-exhaustive illustration of this legal/regulatory burden in the form of rights that content owners will seek to protect and that content providers (i.e., S-APC content providers ) will likely have to protect through a working contractual relationship have been described as including:118

Distribution rights which defi ne the distribution method such as terrestrial, satellite, internet, etc., and establish geographic limitations, i.e., territory; or pricing methodology such as pay-per-view and free-to-air;User rights which determine what the end user can do with the content, for instance, live viewing, record only once, view as many times as desired in a given period, or view as often as you want indefi nitely;Use rights which determine how the content is to be used. For example, it may be exhibited only in its entirety, with no excerpts permitted; pre-determined excerpts may be used; or, any and all excerpts are permitted;Element rights that may limit the use of content components. For example, closing credits must be exhibited in their entirety; andTalent rights that tend to vary considerably in contracts.

The important point about the above rights is that each represents a choice that the parties must consider in their relationship – and drives issues of rights management. The objective of rights management would therefore be to maximize opportunities for the exploitation of rights while assuring compliance with license agreements.

118 World Airline Entertainment Association, supra note 23, at 23-24.

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6.3. Concluding Remarks on Copyrights and Programme Content Protection

Putting it mildly, an extremely complicated web of international treaties are currently in force, designed to protect holders of copyrights on an international basis, i.e. across national borders. It is important to note that the international instruments mentioned above are implemented at the national level by signatory States and therefore, although the purpose of the international framework is to provide consistency throughout the world, the transposition of treaty obligations into national statutes would vary from country to country.119 In other words, even though copyrights acquired nationally can be protected internationally because their existence is not necessarily restricted to the jurisdiction of the State in which the activity creating such rights took place, it is not always certain that the said rights will be accorded the same degree of protection in third States. On-board programming content would require specifi c authorisation or licensing in order for the respective content to be copied, distributed, modifi ed, and displayed. Licensing requires that each content right be negotiated by an airline or service provider prior to displaying that content on-board an aircraft. Often, different copyright holders have different rights in the same works. For example, one rights holder may have the right to distribute a work, while another entity retains the rights to publicly display the work. Negotiating with each rights holder can be a most burdensome endeavour, but failing to obtain the range of rights needed to satisfy passengers can be fatal for a particular work.120

119 For instance, an agreed statement adopted at the 1996 Diplomatic Conference deliberating upon the WIPO Copyright Treaty reads as follows:

It is understood that the provisions of Article 10 [of the Treaty] permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10(2) [of the Treaty] neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.

Paragraph (1) of Article 10 determines the types of limitations on, or exceptions to, the rights granted under the Treaty which may be applied, while paragraph (2) of that Article provides criteria for the application of limitations of, or exceptions to, the rights under the Berne Convention. See World Intellectual Property Organization, supra note 21, Para. 5.229, at 272-273.120 World Airline Entertainment Association, supra note 23, at 20.

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7. Operational Regulations and Technical Standards

7.1. Telecommunications Standards, Recommendations and Non-binding Rules

Whilst the ITU Constitution, Convention and Radio Regulations all have the status of international instruments, binding on ITU Member States, and remain of great practical importance, it is also necessary to shed some light on Recommendations and Resolutions prepared under the auspices of the Radiocommunications Sector (ITU-R),121 the Standards Sector (ITU-T)122 and the Development Sector (ITU-D),123 referred to before.124 In this respect, the ITU-R is mandated as follows:

A Radiocommunication Assembly shall deal with and issue as appropriate, recommendations on questions adopted pursuant to its own procedures or referred to it by the Plenipotentiary Conference, any other Conference, the Council or the Radio Regulations Board;The radiocommunication Study Groups shall study questions and prepare draft recommendations on the matters referred to them in accordance with the provisions in Article 7 of this Convention. Those draft recommendations shall be submitted for approval to a radiocommunication assembly or, between two such assemblies, by correspondence to administrations in accordance with procedures adopted by the assembly. Recommendations approved in either manner shall have equal status.

The ITU-T is mandated as follows:Telecommunication Standardization Study Groups shall study questions and prepare draft recommendations on the matters referred to them in accordance with the provisions of Article 13 of this Convention. Those drafts shall be submitted for approval to a world telecommunication standardization conference or, between two such conferences, by correspondence to administrations in accordance with procedures adopted by the conference. Recommendations approved in either manner shall have equal status;The study groups shall, subject to No. 195 below, study technical, operating and tariff questions and prepare recommendations on them with a view to standardizing telecommunications on a worldwide basis, including recommendations on interconnection of radio systems in public telecommunication networks and on the performance required for these interconnections. Technical or operating questions specifi cally related to radiocommunications as enumerated in Nos. 151 to 154 of this Convention shall be within the purview of the Radiocommunication Sector.

121 Article 8(1) and Article 11(2) (1) ITU Convention.122 Article 14 (1) (2) ITU Convention.123 Article 17(1) ITU Convention.124 See supra section 1.1.


The ITU-D is mandated as follows:Telecommunication Development Study Groups shall deal with specifi c telecommunications questions of general interest to developing countries, including the matters enumerated in No 211 above. Such study groups shall be limited in number and created for a limited period of time, subject to the availability of resources, shall have specifi c terms of reference on questions and matters of priority to developing countries and shall be task-oriented.

These Recommendations and Resolutions pertain to the establishment of procedures, the study of certain matters, or the convening of other ITU Conferences, which, although not legally binding, may as has been contended, be viewed as incorporated by reference into a Radio Regulation, where the Radio Regulation in question refers to the particular Recommendation or Resolution.125 At present a vast range of such recommendations are in force and their importance as an infl uencing factor over international satellite communications in general cannot be overemphasised. Finally, the D-Sector though not as prolifi c in the generation of Recommendations and Resolutions in comparison to its peers, coupled with being the latest structural addition to the ITU, has nonetheless been the facilitator, through its fi rst World Telecommunication Policy Forum, of the Global Mobile Personal Memorandum of Understanding (GMPCS MoU hereinafter).126 GMPCS has been defi ned to include: “Any satellite system (i.e., fi xed or mobile, broadband or narrow-band, global or regional, geostationary or non-geostationary, existing or planned) providing telecommunications services directly to end users from a constellation of satellites.” We shall return to this defi nition, its scope and implications in chapter seven.

125 C. Q. Christol, The International Telecommunication and the International Law of Outer Space, 22 Coll. L. Outer Space 35, at 42 (1977), cited in Smith, supra note 45, at 25; Lyall (1993), supra note 45.126 T. Brisibe, GMPCS at Crossroads: The fallout from 3G, 3 Info 153 (2001); Brisibe, supra note 108. See also M. E. Davies, Global Mobile Personal Communication by Satellite – The Regulatory Revolution, Satellite Finance, September 1998; R. Jakhu & M. Davies, Global Mobile Personal Communication by Satellite – The International Regulatory Revolution, 41 Coll. L. Outer Space 40 (1998); S. Le Goueff, Licensing Global Mobile Personal Communications by Satellite: The Quest for the holy grail, XXII-I Annals of Air & Space Law 417 (1997).

91

CHAPTER FOUR

State Sovereignty

The preceding chapter provided an assessment of the diverse legal and regulatory regiments within which S-APC is conducted. Central to this legal and regulatory framework is the concept of state sovereignty, which may or may not be existent, non-applicable or relevant, with regards to specifi c jurisdictions and/or activities, pursuant to multilateral and/or bi-lateral treaties. A concept out of which attendant territorial rights due to nation states may be multilaterally exchanged between respective States but in general a concept to which attention must be paid. This chapter therefore details the inter play of the state sovereignty concept within the respective jurisdictions and activities, and its impact upon the provision of S-APC services.

1. Airspace and Territorial Waters

On the one hand territorial sovereignty is stated as extending principally over land territory, the territorial sea appurtenant to the land, and the seabed and subsoil of the territorial sea. The concept of territory thus includes islands, islets, rocks, and reefs. Furthermore, in accordance with customary international law and the dictates of convenience, the airspace above State territory is included. On the other hand, the legal conditions for the existence of a State have been listed1 as including: a permanent population; a defi ned territory; a government and the capacity to enter into relations with other States. Therefore, the State territory and its appurtenances (airspace and territorial sea), together with the government and population within its frontiers, comprise the physical and social manifestations of the primary type of international legal person, the

1 1933 Montevideo Convention on Rights and Duties of States, Article 1.

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State.2 On a related note, the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) are relevant.3 Especially Article 2(2) which provides that “[t]his sovereignty4 extends to the airspace over the territorial sea as well as to its bed and sub-soil”, and Article 3 which provides that “[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” In the past and bearing these provisions in mind, the International Court of Justice pronounced in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. United States), that:5

The basic legal concept of State sovereignty in customary international law, expressed in inter alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the airspace above its territory. As to the superjacent airspace, the 1944 Chicago Convention on Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the airspace above its territory. That Convention, in conjunction with the 1958 Convention on the Territorial Sea, further specifi es that the sovereignty of a coastal State extends to the territorial sea and the airspace above it, as does the United Nations Convention on the Law of the Sea adopted on 10 December 1982. The court has no doubt that these prescriptions of treaty law merely respond to fi rmly established and longstanding tenets of customary international law.6,7

Note, however, that some coastal States including the United States of America, Canada, Malaysia, Australia and New Zealand, have claimed the right to exercise control over foreign aircraft beyond the limits of the airspace over their territorial waters. These claims to control have been made in areas referred to as Air Defence Identifi cation Zones (ADIZ). The purpose is to enhance the protection of national security by making the entry of aircraft subject to identifi cation requirements. Establishment of such zones do not, however, constitute or imply a claim to sovereignty.8 Treaty provisions, the dictum of the ICJ quoted before in the Nicaragua v. United States case, and opinio juris all point to the fact that States exercise

2 I. Brownlie, Principles of Public International Law 105-106 (2001).3 Opened for signature 10 December 1982, Montego Bay (1982) 21 ILM 1261 – 1354; (UN Doc. A/CONF.62/122 with Corr. 3 and Corr. 8; UNCLOS III, Offi cial Records, Vol. XVII (1984) 151-221.4 i.e. State Sovereignty.5 ICJ Rep 1986 14, 111.6 cf. Article 38, Statute of the International Court of Justice 1945, which provides inter alia that “[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply international custom, as evidence of a general practice accepted as law.”7 M. Dixon & R. McCorquodale, Cases and Materials on International Law 76 (1991).8 On the precise nature and validity of ADIZ’s in the context of international laws of the air and sea, see N. Grief, Public International Law in the Airspace of the High Seas 153-157 (1994).

STATE SOVEREIGNTY 93

supreme and exclusive sovereignty in their territorial jurisdictions9 which for the purpose of this work is comprised of the airspace above national territory and territorial waters, traversed by aircraft on-board where S-APC services are provided and consumed. Nonetheless, the methods by which States have chosen to exercise their sovereign rights, within the listed jurisdictions and activities, when applied to S-APC, give rise to qualifi cations that require further examination. Thus, there is a need to reconcile confl icting complexes arising from the clash between what one writer10 has stated as consisting of a rule-complex (founded on a regulatory philosophy infl uenced by the common international legal concept of State sovereignty) and an activity-complex.11 These confl icting complexes themselves appropriately refl ect the enduring confl ict between what are commonly referred to as the spatialist and functionalist schools of thought. The spatial approach, according to Cheng, being the primary nature of international lex lata with its three tier (described hereinafter) classifi cation of State jurisdiction, as opposed to the functional approach which contends that the locus of an act need be of no importance to its legality or illegality, which can be determined solely by reference to its nature. 12

Before going any further on the aforementioned complex or confl ict, we need to shed some light on the origins of the sovereignty concept before examining its nature and the extent of its application to international civil aviation, telecommunications, trade and the oceans. Thus, it becomes necessary to understand that the principle of sovereignty is regarded as a fundamental concept in international law and an integral part of the principles of equality of States and of territorial integrity and political independence that are referred to in Article 2 of the United Nations Charter.13 The concept of sovereignty originated in the closer association of the developing State and the developing community when it became inevitable that power had to be shared between them. The function of the concept was to provide the only formula which could ensure the effective exercise of power once this division of power or collaboration of forces had become inescapable.14

9 The term jurisdiction used in this context should not be confused with the concept of jurisdictional sovereignty whereby a State exercises its sovereignty through administrative, judicial, executive and legislative activity. 10 B. D. K. Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System 103 (1998).11 The technology and components of the future ICAO CNS/ATM System in general. (This dissertation focuses on the activity-complex of S-APC service provision).12 B. Cheng, Studies in International Space Law (1997) at Chapter 14, at 434-437.13 Dixon & McCorquodale, supra note 7.14 H. Hinsley, Sovereignty 22-25 (1986), cited in Dixon & McCorquodale, supra note 7, at 248; J. H. Jackson, Sovereignty-Modern: A New Approach to an Outmoded Concept, 97 AJIL 782 (2003).

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State sovereignty remains inextricably linked to what is referred to as “territory” which in spatial terms has been divided into four15 categories16 comprised of: national territory (over which one State, or in exceptional circumstances, two or more States, exercises territorial sovereignty); territorium extra commercium (territory which cannot form the territory of a State); territorium nullius (territories that are not under the sovereignty of a recognized subject of international law but which are capable of being acquired by any State in accordance with the rules of international law governing acquisition of territory); and territorium commune humanitatis (the common heritage of mankind). In this context the Permanent Court of Arbitration in the North Atlantic Coast Fisheries Case (United Kingdom v. United States) stated that, “one of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is co-terminous with Sovereignty.”17 It was also stated earlier on in this work, that the State territory and its appurtenances (airspace and territorial sea), together with the government and population within its frontiers, comprise the physical and social manifestation of the primary type of international legal person, the State. Consequently the competence of States in respect of their territory is traditionally described in terms of sovereignty and “jurisdiction”. In other words, the normal complement of State rights, the typical case of legal competence (or legal personality), is described commonly as sovereignty, whilst particular rights, or accumulations of rights quantitatively less than the norm, are referred to as jurisdiction (especially rights, or claims, liberties and powers).18 Brownlie goes on to add, as far as the subject of jurisdictional competence of States is concerned, that distinct from the power to make decisions or rules (i.e., the prescriptive or legislative jurisdiction), which in the opinion of this writer equates to the “particular rights” mentioned hereinbefore, States also have power to take executive action in pursuance of or consequent on the making of decisions or rules (i.e., the enforcement or prerogative jurisdiction). Cheng on the other hand, has chosen to refer to this distinction between prescriptive or legislative jurisdiction vis-à-vis enforcement or prerogative jurisdiction, by using the terms “jurisfaction” and “jurisaction” respectively. Jurisfaction being, “the normative power of a State to enact laws, take decisions, and, if need be, administratively or judicially to interpret such laws and decisions with legally binding effect.”19 Whilst jurisaction is considered “a States power concretely and physically to perform the functions of a State [emphasis mine],

15 See Brownlie, supra note 2, at 105; Cheng, supra, note 12.16 Three of which were fi rst identifi ed by Judge Max Huber sitting as sole arbitrator in the Island of Palmas Case (The Netherlands v. United States) 2 RIAA (1928) 829.17 11 RIAA (1910) 167.18 Brownlie, supra note 2, at 106.19 Cheng, supra note 12. Emphasis mine.


be they legislative, judicial or executive. It may thus, under this power, hold legislative assemblies, conduct judicial enquiries, carry out arrests, or establish armed forces.” Cheng’s distinction between “jurisfaction” and “jurisaction” would therefore equate to Brownlie’s “prescriptive or legislative jurisdiction” on the one hand, and “enforcement or prerogative jurisdiction” on the other. Cheng bases this classifi cation upon the recognition under international law that States have one or a combination of three types of jurisdiction. Firstly, “territorial jurisdiction” – i.e., the jurisdiction to which a State is normally entitled over its own territory, territory under its sovereignty; secondly, “quasi-territorial jurisdiction” – i.e., jurisdiction of a State over its inter alia aircraft, spacecraft and any other means of transport which is designed for travel in areas not subject to the territorial jurisdiction of any State and which has a special relationship with the State concerned through ownership, nationality, registration, or any other recognized link; and thirdly, “personal jurisdiction” – i.e., the jurisdiction of a State over its own nationals, be they natural or legal persons, excluding, however, inter alia aircraft even though they may be endowed with nationality. The justifi cation for these various classifi cations and distinctions can be derived from the proposition that jurisdiction is territorial, i.e., the power of a State over different objects of international law varies, above all ratione loci, according to whether one is speaking of national territories, or any of the three types of territory listed hereinbefore. These jurisdictional complexities when applied to the provision of S-APC services on-board aircraft overfl ying national State territories as well as oceanic open spaces does raise interesting international civil and even criminal legal ramifi cations, considering that aircraft do not readily fi t within the jurisdictional rules of either domestic or international law.20 These complexities will be examined in chapter six. Nonetheless, the following examination of the sovereignty in airspace principle should serve as a starting point and attempts to answer questions arising when one refl ects on the principle’s impact and effectiveness. Although States may exercise sovereignty de jure, the nature of the activity-complex in the case of end-to-end S-APC service provision, in most cases, places de facto control in the hands of the entity(s) licensed (in most cases by third States) to operate the infrastructure in question i.e., the satellite(s), Aeronautical Earth

20 For more discussions on the subject of State jurisdiction see C. T. Oliver, The Jurisdiction (Competence) of States, in M. Bedjaoui (Ed.), International Law: Achievements and Prospects, 307 (1991); I. A. Csafabi, The Concept of State Jurisdiction in International Space Law (1971); G. von Ghan, Law Among Nations, An Introduction to Public International Law 420-435 (1986); J. E. S. Fawcett, International Law and the Uses of Outer Space 17-28 (1968); O. Ogunbanwo, International Law and Outer Space Activities 77-90 (1975); G. Schwarzenberger & E. D. Brown, A Manual of International Law 72-96 (1976); M. Byers, Custom Power and the Power of Rules – International Relations and Customary International Law 53-74 (1999); R. Jennings & A. Watts, Oppenheim’s International Law (1992), Vol. 1, at 456-498.

96 CHAPTER FOUR

Stations, aircraft, and ground based infrastructure. The questions pertain to States sovereign rights vis-à-vis their ability to ensure and enforce legal and regulatory compliance bearing in mind the rights and obligations of the said States in international communications, air transport and trade. To be more precise, fi rstly the extent to which a State that is overfl own can control certain activities on board a foreign registered aircraft within its territory and secondly, whether the right to overfl ight permits the use of facilities for non-safety communications, both constitute queries requiring clarifi cation.

1.1. Sovereignty, Territoriality and Airspace

The principle of State sovereignty in airspace, traceable to discussions dating to the pre-World War One era, was crystallised in the provisions of Article 1 to the Paris Convention on Aerial Navigation of 1919.21 In contemporary times the legal basis for the exercise of sovereignty by States with regards to the airspace over their respective territories derives from the provisions of Article 1 to the 1944 Chicago Convention22 which declares that, “[t]he contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory.” It has been contended by Matte, that the emphasis on the principle of sovereignty is more understandable during troubled times of war and periods immediately following, when international conventions on air law have been drawn up and accepted, creating principles to serve above all, as a means of national defence.23 Matte asserts further that the sovereignty principle, however, does not help the peaceful development of international navigation for economic, commercial or touristic reasons. This leads to the need to replace the principle of sovereignty with one of freedom of functional international air traffi c, which would, at the same time, preserve the security of States. Before addressing the proposed freedom of international traffi c principle, and to which we shall return in the context of S-APC services provided to international civil aviation, it is necessary to note that in order to apply the lateral limits of airspace (a term not defi ned by the Chicago Convention)24 sovereignty, one would also need to appreciate the meaning of State territory defi ned in Article 2 to the Chicago Convention. This Article provides that, “[f]or the purpose of this Convention the territory of a State shall be deemed to

21 LNTS, Vol. XI (1922), at 173-306.22 In addition to the 1919 Paris Convention, the Ibero-American Convention Relating to Aerial Navigation of 1926 and the Inter-American International Convention on Commercial Aviation of 1928 were both based upon the national sovereignty in airspace principle. P. P. C Haanappel, The Law and Policy of Air Space and Outer Space, A comparative approach 15 (2003).23 N. M. Matte, Aerospace Law 16-17 (1969).24 For a detailed attempt to provide a defi nition of the term ‘airspace’ see Matte, supra note 23, at 21-36.


be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.” In this respect, it has been contended that the territorial scope of a State’s jurisdiction, as recognised and accepted by contracting States to the Chicago Convention extends, therefore, upwards into space and downwards to the centre of the earth, the whole in the shape of an inverted cone.25 This scenario contrasts sharply with the freedom of the air principle, which applies above the high seas because, as it has also been contended, the innocent passage for vessels and an ‘open port policy’ in maritime law is easier to accept from the standpoint of national security than freedom of the air.26 Vessels being physically limited to the high seas, territorial waters, international straits and maritime ports and thus perhaps with the exception of submarines, making them easily identifi able. Aircraft on the other hand, move much more rapidly and can penetrate any part of airspace above a given sovereign State and are consequently far less easy to identify.27 The freedom of functional international air traffi c principle proposed by Matte is at this present time, yet to fully materialise. In spite of the security considerations underlying the sovereignty principle and the extent of its territorial application, multilaterally agreed economic aspects (including the right of overfl ight) of present day international civil aviation continue to be catered for under the Chicago Convention’s Article 5 (non-scheduled international services) and Article 6 (scheduled international services), respectively. Attempts at fostering the widest possible multilateral freedom in international civil aviation is not a recent development when one considers both the provisions of Article 15 (as amended in 1929) to the 1919 Paris Convention as well as Article XXI of the 1928 Havana Convention, respectively.28 Article 5 of the Chicago Convention provides that:

Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make fl ights into or in transit non-stop across its territory and to make stops for non-traffi c purposes without the necessity of obtaining prior permission, and subject to the right of the State fl own over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of fl ight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such fl ights. Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking

25 B. Cheng, The Law of International Air Transport 121-122 (1962). 26 On the ‘right of innocent passage’ and the ‘meaning of innocent passage’ within territorial waters, see Articles 17 & 19 of the 1982 UNCLOS.27 Haanappel, supra note 22, at 4, 18.28 Haanappel, supra note 22, at 16.

98 CHAPTER FOUR

on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable.

Whilst Article 6 provides:No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.

In the words of Matte on the one hand, both Articles provide the multilateral, quasi-universal basis of the legal framework for all international air services. Article 5 being inspired by a relatively liberal spirit as the basis for a more liberal regulatory regime for non-scheduled services and fl ights, whilst Article 6, seeking to implement the sovereignty principle of the Chicago Convention’s Article 1, affords the basis for a more restrictive and rigid regulatory regime for scheduled air services.29 In this respect, it is necessary to distinguish between international air services provided by aircraft for civil air transport and “State aircraft”. The distinction may be made fi rstly on the basis that State aircraft are used exclusively under State authority of command for whatever purpose. Secondly, the distinction may be made by taking the use of the aircraft as the main distinguishing element between State and civil aircraft. The latter distinction which is more widely accepted would therefore comprise aircraft used for customs, police or military services. Therefore civil aviation services run by the State are excluded by this defi nition because they are not conducted for sovereign ends.30

Haanappel on the other hand, claims that the Chicago Convention in Articles 5, 6 and 7 respectively, speak of the ‘right’ to make fl ights, and to operate air services, and that ‘right’ is the appropriate term set forth within multilateral and bilateral agreements between States exchanging contractual rights to fl y aircraft, and to operate air services that derogate from the customary international law principle of Article 1 of the Chicago Convention to the effect that each State has complete and exclusive sovereignty in the airspace above its territory. He contends further that there is a distinction between the rights/privileges 29 Matte, supra note 23.30 See Article 30 of the Paris Convention of 1919 and Article 3 (b) of the 1944 Chicago Convention respectively, the effect of which exclude State aircraft from the scope of the Chicago Convention except where such aircraft are used for commercial air services. Note also that aircraft used in military, customs or police services are excluded from the scope of inter alia, the Tokyo Convention of 1963 (UNTS, Vol. 704, at 219, at Article 1) The Hague Convention of 1970 (UNTS, Vol. 860, at 105, at Article 3); the Montreal Convention of 1971 (UNTS, Vol. 974, at 117, at Article 4) and the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties (UNTS, Vol. 310, at 181, at Article 26) as amended by the Montreal Protocol of 1978. See further B. Cheng, State Ships and State Aircraft, 11 Current Legal Problems 225 (1958); K. Hailbronner, State Aircraft, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Volume IV, 605 (2001).


of aircraft, rights/privileges with respect to international air services, and the rights of airlines, and that Articles 5 and 7 of the Chicago Convention speak of ‘rights of aircraft’, although Article 7 also uses the term ‘airlines’, whilst two agreements (discussed hereinafter) annexed to the Chicago Convention speak of rights and privileges with respect to international air services, and fi nally that bilateral agreements are concerned with the rights of designated air carriers to operate on certain routes. Bearing the above arguments in mind, the freedom of movement by aircraft across multiple borders continues to be facilitated pursuant to the provisions of the International Air Services Transit Agreement (Transit Agreement) and the International Air Transport Agreement, (Transport Agreement)31 annexed to the Chicago Convention, the combined effect of which give rise to what is now accepted by several writers, including, Cheng, Matte, Diederiks-Verschoor and Haanappel, as constituting the freedoms of the air. The fi rst two freedoms are described in the Transit Agreement, and concern the freedom to fl y over a country or to make a technical landing. They are also listed in the Transport Agreement, together with three more freedoms. The third freedom enables the state to carry passengers and cargo from its own territory to a foreign State, whereas the fourth concerns the transport of passengers and cargo from a foreign state to its own territory. The right to carry passengers and cargo between two foreign states is contained in the fi fth freedom.32 Summarily, the Transit and Transport Agreements – especially the Transport Agreement33 – provide a multilateral, contractual exchange of sovereign rights that greatly facilitate the performance of international air services, having to cross many jurisdictions. Though for those countries that have not ratifi ed the Transit Agreement, over-fl ight rights would have to be negotiated bilaterally. Under Bilateral Air Transport Agreements (BATS), States exchange traffi c rights and/or overfl ight rights leaving the exercise of the commercial modalities largely to the management judgement of designated airlines, rather than to governmental infl uence. Such agreements do not fundamentally change the concept of sovereignty, rather they modify and liberalize its exercise without detracting from the basic notion of sovereignty expressed in Articles 1 and 6 of the Chicago Convention. This confi rms the pre-existing nature of State sovereignty over its airspace now accepted as a part of customary international law, and declared in the Chicago Convention. One should bear in mind that, in present times, the combined effect of the Transit Agreement and BATS leads one to the belief that there is an evolution in the exercise of national

31 See UNTS, Vol. 84 (1951) 389-409; UNTS Vol. 171 (1953) 387-406.32 Cheng, supra note 25, at 8-17; Matte, supra note 23, at 140-166; I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law 13 (2001); Haanappel, supra note 22, at 103-109; P. P. C. Haanappel, The Transformation of Sovereignty in the Air, XX Air & Space Law 311 (1995).33 The Transport Agreement, regarded as the fi ve freedoms agreement remains poorly ratifi ed.

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sovereignty through liberal BATS and the opening up by a number of States of their hitherto closed borders to international travel.34

An interesting illustration of circumstances where the concept and/or application of sovereignty in airspace has been extended from the multilateral exchange of rights between States to the actual transfer of such rights to a third party, is the steps currently being taken by the European Community (EC) to formulate what has been regarded as the “Single European Sky”. In this respect and according to Article 3(f) of the Treaty establishing the EC, the EC is empowered to develop a common transport policy pursuant to a legal basis for EC action to establish a policy in the area of airspace management and design set forth in Article 80(2) of the said Treaty.35 That Article provides “the Council may, acting by a qualifi ed majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport. The procedural provisions of Article 71 shall apply.” Article 80(2), therefore, offers a broad legal basis for the implementation of that Treaty’s objectives in the area of air transport. It has already been used for EC action in this area, most recently as a legal basis for the European Commission’s proposal for a Council Regulation establishing the European Aviation Safety Agency.36 In general, it allows for EC measures intended to:

Implement the free movement guarantees under the Treaty;Harmonise airspace classifi cations and standards; andSet down minimum standards in relation to a European airspace.

It has been argued37 that ordinarily States have no right to transfer matters regarding the air space above their territories to a ‘supranational’ organization such as the EC (or another State).38 According to this view, Article 1 of the Chicago Convention, which recognizes the complete and exclusive sovereignty as belonging to the contracting State, would be deemed to be mandatory (see also Article 82 of the Convention). Thus, any transfer of sovereign rights to another State or institution would seem to be excluded by the Convention. 34 P. P. C. Haanappel. The Transformation of Sovereignty in the Air, in C.-J. Cheng (Ed.), The Use of Air and Outer Space Cooperation and Competition, 13 (1995)35 Offi cial Journal C 325 of 24 December 2002.36 Established on 15 July 2002 of a new European Community (EC) system of inter alia, air safety, to be based upon the mandate of a European Aviation Safety Agency (EASA) expected to commence its operations in September 2003. It was also used as a legal basis for Council Directive 93/65/EEC of 19 July 1993 on the defi nition and use of compatible technical specifi cations for the procurement of air-traffi c-management equipment and systems, O.J. No. L 187 of 29 July 1993, at 52, which serves for the implementation of Eurocontrol Standards.37 Study for the European Commission on the Regulation of Airspace Management and Design – Final Report, 14 May 2001, at 91-93.38 Note that “the EC is not a State nor does it possess sovereignty as a kind of Federation or Confederation. It is neither legally nor politically independent of its members.” See N. MacCormick, Questioning Sovereignty, Law, State, and Nation in the European Commonwealth 132 (1999).

•••


However, the same source argues that Article 1 did not establish the sovereignty of States over their air space, contending thereto, that Article 1 of the Chicago Convention and Annex 11 (Air Traffi c Services) merely recognized the pre-existing concept of sovereignty. Consequently, those provisions acknowledge the right of the parties to their sovereignty, but do not create an obligation for the parties to keep it. In other words, Article 1 is of a declaratory rather than a constitutive nature. It is generally accepted that sovereignty over air space can be seen as a derivative of sovereignty over the territory of a state. Territorial sovereignty is essentially a concept of ownership, whilst the territory remains (part of) the State’s property. Therefore, as with any other property right, the State is free to transfer the sovereignty over its air space in part or whole to another state or a supranational organization. By (partially) delegating sovereign rights, the ceding State allows another State or a supranational organization to exercise certain actions on/over its territory. This position can be compared and contrasted with the statement by Wassenbergh that:39

the provision of Article 1 applies only in so far as it is not expressly restricted by other provisions of the Convention or by engagements entered into elsewhere. Purely hypothetically speaking, this sovereignty of States would exist even without such provision as Article 1, namely as a tacitly accepted rule of customary international law, given the fact that every State recognizes that power in airspace above its territory is vital to its own interest. Whether this sovereign power is in fact of vital importance depends on the situation. A limitation of sovereignty as in Article 5 of the Convention is therefore in essence, a form of exercise of sovereignty, namely the granting of the right of passage, under normal circumstances, to foreign aircraft engaged in non-scheduled fl ights. Article 1 therefore exists, then, in order to make it possible to withdraw this right. But – and the signatories of the Convention have bound themselves to accept this – such withdrawal can only take place if circumstances so warrant.

As for the difference between the declaratory as opposed to the constituting effect of the Chicago Convention, this writer aligns with the observation of Cooper, writing in 1952 on the International Air Navigation Conference convened in Paris in May 1910, that

of even more importance is the now demonstrable fact that this 1910 conference, not the 1919 conference as usually supposed, fi rst evidenced general international agreement that usable space above the lands and waters of a State is part of the territory of that State. The debates of the conference and the draft provisions of the proposed convention, which were accepted in principle though not signed, show that States had concluded that they were entitled to regulate fl ight over their territories as fully as they had historically regulated other forms of human

39 H. A. Wassenbergh, Post-War International Civil Aviation Policy and the Law of the Air 100 (1962).

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activity in national territory, and that no general freedom of international transit (innocent passage) for aircraft of all States existed as a matter of international law in the usable space over sovereign States.40

However, the question of state responsibility in case of non-compliance with ICAO and other international public law rules arises, because in general, only an entity with international legal personality (i.e., the State or supranational organization) whose organs carried out the actions that breached international law could be held liable for those actions. This is the case even if the actions occurred in the territory of another State. The EC, a subject of international public law, can attract international responsibility for non-compliance with international rules on airspace management and design to the extent that it is bound by such rules. This applies in particular to rules of customary international law and to Eurocontrol rules once the EC has joined Eurocontrol. As regards rules established within the ICAO or ECAC frameworks, which have not developed into general customary international law (the majority of such rules), the EC (itself only an observer at ICAO) is not bound by them. Therefore, from an international public law perspective, EC Member States that are members of ICAO must ensure, through action within the Council, that the EC respects ICAO rules. If the EC fails to do so, Member States could be held responsible under international rules of state responsibility.41

A similar illustration, where a signifi cant exchange of sovereign rights over airspace between and amongst States has occurred, can be made with

40 J. C. Cooper, The International Air Navigation Conference Paris 1910, in I. Vlasic (Ed.), Explorations in Aerospace Law, at 105 (1968).41 Id., at 94. On the bindingness of public international law rules on the EC vis-à-vis its member States, it was held by the European Court of Justice that

As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations.

See Commission v. Council (ERTA) [1971] ECR 263; [1971] CMLR 335. What this implies is that to the extent that internal jurisdiction is vested in the EC, this jurisdiction is projected externally. External jurisdiction of the EC is not total and continues to be shared with member States of the Community. See further J. Crawford & S. Olleson, The Nature and Forms of International Responsibility, in M. D. Evans (Ed.), International Law, 445 (2003); J. Brunnee, Of Sense and Sensibility: Refl ections on International Liability Regimes as Tools for Environmental Protection, 53 ICLQ 351 (2004). It is contended therein that

with respect to terminology, in comparison to State Responsibility, ‘international’ liability refers more generally to mechanisms for compensating and otherwise remedying harm caused by States or other Actors, whether or not the harm resulted from the breach of an international obligation.


reference to the Minsk Agreement42 pertaining to the airspace above the Commonwealth of Independent States (of the former Union of Soviet and Socialist Republics) comprised of the Republics of Azerbaijan, Armenia, Georgia, Belarus, Kazakhstan, Kyrguyzstan, Moldova, Tajikistan, Uzbekistan, Ukraine, Turkmenistan, and the Russian Federation.43 In this instance, it is contended by Yuri Kolosov et al. that pursuant to the Minsk Agreement, the airspace of Contracting States over which they have complete and exclusive sovereignty, as well as those regions of open airspace, where according to international treaties, air traffi c maintenance was assigned to the former USSR for the purpose of organising the execution of fl ights and air traffi c control, would now be considered to be common airspace.44 The aforementioned authors in so contending, re-affi rm the principle of complete and exclusive sovereignty of a State over the airspace above its territory, recognized by Article 1 of the 1944 Chicago Convention, claiming that the Chicago Convention does not prejudice the establishment by certain States (on the basis of mutual agreement) of a “common” airspace for functional purposes. They consequently make reference to the Convention on Cooperation in the Field of Air Navigation and Joint Organization and Ensuring of Air Traffi c in the Upper Air-Space of Western Europe (Brussels 1960) being an example of a useful precedent where common airspace for functional purposes has been agreed upon and established between Nation States. In view of the totality of arguments and assertions examined above, suffi ce it to state that no aircraft may fl y in, into or through a State’s national airspace without its permission, acquiescence or tolerance, at no matter what altitude, and once within the territory of another State, a foreign aircraft, together with its crew and passengers, must comply with local laws and regulations,45 thus leading one to assert, concluding on the subject of the sovereignty principle, that States exercise supreme and exclusive sovereignty in the airspace above their territory and the territorial waters adjacent thereto.46

42 Agreement on Civil Aviation and Airspace Utilization, 25 December 1991, ICAO Reg. No. 3720. 43 For an examination of the legal status of the single CIS airspace vis-à-vis the sovereignty of the superjacent States, see P. Saprykin, The Legal Status of the Airspace above the Commonwealth of Independent States, XX-II Annals of Air & Space Law 325 (1995); Y. Kolosov, Y. Maleev, & A. Travnikov, Common Airspace of the CIS Member-States, in M. Benkö & W. Kroll (Eds.), Air and Space Law in the 21st Century, 108 (2001).44 Kolosov, Y. Maleev & A. Travnikov, supra note 43, at 108.45 Cheng, supra note 25, at 122.46 Haanappel, supra note 22, at 15. See further the statement by Wassenbergh, (supra note 39, at 106-107) that

with the development of civil aviation States have also agreed on rules regarding the reciprocal use of each other’s air-space in their common interest. In view of the recognition of sovereignty, this reciprocal use could only be conditional:

104 CHAPTER FOUR

1.2. Nationality of Aircraft47

Having examined the nature and extent of those sovereign rights which States exercise over their national territory including the suprajacent airspace, it is only logical to determine if and how such authority by States can be exercised with respect to the actual objects that traverse the airspace governed by individual States, i.e. aircraft on-board which the provision of S-APC service provision takes place and where such services are consumed by individual end-users i.e., customers or passengers. The question of nationality of aircraft as it pertains to the provision of S-APC is almost as important as the principle of sovereignty discussed above. This is especially true because the primary rules applicable to the conduct of S-APC set forth in the Chicago Convention at Article 30(a) provide that:

Aircraft of each contracting State may, in or over the territory of other contracting States, carry radio transmitting apparatus only if a license to install and operate such apparatus has been issued by the appropriate authorities of the State in which the Aircraft is registered. The use of radio transmitting apparatus in the territory of the Contracting State whose territory is fl own over shall be in accordance with regulations prescribed by that State.

In addition but more importantly, Article 30(b) of the Chicago Convention provides that:

Radio transmitting apparatus may be used only by members of the fl ight crew who are provided with a special license for the purpose, issued by the appropriate authorities of the State in which the aircraft is registered.

The words contained in the body of Article 30(a) “carry radio transmitting apparatus only if a license to install and operate such apparatus has been issued by the appropriate authorities of the State in which the Aircraft is registered” and those contained in the body of Article 30(b) “appropriate authorities of the State in which the aircraft is registered” are probably the most pertinent in this regard. The basis for this being that aircraft have the nationality of the State in which they are registered, per the provisions of Article 17 of the Chicago Convention.48 Other provisions addressing the issue of nationality under the Chicago Convention include Articles 18, 19, 20, and 21, respectively. Consequently therefore, licenses, which are issued for radio transmitting apparatus and for those of the fl ight crew, must be issued

in certain cases, the common interest of granting such reciprocal use could be overshadowed by more urgent considerations of self interest.

47 Cooper, supra note 40, at 204-251; J. C. Cooper, National Status of Aircraft, XVII JALC 292 (1950); Diederiks-Verschoor, supra note 32, at 22-25; N. M. Matte, Treatise on Air-Aeronautical Law 180-181 (1981); Cheng, supra note 25, at 128-132; Haanappel, supra note 222, at 46-48.48 Cf. Article 6 of 1919 Paris Convention, Article 6 of the Ibero-American Convention, and Article 7 of the Pan-American Convention.


or certifi ed by the State in which the aircraft has been registered. The private international legal ramifi cations of these circumstances are most evident in matters pertaining, fi rstly, to the problems of jurisdiction in civil and/or criminal matters which may arise on board an aircraft resulting from the provision of S-APC services, and secondly the problems pertaining to the liability of the airline or of the air carrier or operator towards passengers and third parties on the ground. These matters will be examined in chapter six.

2. State Jurisdiction in the Airspace over High Seas and Polar Regions

It is believed that air travelling demands an entertaining, pleasant, secure and productive environment for passengers who may spend 70 per cent of their total travel time in the aircraft on long-distance fl ights and, furthermore, although the market is dominated by single aisle aircraft, the majority of which are used for short-haul fl ights, the twin aisle, 747 and larger categories, used for long distance fl ights, have the biggest requirement for S-APC services. It is therefore correct to assume that long distance fl ights will traverse open trans-oceanic and polar routes. This fact gives rise to several questions, including: fi rstly, if S-APC services may be offered in geographical regions of this nature; secondly, if this were to be affi rmative, whether authorisations would be required; thirdly, what sorts of authorisations would be required to be obtained; and fourthly, from which authority. Earlier on in this chapter, it was asserted that central to the legal and regulatory framework applicable to S-APC service provision, is the concept of State sovereignty, which may or may not be existent, non-applicable or relevant, perhaps even have its attendant territorial rights, multilaterally exchanged between States, with regards to specifi c jurisdictions and/or activities, pursuant to multilateral and/or bilateral treaties, but to which due attention must be paid. Thus, the nature and extent to which the concept of State sovereignty applies in the open spaces of the high seas and the Polar Regions constitutes the theme of this section.

2.1. Airspace above the High Seas

A signifi cant part of the geographical area over which the S-APC services are currently provided or planned to be provided to aircraft, construed as the high seas, by defi nition mean “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”49 This defi nition, it 49 Article 86 1982 UNCLOS.

106 CHAPTER FOUR

has been contended, infers that the exclusive economic zone (EEZ) is optional except where a coastal State includes50 such a zone, and that a signifi cant proportion of the freedoms of the high seas (discussed hereinafter) are, according to the UNCLOS 1982, applicable in the EEZ.51 The EEZ is defi ned as “an area beyond and adjacent to the territorial sea, subject to the specifi c legal regime established in this part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention”52 and “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”53 Note that besides the right of States to establish EEZ’s under binding provisions of UNCLOS 1982, the establishment of EEZ’s is a concept which has also been fi rmly established under customary international law.54 The aforementioned defi nition of the high seas, the optional right of States to the claim of an EEZ as well as the application of international law to the said EEZ on the one hand, and high seas on the other hand, warrants a close examination. With regards to the EEZ, Milde referring to Articles 56 and 58 respectively of the UNCLOS 1982, states that the EEZ is an area of the sea which was given a specifi c legal regime.55 In clarifying the nature of the EEZ, Milde contends that the EEZ is a zone sui generis with special rights reserved for the coastal State and the traditional freedoms of the high seas (minus the rights reserved for the coastal State) maintained for other States. The ‘sovereign’ rights of the coastal State within the EEZ relate only to the natural resources of the sea. The coastal State cannot interfere with the other traditional freedoms of the high seas, in particular the right of navigation and overfl ight. In other words, special economic rights and jurisdiction over the resources and installations are granted to the coastal State, whilst the traditional freedoms of the high seas including in particular the right of navigation and overfl ight are maintained. However, the “jurisdiction” which the coastal State

50 Some States have formally claimed an EEZ as defi ned in the UNCLOS. There remains the question however as to whether the EEZ will be have to be claimed by the action of individual coastal States, or whether it exists ipso jure as an area that cannot be detached from the land territory, like the territorial sea. In this respect no clear interpretation has been put forward. See O. Shigura, Exclusive Economic Zone, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Instalment 11 (1989), at 103. 51 Brownlie, supra note 2, at 229.52 Article 55 1982 UNCLOS.53 Article 57 1982 UNCLOS.54 See Continental Shelf Case (Tunisia v. Libya) ICJ Rep 1982 para 100; Continental Shelf Case (Libya v. Malta) ICJ Rep 1985 at 13. The International Court of Justice in 1985 declared that it was ‘incontestable’ that ‘the institution of the exclusive economic zone with its rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law’.55 ICAO Doc. LC/29-WP/8-1, 10/3/94, Secretariat Study submitted to the ICAO Legal Committee 29th Session; M. Milde, United Nations Convention on the Law of the Sea – Possible Implications for International Air Law, VIII Annals of Air & Space Law 167 (1983).


can exercise in the EEZ, relates to the establishment and use of artifi cial islands, installations and structures, marine scientifi c research, and the protection and preservation of the marine environment.56 Thus, with respect to traditional freedoms of the high seas which can be exercised by all States the coastal State is not granted any precedence or priority. Consequently, pursuant to the provisions of Article 87 of the UNCLOS, and as far as the focus of this work is concerned, within the EEZ, all States enjoy the freedom of overfl ight referred to in Article 87 of the Convention and other internationally lawful uses of the sea to that freedom and associated with the operation of aircraft.57 This freedom of overfl ight must be exercised with due regard to the rights, jurisdiction and duties of the coastal State, and aircraft must comply with the coastal State’s laws and regulations adopted in accordance with the 1982 UNCLOS under its Articles 56 and 58 respectively,58 subject to the said coastal laws and regulations being in accordance with the provisions of the UNCLOS and other rules of international law in so far as they are not incompatible with Part v of the UNCLOS. Therefore the nature of laws and regulations promulgated by the coastal State, would address State rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its sub-soil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.59

56 The rights of States and jurisdiction which can be exercised over artifi cial islands constitute an interesting facet of the EEZ’s legal regime set forth in the UNCLOS 1982 at Article 60. Especially in the light of the desire for States such as the Netherlands to construct artifi cial islands to serve as airports outside of territorial waters. Complex questions would necessarily arise regarding the rights of other States to use the airspace over such airports including the rights to use such an airport without bilateral sir services agreements with the State that has constructed such an airport. For the various views on the issues arising, see Haannappel, supra note 22, at 23; P. M. J. Mendes de Leon & E. J. Molenaar, Still a Mile too far? International Law Implications of the Location of an Airport in the Sea, 14 Leiden Journal of International Law 233 (2001); E. J. Molenaar, Airports at Sea: International Legal Implications, 14 International Journal of Marine and Coastal Law 371 (1999); H. Wassenbergh, The Status and Use of an Airport on an Artifi cial Island, XXIV Air and Space Law 178 (1999); W. Lawrence, Superports, Airports and Other Fixed Installations on the High Seas, 6 Journal of Maritime Law and Commerce 575 (1975).57 See Jennings & Watts, supra note 20, para. 343.58 On the subject of the airspace over the EEZ and maritime areas in general, see K. Hailbronner, Freedom of the Air and the Convention of the Law of the Sea, 77 AJIL 490, at 509-510 (1983); K. Hailbronner, The Legal Regime of the Airspace Above the Exclusive Economic Zone, VIII(I) Air Law 30 (1983); K. Hailbronner, Airspace Over Maritime Areas, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Vol. I, 90 (1992); P. Heller, Airspace over Extended Jurisdictional Zones, in J. Gamble (Ed.), Law of the Sea: Neglected Issues 14, at 135 (1979); D. J. Attard, The Exclusive Economic Zone in International Law 80 (1987); Grief, supra note 8.59 Article 56.1(a) UNCLOS.

108 CHAPTER FOUR

Beyond the EEZ, however, the 1982 UNCLOS pursuant to its Article 87, sets forth a list of freedoms applicable to the high seas, stating that:

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:a. Freedom of navigation;b. Freedom of overfl ight;c. Freedom to lay submarine cables and pipelines subject to Part VI;d. Freedom to construct artifi cial islands and other installations permitted

under international law, subject to Part VI;e. Freedom of fi shing, subject to the conditions laid down in Section 2;f. Freedom of scientifi c research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the area.

From the foregoing, it is evident that within the scope of the high seas also exists the superjacent airspace, to which the 1982 UNCLOS makes reference when establishing the freedoms mentioned hereinbefore, where States may exercise a freedom to fl y over, individually or collectively. An area to which, it has been stated, relatively little attention has been paid, despite the extent of that airspace and its commercial, strategic and environmental signifi cance.60 On the subject of freedom of overfl ight established by the 1982 UNCLOS, a related rule under Articles 37, 38 and 39 of the 1982 UNCLOS, must be noted, pertaining to the ‘right of transit passage’ in straits used for international navigation. Under the ‘right of transit passage’ aircraft enjoy the right of unimpeded transit passage in straits used for international navigation between one part of the high seas or an EEZ and another part of the high seas or an EEZ. ‘Transit passage’ when applied to aircraft therefore would mean the freedom of overfl ight solely for the purpose of continuous and expeditious transit of the strait. In this respect, aircraft, whilst exercising the right of ‘transit passage’ must proceed without delay through or over the straits and must refrain from the threat or use of force against the sovereignty, territorial integrity or political independence of the States bordering the straits. Such aircraft must refrain from any activity other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. Furthermore, aircraft in ‘transit passage’, shall fi rstly, observe the Rules of the Air (discussed hereinafter) as they apply to civil aircraft and secondly, at all times, monitor the radio frequency assigned by the competent internationally

60 P. Allot, Mare Nostrum: A new international Law of the Sea, 86 AJIL 764, at 767 (1992); M. N. Leich, Contemporary Practices of the United States relating to International Law, 84 AJIL 237, at 241 (1990); Grief, supra note 8, at 1.


designated air traffi c control authority or the appropriate international distress radio frequency.61 It is relevant to briefl y examine the origins and nature of the right of “transit passage” from the more established right of “innocent passage”. We will recall that “innocent passage” fi rst defi ned in Article 14 (Para 1 & 2) the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, re-affi rmed by Article 18 of UNCLOS, means:62

navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters […] including stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.

However, with the widespread adoption of the twelve mile limit for the breadth of the territorial sea instead of the previous three mile limit, many important straits ceased to have any area of high seas and would come to exist entirely of the territorial seas of the littoral or coastal States involved. Thus it has been contended by Johnson that the right of “transit passage” contained in the 1982 UNCLOS was created largely as a move to compensate the principal naval powers by preserving the freedom of navigation previously enjoyed by warships.63 A freedom which would have been severely curtailed by extended territorial waters within which the said warships would only be able to exercise the right of innocent passage, in addition to the disappearance of the right of overfl ight altogether. Having given thought to the statements made above, the issue to consider here remains the freedom to provide S-APC services on board aircraft exercising the right to fl y over the EEZ, international straits or the high seas respectively, including the Polar Regions, and the extent to which the concept of State sovereignty may or may not be applicable. Such activity from the foregoing cannot be rightly stated as being comprehensively regulated by one of the principal international instruments expected to regulate the use of the high seas and the superjacent airspace thereto, i.e. the 1982 UNCLOS. It is for

61 The principal purpose of Part III of the UNCLOS 1982 therefore is to institute the right of transit passage, by which is meant

freedom of navigation and overfl ight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

See Article 38(2). See also Corfu Channel Case, Merits, ICJ Reports 1949, at 4-169.62 UNTS, Vol. 516, at 205-282.63 D. H. N. Johnson, Innocent Passage, Transit Passage, in R. Bernhardt (Ed.), Encyclopedia of Pubic International Law, Vol. 11, 150 (1989); D. P. O’Connell, The International Law of the Sea, Volume 1, 289 (1982); D. W. Bowett, The Legal Regime of Islands in International Law 110 (1979). See Article 29 1982 UNCLOS for the defi nition of a warship and for the rights of innocent passage by warships, see Joint Statement of the United States and the Union of Soviet Socialist Republics, of 23 September 1989, ILM, 28 (1990), at 1444.

110 CHAPTER FOUR

this reason that the provisions of the 1944 Chicago Convention as well as the Constitution, Convention and Radio Regulations of the ITU, become pertinent. In this respect, and with regards to civil aviation and non-safety aeronautical communications in the airspace of the high seas, whilst the freedom of fl ight over the high seas is proclaimed in the 1982 UNCLOS, the actual regulation of fl ight in this geographical area is specifi cally dealt with under the provisions of Article 12 to the Chicago Convention, which provides that:64

Each contracting State undertakes to adopt measures to insure that every aircraft fl ying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to fl ight and manoeuvre of aircraft there in force. Each Contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each State undertakes to insure the prosecution of all persons violating the regulations applicable.

The provisions of Annex 2 to the Convention implement the Rules of the Air referred to in Article 12 of the Chicago Convention. The foreword to this Annex provides inter alia “the Annex constitutes the Rules relating to the fl ight and manoeuvre of aircraft within the meaning of Article 12. Therefore over the high seas these rules shall apply without exception.” The applicability of Annex 2 without exception is further re-iterated in the Annexes’ Chapter 2.1.1, whilst its relevance to the high seas is confi rmed in Chapter 2.1.2.65 The effect of Article 12 therefore is that the ICAO Rules of the Air stated in Annex 2, are mandatory for fl ights over the high seas and any discretion given in Article 37 of the Chicago Convention would not apply. A close examination of Annex 2 reveals that the regulation of communications set forth in Chapter 3.6.5 applies to controlled fl ights. It deals with maintenance of listening watch, establishment of two-way communication and procedures on communication failure under the general heading of Air Traffi c Control services. No mention is made of passenger non-safety communications such as would be conducted by providing S-APC services directly to aircraft. One other Annex to the Chicago Convention, which ought to contain detailed regulations addressing the provision of S-APC services to aircraft over the high seas, is Annex 10 (aeronautical communications). Annex 10 which is comprised of fi ve volumes in essence implements specifi c provisions of the Chicago Convention, namely Article 28 (Air navigation facilities and standard 64 For an analysis of the provisions of Article 12 to the Chicago Convention see J. E. Carroz, International Legislation on Air Navigation over the High Seas, 26 JALC 158 (1959).65 On the right of States to deviate from the provisions of Annexes to the 1944 Chicago Convention, see Cheng, supra note 25, at 128-132; T. Buergenthal, Law-Making in the Civil Aviation Organization 76 (1969); C. H. Alexandrowicz, The Convention on Facilitation of International Maritime Traffi c and International Technical Regulation, 15 ICLQ 621 (1966); Henaku, supra note 10, at 33.


systems), Article 30 (Aircraft radio equipment), Article 69 (Improvement of air navigation facilities) and Article 83 bis, respectively. However, Annex 10 makes reference to the ITU Radio Regulations, which, as we saw earlier in chapter three, contains provisions relating to the conduct of aeronautical communications services for non-safety purposes. In this regard, and in order to ensure adequate protection for safety and regularity of fl ight messages, provisions are included in the Standards and Recommended Practices elaborated in the said Annex, thereby guaranteeing safety related messages, which have priority and pre-emption over other non-safety aeronautical users. Because these principles of priority and pre-emption guarantee the precedence of communications for safety purposes, non-safety communications must cease immediately if necessary, to permit transmissions of messages accorded a certain order of priority. Considered within this framework, one can presume that non-safety communications, such as S-APC services to passenger’s on-board aircraft over the high seas, is by deduction permitted albeit on a non-interference basis. At this juncture it is important to note that “the principle of the freedom of the high seas has been described as multiforme et fugace, and in truth it is a ‘general principle of international law’, or a policy concept, from which particular rules must be deduced. Its application to specifi c problems often fails to give precise results.”66 This statement explains the diffi culty one faces in attempting to provide answers to the questions posed hereinbefore, bearing in mind the rules of air set forth in the Chicago Convention’s Article 12, viz fi rstly, whether S-APC services may be offered in geographical regions of this nature; secondly, if this were to be affi rmative, whether authorisations would be required; thirdly, what sorts of authorisations would be required to be obtained; and fourthly, from which authority. In this respect, Carroz submits that as no State may claim territorial sovereignty over the high seas or the airspace above, the obligation to insure compliance with the rules there in force can only rest with each Contracting State with respect to the aircraft carrying its nationality mark.67 The rules in force over the high seas being those established under the Chicago Convention, are supposedly implemented in national laws and regulations. Thus, the obligation of each Contracting State to insure the prosecution of all persons violating the regulations applicable concerns only the violation of its own regulations by aircraft carrying its own nationality mark.

66 Brownlie, supra note 2, at 231.67 Carroz, supra note 64.

112 CHAPTER FOUR

2.2. Airspace over the Arctic Region

On the extent to which the regime set forth in the 1982 UNCLOS addressing the high seas is applicable to S-APC, the Arctic region merits special attention, not only because it is comprised of sea-ice without any underlying landmass, but also because it is a region over which the conduct of civil aviation continues to take place and to which varying claims of territorial sovereignty have been made. It should also be noted that the central area of the Arctic consists of the Arctic Ocean surrounded by remote islands and peninsulas of continents which are subject to the territorial sovereignty of the sub-Arctic State in the Arctic Sector68 of which they are situated.69 Therefore on the status of the Arctic Ocean it has been argued that its glacial surface does not affect its legal status and does not justify its assimilation to the surface of the globe. This means that the fl oating ice formations, of whatever classifi cation, must, from a legal point of view, be regarded as a part of the ocean itself.70

In the 1970s, although authors such as Pharand had observed that the freedom of overfl ight was being exercised in the suprajacent airspace of the Arctic,71 in present times the existence of polar routes thereto (see fi gure 4 below) would indicate that the use of polar airspace, with the attendant right to conduct aeronautical communications for non-safety purposes such as S-APC, falls within the scope of arrangements involving individual States. In this respect, although the new cross-polar routes take international fl ights over previously untraveled territory, commercial airlines have been fl ying in the polar region north of the Arctic Circle for more than 40 years. In 1954, Scandinavian Airlines System (SAS) inaugurated the DC-6B service from Copenhagen to Los Angeles via Sondre Stromfjord. In 1957, SAS began the polar service from Copenhagen to Tokyo via Anchorage. From that time through the mid-1980s, fl ights through the polar region increased as Anchorage became the primary stopping point for passenger traffi c between Europe and East Asia. In 1983, Finnair inaugurated the fi rst non-stop service from Europe to Japan by fl ying from Helsinki north through the polar region and down the Bering Strait to Tokyo. Today, hundreds of fl ights operate each week over the interior of Russia en route between Europe and Asia. Similarly, a large volume of traffi c crosses the Atlantic north of Iceland and the Arctic Circle on fl ights between Europe and the West Coast of North America. Development of the

68 On the various schools of thought attempting to explain the legal status of the Arctic sea and the analysis of various writers regarding the “Sector Principle” see Grief, supra note 8, at 24-28; A. Watts, International Law and the Antarctic Treaty System, Hersch Lauterpacht Memorial Lectures (1992) at 113. See also Cooper, supra note 40, at 171- 193.69 See note 80 below.70 See O. Svarlien, The Legal Status of the Arctic, American Society of International Law (1958), at 142-143; M. W. Mouton, The International Regime of the Polar Regions, 111 Recueil des Cours 201, at 207 (1962) cited in J. Kish, The Law of International Spaces 36 (1973).71 D. Pharand, The Law of the Sea of the Arctic 176-179 (1973).


new cross-polar routes began in 1994 when the Russian government initiated work with the airlines and the international community to establish a series of polar routes through its airspace. By mid-1998, the four cross-polar routes were defi ned and made available for demonstration fl ights. The fi rst offi cial polar route fl ight by a commercial airline was conducted in July 1998. US and Asian airlines then conducted more than 650 demonstration fl ights under special arrangements with Russian authorities. Today, airlines operate non-stop 747 and 777 service to destinations in Asia via the polar routes.72

Figure 4Cross-Polar Air Routes73

© ICAO

The main cross-polar route, known as Polar 1, generally offers effi cient routing from West Coast cities such as Vancouver and Los Angeles to destinations on the Indian subcontinent. The other main cross-polar routes,

72 Boeing Aeromagazine, Polar Routes Offer new Opportunities, No.16, http://www.boeing.com/commercial/aeromagazine/aero_16/polar_route_opp.ortunities.html (last accessed on 26 July 2006).73 Map of Cross Polar Routes, in Appendix 9 to Document ALLPIRG/4-WP/33 2/2/01 Fourth Meeting of the ALLPIRG/Advisory Group (Montreal, 6-8 February 2001). Agenda Item 2.1: Interregional Coordination and Harmonization Mechanism – Harmonization of Air Navigation Systems. New Intercontinental Routes in Russian Airspace (Presented by the Russian Federation).

114 CHAPTER FOUR

Polar 2, 3, and 4, generally are for fl ights connecting cities in eastern and central North America with destinations in China and East Asia. Several interlinking airways among the four major routes provide additional fl exibility. In this respect, and pursuant to ICAO Assembly Resolution A33-13 (Use of Crosspolar Routes) it is stated that the establishment of a formal structure was the result of the combined efforts made by Canada, China, Finland, Germany, Iceland, Japan, Mongolia, Norway, the Russian Federation and the United States who demonstrated an unprecedented spirit of international cooperation in resolving this most complex task. Furthermore, the structure became operational on 1 February 2001, with the announcement of the Russian Aviation Authorities about the implementation of the cross-polar airways system traversing the waters of the Arctic Ocean. More specifi cally, Resolution A33-13 provides that the “use of cross-polar routes shall be open for aircraft of all Contracting States in accordance with the provisions of the Convention on International Civil Aviation.” In both Polar Regions i.e. the Arctic as well as the Antarctica (discussed hereinafter), use has been made of lines of longitude converging at the poles to produce a sector of sovereignty by a number of States (Canada and the former USSR). Brownlie contends74 that while the ‘sector’ principle does not give title which would ordinarily arise if the necessary State activity occurs, it represents a reasonable application of the principles of effective occupation75 as they are now understood, and as they were applied in the Eastern Greenland case.76 Note, however, that if a national claim to exercise territorial sovereignty over Arctic land areas is valid, the claimants State’s sovereignty extends to the territorial sea and the suprajacent airspace in accordance with the normal rules of international law, i.e., the 1982 UNCLOS and 1944 Chicago Convention. This assertion should be considered in the context of the fact that the Arctic itself has been determined to be an area of fl oating sea-ice without any underlying land mass. Thus, the basis for applying the sector principle in this region becomes questionable on the grounds that there is no polar land mass for sector claims to relate to and the land base for the sector is part of a land mass which is external to and distinct from, although adjacent to, the area covered by the sector claim.77 The assertion should also be understood in the light of the fact that the sector principle has neither been confi rmed by rules

74 Brownlie, supra note 2, at 148.75 Contemporary approaches to international law consider three primary matters with respect to sovereignty over territory: effective occupation, consent and the right to self-determination. The main basis for establishing sovereignty over territory today is by effective occupation, being the continuous and peaceful display of sovereignty. See Brownlie, supra note 2, at 136-142; Dixon & McCorquodale, supra note 7, at 258; Island of Palmas Case (The Netherlands v. United States) 2 RIAA (1928) 829.76 Legal Status of Eastern Greenland Case (Norway v. Denmark) PCIJ Rep Ser A/B (1933), No. 53.77 Watts, supra note 68.


of international law nor established as a principle of customary international law and is generally not considered as a suffi cient legal basis of title by several writers on the subject.78

That said, John Kish’s contention is instructive on the subject as he states:79

the geographical position of the Arctic region determines the system of their delimitation. The central area of the Arctic consists of the Arctic Ocean surrounded by remote islands and peninsulas of continents. Arctic peninsulas and islands are subject to territorial sovereignty of the sub-Arctic State in the Arctic sector of which they are situated. The relative proximity of Arctic land territories to continents constitutes a basis of territorial sovereignty over them. As regards Arctic peninsulas, the principle of continuity, as regards Arctic islands, the principle of contiguity, justifi es the appropriate application of the sector system to them. Moreover, as Arctic peninsulas and islands are situated relatively far from the North Pole, States have been able to exercise some effective control over certain parts of them in their Arctic sectors. Thus effective control affi rms the admissibility of territorial sovereignty of Arctic land territories.80

Still on the subject of the Arctic, according to Article 76, the coastal State may establish the outer limits of its juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by meeting the requirements stated for the thickness of sedimentary rocks, by satisfying geomorphological requirements and by meeting distance and depth criteria, or by any combination of these methods (Article 76, paragraphs 4-7).81

78 See Grief, supra note 8, at 24-28; Watts, supra note 68, at 121; Cooper, supra note 40, at 189.79 Kish, supra note 70, at 26.80 Kish further reports, and rightly so

that Five States have land territories in their Arctic sectors. viz: The United States acquired sovereignty over Alaska by the American-Russian Treaty of 30 March 1867. The Soviet Union has sovereignty over her Arctic Peninsula and islands. A Soviet Decree of 15 April 1926 declared sovereignty over all land and islands within the Soviet Arctic Sector. Norway obtained sovereignty over the Spitsbergen in 1905. The Paris Convention of 9 February 1920 recognized Norwegian sovereignty over the Spitsbergen. Denmark has sovereignty of Greenland. According to the Danish-Swedish Kiel Peace Treaty of 14 January 1814, Greenland belongs to Denmark. Denmark sovereignty over the whole of Greenland was accepted and the Norwegian claim of 10 July 1931 was disapproved by the judgement of the Permanent Court of International Justice in the Eastern Greenland Case on 5 April 1933. Canada affi rmed her sovereignty over the Arctic peninsulas and Islands by a decree of 1 June 1925. Arctic lands are subject to the sovereignty of the Sector State.

See Kish, supra note 70, at 26.81 See http://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm#defi nition

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In implementing the provisions of Article 76, States have to submit details pertaining to the limits of their outer continental shelves to the United Nations Commission on the Limits of the Continental Shelf. That Commission is empowered to provide technical and scientifi c advice and to make recommendations based upon which States may establish boundaries. Though one must acknowledge the diffi culty posed in applying the complicated criteria set forth in Article 76, and in spite of the principles on continental shelf delimitation developed by the ICJ, it is submitted that the status quo of the cross polar air routes will remain preserved. This is especially true because Article 78 of UNCLOS provides that the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above such waters. In other words, the coastal State is not granted under the UNCLOS any special rights or jurisdiction or precedence or priority with respect to the airspace above the waters superjacent to the continental shelf. On the contrary, the exercise of rights of the coastal State over the continental shelf must not infringe or result in any unjustifi able interference with navigation and other rights and freedoms of other States as provided for in the Convention. Such rights it is submitted would include the freedom of overfl ight. Consequently, in the Fall of 2004, the Danish government made a renewed claim to the United Nations Commission on the Limits of the Continental Shelf regarding the North Pole based on new geological data claiming to show that the North Pole and Greenland are linked by a 1,240km underwater mountain range called the Lomonosov Ridge. Simply put, this claim stems from the ratifi cation of the 1982 UNCLOS by Denmark, pursuant to which a coastal state has additionally, according to Article 76 of the Convention, a means of ensuring international recognition of its national sovereign rights and jurisdiction in the marine areas beyond the limits of the 200 nautical miles exclusive of the EEZ on a submerged prolongation of the land mass. However, as far as the thrust of this work is concerned vis-à-vis the issue of the Arctic Ocean and the right to fl y, the words of Cooper provide a most exact description, viz:

If any area on the surface of the earth, whether land or water, is recognized as part of the territory of a State, then the airspace over such area is also part of the territory of the same State. Conversely, if any area on the earth’s surface is not part of the territory of any State, such as the water areas included in the high seas, then the airspace over such surface areas are not subject to the sovereign control of any State and are free for the use of all States.82

(last accessed on 26th July 2006). See also R. Smith & G. Taft, Legal Aspects of the Continental Shelf, in P. J. Cook & C. M. Carleton (Eds.), Continental Shelf Limits – The Scientifi c and Legal Interface, 17 (2001).82 Cooper, supra note 40, at 172.


2.3. Antarctic Airspace83

Quite like the Arctic region, Antarctica is not without its own international legal complexities. The principal difference, however, with far reaching consequences, is that Antarctica is a land mass and remains subject to the provisions of the 1959 Antarctic Treaty84 that came into force on 23 June 1961,85 the effect of which, as far as the subject of sovereignty is concerned, has presumably frozen the existing claims86 and potential claims87 that could be made by States in Antarctica, noting that non-claimant States do not assert claims or recognize the legal validity of other claims. The area itself is defi ned under Article VI to the Antarctic Treaty, as “the area south of 60˚ South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” Bearing the above facts in mind, any attempt to answer the questions pertaining to claims of sovereignty to parts of Antarctica by States and by consequence the airspace thereto, would require an examination of the provisions of Antarctic Treaty’s Article IV which states that:

1. Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of

or claims to territorial sovereignty in Antarctica;

83 See R. Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource activities, An attempt to break new ground 34-37 (1991); Watts, supra note 68, at 111-140; D. Rothwell, The Polar Regions and the Development of International Law 75-81, 285-293 (1996); T. Scovazi, The Antarctic Treaty System and the New Law of the Sea, in F. Francioni & T. Scovazi (Eds.), International Law for Antarctica, 377 (1996).84 UNTS 402 (1961) 71-102. The Antarctic Treaty together with four separate international agreements provide the rules which govern activities in Antarctica and are collectively known as the Antarctic Treaty System. The four international agreements are: Convention for the Conservation of Antarctic Seals (1972) 11 ILM (1972), at. 251; Convention on the Conservation of Antarctic Marine Living Resources (1980) 19 ILM (1980), at. 841; Convention on the Regulation of Antarctic Mineral Resource Activities (1988) 27 ILM (1988), at 868; Protocol on Environmental Protection to the Antarctic Treaty (1991) 30 ILM (1991), at 1461. See A. Van der Essen, The Origin of the Antarctic System, in F. Francioni & T. Scovazi, (Eds), International Law for Antarctica, 17 (1996), at 25-29; D. Vidas, The Antarctic Treaty System in the International Community: An Overview, in O. S. Stokke & D. Vidas (Eds.), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System, 35 (1996).85 At present, forty fi ve countries have acceded to it. Consultative (voting) status is open to all countries who have demonstrated their commitment to the Antarctic by conducting signifi cant research. Twenty seven nations have Consultative status. 86 Seven States, namely: Chile, Argentina, United Kingdom, Norway, Australia, France and New Zealand had made claims to territorial sovereignty in Antarctica. 87 In 1958 both the United States of America and the USSR, had reserved all rights arising from the previous activities of their nationals, as a consequence of which both States were referred as States asserting a basis of claim.

118 CHAPTER FOUR

b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State‚s rights of or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.

In addition, the Antarctic Treaty’s Article VII (4) remains pertinent because it states that “[a]erial observation may be carried out at any time over any or all areas of Antarctica by any of the Contracting Parties having the right to designate observers.” These provisions must be construed in the light of the fact that were Antarctic claims to be regarded as valid, such claims would extend beyond the claimed territory (in this case a “sector”) to the territorial sea and suprajacent airspace. If this were to be the case, then only in the airspace beyond the claimant State’s territory does the freedom of overfl ight prevail. Whereas, if a territorial claim is invalid, or if there is no claim, the waters adjacent to the coast would be considered as high seas and the airspace above those waters would be subject to the international regime of the airspace of the high seas, i.e., the UNCLOS 1982 and Chicago Convention of 1944. With regards to the validity of Antarctic territorial claims (of which diverse views exist)88 it is contended by Rothwell, that89

The provisions of the Antarctic Treaty have sought to take into account the positions of each of the various parties which had an interest in Antarctica at the time of the Treaty’s negotiation and can be interpreted to mean:

1. The treaty is not to be taken as a renunciation of existing claims to territorial sovereignty by any party.

2. The treaty is not to be taken as a renunciation or diminution of any basis of claim to territorial sovereignty which any party may have.

3. The treaty does not prejudice the position of any party as regards its recognition or non-recognition of any other party’s right of or claim to territorial sovereignty in Antarctica.

4. The reality of this ambiguous situation, as far as claims to sovereignty in Antarctica and attendant airspace is concerned, is evidenced by the

88 See J. S. Reeves, Antarctic Sector, 33 AJIL (1993), at 519 and 521 wherein it is contended that the sector principle as applied to at least Antarctica is now a part of the accepted international legal order. For opposing views, see Brownlie, supra note 2, at 148; J. G. Starke, Introduction to International Law 163 (1989); C. H. M. Waldock, Disputed Sovereignty in the Falkland Island Dependencies, 25 BYIL 345 (1948); Watts, supra note 68. 89 Rothwell, supra note 83.


continuing claims to sovereignty and jurisdiction by States even in recent times.90

That said, it must also be noted with respect to Antarctic airspace that overfl ights to Antarctica were suspended for many years following the Air New Zealand DC-10 crash on the side of Mount Erebus in 1979. Regular airborne tourism began in 1977 and developed using long range passenger aircraft fl ying from Australia and New Zealand. Almost all of these fl ights overfl ew parts of Antarctica and returned home without landing. Airborne tourism diminished considerably following the tragic crash on Mount Erebus, Ross Island, on 28 November 1979 with the loss of 257 lives. Since then, the Report of the XIIth Antarctic Treaty Consultative Meeting recommended to their Governments with respect to commercial overfl ights in Antarctica that they notify commercial aircraft operators that the present level of tourist overfl ight activity:

i) exceeds existing capabilities for air traffi c control, communications and search and rescue in the Antarctic;

ii) may interfere with normal operational fl ights in support of expeditions engaged in ongoing scientifi c programs in the Antarctic;

iii) exceeds the capacity of their Antarctic operations to respond adequately to an unplanned emergency landing.

The legal controversies surrounding claims to Antarctica combined with the effect of the Antarctic Treaty’s Article IV lead this author to conclude that such claims have been effectively suspended or frozen. We will also recall that the original twelve Antarctic Treaty Consultative Parties91 which constituted a relatively small management group, have been joined by a further fi fteen States that have all demonstrated their commitment to substantial Antarctic scientifi c research and accordingly participate within decision making in relation to, and management of, Antarctica.92 With the increased universal acceptance of the legitimacy of the Antarctic Treaty system, coupled with the internationalisation of a management process pre-occupied with protecting the Antarctic environment, it can be submitted that individual States do not possess any specifi c rights to control air traffi c, including S-APC activity.93

90 See e.g., Proclamation (Maritime Zone) No. 1 of 1993 in UN, Law of the Sea Bulletin, No 24, 1993, at 47, wherein the United Kingdom established a 200-mile maritime zone around South Georgia and the Sandwich Islands. Also by Proclamation of 26 July 1994, Australia established a 200 mile EEZ in relation, inter alia, to the external territories, which include the Australian Antarctic Territory.91 Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, Russia, United Kingdom and the USA.92 See K. Scott, Institutional Developments Within The Antarctic Treaty System, 52 ICLQ 475-476 (2003).93 All the treaty instruments concluded by the Antarctic Treaty Consultative Parties after the Antarctic Treaty of 1959 have an environmental focus. Scott, supra note 92, at 474.

120 CHAPTER FOUR

3. Right of States to Control Territorial Communications94

In the preceding chapter it was established that the potential disadvantages of using radio waves as a transmission medium, such as its susceptibility to man-made interference and its fi nite nature, underscore the method by which its use is regulated, albeit inter alia recognising the sovereign right of each State to regulate its telecommunication. Both disadvantages have long been acknowledged and constitute the cornerstone for the worldwide regulation of this widely sought but scarce natural resource. As a consequence frequency bands allocated, on a regional basis, and radio frequencies allotted for various purposes by the ITU, which stand recorded on a Table of Frequency Allocations, specify the different parts of the spectrum that have been allocated for each of the major radio services, thereby giving each State the opportunity to assign frequencies with the propagation characteristics that suit each Aeronautical Earth Station through which S-APC services are offered. In addition to this discretion exercised by States with regards to the assignment of radio frequencies, provisions of the Radio Regulations establish fi rstly, that the party conducting transmissions within the territory of a State has to acquire a license from the State concerned, and secondly that the transmissions are conducted in accordance with the laws and regulations of the said State.95 These instruments, as noted earlier, are binding on those ITU member States, which have elected to ratify them. It is interesting to note also that the exclusive sovereignty exercised by States in controlling communications within their territory, is also capable of being ‘waived’ by special agreement.96 In this respect, a variety of agreements have been concluded between and amongst States to facilitate the mutual recognition of licensing requirements.

3.1. Case Studies on the Concept of Sovereignty in International Telecommunications

Theoretical debates, controversies and even legal disputes arising from the application of the concept of State sovereignty in international telecommunications have arisen in a number of high profi le situations. Of

94 See generally, P. Malanczuk, Freedom of Information and Communications, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Volume II, 976 (1993).95 See Article 24 paragraph 1 of the Radio Regulations which states that

[n]o transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate from and in conformity with the provisions of these Regulations by the government of the country to which the station in question is subject.

96 See also Article 24 paragraph 2 of the Radio Regulations.


note is the claim by a number of equatorial States following the 1976 Bogotá Declaration;97 and also the suit brought before the European Court of Human Rights in the case of Autronic v. Switzerland.98 In the fi rst instance, on 3 December 1976, at a meeting in Bogotá, Colombia, eight equatorial countries, including Brazil, Colombia, Congo, Equador, Indonesia, Kenya, Uganda, and Zaire, issued a declaration laying claim to sectors of the geostationary orbit above their respective territories. No rights were claimed to the space in-between sovereign airspace and the geostationary orbit. The Declaration states:

Devices to be placed permanently on the segment of a geostationary orbit of an equatorial State shall require previous and expressed authorization on the part of the concerned State, and the operation of the device should conform with the national law of that territorial country over which it is placed. The substance of the argument of the equatorial states, therefore, is that the segments of geostationary synchronous orbit are part of the territory over which Equatorial States exercise their national sovereignty. The Equatorial countries in the declaration sought to proclaim and defend on behalf of their peoples, the existence of their sovereignty over this natural resource. In qualifying this orbit as a natural resource, Equatorial states reaffi rm ‘the right of the peoples and of nations to permanent sovereignty over their wealth and natural resources that must be exercised in the interest of their national development and of the welfare of the people of the nation concerned’, as it is set forth in Resolution 2692 (XXV) of the United Nations General Assembly entitled ‘permanent sovereignty over the natural resources of developing countries and expansion of internal accumulation sources for economic developments.’99

Although claims of sovereignty in 1976 by a group of equatorial States to the portion of the geostationary orbit above their respective territories was rejected by the developed countries and did not receive much support from other developing countries, the issue continued to be discussed by the Legal Sub-Committee of the UNCOPUOS in the context of the question of the defi nition and delimitation of outer space.100

97 Haanappel, supra note 22, at 24; I. H. Ph Diederiks-Verschoor, An introduction to Space Law 22-23, 103-104 (1999); P. L Meredith & G. S. Robinson, Space Law: A Case Study for the Practitioner – Implementing a Telecommunications Satellite Business Concept 37-41 (1992); C. C. Okolie, Applicability of International Law to Telecommunications Satellites in Geostationary Orbit In the Interest of the Developing Countries, 26 Proc. Coll. L. Outer Space 49 (1983); M. N. Andem, International Legal Problems in the Peaceful Exploration and Use of Outer Space 159-184(1992).98 12 EHRR 485, Judgement of May 22, 1990 – 15/1989/175/231. See also Groppera Radio AG Case (Judgement of March 28, 1990 – 14/1988/158/214) concerning restrictions on the distribution of radio programmes by cable operators.99 Article 3 sub D of the Bogotá Declaration of 1976.100 See UN Doc. A/AC.105/769, Historical Summary on the Consideration of the Question on the Defi nition and Delimitation of Outer Space – Report of the Secretariat.

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A second instance where the application of the concept of State sovereignty in international telecommunications arose was before the European Court of Human Rights which is one of the institutions established for the enforcement of the obligations entered into by Contracting States. Under the Convention on Fundamental Human Rights and Freedoms, complaints can be brought against Contracting States either by other Contracting States or by individual applicants (individuals, groups of individuals or non-governmental organizations). Recognition of the right of individual application is, however, optional and it could therefore be exercised only against those States, which have accepted it. In other words, the Convention operates on the basis of the political consensus among a relatively homogenic regional group of States and a working system of judicial implementation.101

When the Court fi nds that there has been a violation of the Convention, and if the domestic law of the State concerned allows only partial reparation to be made, it may award the victim just satisfaction (Article 50 of the Convention). Contracting States to the Convention include: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom. In this matter, on 22 May 1990, in the case of Autronic AG v. Switzerland, the applicant company specialized in home electronics and, inter alia, in dish antennae for home use.102 It sought permission to show at an exhibition a public Soviet television programme which it received by means of a private dish antenna directly from a Soviet satellite. This was not a direct broadcasting, but a telecommunication satellite. The Swiss authorities replied that it could not permit the reception of transmissions from the satellite without the express approval of the Soviet authorities, failing which it was bound to prevent any such reception. The applicant company complained of the fact that the free reception of uncoded satellite communications intended for the general public was being made subject to the broadcasting State’s approval. In the Court’s view, neither its legal status as a limited company nor the fact that its activities were commercial nor the intrinsic nature of freedom of expression could deprive Autronic of the protection of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 provides as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas

101 Malanczuk, supra note 94, at 980.102 12 EHRR 485, Judgement of May 22, 1990 – 15/1989/175/231.


without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confi dence, or for maintaining the authority and impartiality of the judiciary.

The Court held that the said Article applies to “everyone”, whether natural or legal persons, and concerns not only the content of the information but also the means of transmission or reception. Reception of television programmes by means of an aerial comes within the right laid down in Article 10 (1). In summary, and on the subject of sovereignty, though the Court held that there had been a violation of Article 10 (16 votes to 2), arguments were put forward to the effect that it is for each State to take whatever measures are necessary to prohibit or prevent reception of transmissions, if such State does not wish its citizens to receive same. It is submitted that this decision underscores the concept of sovereignty in international telecommunications. This is because the decision affi rms the fact that the onus was on the Swiss authorities to take whatever measures were necessary to prohibit or prevent reception of transmissions if it did not wish its citizens to receive same. In other words, the Swiss authorities ought to have exercised sovereign rights within its territory as opposed to seeking the approval of the Soviet authorities in order to permit the reception of transmissions from a satellite by Swiss citizens on Swiss territory.

4. International Trade Law Aspects of International Economic Law

The fact that the provision of S-APC services rests upon a global system architecture functioning within a legal and regulatory framework subject to the interdependence existent between nation states, justifi es the reasoning that such interdependence will give rise to interactions between States, actions by States and certain actions by individuals, corporations, international organizations and other actors on the international plane. A major aspect of the legal principles arising from this interaction is in the area of international economic law. This recently created and continuously evolving area of international law brings an added dimension to the regulation of inter-State trade, by creating international institutions, defi nite rules governing a wide range of economic matters and the provision of dispute settlement methods

124 CHAPTER FOUR

and, consequently, the most appropriate organization, whose activities and working methods deserve consideration when applied to S-APC, would be the WTO. In this respect, the Basic Telecommunications Agreement (BTA), its associated Reference Paper and the WTO/GATS are, when combined, of great signifi cance to the circulation of mobile satellite user terminals – including aeronautical earth stations by which S-APC services can be offered. Especially since fi fty-three governments allocated sector ‘o’ to some or all types of satellite-based mobile service, described as an “other” category in the GATS Sectoral Classifi cation List which breaks down telecommunications into fourteen sub-sectors. It can thus be deduced that the combined effect of the GATS and BTA would enhance the ability for, inter alia, global mobile satellite systems to surmount regulatory obstacles to the provision of telecommunications services, including S-APC, on a global basis. It is interesting to note, however, that Dixon and McCorquodale have argued that the sovereignty of States could be considered to be under threat by the interaction and interdependence of the world economy, and the resulting inability of governments to give force to national policy objectives because of the ratifi cation of international economic agreements.103 This argument, based upon circumstances that have been examined by other writers,104 is based upon separate analysis drawing upon the practices of the International Monetary Fund and the WTO respectively, and concludes that both the ratifi cation of international economic agreements and the application of these agreements by the international economic institutions have placed signifi cant limits on State sovereignty.105 The argument presented by Dixon and McCorquodale can be put to test by referring to the actual workings of the dispute resolution panel of the WTO.106 Thus, in the year 2000 a Request for Consultations was fi led before the Dispute Settlement Body (DSB) of the WTO, by the United States in accordance with Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes and Article XXIII of the GATS regarding Mexico’s commitments and obligations under the GATS with respect to basic and value-added telecommunications services.

103 Dixon & McCorquodale, supra note 7, at 549.104 P. A. Salin. Non- Trade Globalisation issues and Space Communications, 7 Telecom. & Space J. 130 (2001).105 It has been argued that a growing number of actors – actors other than the State – appear to have taken on authoritative roles and functions in the international system. Many of these new actors have often been closely associated with the practices associated with the phenomenon of globalization. See R. B. Hall & T. Biersteker, The Emergence of Private Authority in Global Governance, 85 Cambridge Studies in International Relations 3 (2002).106 For a detailed commentary on the WTO dispute resolution panel, see J. Cameron & K. R. Gray, Principles of International Law in the WTO Dispute Settlement Body, 50 ICLQ 248 (2001).


We will recall that basic telecommunications include all telecommunication services, both public and private, that involve end-to-end transmission of customer supplier information. Basic telecommunication services are provided through cross-border supply and through the establishment of foreign fi rms or commercial presence, including the ability to own and operate independent telecom network infrastructure. Examples of basic telecommunication services are: (a) voice telephone services (b) packet-switched data transmission services (c) circuit-switched data transmission services (d) telex services (e) telegraph services (f) facsimile services (g) private leased circuit services (o) other analog/digital cellular/mobile telephone services, mobile data services, paging, personal communications services, satellite-based mobile services (including e.g., telephony, data, paging, and/or PCS), fi xed satellite services, VSAT services, gateway earth station services, teleconferencing, video transport, trunked radio system services. Categories covered by basic telecommunication commitments, unless otherwise specifi ed, are local, long distance, international, wire-based (including, e.g. all types of cables and, usually, radio portions of fi xed infrastructure), radio-based (all forms of wireless, including satellite), on a resale basis (non-facilities based supply), facilities-based supply, for public use (i.e., services that must be made available to the public generally), or non-public use (e.g. services provided for sale to closed user groups). Value-added telecommunications services on the other hand are telecommunications for which suppliers “add value” to the customer’s information by enhancing its form or content or by providing for its storage and retrieval. Examples include: on-line data processing, on-line data base storage and retrieval, electronic data interchange, e-mail, voice mail. The request for Consultations stated inter alia that, Mexico’s GATS commitments and obligations require Mexico to:

Provide market access and national treatment for basic and value-added telecommunications services (GATS Articles XVI and XVII and Mexico’s Schedule of Specifi c Commitments annexed to the GATS); Maintain appropriate measures for the purpose of preventing a major supplier of basic telecommunications services from engaging in or continuing anti-competitive practices, such as anti-competitive cross-subsidization (Section 1 of the Reference Paper on Pro-Competitive Regulatory Principles (the Reference Paper), which Mexico has inscribed in its Schedule of Specifi c Commitments as “additional commitments” pursuant to GATS Article XVIII); Ensure interconnection with a major supplier at any technically feasible point in the network; under non-discriminatory terms, conditions and rates; in a timely fashion; and at cost-oriented rates that are transparent, reasonable, and suffi ciently unbundled; and to provide recourse to an

•

•

•

126 CHAPTER FOUR

independent domestic body to resolve interconnection disputes within a reasonable period of time (Section 2 of the Reference Paper);Administer any universal service obligation in a transparent, non-discriminatory, and competitively neutral manner that is not more burdensome than necessary for the kind of universal service defi ned by Mexico (Section 3 of the Reference Paper); Ensure that its regulatory body is not accountable to any supplier of basic telecommunications services and that the regulator’s decisions and procedures are impartial with respect to all market participants (Section 5 of the Reference Paper); Administer in a reasonable, objective, and impartial manner its laws, rules, regulations, and other measures of general application affecting trade in basic and value-added telecommunications services (GATS Article VI:1); andEnsure access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions for the supply of basic and value-added telecommunications services and ensure that relevant information on conditions affecting access to and use of public telecommunications transport networks and services is publicly available (GATS Annex on Telecommunications, Sections 4 and 5).

The request fi led by the US alleged further that since the entry into force of the GATS, the Government of Mexico has adopted or maintained anti-competitive and discriminatory regulatory measures, tolerated certain privately established market access barriers, and failed to take needed regulatory action in Mexico’s basic and value-added telecommunications sectors. These acts and failures to act, in the opinion of the US, raise serious questions regarding whether Mexico is in compliance with its GATS commitments in these sectors, stating that Mexico:

Enacted and maintained laws, regulations, rules, and other measures that deny or limit market access, national treatment, and additional commitments for service suppliers seeking to provide basic and value-added telecommunications services into and within Mexico;Failed to issue and enact regulations, permits, or other measures to ensure implementation of Mexico’s market access, national treatment, and additional commitments for service suppliers seeking to provide basic and value-added telecommunications services into and within Mexico;Failed to enforce regulations and other measures to ensure compliance with Mexico’s market access, national treatment, and additional commitments for service suppliers seeking to provide basic and value-added telecommunications services into and within Mexico;

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Failed to regulate, control and prevent its major supplier, Teléfonos de México (Telmex), from engaging in activity that denies or limits Mexico’s market access, national treatment, and additional commitments for service suppliers seeking to provide basic and value-added telecommunications services into and within Mexico; andFailed to administer measures of general application governing basic and value-added telecommunications services in a reasonable, objective, and impartial manner, ensure that decisions and procedures used by Mexico’s telecommunications regulator are impartial with respect to all market participants, and ensure access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions for the supply of basic and value-added telecommunications services.107

In the light of the above, the United States considered that the action and inaction described may be inconsistent with Mexico’s GATS commitments and obligations, including Articles VI, XVI, and XVII; Mexico’s additional commitments under Article XVIII as set forth in the Reference Paper inscribed in Mexico’s Schedule of Specifi c Commitments, including Sections 1, 2, 3 and 5; and the GATS Annex on Telecommunications, including Sections 4 and 5. By November 2003, in what was regarded as a key decision for US long-distance telecommunications companies, the WTO issued a preliminary ruling regarding price-setting for cross-border services. Accordingly, the WTO panel ruled that charges to US telecommunications companies for the connection of long-distance calls to the network of dominant domestic operator Telmex were artifi cially high and not based on cost. Telmex has the option to appeal the decision. Subject to any appeals, Telmex must lower its interconnection rates for US carriers or face sanctions and on a consequential note, the Mexican telecommunications regulator, Cofetel is currently taking steps to amend the regulations pertaining to long-distance telecom services into and from Mexico.108 Finally, it is reported that on 1 June 2004, the DSB adopted its recommendations and rulings in Mexico–Measures Affecting Telecommunications Services (WT/DS204). On that same date, the parties to the dispute notifi ed an agreement on implementation. The agreement specifi es that the reasonable period of time for Mexico to comply is 13 months, which expired in July 2005. In accordance with the agreement, the Government of Mexico has complied with the fi rst phase of it, as indicated in its status report of 6 December 2004. Mexico is

107 A list of specifi c actions and failures to act by the Government of Mexico of the sort described were set forth in Annex 1 to the Request for Consultations.108 For analysis of the impact of the WTO treaty and its consequences vis-à-vis dispute settlement in international law, see J. H. Jackson, International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to “Buy Out”, 98 AJIL 109 (2004); J. Pauwelyn, The Role of Public International Law in the WTO: How Far can we Go, 95 AJIL 535 (2001).

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128 CHAPTER FOUR

furthermore drafting regulations for the establishment of commercial agencies. Once these have been developed, Mexico will have fully complied with the DSB’s recommendations and rulings.109

The Ruling of the DSB constitutes the fi rst successful case directly involving matters of competition policy. In that ruling the WTO Panel, interpreted the Reference Paper incorporated into Mexico’s commitments under the GATS as imposing specifi c obligations banning cartels. In arriving at its decision, the Panel inter alia considered whether Telmex (Mexico’s largest telephone company) used its market position to engage in “anticompetitive practices”. In defi ning “anticompetitive practices”, the Panel, resorting to dictionary defi nitions, described these as “actions that lessen rivalry or competition in the market.” More importantly, the Panel dismissed the argument that because such practices were mandated by Mexican law they could not be considered anticompetitive practices. In this respect, reference was made to Article 27 of the Vienna Convention on the Law of Treaties of 1969, which upholds the principle that domestic law should not be used as a defence to breaching one’s international commitments. The impact of this ruling will certainly become clearer in the long term. In the short term it brings to the fore the reality that as the global economy becomes further integrated within a developing and expanding WTO, the need for a comprehensive set of rules on international competition law has become imperative. Furthermore, it shows the rapidly growing infl uence of the WTO in general global telecommunications matters and domestic regulations that impede trade liberalization. Summarily it can be submitted that, the Basic Telecommunications Agreement (BTA), its associated Reference Paper and the WTO/GATS provide great impetus for the circulation of mobile satellite user terminals, including aeronautical earth stations by which S-APC services can be offered. This is true because the combined effect of the GATS and BTA will enhance the ability for inter alia global mobile satellite systems to surmount regulatory obstacles arising from the liberalisation of trade regimes, with respect to the provision of telecommunications services, including S-APC, on a global basis.

5. Outer Space

In the preceding sections we examined the extent and effect that the principle of State sovereignty plays within different activities and jurisdictions, pertaining to the provision of S-APC. Realising that S-APC constitutes a dynamic activity taking place within the legal and regulatory regimes in force as applicable to outer space; international air transport; international satellite

109 World Trade Organization WT/DS204/9/Add.2, 7 February 2005, (05-0488), Mexico–Measures Affecting Telecommunications Service, Status Report by Mexico, Addendum.


telecommunications; trade aspects of international economics; the State where the aircraft is certifi ed and registered; the State being fl own over; and the State where the ground facilities may have been established, it remains to be seen whether this pivotal sovereignty principle applies to outer space as well. In this respect, the relevant international instrument that sheds light on the matter is the Outer Space Treaty of 1967 and the provisions of its Article II, which provides that “Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This declaration, literally interpreted would mean that States do not exercise sovereignty in outer space. However, the spacecraft/satellite(s) located in space orbit over which radiocommunications signals by which S-APC services are offered, remain subject to the jurisdictional powers exercised by States, albeit under separate provisions of the Outer Space Treaty including inter alia, Articles VI, VII, and VIII. In this respect, the Outer Space Treaty of 1967 makes provision, in its Articles VI and VII respectively, for the responsibility and liability of States involved in space activities. Specifi cally, Article VI imposes responsibility on States Parties to the Treaty to ensure that any space activity carried out by government agencies or non-governmental entities is performed safely and in conformity with the Outer Space Treaty and existing regulations of that State. Space activities performed by non-governmental entities are also subject to continual supervision by that State Party. Thus, where the provision of S-APC services are conducted by private commercial entities, it would be the responsibility of a State(s) Party to the Treaty to ensure that any such activity is performed in compliance with the provisions of the Outer Space Treaty and, hence according to Article III, with international law. In other words, before any space segment activity aimed at providing S-APC services can take place, the commercial entity wishing to perform such operations would have to fulfi l any Outer Space Treaty requirements as well as other requirements established by the State Party to the Outer Space Treaty responsible for the activities of that commercial entity. One writer110 recommends that amongst the most important would be the receipt of prior authorization (also referred to as a license or permit).111

6. Concluding Remarks

Earlier on in this chapter, two pertinent questions were posed in the context of providing S-APC services on-board aircraft overfl ying the airspace of States,

110 See N. Jasentuliyana, Regulation of Space Salvage Operations: Possibilities for the Future, 22 J. Space L. 5 (1994).111 Meredith & Robinson, supra note 97, at 42.

130 CHAPTER FOUR

wherein the said States exercised sovereign rights. The fi rst being the extent to which a State that is overfl own can control certain activities on board a foreign registered aircraft within its territory and secondly, whether the right to overfl ight permits the use of facilities for non-safety communications. With regards to the extent to which a State that is overfl own can control certain activities on board a foreign registered aircraft within its territory, it is pertinent to note that by the year 1990 there were only thirteen national telecommunications regulatory authorities (NTRAs).112 Since that time, the number has roughly doubled every four to fi ve years. Today there are no less than one-hundred and twenty-three NTRAs. During this time, much attention was devoted to forming these organizations, in addition to creating and taking the fi rst steps to apply regulations that implement the telecom policies promulgated by the legislative arm of government. At the same time, these new regulatory authorities have had and continue to grapple with major changes in the telecommunications industry including advances in telecommunications transmission technologies, liberalization, privatisation, and competition. Effective enforcement today is regarded as a critical component of regulating in the public interest, but without the ability to enforce laws, a regulatory regime is truly rendered meaningless. Even in the most deregulated environment, the consequence of effective enforcement is self evident, i.e., to give effect to those rules deemed necessary to maintain order in the sector; to facilitate stability, predictability, progress and investment; to deter wrongdoing; and to maximize social and corporate welfare. Most NTRAs derive their power to enforce regulation fi rst and foremost from their domestic enabling legislation.113 In addition to conferring power to dispose of substantive matters,114 enabling legislation generally empowers the regulatory authority to: (i) inquire; (ii) collect information; (iii) investigate; (iv) determine culpability, and (v) impose penalties. In addition, some regulatory authorities place conditions for enforcement or even enforcement mechanisms in the licenses they issue.115

112 See International Telecommunication Union, Trends in Telecommunication Reform (2002), at 15. 113 One example of an exception to this is Columbia, where the regulatory authority is not responsible for enforcement actions in the telecom sector. Rather, an entirely different government agency maintains this responsibility. Id., at 45.114 For example, Article 8 of Morocco’s Law 24-96, requires the ANRT to establish terms and conditions for interconnection and to establish the procedure for submitting interconnection disputes. The ANRT also must establish the rules governing the radio frequency spectrum. International Telecommunication Union, Effective Regulation: Case Study – Morocco, at 23.115 In Egypt, for example, a system to receive and investigate complaints and repair faults must be specifi ed in a license. In Morocco, quality of service standards are included (and presumably enforced by the National Regulatory Authority or NRA) as license conditions. In others, e.g., Singapore and Brazil, quality of service standards are adopted as regulations applicable to all service providers. Regulatory authorities of the European Union member states must follow the relevant directives issued by this supra-national body.


Second only in importance to a regulatory authority’s enabling act or statute are the day-to-day practices and procedures it employs to implement its laws. In some cases enforcement procedures (or certain of their components) are specifi ed in the enabling statute. Some regulatory authorities have developed separate procedures for industry violators and complaints by consumers/end users. In either case, as many examples indicate, enforcement procedures generally include: (i) providing notice of the alleged infraction; (ii) providing an opportunity to respond; (iii) issuing interim decisions or orders; and (iv) imposing sanctions.116 Many regulators have the power to order operators to produce individual documents or records, and to enter an operator’s premises and seize those documents if operators do not comply. Similarly, some regulators may conduct on-site tests in order to determine an operator’s compliance with type approval, quality of service or radio communication non-interference requirements. Because these are fairly intrusive powers, agency offi cials – such as those in Trinidad and Tobago – must often obtain judicial warrants before they exercise their search and seizure powers. In other countries, however, those powers are granted by statute and may require no judicial pre-clearance.117 Whilst such measures as described above may well suffi ce with regards to certain telecommunication services provided over terrestrial based infrastructure, the matter assumes a fair degree of complexity when one considers the inconsistencies surrounding the use by passengers of communications facilities for non-safety purposes, on-board aircraft relying upon space-based satellite platforms and earth-based ground infrastructure, within legal and regulatory regimes that govern various geographical locations and/or activities involved in the provision of S-APC services. It is submitted therefore, that the ability to regulate and enforce satellite communications in this context does put the sovereignty concept to test and without the ability to enforce laws a national regulatory regime can be truly rendered meaningless.

116 International Telecommunication Union, supra note 112, at 48. Some NTRAs, e.g., Zimbabwe’s POTRAZ, do not have the authority to levy fi nes. This is carried out by the courts. See Contribution of Zimbabwe to ITU-D Question 18/1 (January 2004) at 2.117 Id., at 47.

133

CHAPTER FIVE

Current International Legal and Regulatory Regime

Chapter three described the institutional authorities, legal and regulatory frameworks applicable to Satellite Aeronautical Public Correspondence. This chapter addresses the current state of the international law and regulation in force, stemming from amendments to the ITU Radio Regulations adopted at the 2003 World Radiocommunications Conference; ITU Radiocommunications and Development Sector Recommendations in force; ICAO SARPS; current State practice in implementing the 29th ICAO Assembly Resolution 36/1; national operational procedures governing the use of portable electronic devices on-board aircraft; International Tariff Principles; individual airline policies on use of portable electronic devices and the rules pertaining to copyrights and the protection of programme content.

1. International Telecommunication Union Regulations and Recommendations in Force

1.1. International Telecommunications World Radio Conference 2003

We will recall that the radio frequency band 14-14.5 GHz was allocated to the land mobile satellite service (Earth-to-space) on a secondary basis prior to the World Radio Conference held in 1997 (WRC 1997). At the WRC 1997, this allocation had been replaced by an allocation to the mobile-satellite service (Earth-to-space), except aeronautical mobile-satellite, on a secondary basis. We will also recall that the band 14-14.5 GHz is allocated to the fi xed satellite (Earth-to-space), radionavigation, fi xed and mobile, except aeronautical

134 CHAPTER FIVE

mobile, services. In this regard, at the WRC 2000, and further to Resolution 216 (Rev. WRC-2000)1 it was resolved that the WRC 2002 convened in Istanbul Turkey “examine the possibility of broadening the secondary allocation to the mobile-satellite service (Earth-to-space), except aeronautical mobile-satellite, in the 14-14.5GHz band to include aeronautical use, if the ITU-R studies demonstrate that such a secondary service can be operated without causing interference to the primary services.” Furthermore, the ITU Radiocommunications Sector was invited to complete, in time for WRC 2003, the technical and operational studies on the feasibility of sharing the band 14-14.5GHz between the fi xed-satellite (Earth-to-space), radionavigation, fi xed and mobile, except aeronautical mobile, services, on a secondary basis and the aeronautical mobile-satellite service, with the latter service on a secondary basis. The major responsibility of this task was assigned to the Working Party (WP) 8D, though other ITU Radiocommunications Sector Working Parties and Study Groups WP 4A, 7B, 7C, 7D, 7B 9A, and 9D were also requested to support part of the ongoing work in accordance with their expertise. The WP8D, whilst formulating a variety of sharing scenarios, reported that an Aeronautical Mobile-satellite service (AMSS) terminal on-board an aircraft will radiate power towards a geostationary satellite and only a residual level of interference towards the earth could potentially affect other services in the band. To achieve this, the AMSS terminal antenna will track its dedicated satellite, hence reducing the level of interference radiated towards the other services. To ensure global protection of the aforementioned services, the AMSS terminal will either cease transmission or operate a minimum service (low data rate) during the manoeuvres of the aircraft, for instance at take-off and landing. Following its studies, the WP8D concluded2 that appropriately designed AMSS systems can operate on a secondary basis in the 14-14.5 GHz band

1 Possible broadening of the Secondary allocation to the mobile-satellite service (Earth-to-space) in the band 14-14.5 GHz to cover aeronautical applications.2 The conclusions made by the WP8D and reproduced in the Report of the Conference Preparatory meeting, at Section 2.4, can, with authorisation from the ITU, be obtained at: http://www.itu.int/md/meetingdoc.asp?type=sitems&lang=e&parent=R00-CPM-SP-0001. See also ITU – R Recommendations S.728-1 (Maximum permissible level of off-axis e.i.r.p. density from very small aperture terminals (VSATs) ; RA.611 (Protection of the radio astronomy service from spurious emissions); RA.769 (Protection criteria used for radio astronomical measurement); RA 1513 (Levels of data loss to radio astronomy observations and percentage-of-time criteria resulting from degradation by interference for frequency bands allocated to the radio astronomy on a primary basis); SA.510 (Feasibility of frequency sharing between the space research service and other services in bands near 14 and 15 GHz–Potential interference from data relay satellite systems); SA.1155 (Protection criteria related to the operation of data relay satellite systems); SA.1414 (Characteristics of data relay satellite systems); F.758 (Considerations in the development of criteria for sharing between the terrestrial fi xed service and other services); F.1094 (Maximum allowable error performance and availability degradations to digital radio-relay systems arising from interference from emissions and radiations from other sources);

CURRENT INTERNATIONAL LEGAL AND REGULATORY REGIME 135

without causing harmful interference to services having primary allocations in the band. Additional studies also showed the feasibility of AMSS systems sharing with services operating under secondary allocations in the said band.3 Based on the contributions of the aforementioned WPs, WP8D developed a draft new Recommendation (ITU-R M.1643)4 which was eventually approved at the WRC 2003. Note that with regards to this Recommendation, the Arab Group represented at the Radiocommunications Assembly reserved its position. The Recommendation provides technical guidelines for operation and licensing of AMSS networks to ensure compatible operations with other services operating in the band. The results of these multiple tasks including the draft new Recommendation ITU-R M.1643, were discussed under Agenda item 1.115 at the WRC 2003 held in Geneva from 9 June to 4 July and attended by nearly 2500 delegates. A summary of the results at the WRC-2003 with regards to Agenda Item 1.11 are detailed below:

1.) Article 5 of the ITU Radio Regulations was amended to allocate the 14-14.5 GHz band to AMSS (Earth-to-space) service on a secondary basis by deleting references to ‘except aeronautical mobile’ from the related part of the Table of Frequency Allocations. Four new footnotes (5.BB01, 5.BB02, 5.BB03 and 5.BB04) were added to Article 5 to protect the fi xed service and radio astronomy stations from the earth stations of AMSS. The new footnotes read as follows;a) 5. BB01 – Aircraft earth stations operating in the aeronautical mobile-

satellite service in the band 14-14.5 GHz shall comply with the provisions of Annex 1, Part C of Recommendation ITU-R M.1643, with respect to any radio astronomy station performing observations in the 14.47-14.5 GHz band located on the territory of Spain, France, India, Italy, the United Kingdom and South Africa.

b) 5. BB02 – In the band 14-14.25 GHz, the power fl ux-density produced on the territory of the countries of Saudi Arabia, Botswana, Côte d’Ivoire, Egypt, Guinea, India, Iran, Kuwait, Lesotho, Nigeria, Oman, Syrian Arab Republic and Tunisia by any aircraft earth station in the aeronautical mobile-satellite service shall not exceed the limits given in Annex 1, Part B of Recommendation ITU-R M.1643, unless otherwise specifi cally agreed by the affected administration(s). The provisions

F.1245 (Mathematical model of average radiation patterns for line-of-sight point-to-point radio-relay system antennas for use in certain coordination studies and interference assessment in the frequency range from 1 to about 70 GHz).3 K. N. Gielen., Agenda Item 1.11, WRC-03 Poised to Enable Broadband Connectivity to Aircraft Passengers and Crew, 5 ITU News, Special Issue 7-9 (2003). 4 ITU-R M.1643 Technical and Operational requirements for aircraft earth stations of aeronautical mobile-satellite service including those using fi xed-satellite service network transponders in the band 14-14.5 GHz (Earth-to-space). 5 To consider possible extension of the allocation to the mobile-satellite service (Earth-to-space) on a secondary basis in the band 14-14.5 GHz to permit operation of the aeronautical mobile satellite service as stipulated in Resolution 216 (Rev. WRC-2000).

136 CHAPTER FIVE

of this footnote in no way derogate the obligations of the aeronautical mobile-satellite service to operate as a secondary service in accordance with No. 5.29.

c) 5.BB03 – In the band 14.25-14.3 GHz, the power fl ux-density produced on the territory of the countries of Saudi Arabia, Botswana, China, Côte d’Ivoire, Egypt, France, Guinea, India, Iran, Italy, Kuwait, Lesotho, Nigeria, Oman, Syrian Arab Republic, the United Kingdom and Tunisia by any aircraft earth station in the aeronautical mobile-satellite service shall not exceed the limits given in Annex 1, Part B of Recommendation ITU-R M.1643, unless otherwise specifi cally agreed by the affected administration(s). The provisions of this footnote in no way derogate the obligations of the aeronautical mobile-satellite service to operate as a secondary service in accordance with No. 5.29.

d) 5.BB04 – In the band 14.3-14.5 GHz, the power fl ux-density produced on the territory of the countries of Saudi Arabia, Botswana, Cameroon, China, Côte d’Ivoire, Egypt, France, Gabon, Guinea, India, Iran, Italy, Kuwait, Lesotho, Morocco, Nigeria, Oman, Syrian Arab Republic, the United Kingdom, Sri Lanka, Tunisia and Viet Nam by any aircraft earth station in the aeronautical mobile-satellite service shall not exceed the limits given in Annex 1, Part B of Recommendation ITU-R M.1643, unless otherwise specifi cally agreed by the affected administration(s). The provisions of this footnote in no way derogate the obligations of the aeronautical mobile-satellite service to operate as a secondary service in accordance with No. 5.29.

2.) Footnote 5.AA13 was added to Article 5 ITU Radio Regulations to provide the aircraft earth stations in the secondary aeronautical mobile-satellite service the possibility to communicate with space stations in the fi xed-satellite service in the band 14-14.5 GHz;

3.) Footnote 5.AA14 was added on commitment regarding compliance with notifi cation of aircraft earth stations when using the secondary allocation in 14-14.5 GHz;

4.) Resolution 216 (Possible broadening of the secondary allocation to the mobile-satellite service (Earth-to-space) in the band 14-14.5 GHz to cover aeronautical applications) was suppressed;

5.) With regards to provision of AMSS (including S-APC) at Ku-band, the Conference decided to make a new secondary allocation to aeronautical MSS at Ku-band (14-14.5 GHz). Thus permitting Connexion–by–Boeing to continue deployment of its system. In addition, MTSAT continued its lobbying for a WRC-07 agenda item to reconsider the provisions that provide priority for AMS(R) S in part of L-band–this was eventually put off until the WRC’s to be held in either 2010 or 2011.

1.2. International Telecommunication Union Recommendation D-94

Charging, Billing and Accounting Principles for International Aeronautical Mobile service, and International Aeronautical mobile-satellite service – Recommendation D-94, was prepared by Study Group III of the International


Telegraph and Telephone Consultative Committee)6 and approved under the Resolution No. 2 procedure on 24 January 1992. The Recommendation sets out the charging, billing and accounting principles to be adopted between the service provider and the customer with regards to the four types of aeronautical communications including S-APC. Further to the Recommendation, and as a general principle of aeronautical charging and accounting, it should not normally be necessary to identify the nationality of the calling passenger as well as the nationality/nationalities of the airspace occupied by the aircraft during the calls, bearing in mind the fact that there could be four categories of customers including the passenger, commercial airlines, private aircrafts including military/government and re-sellers.7 Consequently and with regards to communications in the direction air-to-ground for voice and non-voice charges, the Recommendation dictates that the charge may take account of elements that include: airline charge; space segment charge; ground earth station or ground station operator charge; terrestrial public/private network charge; credit/charge card company or billing agency charge. On the other hand, and with regards to communications in the direction air-to-ground for voice and non-voice billing, the Recommendation provides the following guidelines. Firstly, the service provider may bill the passenger by either a commercial credit/charge card,8 an Administration card,9 a debit card (prepayment), or by other means. Secondly, the service provider may bill the commercial airline by either a direct bill or by other means, (e.g. through an Accounting Authority). For the record, the basic role, responsibilities and duties of Accounting Authorities derive from the ITU’s Convention and are set out in Article 66 of the Radio Regulations and Appendix 2 of the Radio Regulations. Though an Accounting Authority was historically associated with a marine radio equipment supplier, an Accounting Authority in the context of S-APC service provision effectively acts as an intermediary between the mobile subscriber and the service providers/network operators. As such, Accounting Authorities must undertake to operate in accordance with the International Regulations and Recommendations of the ITU which defi ne their responsibilities and duties.

6 The predecessor organization of the ITU Standardisation Sector.7 The entity other than an administration authorized to sell the aeronautical mobile service directly to users. 8 For instance, in the event of a service provider billing a passenger via a credit/charge card company, the service provider receives credit/charge card details automatically from the aircraft and sends the call charge details to the credit/charge card companies for inclusion in the passenger’s credit card statements. Subsequently the credit/charge card company reimburses the service provider who makes out payments to other parties as appropriate.9 See Recommendations E.116 05/97 – International Telecommunication Charge Card Service and E.118 02/01 – International Telecommunication Charge Card.

138 CHAPTER FIVE

Thirdly, the service provider may bill a private aircraft operator by either a direct bill, a commercial credit/charge card, a debit card (prepayment), or by other means, e.g. through an Accounting Authority. Fourthly, the service provider may bill a reseller by either a direct bill or by other means.10 Finally, the Recommendation points to the facts that in the context of international accounting for air-to-ground traffi c, there are no international accounting implications arising from this traffi c since it is indistinguishable from existing international traffi c and is included in international accounts in the normal manner. No separate provisions are therefore required. Furthermore, in the context of ground-to-air charging, the establishment of the collection charge is a national matter and international accounting shall occur at rates agreed between the parties participating in the provision of the service. To illustrate the implementation of working procedures set forth under the aforementioned general guidelines, one may look at the procedures of the operational Inmarsat network detailed in its System Defi nition Manual (SDM).11 The SDM ensures that any individual, organization or agency desiring to operate an Aircraft Earth Station (AES) within the Inmarsat system must have the AES installation commissioned for use in the Inmarsat system before its operation is authorized.12 The main objectives of the Inmarsat commissioning process is to ensure, inter alia, that proper accounting and billing arrangements are made. Consequently, the aircraft owner or the AES owner/operator obtains the ICAO 24 bit aircraft address from the relevant national civil aviation authority.13 The ICAO 24 bit aircraft address, together with any other information required, including information related to national licensing requirements, is passed to the applicant to prepare the commissioning application for submission to a Point of Service Activation (PSA).14 The PSA checks the application after satisfying itself that all the requirements of the relevant national authorities have been met (e.g. licences, taxes, fees, etc.) and if it is satisfactory shall process the application through an Electronic Service Activation System.15 Upon receipt of a completed commissioning application Inmarsat notifi es all operational (Ground Earth Station Operators) 10 Note, where either a commercial airline or a private aircraft operator or even a re-seller separately charges a third party for use of this service, the principles are beyond the scope of Recommendation D-94.11 Inmarsat aeronautical system defi nition manual module 7: Commissioning procedures for an Inmarsat aircraft earth station (AES), June 2000.12 “Commissioning” is the term used by Inmarsat to defi ne the process of formal registration before bringing into service each new or modifi ed AES installation.13 The ICAO 24 bit aircraft address is composed of a unique combination of 24 bits, which is assigned to the aircraft by the relevant civil aviation authority of the State of (aircraft) registry.14 The organization through which the application is forwarded to Inmarsat. The Point of Service Activation acts as an interface between the AES and the Inmarsat system in all commissioning matters.15 The system that conducts the transmission of electronic transactions for the commissioning, decommissioning, barring and other functions required for the commissioning of AESs.


GESs, of the bringing into service of the new AES installation and issues a commissioning certifi cate to the AES owner/operator. The commissioning certifi cate specifi es the basic communications capabilities of the AES and any limitations on Inmarsat system access.16 In addition, the Inmarsat Customer Advise Group (CAG) then issues a 24-bit AES identifi er to a corresponding AES number.17

Inmarsat’s authorization to a particular AES installation to access the Inmarsat system is subject to specifi c “Terms and Conditions for the Utilization of the Inmarsat Space Segment by AESs.”18 If the AES installation is of a type with time limited access approval, Inmarsat’s authorization will terminate on the expiration date of the limited access approval. Authorization of access to the Inmarsat system is given to a particular AES installation, of an access approved type, as it exists at the time of commissioning. Therefore, if there are subsequent additions or modifi cations the PSA must be notifi ed promptly and the particular PSA will then determine whether a new commissioning application is required. Note that under the Inmarsat commissioning procedures, the establishment of charges for the telecommunications services provided by any GES is the prerogative of the owner and/or operator of the GES. All accounts for telecommunications services via any GES must be paid without delay as in the event of delayed payment, the GES concerned may discontinue telecommunications services for the AES in default, except for the exchange of distress or safety related traffi c.

1.3. The GMPCS MoU and Arrangements

The GMPCS MoU, mentioned briefl y in chapter three, was prepared in an attempt to overcome specifi c problems, which had the potential of limiting the viability of GMPCS Systems, while at the same time taking into account the genuine concerns of regulatory bodies. On 17 March 2002 the list of signatories to the GMPCS MoU included: administrations, system operators,

16 The basic communications capability of the AES is independent of the specifi c application and comprises one or more of the following: Circuit-Mode Service (voice; data; facsimile) or Packet-Mode Service (data).17 This is the AES number to be used for public correspondence. The Inmarsat AES number is a nine digit decimal number and the fi rst digit is always “5”. The Inmarsat AES number is generated and issued by Inmarsat to the AES owner/operator during the commissioning process. The number is unique to a particular AES installation on a particular airframe. A primary number is issued to all AES whilst an additional alternate number is issued to those AESs requiring direct-dial-in capability.18 See Attachment 3 – Terms and conditions for the utilization of the Inmarsat space segment by aircraft earth stations, System Defi nition Manual, Articles 1 to 7.

140 CHAPTER FIVE

manufacturers, service providers and other entities dealing with satellite telecommunications. The number of signatories is 164 entities, including 80 member States. To facilitate regional, global and transborder roaming, national authorities were invited to mutually recognise type approval and marking procedures for GMPCS terminals, to continue to strive for a single procedure for type approval and to exempt GMPCS terminals from the requirement of an individual license when the essential criteria given in the arrangements are met. In layman terms, type approval is the confi rmation delivered by the competent authority of a State that a particular telecommunications user terminal or equipment is authorised or recognised as suitable to be connected to a particular public telecommunications network. This confi rmation would necessarily comply with a standards document of national or international recognition established by consensus and approved by a recognized body, providing common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in any given context. GMPCS terminals, which will have been issued type approval pursuant to the arrangements, will be marked with the words “GMPCS MoU” and will indicate the name of the GMPCS System for which the use of the given GMPCS terminal has been authorised. To date the GMPCS MoU Registry contains twenty-four terminals, which include twenty multi-mode or single-mode terminals, two pagers and two external antennas. Seven terminal manufacturers have registered their terminals. The number of terminals registered per manufacturer is as follows: Ascom (1), Ericsson (3), Hughes Network Systems (2), Kyocera (5), Motorola (5), Qualcomm (7) and Telit (1). The registered terminals are connected to fi ve systems: ACeS (1), Globalstar (10), Iridium (10), Thuraya (2), and Inmarsat (1).19 Neither AMSS nor S-APC have been considered as traditional GMPCS services, nonetheless, considering the scope of satellite services that may be included in the defi nition of GMPCS, it becomes necessary to apply the workings of this non-binding albeit infl uential agreement. A matter we shall return to in chapter seven.

2. ICAO SARPS and Standards of Other Technical Organizations

We had noted in chapter three that aeronautical telecommunications satellite systems which are designed to be used for the purposes of inter alia providing 19 See ITU. Memorandum of Understanding-GMPCS Fifth Annual Review Meeting (Geneva, 7-8 June 2003) Report on the GMPCS-MoU and the Implementation of the Arrangements, Document 2-E, June 2003.


S-APC, have to comply with international safety regulations based upon a series of Technical Standards and Operational Procedures set forth in documents produced by a three-tier top-down process which commences at the primary international level with documents produced mainly under the auspices of the ITU and ICAO. In the preceding section 1, a number of regulations emanating from the deliberations of the ITU, namely its Radio Regulations and Sector Recommendations, were catalogued. In this section, however, those documents produced mainly under the auspices of the ICAO are addressed, i.e., generic and system independent performance specifi cations known as International Standards and Recommended Practices (“ICAO SARPS”). Reference should also be made to those regulations which are the product of other Technical Standards Organizations notably the EUROCAE, the RTCA and the AEEC. Considering that the standards set by these organizations are quite technical in nature, they have not been examined in any great detail. Suffi ce it to state, however, that the standards include: i) EUROCAE ED-14 / RTCA DO 160 Environmental Conditions and Test Procedures for Airborne Equipment, which defi ne the environmental test conditions for qualifi cation of equipment depending on their location in the aircraft; ii) EUROCAE ED-12 / RTCA DO 178 Software Considerations in Airborne Systems and Equipment Certifi cation, which defi ne the software development rules and requirements for aircraft equipment, according to their certifi cation level; and iii) ARINC Standards. In summary, RTCA/DO-160, inter alia, contains measurement procedures and test limits to determine whether electronic equipment emits excessive radio frequency signals when installed in a particular location on an aircraft. The requirements are harmonized with the EUROCAE ED-14 and therefore technically identical, and acceptable to Europe’s Joint Aviation Authorities (JAA). Furthermore, the need to ensure airborne systems able to withstand both software designs errors and hardware component failures, required complex certifi cation procedures. This need led to the creation of DO-178 in 1980 by the RTCA. In Europe, a parallel effort known as ED-35 was proposed by EUROCAE. In order to avoid duplicity, both groups combined efforts and produced a common certifi cation criterion for software development. Thus, RTCA produced DO-178 and the EUROCAE published ED-12, which have identical content. Both documents went through several revisions with the production of DO-178A and ED-12A in 1985. Following the release of these documents, the aviation industry and certifi cation authorities worldwide used DO- 178A/ED-12A to determine the acceptability of systems and equipment containing software. Experiences with both DO-178A/ED-12A along with rapid advances in software technology led to the publication of DO-178B/ED-12B in 1989. A fi nal version of the document was approved by RTCA in 1992. This is the document in use at present.

142 CHAPTER FIVE

It is also pertinent to bear in mind the fact that the provision of S-APC is traditionally conducted through the use of equipment permanently affi xed to the aircraft, although it may also be conducted by the use of portable electronic devices capable of connecting to equipment affi xed to the aircraft. Portable electronic devices have been described as falling into two main categories, viz., non-intentional transmitters and intentional transmitters. The fi rst category includes, inter alia, computing equipment, cameras, radio receivers, audio and video reproducers, electronic games and toys, together with portable, non-transmitting devices intend to assist fl ight and cabin crews in their duties. Intentional transmitters are transmitting devices such as remote control equipment (which may include some toys), two-way radios, cell phones and satellite phones. In periods between transmissions, an intentional transmitter may radiate interference as a non-intentional transmitter.20 These portable electronic device’s may be consumer devices intended for use in residential, commercial, industrial or business environments and not strictly speaking designed or destined for use on-board aircraft. The importance of this distinction is crucial because portable electronic device’s being consumer devices are subject to differing product standards, and thus the goals and intentions behind commercial and airborne equipment standards are entirely different. In other words, commercial product standards are mostly concerned with interoperability issues, whereas airborne equipment standards (such as the RTCA DO-160/EUROCAE ED – 14 and RTCA DO-178/EUROCAE ED-12) are primarily concerned with fl ight safety. On the issue of SARPs, whilst we had noted in chapter three that the focal point in the international law pertaining to the provision of S-APC lies in Article 30 of the Chicago Convention and in the subsequent 29th ICAO Assembly Resolution A 29-19 (discussed hereinafter in chapter fi ve), the bulk of aviation technical legislation is to be found in the SARPs detailed within the 18 Annexes to the Chicago Convention. SARPs which are adopted by the ICAO under the mandate of Article 37 of the Chicago Convention, have also been defi ned in the ICAO Resolution A1-31. For the sake of clarity “standards” mean:

any specifi cation for physical characteristics, confi guration, material, performance, personnel, or procedure, the uniform application of which is recognized as necessary for the safety and regulatory of international air navigation and to which Member States will conform in accordance with the Convention; in the event of impossibility of compliance, notifi cation to the Council is compulsory under Article 38 of the Convention.

20 See Joint Aviation Authorities Temporary Guidance Leafl et (JAR-OPS) No 29 (Guidance Concerning the Use of Portable Electronic Devices on-board aircraft).


Whilst “recommended practices” are:any specifi cation for physical characteristics, confi guration, material, performance, personnel, or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or effi ciency of international air navigation and to which Member States will endeavour to conform in accordance with the Convention.

Thus, SARPs are adopted by the ICAO Council in accordance with Articles 54, 37 and 90 of the Chicago Convention and are designated, for convenience, as Annexes to the Convention. The uniform application by contracting States of the specifi cations contained in the international standards is recognized as necessary for the safety or regularity of international air navigation while the uniform application of the specifi cations in the recommended practices is regarded as desirable in the interest of safety, regularity or effi ciency of international air navigation. In the event of non-compliance with an international standard, a State has, in fact, an obligation, under Article 38 of the Convention, to notify the Council of any differences. Similarly, although the Convention does not impose any obligation with regard to recommended practices, the Council has also invited contracting States to notify it of any differences. Though the extent to which international standards may or may not be binding remains the subject of debate, suffi ce it to state that knowledge of any differences between the national regulations or practices of a State and those established by an international standard or recommended practices is essential to the safety or regularity of international air navigation.21 In the event that SARPs do not address issues which the Chicago Convention has not made specifi c provision for, they become supplemented by what are referred to as Procedures for Air Navigation Services (PANS) and Regional Supplementary Procedures (SUPPS).22 To qualify as PANS, the procedure shall be agreed as suitable on a worldwide basis. SUPPS, on the other hand, are operational procedures and material of the character of PANS but designed to be specifi cally applied in one of the ICAO air navigation regions. In other words, whilst PANS are approved by the Council for world-wide application, they contain, for the most part, operating procedures regarded as not yet having attained a suffi cient degree of maturity for adoption as international standards and recommended practices, as well as material of a more permanent character which is considered too detailed for incorporation in an Annex, or is susceptible to frequent amendment, for which the processes of the Convention would be too cumbersome. SUPPS on the other hand, have a status similar to that of PANS in that they are approved by the Council, but only for application

21 See B. Cheng, Centrifugal Tendencies in Air Law 200 (1957); T. Buergenthal, Law Making in the International Civil Aviation Organization 76-101 (1969); K. Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System 32 -63 (1998).22 See Article 37 of the 1944 Chicago Convention.

144 CHAPTER FIVE

in the respective regions. They are prepared in consolidated form, since certain of the procedures apply to overlapping regions or are common to two or more regions. In general, however, it has been contended that the mandate granted for international technical legislation is based upon the undertaking of contracting States to collaborate in securing regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in order to facilitate and improve air navigation.23 A philosophy which without any doubt encompasses S-APC. In specifi c terms, and as far as S-APC is concerned, although relevant technical regulations may be found in most of the 18 Annexes to the Chicago Convention, the primary Annexes relevant to the issue at hand would include Annex 2 (Rules of the Air)24 and Annex 10. In particular, Annex 10 – Standards and Recommended Practices for Aeronautical Telecommunications was fi rst adopted by the ICAO Council on 30 May 1949 and became effective on 1 March 1950. To date and as a result of the adoption of Amendment 70 on 20 March 1995, Annex 10 is currently comprised of fi ve volumes: Volume I – Radio Navigation Aids: Volume II – Communication Procedures; Volume III – Communications Systems; Volume IV – Surveillance Radar and Collision Avoidance Systems; and Volume V – Aeronautical Radio Frequency Spectrum Utilization. By Amendment 70, Volumes III and IV were published in 1995 and Volume V was published with Amendment 71. In this regard, Volume II in its chapter 2 identifi es four25aeronautical telecommunications services (ATS) which include the aeronautical mobile service. Chapter 5 of Volume II defi nes the aeronautical mobile service as “a mobile service between aeronautical stations and aircraft stations, or between aircraft stations, in which survival craft stations may participate; emergency position-indicating radio beacon stations may also participate in this service on designated distress and emergency frequencies.” Noting further that these communications procedures also apply, as appropriate, to the “aeronautical mobile-satellite service” (AMSS). The AMSS SARPs detailed in Annex 10 and which are of relevance to S-APC, are contained in Volume II (chapter 5), Volume III Part I (chapter 4), Part II (chapter 3) and Volume V respectively.26

Certain aspects of the aforementioned S-APC related SARPs deserve a close examination, especially with regards to the “category of messages” which can be carried under each ATS. Noting that “the major elements of

23 Henaku, supra note 21, at 19.24 Implementing in particular Article 12 of the Chicago Convention. The effect of Article 12 being that the ICAO Rules of the Air are mandatory for fl ights over the high seas and any discretion given by Article 37 does not apply. See T. Unmack, Civil Aviation: Standards and Liabilities 47 (1999). 25 Aeronautical Fixed Service; Aeronautical Mobile Service; Aeronautical Radio Navigation Service and Aeronautical Broadcasting Service.26 For a more detailed examination of the procedures set out in Annex 10 SARPS see Unmack, supra note 24, at 119-131.


the AMSS are the space segment (the satellites and their controlling earth stations); the ground earth stations (GESs) that provides interfaces between the satellite and fi xed terrestrial voice and data networks; and the aircraft earth station (AESs) that comprise the avionics and antenna systems on board the aircraft”, Attachment A to Part I of Volume III to Annex 10 recognizes that an AMSS system architecture is capable of meeting a range of communication requirements which may include inter alia S-APC. However, certain categories of messages and their relative priorities within the aeronautical mobile (R) service are given in Annex 10, Volume II, 5.1.8. In this respect, the categories of messages handled by the aeronautical mobile service and the order of priority in the establishment of communications and transmission of messages are as follows:

a) Distress calls, distress messages and distress traffi c;b) Urgency messages, including messages preceded by the medical transport

signal;c) Communications relating to direction fi nding;d) Flight safety messages;e) Meteorological messages;f) Flight Regularity messages.

These categories and priorities are equally valid for the aeronautical mobile (R) satellite service (in accordance with ITU RR No. 365127) and consequently “every AES and GES shall be designed to ensure that messages defi ned in Annex 10, Volume II, 5.1.8 are not delayed by the transmission and/or reception of other types of messages employing frequencies within the bands stated in 4.2.1.2 and 4.2.1.3 or other frequencies to which the station may tune. Message types not defi ned in Annex 10, Volume II, 5.1.8 shall be terminated if necessary, and without warning, to allow Annex 10, Volume II, 5.1.8 type messages to be transmitted and received.” Reference is also made to the ITU Radio Regulations Article 8, No. 729A which provides that:

Notwithstanding any other provisions of the Radio Regulations relating to restrictions in the use of the bands allocated to the aeronautical mobile-satellite (R) service for public correspondence, the bands 1545-1555 MHz and 1646.5-1656.5 MHz may be authorised by administrations for public correspondence with aircraft earth stations. Such communications must cease immediately, if necessary, to permit transmission of messages with priority 1 to 6 in Article 51.28

27 Regulation 3651 provides for the order of priority of communications in the aeronautical mobile service and the aeronautical mobile satellite service.28 See also Article 48 paragraph 3571 Radio Regulations “Stations on board aircraft may communicate, for purposes of distress and for public correspondence, with stations of the maritime mobile or maritime mobile-satellite services. For these purposes they shall conform to the relevant provisions of Chapter IX or N IX and Chapter XI, Articles 59 (Section III), 61, 62, 63, 65 and 66 (See also paragraphs 962, 963, 3633).” See further paragraphs 4143, 4144, 4145 Radio Regulations.

146 CHAPTER FIVE

The implications of these provisions simply confi rm that S-APC can be conducted when authorised by administrations, provided that priority is given to urgent fl ight safety and fl ight control traffi c. Furthermore, considering the recent developments at the WRC 2003 (discussed hereinbefore in section 1.1) leading to the extension of the frequency bands in which AMSS may be offered, one can assume that these amendments to the Radio Regulations will be subsequently refl ected in ICAO SARPs. In addition, the SARPs make reference to S-APC in Volume III chapter three following the establishment of the Aeronautical Telecommunications Network (ATN). Herein we can note again that the regulation of S-APC, though recognised as a type of communications traffi c, is addressed primarily with regards to the priority accorded to its offering, in comparison to other more vital aeronautical telecommunications services, set out in two tables, viz.: The Mapping of ATN Communication Priorities (where the S-APC transport layer priority is listed as category 14 – Low) and The Mapping of ATN Network Priority to Mobile Subnetwork Priority (wherein the S-APC ATN Network layer priority is listed as Zero).

3. National Procedures on the Use of Portable Electronic Devices On-board Aircraft

In order to assess, examine and attempt a critique of the existing body of national procedures relevant to the use of portable electronic devices on-board aircraft, it is not only necessary to state the scientifi c background to this issue, but also put the discussion in the appropriate context with regards to S-APC. We now know that traditional S-APC continues to be available to the passenger by means of cabin-installed equipment, or fi xed installed satellite phones. However, portable electronic devices remain unique when placed or used in an airborne environment, simply because they constitute sources of what is regarded as Electromagnetic Interference (EMI).29 It is contended that all electrical and electronic airplane systems are qualifi ed to meet stringent requirements for electromagnetic susceptibility.30 They are tested to well-established limits during various modes of operation and 29 A compilation of data on portable electronic devices attributed to having created anomalies with aircraft systems can be obtained from the United States Aviation Safety Reporting System, at http://asrs.arc.nasa.gov/report_sets/ped.pdf. 30 See United Kingdom Civil Aviation Authority, Interference Levels in Aircraft at Radio Frequencies used by Portable Telephones, 2 May 2000, at http://www.caa.co.uk/docs/50/Gsm_intf.pdf. (last accessed on 26 July 2006) and United Kingdom Civil Aviation Authority, Effects of Interference from Cellular Telephones on Aircraft Avionic Equipment, CAA Paper 2003/3 (30 April 2003), at: http://www.caa.co.uk/docs/33/CAPAP2003_03.PDF (last accessed on 26 July 2006); B. Donham, Interference from Electronic Devices, 10 Boeing Aero Magazine (March 2000).


with set-up confi gurations that represent the airplane installation in terms of electromagnetic protection. Suffi cient margins exist between the qualifi cation susceptibility test level and the expected airplane environment noise levels. Compliance with these requirements provides a high level of confi dence that the airplane systems will function as intended in the electromagnetic environment of the airplane. However, susceptibility can occur in the airplane if an uncontrolled source of electromagnetic energy radiates emission levels above the susceptibility level to which the airplane system was tested or if the airplane system protection has been degraded. In addition, airplane systems with a receiving antenna component have an exception from the susceptibility requirements. The radio frequency radiated susceptibility test is performed on the system over a full frequency spectrum, but not in the designed operating frequency band of the antenna. No value is gained from performing the radio frequency radiated susceptibility test in the operating band of the antenna because it is designed to respond to signals in this band. Portable electronic devices can radiate non-intentional noise within the airplane antenna’s operating frequency band, and this can create EMI. Because the basic function of an antenna-based system is to seek and fi nd low-level electromagnetic signals and to respond to signals in a certain frequency band, the probability of interference to these systems is more likely than interference to systems not connected to an antenna receiver. Investigations into the relationship between passenger carried portable electronic devices and EMI date back to the early 1960s when a study into the effects caused by a passenger carried FM broadcast receiver, was fi rst conducted leading to a report issued in 1963.31 Between the 1960s and this present time additional studies have been carried out by national civil aviation authorities,32 and airline manufacturers (including Boeing and Airbus). Investigations continue to this day, various recommendations have been provided and signifi cant media interest generated. But more importantly, and as far as the scope of this work is concerned, operational procedures have been promulgated by a number of National and Regional Regulatory Authorities around the world, and it is to these procedures and/or guidelines that this chapter now turns.

31 RTCA Inc. has investigated the issue on three separate occasions, with reports issued in 1963, 1988, and 1996 (RTCA DO-119, RTCA DO-199, and RTCA DO-233, respectively).32 See United Kingdom Civil Aviation Authority, Interference Levels in Aircraft at Radio Frequencies used by Portable Telephones, supra note 30; United Kingdom Civil Aviation Authority, Effects of Interference from Cellular Telephones on Aircraft Avionic Equipment, supra note 30.

148 CHAPTER FIVE

3.1. Title 14 of the United States Code of Federal Regulations (14 CFR) part 91, Section 91.21

The current regulatory approach in the US for assuring safe aircraft operation relies upon restricting the use of portable electronic devices on aircraft. US Federal Aviation Regulation (FAR) 91.21 prohibits the use of any portable electronic devices on board aircraft, with the exception of voice recorders, hearing aids, heart pacemakers, shavers, and any other device that the operator of the aircraft has determined will not cause interference with the navigation or communication systems of its aircraft. Regulation 91.21 states as follows:

a) Except as provided in paragraph (b) of this section, no person may operate, nor may any operator or pilot in command of an aircraft allow the operation of, any portable electronic device on any of the following U.S.–registered civil aircraft: (1) Aircraft operated by a holder of an air carrier operating certifi cate or an

operating certifi cate; or (2) Any other aircraft while it is operated under IFR (Instrument Flight

Rules). (b) Paragraph (a) of this section does not apply to–

(1) Portable voice recorders; (2) Hearing aids; (3) Heart pacemakers; (4) Electric shavers; or (5) Any other portable electronic device that the operator of the aircraft

has determined will not cause interference with the navigation or communication system of the aircraft on which it is to be used.

(c) In the case of an aircraft operated by a holder of an air carrier operating certifi cate or an operating certifi cate, the determination required by paragraph (b)(5) of this section shall be made by that operator of the aircraft on which the particular device is to be used. In the case of other aircraft, the determination may be made by the pilot in command or other operator of the aircraft.

It has been reported in Use of Portable Electronic Devices Aboard Aircraft – FAA Advisory Circular 91.21-1, that section 91.21 (formerly 91.19) was initially established in May 1961 to prohibit the operation of portable frequency-modulated radio receivers aboard US air carriers and US-registered aircraft when the very high frequency omnidirectional range was being used for navigation purposes. The Federal Aviation Administration (FAA) subsequently determined that other portable electronic devices could be potentially hazardous to aircraft communication and navigation equipment, if operated aboard aircraft. Amendment 91-35 amended the scope of former section 91.19 to prohibit the use of additional portable electronic devices aboard certain US civil aircraft. Section 91.21 allows for the operation of portable electronic devices which the operator of the aircraft has determined will not interfere with the navigation or communication system of that aircraft.


The determination of the effect of a particular device on the navigation and communication system of the aircraft on which it is to be used or operated must, in case of an aircraft operated by the holder of an air carrier certifi cate or other operating certifi cate, be made by that operator (i.e., certifi cate holder). In all other cases, a decision must be made and it may be made by the operator and/or the pilot-in-command (PIC). In some cases, the determination may be based on operational tests conducted by the operator without sophisticated testing equipment. When safely at cruise altitude, the pilot could allow the devices to be operated. If interference is experienced, the types of devices causing interference could be isolated, along with the applicable conditions recorded. The device responsible for the interference should then be turned off. The operator may elect to obtain the services of a person or facility having the capability of making the determination for the particular electronic device and aircraft concerned. The rule set forth in section 91.21 as adopted was therefore drafted to require the air carrier or commercial operator to determine whether a particular portable electronic device will cause interference when operated aboard its aircraft. Personnel specifi cally designated by the air carrier or commercial operator for this purpose may make this determination. For other aircraft, the language of the rule expressly permits the determination to be made by the PIC or operators of the aircraft. Thus, in the case of rental aircraft, the renter-pilot, lessee, or owner-operator could make the determination. The said Advisory Circular provides aircraft operators with information and guidance for assistance in the compliance of FAR section 91.21. Thus, if an operator allows the use of portable electronic devices aboard its aircraft, procedures should be established and spelled out clearly to control their use during passenger-carrying operations. The procedures, when used in conjunction with an operator’s program, should provide the following:

1.) Methods to inform passengers of permissible times, conditions, and limitations when various portable electronic device’s may be used. This may be accomplished through the departure briefi ng, passenger information cards, captain’s announcement, and other methods deemed appropriate by the operator. The limitations, as a minimum, should state that use of all such devices (except certain inaccessible medical electronic devices, such as pacemakers) are prohibited during any phase of operation when their use could interfere with the communication or navigation equipment on board the aircraft or the ability of the fl ight crew to give necessary instructions in the event of an emergency.

2.) Procedures to terminate the operation of portable electronic device’s suspected of causing interference with aircraft systems.

3.) Procedures for reporting instances of suspected and confi rmed interferences by a portable electronic device to the local FAA Flight Standards District Offi ce.

4.) Cockpit to cabin coordination and cockpit fl ight crew monitoring procedures.

150 CHAPTER FIVE

5.) Procedures for determining acceptability of those portable electronic components to be operated aboard its aircraft. The operator of the aircraft must make the determination of the effects of a particular portable electronic device on the navigation and communication systems of the aircraft on which it is to be operated. The operation of a portable electronic device is prohibited, unless the device is specifi cally listed in section 91.21(b) (1) through (4). But, even if the device is specifi cally accepted from the general prohibition on the use of portable electronic devices, an operator may prohibit use of that portable electronic device. The use of all other portable electronic device’s is prohibited by regulation, unless pursuant to section 91.21(b) (5). The operator determines that the operation of that device will not interfere with the communication or navigation system of the aircraft on which it is to be operated.

6.) Prohibiting the operation of any portable electronic device’s during the takeoff and landing phases of fl ight.

7.) Prohibiting the operation of any portable electronic device’s aboard aircraft, unless otherwise authorized, which are classifi ed as intentional radiators or transmitters. These devices include, but are not limited to:a. Citizens band radios;b. Cellular telephones;c. Remote control devices.

In addition, portable electronic devices designed to transmit must give consideration to paragraph 6 (Recommended Procedures for the use of PEDs aboard aircraft) of the FAA Advisory Circular 91.21. This is because there are certain devices, which by their nature and design, transmit intentionally. These include cellular telephones, citizens band radios, remote control devices, etc. The Federal Communications Commission (FCC) typically licenses these devices as land mobile devices. The FCC currently prohibits the use and operation of cellular telephones while airborne. Whatever procedures an operator elects to adopt should be clearly spelled out in oral departure briefi ngs and by written material provided to each passenger to avoid passenger confusion. Furthermore, telephones, which have been permanently installed in the aircraft, are licensed as air-ground radiotelephone service frequencies. In addition, they are installed and tested in accordance with the appropriate certifi cation and airworthiness standards. These devices are not considered portable electronic devices, provided they have been installed and tested by an FAA-approved repair station or an air carrier’s-approved maintenance organization and are licensed by the FCC as air-ground units. The Circular further advises that operators should use manufacturers’ information, when provided, with each device that informs the consumer of the conditions and limitations associated with its use aboard aircraft. All portable electronic devices should be designed and tested in accordance with appropriate emission control standards. Document Nos. RTCA/DO-160D, Environmental Conditions and Test Procedures for Airborne Equipment, and RTCA/DO-199 may constitute one acceptable method for meeting these requirements.


3.2. Joint Aviation Authorities Regulations JAR-OPS 1.110 and Temporary Guidance Leafl et JAR-OPS No 29

Across the Atlantic in Europe, the authorities have adopted somewhat similar operational procedures. To safeguard aircraft operations and published under the auspices of the Joint Aviation Authorities (JAA), JAR-OPS 1.110 requires an operator “to take all reasonable measures to ensure that no person does use, on board an aeroplane, a Portable Electronic Device that can adversely affect the performance of the aeroplane’s systems and equipment.” Further to JAR-OPS 1.110, the JAA also published Temporary Guidance Leafl et (JAR-OPS) No 29 (Guidance Concerning the Use of Portable Electronic Devices On-board Aircraft)33 which discusses the issues surrounding the use of portable electronic devices and suggests in particular an operational policy on the restrictions that the operator should place on the use of portable electronic devices by fl ight crew, cabin crew and passengers. In particular, if an operator permits passengers to use portable electronic devices on board its aircraft, procedures will need to be in place to control their use. It is the responsibility of the operator to ensure that all aircraft crew and ground agents are trained to enforce the restrictions on this equipment consistent with these procedures. The Operations Manual should include, as a minimum, procedures to ensure that:

1.) Inter alia transmitting devices are not used and are switched OFF from the time at the start of the fl ight when the passengers have boarded and all doors have been closed until the end of the fl ight when a passenger door has been opened.34

2.) Portable electronic devices that are not transmitting devices are disconnected from any in-seat electrical power supply, switched off and stowed during taxi-ing, take-off, approach and landing, and during abnormal or emergency conditions.35

3.) Necessary announcements are made both prior to and during boarding of the aircraft so that passengers may be reminded of the restrictions applicable to inter alia and other transmitting devices before fastening their seat belts. Passengers will need to be advised of the restrictions on all portable electronic devices in the pre-departure passenger safety briefi ng required by JAR-OPS 1.285.

33 JAA Administrative & Guidance Material Section Four: Operations, Part Three: Temporary Guidance Leafl ets (JAR-OPS).34 This paragraph does not apply to a portable electronic device where the sole means of transmission is identifi ed as a low power transmitting device compliant with the “Bluetooth” standard.35 This restriction does not apply to permitted medical equipment. This restriction applies to equipment carried by the passenger or loaned to the passenger by the aircraft operator. In the case of a portable electronic device where the sole means of transmission is identifi ed as a low power “Bluetooth” transmitter, it may be considered as a non-intentional transmitter and may be used during non-critical phases of fl ight as permitted by this paragraph.

152 CHAPTER FIVE

4.) Cabin crew monitor passenger use of equipment during the fl ight and, where necessary, ensure suspect equipment is switched off. The cabin crew should be particularly alert to passenger mis-use of equipment which has a built-in phone. Furthermore, if turbulence is encountered and the crew determine that loose items could present a hazard, instructions will be given that these should be stowed.

5.) Appropriate fl ight crew to cabin crew co-ordination exists to deal with interference or other portable electronic device safety related problems.

6.) Crew are aware of the proper means to switch off in-seat power supplies used for portable electronic devices.

7.) Check in and ground handling staff as well as fl ight and cabin crews are aware of the safety issues and restrictions concerning portable electronic devices.

8.) Occurrences are reported to the responsible authority of suspected or confi rmed interference which has potential safety implications. Where possible, to assist follow-up technical investigation, reports should describe the offending device, identify the brand name and model number, its location in the aircraft at the time of the occurrence, interference symptoms, and the results of actions taken by the crew.

With regards to the use of portable electronic devices by cabin crew, the Guidance Leafl et No 29 states that portable electronic devices provided to assist cabin crew in their duties must be switched off and stowed during taxi-ing, take-off, approach and landing, unless tests have been performed which confi rm that these portable electronic devices are not a source of unacceptable interference or other safety hazard. On a similar vein and with regards to the use of portable electronic devices by fl ight crew, portable electronic devices provided to assist the fl ight crew in their duties will need to be used in compliance with the procedures and conditions stated in the Operations Manual of the aircraft operator. Such equipment will need to be switched off and stowed during all phases of fl ight unless: (a) tests have been performed which confi rm that these portable electronic devices are not a source of unacceptable interference or distraction; (b) the portable electronic devices do not pose a loose-item risk or other hazard; and (c) the conditions for their use in fl ight are stated in the Operations Manual. In general, fl ight and cabin crews should avoid using inter alia transmitting devices during critical pre-fl ight procedures (e.g. when loading route information into navigation systems or when monitoring fuel loading). Otherwise, fl ight crews and other persons involved in dispatching the aircraft will need to observe the same restrictions as passengers. Other suggested precautions require that except for items which do not pose a loose item risk, portable electronic devices together with any accessories such as spare batteries or cables, carried on board an aircraft for crew or passenger use, will need to be provided with suitable stowage facilities. In addition, where in-seat electrical power supplies are available for passenger use, information cards giving safety instructions should be provided. Aircraft operators should seek


the assistance of airport operators for the display of safety notices at aircraft boarding points reminding passengers to switch off inter alia transmitting devices. Aircraft operators should take action to amend their procedures and, where necessary, to update their Operations Manual, passenger safety cards and video briefi ngs, leading to early implementation of the policy stated in the said leafl et.

3.3. Australia – Civil Aviation Amendment Regulations 2002 (No.) 10 and Advisory Circular AC 91-050(0)

In the southern hemisphere, the Australian Civil Aviation Safety Authority published a draft Advisory Circular, AC 91-050(0)36 September 2001, and updated May 2003, on the use of portable electronic devices intended to provide advice and guidance for operators, pilots and other fl ight ground crew with respect to portable electronic devices that may interfere with safe operation of aircraft. The AC provides explanatory material to other draft regulations still in a consultation process intended to govern the use of portable electronic devices within the airspace of Australian territory. In this respect, and pursuant to the 2002, Civil Aviation Amendment Regulations 2002 (No.) 10 (CASR), CASR 91.055 requires the operator and the PIC to prohibit or limit the operation of a portable electronic device on board an aircraft if there is reason to believe the portable electronic device may adversely affect the safety of the aircraft. CASR 91.050, 91.055 and 91.101037 provide the 36 In the Australian context, Advisory Circulars are intended to provide recommendations and guidance to illustrate a means but not necessarily the only means of complying with the regulations, or to explain certain regulatory requirements by providing interpretative and explanatory material. Where Advisory Circulars are specifi cally referenced in a regulation they are an extension of the regulation and must be complied with.37 91.1010 Directions by the Pilot in Command

(1) The pilot in command of an aircraft may:(a) direct somebody to do, or stop doing, something, or limit the doing of

something, while on board the aircraft; or (b) direct anybody to leave the aircraft before it begins a fl ight; or(c) remove something from the aircraft before a fl ight; or(d) restrain somebody for the duration of a fl ight; or(e) seize, for the duration of a fl ight, anything on the aircraft; or(f) place somebody in custody; or(g) detain a person or a thing (including cargo, equipment, a device, a

weapon or baggage) until the person or thing can be released into the control of an appropriate authority; if there is reason to believe that doing so is necessary for the safety of the aircraft or anybody on board it.

(2) If under subregulation (1) the pilot in command of an aircraft gives a direction to a person on board the aircraft, the person must comply with the direction. Penalty: 25 penalty units.

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PIC with the necessary authority to control the use of potentially hazardous portable electronic devices on board his/her aircraft, and obliges persons on board to comply with legitimate safety instructions. In particular CASR 91.050 – Portable Electronic Devices – Portable Electronic Devices that are Transmitters provides:38

(2) A person must not operate, on board an aircraft in fl ight, a portable electronic device that is designed to produce radio frequency emission.

(3) The pilot in command of an aircraft must not permit the operation, on board an aircraft in fl ight, of a portable electronic device that is designed for radio frequency emission.

(4) Strict liability applies to a contravention of subregulation (2) or (3).(5) For subregulations (2) and (3), an aircraft is taken to be in fl ight from the

moment the aircraft fi rst moves for the purpose of taking off at the start of the fl ight until the moment it fi nally comes to rest at the end of the fl ight.

(6) Despite subregulations (2) and (3), the operator or the pilot in command of an aircraft may use, or permit a person on board the aircraft to use, a hand-held VHF transceiver.

(7) Despite subregulations (2) and (3), the pilot in command of an aircraft may use, or permit a person on board the aircraft to use, a mobile telephone if: (a) the pilot is satisfi ed that the person needs to communicate urgently with another person; and (b) no other means of communication is available, or practicable in the circumstances.

CASR 91.055 – Portable Electronic Devices Other Than Transmitters

provides:39

(2) Subject to subregulation (4), a person may operate a portable electronic device that is not a device to which subregulation (3) applies on an aircraft only if the aircraft’s pilot in command permits its use. Penalty: 25 penalty units.

(3) This subregulation applies to devices of the following kinds:(a) hearing aids;(b) heart pacemakers and other implanted prosthetic devices;(c) portable voice recorders;(d) electric shavers;

(3) In acting under subregulation (1), the pilot in command or another person must not use greater force, or subject anybody to greater indignity, than is reasonably necessary.

(4) Strict liability applies to a contravention of subregulation (2).38 Portable electronic device for the purposes of this regulation is considered a portable electronic device that is designed to produce radio frequency emission. Radio frequency emission means radio emission (within the meaning given by the Radiocommunications Act 1992). Note “For the purposes of this Act, a radio emission is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artifi cial guide, whether or not any person intended the emission to occur.” Radiocommunications Act 1992, s 8 (1).39 In this context portable electronic device has the same meaning as in Regulation 91.050, but does not include a portable electronic device that is designed to produce radio frequency emission.


(e) electronic watches.(4) The operator of an aircraft may permit the use of a portable electronic

device if he or she is satisfi ed that the operation of the device will not cause interference with any of the aircraft’s systems or equipment.

(5) The pilot in command of an aircraft must not allow the operation of a portable electronic device on the aircraft if: (a) the portable electronic device is not a device to which subregulation (3) applies; and (b) the aircraft is carrying out an approach or departure procedure. Penalty: 25 penalty units.

(6) Strict liability applies to: (a) a contravention of subregulation (2); and (b) the circumstance mentioned in paragraph (5) (a).

In the light of the above regulations, the Australian Advisory Circular recommends with regards to notifi cation, that when the PIC of a commercial fl ight allows the use of portable electronic devices aboard an aircraft, it should be in accordance with procedures established and clearly stated in the aircraft type’s operations manual. The procedures should provide, as a minimum, the following guidance:

(a) methods of informing passengers as to when various portable electronic devices can be used and when they must be shut down. This could be accomplished through the departure briefi ng, passenger information cards, crew announcements, or any other method deemed appropriate by the operator. The instructions should state that the use of all portable electronic devices except those listed40 within the said circular are prohibited for use during taxy, departure or approach, or during such phases of fl ight as has been determined by the operator;

(b) cockpit to cabin coordination and crew monitoring procedures; and (c) procedures to locate and stop the operation of any portable electronic device

suspected of causing interference with aircraft systems.

Where there is need to stop the operation of portable electronic devices, if a crew member approaches a passenger operating a portable electronic device suspected of causing interference, the importance of the matter to the safety of the fl ight should be explained. The person’s help in collecting interference data might be requested. In extreme cases the PIC may authorise a crew member to direct the person to surrender the device or suffer its seizure for the duration of the fl ight. Therefore CASR 91.050, 91.055 and 91.1010 provide the PIC with the necessary powers, including prosecution of a person who refuses to obey a lawful command. With regards to small aircraft the AC notes that it can be diffi cult to monitor the activities of passengers in small aircraft, particularly those crewed by only one pilot. Notwithstanding the introduction of electronic fl ight instrumentation and increased reliance on GPS for navigation, operators and pilots of small aircraft must ensure that portable electronic devices do not interfere with aircraft systems. Because of the wide variety of tasks undertaken by small aircraft and the spectrum of aircraft types and equipment fi ts it is

40 (a) Portable voice recorders; b) hearing aids; (c) heart pacemakers; (d) electric shavers; and (e) electronic watches.

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diffi cult for CASA to offer comprehensive advice to operators and pilots of small aircraft. CASA’s only general advice is to ban the operation of any portable electronic device on board in the event of any doubt about its safety. It remains the responsibility of operators and pilots to determine when and which portable electronic devices are acceptable for any particular operation. For commercial operations, briefi ng and warning systems must be developed and included in operating procedures to ensure that passengers are aware of the hazards and do not operate portable electronic devices at inappropriate times.

3.4. Canada – Air Carrier Advisory Circular ACAC 0106R (2001.07.04)

In Canada Commercial and Business Aviation Advisory Circular (CBAAC)41 No. 0106 R of 04/07/2001 is intended to remind air operators of their mandatory responsibilities for reporting to Transport Canada any incident involving interference caused by passenger operated portable electronic devices, and provides an updated address of the appropriate offi ce where such report should be submitted. Furthermore, CBAAC reminds air operators of the conditions required to establish a consistent and acceptable level of safety through procedures for acceptance or denial of passenger operated portable electronic devices. In particular, and in line with sections 602.08,42 703.38/723.38, 704.33/724.33 and 705.40/725.4043 of the Canadian Aviation Regulations (CARs) and the Commercial Air Service Standards (CASS). (CBAAC) No. 0106 states that operating procedures have been broken down into two categories:

41 In the Canadian context, Commercial & Business Aviation Advisory Circulars (CBAAC) are intended to provide information and guidance regarding operational matters. A CBAAC may describe an acceptable, but not the only, means of demonstrating compliance with existing regulations. CBAACs in and of themselves do not change, create any additional, authorize changes in, or permit deviations from regulatory requirements.42 CAR 602.08 (1) prohibits the use of a portable electronic device on-board an aircraft where the device may impair the functioning of the aircraft systems or equipment. The onus for determining if passenger-operated electronic devices will cause interference is placed on the operator of the aircraft because there are no airworthiness standards for the manufacture of passenger-operated devices, no maintenance standards and no performance standards in relation to their use on an aircraft. It is therefore the responsibility of the operator of the aircraft and/or the pilot to determine if these devices cause interference. CAR 602.08 (2) prohibits a person from using a portable electronic device on-board an aircraft except with the permission of the operator of the aircraft.43 CARs 703.38, 704.33 and 705.40 require air operators to establish procedures for the use of portable electronic devices on-board aircraft that meet the Commercial Air Services Standards (CASS) and are specifi ed in the air operator’s Company Operations Manual.


1.) “Informing Passengers” which includes information pertaining to prohibited devices, devices which are permitted with restrictions, and devices which are permitted without restrictions; and

2.) “Interference” which includes procedures for suspected interference and for reporting interference.

With regards to “Informing Passengers”, sections 703.39/723.39, 704.34/ 724.34, 705.43/725.43 and 604.18/624.18 of the CARs and related standards require passengers to be informed of the air operator’s policy pertaining to the use of electronic devices during the pre-fl ight safety briefi ng. Sections 723.38, 724.33 and 725.40 of the CASS defi ne Prohibited Devices,44 Permitted Devices without Restrictions45 and Permitted Devices with Restrictions46 and are to be used in accordance with the stated requirements as applicable. Passenger use of portable two-way radiocommunication devices on-board aircraft is prohibited at all times when the aircraft engines are running, excluding the auxiliary power unit (APU). If the pre-fl ight safety briefi ng and demonstrations begin prior to engine start, use of portable two-way communication devices must be terminated during the delivery of the safety briefi ng and demonstrations. Passengers may use portable two-way radiocommunication devices if the air operator has established procedures in the Operations Manual and Flight Attendant Manual, to inform the passengers when the use of these devices is prohibited, andfurthermore, to ensure that these devices are turned off and properly stowed during the delivery of the pre-fl ight safety briefi ng and demonstrations, as well as while the aircraft engines are running. Other portable electronic devices may be used except during take-off, climb, approach and landing.47 Typically these phases of fl ight coincide with the “seat belt on” sign and the requirement to stow seat trays. With regards to “interference”, if interference from a portable electronic device is suspected, the operator of the aircraft shall prohibit the use of the device. Where interference with the aircraft systems or equipment is suspected from use of a portable electronic device, crew members shall: (i) confi rm passenger use of electronic device(s); (ii) instruct passenger(s) to terminate the use of portable electronic device(s); (iii) prohibit the use of suspected portable

44 Any transmitting device which intentionally radiates radio frequency signals, such as citizen band (CB) radios and transmitters that remotely control devices such as toys.45 Hearing aids; heart pacemakers; electronic watches; and properly certifi ed operator equipment, such as operator provided passenger air/ground telephone equipment operated in accordance with all other safety requirements. 46 Personal life support systems may be operated during all phases of fl ight, provided that these systems will not cause interference with the aircraft systems or equipment.47 Audio or video recorders; audio or video playback devices; electronic entertainment devices; computers and peripheral devices; calculators; FM receivers; TV receivers; and electric shavers.

158 CHAPTER FIVE

electronic device(s); and (iv) recheck the aircraft systems and equipment. The PIC/operator remains obliged to report incidents of portable electronic device interference.48

4. General Remarks on Regulating the Use of Portable Electronic Devices On-Board Aircraft

An overview of the national regulations promulgated by States reveals that a signifi cant amount of responsibility as well as the discretion to apply that responsibility has been placed in the hands of the airline operators. Secondly, despite the synergies between Europe and the US, the few national regulations in place tend to lack uniformity. It thus appears to be a situation akin to industry self-regulation. That said and realising that there are several industries involved, including a variety of entities participating in the scheme of things, it is only fi tting that a certain degree of uniformity is adhered to on a worldwide basis. Bearing these facts in mind, in October 2004, the US based Consumer Electronics Association published a document intended for use by portable electronic device manufacturers, related component and software companies and the air transport industry. The document, it is hoped, will serve as a guide towards recommended industry practices pertaining to the use of intentionally transmitting portable electronic devices on board aircraft. In general, it attempts to provide:

a consistent and easily identifi able indicator for all-transmitters-disabled in transmitting portable electronic devices (T-portable electronic devices);ease of turning off all transmitters in T-portable electronic devices; andassociated terminology used to convey information about electronic devices capable of transmitting, device operation, and passenger use.

Likewise in a release dated 3 March 2004, the GSM Association (GSMA) recommended that passengers should always follow airline safety instructions. 48 The following information should be included in the report (i) fl ight information – aircraft type, registration number, date and UTC time of incident, aircraft location (VOR bearing/dist/LAT/LONG), altitude, weather conditions, pilot name and telephone number; (ii) description of interference – describe effects on fl ight deck indicators, audio, or systems, including radio frequency, identifi cation, duration, severity and other pertinent information; (iii) action taken by pilot/crew to identify cause or the source of interference; (iv) identifi cation of portable electronic device – description of device, brand name, model, serial number, mode of operation (i.e. fm radio), device location (seat location), and regulatory approval number (FCC/other); (v) identifi cation of user – the name and telephone number of the passenger operating the device would be benefi cial, if the passenger is willing to provide it, in case the device is requested for testing; and (vi) additional information – as determined pertinent by the crew.

•

••


Note that the GSMA is a global trade association that represents the interests of more than 620 GSM mobile operators working collaboratively to defi ne, prioritize and communicate requirements, as well as some 130 key manufacturers and suppliers to the wireless industry. The global GSM mobile operator community provides services to more than 1 billion customers across more than 200 countries and regions around the world. In the said release, the GSMA noted that radio transmissions in aircraft need to be controlled to prevent potential interference with aircraft systems and ground-based radio systems. It also noted that it is a standard practice on aircraft to turn off electrical devices during critical parts of the fl ight. This is because mobile phones may cause interference even when not in active use and therefore airlines may require passengers to switch them off during the fl ight. Noting further that if an airline permits the use of specifi c technologies, it is recommended that passengers refer to the manufacturer’s device instructions to activate only the permitted radio transmissions. Furthermore, the release recommends that passengers comply with the instruction to “switch off your mobile phone” and that the device instructions may describe several options including:

1.) Switch off – For battery-operated devices, such as a mobile phone, these may be independently switched off. Where a wireless device, such as a PC data card, is connected to a host computer or personal digital assistant (PDA), it draws its power from the host system. When the host is completely switched off, the power to the wireless device is removed.

2.) Remove from host – When a wireless device without a battery is physically removed from the host, it cannot operate and remains a passive piece of electronics.

3.) Use Flight mode – A “Flight mode” may be available for some wireless devices. When engaged this is intended to switch off the device’s radio transmitter while still allowing use of other functions–e.g. games. In the absence of “Flight mode,” or when instructed otherwise, options 1 or 2 above are always available to the passenger.

The aforementioned actions constitute a commendable step in the right direction. As we had noted earlier, portable electronic devices being consumer devices are subject to differing product standards, and therefore the goals as well as intentions behind commercial and airborne equipment standards are entirely different. In other words, commercial product standards are mostly concerned with interoperability issues, whereas airborne equipment standards (such as the RTCA DO-160/EUROCAE ED – 14 and RTCA DO-178/EUROCAE ED-12) are primarily concerned with fl ight safety. Reconciling these two critical but disparate issues will constitute one of the biggest challenges to the seamless delivery of S-APC. One is also given to ask whether effective regulation can be obtained through the implementation/adoption of non-

160 CHAPTER FIVE

binding industry recommendations as opposed to binding regulations adopted under the auspices of an international organization representative of nation States.

161

CHAPTER SIX

Liability

This chapter attempts to ascertain liability which may apply (and to whom) in cases where passengers on-board aircraft use portable electronic devices possibly connected through other electronic hardware to the aircraft earth station or radiocommunications antenna. Airlines may also incur liability for damages caused to its passengers or to third parties and therefore, the subject of liability for damages caused by the use of portable electronic devices on board aircraft, is one that is pertinent to the scope of this dissertation. The issue of criminal and/or civil liability will be discussed within the context of international instruments in force, including the current system of liability with the entry into force of the 1999 Montreal Convention. State liability as well as the position of individual airlines will be examined and relevant case law discussed.

1. General Remarks

From the preceding chapter fi ve, we now know that the use of portable electronic devices on board aircraft by fl ight crew, cabin crew and passengers presents a source of uncontrolled electromagnetic interference which may pose the risk of adverse effects to aircraft systems. This may occur in cases where passengers on-board aircraft use portable electronic devices possibly connected through other electronic hardware to the AES/ radiocommunications antennae (affi xed to an aircrafts fuselage) that in turn create the potential of exposing the aircraft’s navigation and communications systems to potentially dangerous radio waves, thereby requiring an aircraft to make sudden evasive/uncontrolled manoeuvres, or possibly crash.

162 CHAPTER SIX

Because airlines may incur liability for damages caused to inter alia1 its passengers or to third parties, any attempt at an analysis would require an understanding of the raison d’être, history, nature and development of the relevant rules. Furthermore, in order to ascertain the nature and extent of liability of an airline, as defi ned by the rules in force, caused by the use of portable electronic devices for S-APC services, it is necessary to explore in what manner the rules have made provision for the liability of the airline; to determine how the various elements of liability have been described; to identify to whom the provisions apply; to analyse circumstances when and where (i.e. fora) identifi ed provisions may be invoked (bearing in mind the fact that separate rules apply with regards to liability for damage suffered by passengers, damage caused by air collision to the extent that such damage is sustained on the surface of the earth, damage caused as a result of collisions, and offences/crimes committed on board aircraft); to explore arguments for and/or against circumstances when the carrier may/may not be liable; and fi nally, to determine the extent of airline liability where either passengers using satellite based portable electronic devices fl out airline policies, or airline crew enforce inadequate airline policy.

2. Portable Electronic Device Related Incidents On-Board Aircraft

On 12 November 1998 on an Argentinean domestic fl ight from Buenos Aires to Cordoba, the fl ight crew was advised by a cabin attendant of a rebellious passenger who was using a laptop computer, 15 minutes into the hour long fl ight, regardless of the pre-fl ight portable electronic device cabin announcements and various requests by cabin crew to switch off the device as its use could affect aircraft fl ight instruments. The captain of Austral Lineas Aereas Flight 2410 requested the presence of the offending passenger in the cockpit to explain, by citing the respective articles of the Argentinean aeronautical code, that for safety reasons the use of any portable electronic device is prohibited throughout the entire fl ight and that he had the authority to oblige the passenger to obey the respective portable electronic device regulation. The stubborn passenger returned to his seat and continued using the laptop which was only switched off just before landing at Taravella airport in Cordoba. The captain reported the incident to the aeronautical police on the ground and eventually the 42 year old psychologist was taken to court for disobeying authority. It is stated that the passenger could have faced imprisonment for up to one year.2

1 The discussion herein excludes liability with respect to baggage, cargo, or delay.2 B. N. Aghdassi, An Assessment of the Use of Personal Electronic Devices, On Board Aircraft and their Implications on Flight Safety (unpublished MSc Dissertation, Cranfi eld University, United Kingdom, 1999).

LIABILITY 163

On 11 December 1998, a Thai Airways International Airbus Industrie A310 crashed on its third landing attempt at Thailand’s Surat Thani airport in poor weather conditions. At one point during accident investigations, mobile phone interference with crucial aircraft systems was investigated as many were found on the crash site.3 Passengers were suspected of calling their relatives waiting at the airport terminal notifying them about the delayed fl ight. Similarly, on approach to London-Heathrow, a Qantas Boeing 747 suddenly lurched heavily on to its side and pitched 700 feet higher into the sky. The malfunction is believed to have been caused by passengers using electronic games, a laptop computer and a personal CD player during the descent, despite being told not to.4 Other examples of portable electronic device related incidents have included a go-around initiated by the fl ight crew – that is, a pilot aborting the landing, because of interference from portable electronic devices. In this instance the pilot heard the interference in his headphones, and at the same time his automatic landing system indicated anomalous behaviour. The pilot therefore decided it was unsafe to continue with the automatic approach. In another incident, the stick-shaker in the cockpit, a warning signal that the plane is about to stall, started to operate. The plane was on the ground at the time. A passenger at the back was found to be using a portable electronic device. Ironically, most of the evidence is circumstantial and subjective, and experts continue to argue that there is no absolute proof that portable electronic devices are hazardous because, although a fl ight data recorder might reveal inconsistencies in redundant systems, all it will show are the instrument readings. It will not indicate that such readings were being affected by electronic devices operated by passengers. This will make it less likely that a portable electronic device is confi rmed as contributing to an air accident. It is generally accepted, however, that even the possibility of interference by portable electronic devices has serious consequences and there is an industry consensus, throughout the world, that portable electronic devices are a potential hazard to aircraft and must be switched off. A typical aircraft these days could have anything up to 15 or more radio systems on board. The signals that intentional transmitters emit could penetrate into equipment, and could affect the operation of the on-board computer systems. The computer systems may shut down, which would affect the aircraft’s navigation, which in turn would affect the signals sent to the auto pilot, and the way the aircraft is automatically fl own, leaving the aircraft to go off-course, or even change height. In the United States of America, the Aviation Safety Reporting System (ASRS) collects, analyzes, and responds to voluntarily submitted aviation safety incident reports (anecdotal evidence) in order to lessen the likelihood of aviation accidents.

3 Mobile Phone Use Studied in Thai A310 Crash Probe, ATI News, 18 February 1999.4 The Australian, 23 September 1998.

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The anomalies and related possible causes of portable electronic device interference with aircraft instruments from a previous ASRS report is set forth hereinafter in Appendix B, at page 231. One would also observe from the ASRS report that a fair number of on-board instrumentation anomalies were attributed to cellular phones (or mobile phones). However, in spite of the anecdotal references to interference caused by cellular phones to aircraft systems, it is interesting to note the results of recent studies into the phenomenon. In this respect, it is stated that the technology now exists to allow passengers to get around the problem of interference caused by mobile phones.5 In order to achieve this, a small base station, called a “picocell”, is installed on a plane, and connected to the telephone network via a satellite link. The aircraft cabin is shielded to prevent handsets from making contact with basestations on the ground. Instead, they “roam” on to the network signal from the picocell. Since the picocell is so nearby, the handsets can operate at very low power to maintain contact with it, which eliminates interference with networks on the ground. This contention is obviously based on the assertion that, contrary to popular belief, the main impediment to the use of mobile phones on planes is not interference with the aircraft’s avionics systems. Rather, the problem is that airborne mobile phones disrupt mobile networks on the ground, because an air-liner with 500 phones on board, whizzing across a city would befuddle the network as the phones busily hop from one base-station to the next. That said, in order to put these technical observations in the appropriate international legal and regulatory perspective we shall propose the following hypothetical scenario. Passenger A of X nationality carries a portable electronic device i.e., a laptop computer on board an aircraft scheduled to embark upon an international fl ight. The aircraft, registered on the Aircraft Register of country B is itself part of the fl eet owned and operated by an air carrier incorporated, headquartered and domiciled in country C. Whilst the aircraft is traversing the airspace of country D, despite repeated orders and warnings from the crew of the air carrier, Passenger A uses his portable electronic device which may also be connected to the in-fl ight entertainment system of the aircraft. The in-fl ight-entertainment system is linked to an AES mounted on the fuselage of the aircraft through which bi-directional signals are transmitted, to and from a commercial communications satellite located on geostationary orbit. That geostationary commercial communications satellite has been authorised to transmit radiocommunications signals using radio frequencies co-ordinated under the ITU Radio Regulations and based upon a space segment license issued by the authorities of country E. During the course of the aircraft’s journey across the airspace of country D, it collides in mid-air with another aircraft. The collision results in a

5 The Economist Technology Quarterly, 12 March 2005, at 20. See also results from test procedures carried out by the “Wireless Cabin Project”, at http://wirelesscabin.com/ (last accessed on 26 October 2005).

LIABILITY 165

crash on the territory of country D, causing the death of several passengers with multiple nationalities. Other passengers, also of multiple nationalities including passenger A, survived miraculously, suffering from extensive and grievous bodily harm. A subsequent accident investigation suspects that the signals emitted from passenger A’s portable electronic device penetrated aircraft equipment and affected operation of the on-board computer systems. The computer systems shut down and compromised the aircraft’s navigation, which in turn affected the signals sent to the auto pilot and the way the aircraft was automatically fl own, leaving the aircraft to go off-course. An incident which led to the mid-air collision in this hypothetical scenario. As a benchmark, we shall use the following defi nition of “liability” as “a condition of being responsible for a possible or actual loss, penalty, evil, expense or burden”, and as “the state of being bound or obliged in law or justice to do, pay, or make good something.”6

3. Criminal Liability and Penal Air Law7

Subjective or circumstantial reports such as that fi gured above, are diffi cult to verify because it is virtually impossible to duplicate the original conditions with the same device, aircraft, location, radio frequency environment, and air-borne systems’ settings. This may well be the reason why the limited jurisprudence on the subject of liability within the context of this work, has been to date limited to domestic penal or criminal proceedings involving the obvious and prohibited use of portable electronic devices on-board aircraft.

6 Blacks Law Dictionary (5th ed. 1979). cf. F. G. von der Dunk, Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and GALILEO, 30 J. Space. L. 129-167 (2004).7 R. P. Boyle & R. Pulsifer, The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1964) JALC 305-354; G. F. Fitzgerald, Offences and Certain Other Acts Committed Onboard Aircraft: the Tokyo Convention of 1963, II CYIL 191-204 (1964); S. Akweenda, Prevention of Unlawful Interference with Aircraft: A Study of Standards and Recommended Practices, 35 ICLQ 436-446 (1986); B. Cheng, Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formula and Attacks at Airports, in B. Cheng & E. D. Brown (Eds.), Contemporary Problems of International Law, Essays in Honour of Georg Schwarzenberger on His Eightieth Birthday, 25-52 (1988); B. Cheng, Air Law, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Vol. I, 69-70 (1992); K. Hailbronner, Civil Aviation, Unlawful Interference With, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Vol. I, 583-586 (1992); B. Cheng, International Legal Instruments to Safeguard International Air Transport: The Conventions of Tokyo, the Hague, Montreal, and a New Instrument Concerning Unlawful Violence at International Airports, in International Institute of Air and Space Law (Ed.), Aviation Security, 23-46 (1997); I. H. Ph. Diederiks-Verschoor, Introduction to Air Law 215-233 (2001); B. E. Young, Responsibility and Liability for Unlawful Interference in International Civil Aviation, 28 Air & Space Law 1-81 (2003).

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In the United Kingdom’s ground breaking case of R v. Neil Whitehouse, the court had heard that Mr. Whitehouse repeatedly refused to switch off his phone after being spotted with it on the Boeing 737. Although he made no airborne calls, experts said interference from the phone could have sparked an explosion or affected the plane’s navigational systems as it fl ew at 31,000 feet. It could also affect systems controlling the rate of climb, cabin pressures, landing systems, the automatic pilot, altitude and other instruments. Whitehouse was fi rst asked by cabin crew to turn the mobile off after he was spotted typing “I love you” onto the text face. When told it might interfere with navigation, he replied: “Why? Are we going to get lost?” The judge rejected a plea from Defence Counsel, arguing that Whitehouse should only be given a severe fi nancial penalty for what was “a fi t of pique, unreasonableness and awkwardness.” Counsel further submitted that although Whitehouse accepted the jury’s verdict and that his behaviour had been “improper, boorish and unreasonable,” his case should be distinguished from other recent cases of “air rage”. “This essentially became a case to do with scientifi c opinion,” he said. “In many respects this was a case entirely taken out of Mr Whitehouse’s hands.” He said that no danger had been caused to the aircraft and the fl ight had not been affected. In sentencing him, the Presiding Judge told the defendant that there had been a real possibility that the British Airways fl ight from Madrid to Manchester, which had 91 people on board, could have been at risk stating: “You had no regard for the alarm that would be caused to passengers by your stubborn and ignorant behaviour.” In the light of this decision, the United Kingdom’s Crown Prosecution Service announced by Press Release on 21 July 1999 that it would continue to prosecute cases of mobile telephone usage on board aircraft, likely to endanger an aircraft, contrary to Article 55 of the United Kingdom’s Air Navigation Order 1995.8 In the said Press Release, the UK Civil Aviation Authority also indicated that there have been nine incidents recorded over the preceding twelve months by airlines where mobile telephone usage had caused diffi culties on fl ights. Criminal proceedings in the case of R v. Neil Whitehouse cited above are obviously different from scenarios where a civil action may, as it is argued in this work, be brought by a passenger against an airline (carrier) for damages sustained which can be proven, before a court of law, as attributable to an accident caused by the use of a portable electronic device on board the said aircraft. In this regard, the virtually non-existent jurisprudence and case law in public international law is probably also infl uenced by the fact that aircraft have nationality and consequently States (of registration) have the power to legislate with respect to events on-board their national aircraft.

8 United Kingdoms Crown Prosecution Service, Archived Press Release 130/99, 21 July 1999, at: http://www.cps.gov.uk/news/pressreleases/archive/130_99.html (last accessed on 26 October 2005).

LIABILITY 167

Nonetheless, it is necessary to examine in some detail the relevant criminal or penal law instruments in the fi eld of international law. In this respect, the Convention on Offences and Certain other Acts Committed on Board Aircraft,9 signed at Tokyo on 14 September 1963 (Tokyo Convention hereinafter), bears upon the subject of our discussion.10 Cheng has argued that the 1963 Tokyo Convention was primarily a reaction to the discovery in cases such as USA v. Cordova11 and R v. Martin12 that aircraft, when they are fl ying abroad, especially over the high seas, were often literally oases of lawlessness, where no law was applicable.13 Brownlie echoes the same argument by stating that “aircraft have not fi tted very readily into the jurisdictional rules of either domestic or international law, and crimes on board civil aircraft over the high seas or in the airspace of foreign States or terra nullius have been the subject of considerable variations of opinion.”14 Cheng asserts that this was because many States had not extended the application of their criminal law or

9 1963 Convention on Offences and Certain other Acts Committed on Board Aircraft 704 UNTS 219-254; 2 ILM 1042 (1963) p. 1042; ICAO Doc. 8364; UK Treaty Series No. 126 (1969), Cmnd. 4230.10 Other principal treaty instruments applicable to criminal liability and penal air law include: the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 860 UNTS 105-157 (1973); 10 ILM 133 (1971); ICAO Doc. 8920; UK Treaty Series No. 39 (1972), Cmnd. 4956; 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 177-248 (1975); 10 ILM 1151 (1971); ICAO Doc. 8966; UK Treaty Series No. 10 (1974), Cmnd. 5524. For general reading on the broad subject of unlawful interference with civil aviation, see A. Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure of and Interference with Aircraft, Part I: The Hague Convention, 13 ColJTransL 381-405 (1974); A. Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure of and Interference with Aircraft, Part II: The Montreal Convention, 14 ColJTransL 268-300 (1975); A. Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure of and Interference with Aircraft, Part III: The Legality and Political Feasibility of a Multilateral Air Security Enforcement Convention, 14 ColJTransL, 451-484 (1975); G. F. Fitzgerald, Unlawful Interference with Civil Aviation, in A. Kean (Ed.), Essays in Air Law, 59-79 (1982). 11 (1950) USAvR 1. Herein, a United States District Court ruled that though it was satisfi ed violence had been proven on the part of the defendant, his acts could not be punished within the admiralty and maritime jurisdiction of the United States. This led to the United States Congress amending Federal Statutes, making maritime law applicable to offences committed on board aircraft over the high seas, by virtue of Public Law 514, 82nd Congress. See Diederiks-Verschoor, supra note 7, at 218. 12 (1956) USAvR 141; (1956) 2 Q.B.D. 272. Herein, it was decided that S. 62 (I) of the Civil Aviation Act has procedural effect and confers jurisdiction only if a substantive rule makes the act concerned criminal when committed on board a British aircraft. In that case the indictment was quashed, as the 1953 Dangerous Drugs Regulations applied only to the United Kingdom. See I. Brownlie, Principles of Public International Law 323 (2001); Diederiks-Verschoor, supra note 11. 13 See Cheng (1988), supra note 7, at 32-33; B. Cheng, Crimes on Board Aircraft, 12 Current Legal Problems 177 (1955). 14 Brownlie, supra note 12.

168 CHAPTER SIX

jurisdiction of their courts to aircraft of their nationality when fl ying outside their national territory. Cheng’s assertion rests on the generally accepted presumption that jurisdiction is territorial. We will recall that jurisdiction refers to particular aspects of the general legal competence of States often referred to as “sovereignty”. Jurisdiction itself is an aspect of sovereignty which refers to judicial, legislative and administrative competence of a State.15

The Tokyo Convention is relevant to our discussion as the scope of the said Convention set forth in its provisions, state as follows: 16

Article 1 (1): The Convention applies in respect of (a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardise the safety of the aircraft or of persons or property therein or which jeopardise good order or discipline on board;

Article 1(2): Except as provided in Chapter III Tokyo 63 shall apply in respect of such offences or acts done by any board person on board an aircraft registered in a contracting State, while that aircraft is in fl ight or on the surface of the high seas or of any other area outside the territory of any State.

The Tokyo Convention therefore applies in general to all offences against penal law and other acts jeopardising the safety of aircraft. Furthermore according to the Convention’s Chapter II, States parties are under an obligation to ensure that when an offence or other act has been committed on board a civil aircraft, at least the State of registration of the aircraft will be able to exercise jurisdiction over the alleged offender.17 In particular, Article 3 of the Tokyo Convention effectually identifi es the State of registration of the aircraft as competent to exercise jurisdiction. The said State is also obliged take measures to establish such jurisdiction over offences committed on board aircraft registered thereto. The obligation to establish such jurisdiction can be appreciated when considered in the light of two principles identifi ed by Brownlie as infl uencing the continuing evolution of territorial jurisdiction exercised by States. The principles being fi rstly, that, the theory of territoriality fails to provide ready-made solutions for modern jurisdictional confl icts and secondly, that a principle of substantial and genuine connection between the subject matter of jurisdiction and the territorial base and reasonable interests of the jurisdiction sought to be exercised, should be observed. Therefore, one of the several objectives of the Tokyo Convention is the unifi cation of rules concerning the allocation of jurisdiction over crimes committed on-board aircraft.18

15 For a comprehensive and dedicated treatise on the subject of jurisdiction over crimes on board aircraft and the applicability of the Tokyo Convention, see S. Shubber, Jurisdiction Over Crimes On-Board Aircraft 19-33, 48-140 (1973).16 Id., at 141-169.17 Hailbronner, supra note 7, at 585.18 Shubber, supra note 15, at 19.

LIABILITY 169

Within the scope of this work, the provisions of the Tokyo Convention’s Article 6 are of interest. As we saw in chapter fi ve the national regulations and procedures governing the use of portable electronic devices on-board aircraft have left the implementation of operational procedures to the airlines, and in practice, it is the Pilot-In-Command with the assistance of his/her cabin crew that are left with the onerous responsibility of policing the use of portable electronic devices in prohibited circumstances. Cheng recalls that the provisions of the Tokyo Convention’s Article 3 (2), which gives States the right to assert jurisdiction over aircraft of their own registration, was in fact a provision woven into a draft convention that was discussed at the time on the status of the aircraft commander. He concludes that for this reason, the Tokyo Convention contains provisions on what is to happen if criminal offences or certain other acts are committed on board aircraft.19

In this respect, the Tokyo Convention in its Article 6 empowers the Pilot-In- Command to impose reasonable measures including restraint where there is reasonable ground to believe that a person has committed or is about to commit an offence or other act. However, Article 5(1) of the Tokyo Convention, in a rather strange twist to the Pilot-In-Command’s mandate, provides that:

The provisions of this Chapter do not apply to offences and acts committed or about to be committed by a person on board an aircraft in fl ight in the airspace of the State of Registration or over the high seas or any other area outside the territory of any State, unless the last point of take-off or the next point of intended landing is situated in a State other than that of registration, or the aircraft subsequently fl ies in the airspace of a State other than that of registration with such person still on board.

It is argued that Article 5(1) emphasises the authority of the State of Registration20 and thus it would appear, for instance, that “an Air France commander en route from Paris to Martinique cannot exercise his powers unless after the commission of the offence he makes a detour into Dominican or St Vincent Airspace.” It would also imply that the Tokyo Convention would not be applicable in the airspace of the high seas. An explanation for this scenario may be obtained by looking at the provisions of the Tokyo Convention’s Article 4 which grants a territorial State21 (i.e. a contracting State which is not the State of registration) the right to exercise jurisdiction under certain conditions. More particularly Article 4 provides that:

A contracting State which is not the State of registration may not interfere with an aircraft in fl ight in order to exercise its criminal jurisdiction over an offence committed on board except in the following circumstances:a) the offence has effect on the territory of such State;

19 See Cheng (1988), supra note 7, at 32.20 T. Unmack, Civil Aviation Standards and Liabilities 384 (1999).21 For use of the term “territorial State” when referring to the contracting State other than the State of registry, see Shubber, supra note 15, at 84.

170 CHAPTER SIX

b) the offence has been committed by or against a national or permanent resident of such State;

c) the offence is against the security of such State;d) the offence consists of a breach of any rules or regulations relating to the

fl ight or manoeuvre of aircraft in force in such State;e) the exercise of jurisdiction is necessary to ensure the observance of any

obligation of such State under a multilateral international agreement.

Therefore, although the jurisdiction of the State of registration has been specifi cally referred to in Article 3, the jurisdiction of other States may not necessarily have been denied by Article 3 as can be construed from the provisions of Article 4. It must be noted that in general, although contracting States may exercise jurisdiction in certain circumstances on the high seas and terra nullius, ships and aircraft are subject to the excusive jurisdiction of the fl ag States (or State of registry) and save in the case of piracy, self-defence or a treaty obligation, no other State can exercise jurisdiction over such ships or aircraft.22 Relate these facts to the provisions of Article 9(1) stating that the Pilot-In-Command may deliver to the authorities of contracting States in which the aircraft lands, any person he reasonably believes has committed on board the aircraft an act which in his opinion is a serious offence according to the penal law of the State of registration. This implies that the Pilot-In-Command must not only fl y the aircraft but must also have suffi cient knowledge of the criminal law of the State of registration. In this respect, Diederiks-Verschoor states that the action taken by the Pilot-In-Command is subject to standards of reason and it may be diffi cult for the Pilot-In-Command to decide just what constitutes an offence, but the ultimate decision is left to his discretion.23 On a related note, Article 13 imposes a duty upon contracting States as follows:

1. Any Contracting State shall take delivery of any person whom the aircraft commander delivers pursuant to Article 9, paragraph 1.

2. Upon being satisfi ed that the circumstances so warrant, any Contracting State shall take custody or other measures to ensure the presence of any person suspected of an act contemplated in Article 11, paragraph 1 and of any person of whom it has taken delivery. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is reasonably necessary to enable any criminal or extradition proceedings to be instituted.

3. Any person in custody pursuant to the previous paragraph shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national.

4. Any Contracting State, to which a person is delivered pursuant to Article 9, paragraph 1, or in whose territory an aircraft lands following the commission of an act contemplated in Article 11, paragraph 1, shall immediately make a preliminary enquiry into the facts.

22 Shubber, supra note 15.23 Diederiks-Verschoor, supra note 7, at 221.

LIABILITY 171

5. When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the State of registration of the aircraft and the State of nationality of the detained person and, if it considers it advisable, any other interested State of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 4 of this Article shall promptly report its fi ndings to the said States and shall indicate whether it intends to exercise jurisdiction.

In the light of the above provisions, the governing principles on extra-territorial enforcement measures indicate that a State cannot take measures on the territory of another State by way of enforcement of national laws without the consent of the latter. Therefore persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed on the territory of another State, except under the terms of a treaty.24 Returning to our hypothetical scenario the offending passenger A survived the aircraft’s crash in the territory of country D. On a related note, and although the Tokyo Convention imposes certain obligations on States parties, a simple interpretation of the provisions of the Convention’s Article 13 (1) (2) (3) (4) (5) outlined above would indicate that there is no strict obligation on country D, a contracting State in whose airspace the offence was committed, to bring criminal or extradition proceedings. Nonetheless, the Tokyo Convention has been given effect and applied under the national legislation of several countries. The New Zealand prosecutions25 in R v. Whiteman concerning a domestic ambulance fl ight and R. v. Takaheshi concerning an international fl ight are cases in point to which one may look for guidance in the determination of cases involving the prohibited use of portable electronic devices that may also be connected to the in-fl ight entertainment system of the aircraft. We will recall that the in-fl ight-entertainment system is traditionally linked to an AES mounted on the fuselage of the aircraft through which bi-directional signals are transmitted, to and from a commercial communications satellites located on orbit. Though it is of no major consequence to the conclusions of this work, one should note that, as Hailbronner submits. “there is no universally accepted notion of unlawful interference with civil aviation. Thus the scope of application of every international instrument dealing with offences against the safety of civil aviation will depend on its own defi nition of unlawful interference.”26It has also been argued that “an act of interference with civil aviation will only be unlawful if the criminal policy of the jurisdiction in which the act is effected considers such an act to be unlawful.”27 This author aligns with the submission

24 Brownlie, supra note 12, at 310 citing The S.S. Lotus case (France v. Turkey), 1927 PCIJ (Ser. A) No. 10.25 Legislation Note in (1975) NZULR 305.26 Hailbronner, supra note 7, at 583. 27 Young, supra note 7, at 4.

172 CHAPTER SIX

that the defi nition of offences or unlawful interference is not always evident in some international instruments, such as the Tokyo Convention which merely provides in its Article 1 (1) that “[t]he Convention applies in respect of (a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardise the safety of the aircraft or of persons or property therein or which jeopardise good order or discipline on board” (emphasis mine). Nonetheless, it is believed that “there is a growing tendency to hold that acts constituting an unlawful interference with international civil aviation affect the interests of the world community which must be suppressed whatever the situation or motive of the offender.”28 Consequently, and holding the aforementioned belief to be correct, in this context the assertion by Cheng is trite because Article 38 of the Vienna Convention on the Law of Treaties says nothing prevents treaty provisions from developing into rules of general international law. This of course would be created by the metamorphosis of what was only an opinio obligationis contractus among a limited number of States into a specifi c opinio juris generalis among States in general regarding the said treaty provisions.29

4. Passengers and the Liability of the Air Carrier – From Warsaw to Montreal

It is rightly stated that liability for damage caused to passengers is essentially contractual by nature.30 This is because a passenger that sustains damages would either have a ‘cause of action’31 created by statute, or proceed on the basis of the terms of a contract of carriage with the airline (hereinafter referred to as carrier).32 The statute which traditionally created the ‘cause of action’ in instances such as when a passenger sustains damage and also identifi ed the liable party as the carrier based upon the terms of a contract of carriage, was the 1929 Warsaw Convention for the Unifi cation of Certain Rules

28 Hailbronner, supra note 7, at 586 (emphasis mine).29 B. Cheng, Custom: The Future of General State Practice in a Divided World, in R. St. J. Macdonald & D. M. Johnston (Eds.), The Structure and Process of International Law, 513, at 532-533 (1983) cited in Cheng (1988), supra note 7, at 41.30 P. P. C. Haanappel, The Law and Policy of Airspace and Outer Space – A Comparative Approach 67 (2003).31 In common law countries, in an action for personal injury, the Warsaw Convention and its Protocols (discussed herein) were the only exclusive remedy, with no remedy in common law. See Benjamins v. British European Airways, 572 F.2d 913 (2nd Cir. 1978); Re Air Disaster at Lockerbie, US Court of Appeals, 2nd Circuit, March 1991; Sidhu v. British Airways, (1997) 1 All ER 193; El Al Israel Airlines Ltd v. Tsui Yuang Tseng, US Supreme Ct. No. 97-475, 12 Jan. 1999, 119 S. Ct. 662 (1999).32 In France, the action is one for a breach of contract. See Syndicat d’Assurances des Lloyds c. Ste. Aerofret, 30 RGAE 168 (c.a. Paris, 27 June 1996).

LIABILITY 173

Relating to International Carriage by Air (Warsaw Convention hereinafter). The applicability33 of the statute depends upon geography and whether international transportation (determined by the intention of the parties expressed contractually) has occurred between the territories of two High Contracting Parties.34 This statute has undergone several amendments and additions by way of Protocols,35 intended to bring it up to date with the rapid developments in aviation. Striking36 elements of the liability system under the Warsaw Convention and Protocols included the diffi culty in ascertaining issues such as which Warsaw related instrument(s) would apply in a given case. This was due to the fact that States were parties to different sets of agreements on contractual liability, thus creating a web of differing rights and obligations. Furthermore, varied judicial interpretation of the provisions to the Warsaw instruments by national courts meant that the Warsaw Convention and Protocols were in dire need of harmonisation. In order to create a measure of uniformity a consolidated text was proposed in 1975. Consequently, the ICAO Assembly in October 1995 mandated the ICAO Council to modernize the Warsaw system. The efforts of ICAO’s Council through its Legal Bureau assisted by a Study Group and a Special Group on the Modernization and Consolidation of the Warsaw system resulted in a draft Convention, adopted at a diplomatic conference convened in 1999.37

33 Article 1 of the Warsaw Convention.34 See Grein v. Imperial Airways, Court of Appeal (England), 13 July 1936, 1 Avi 622 [1936] USAvR 211; Rotterdamsche Bank v. BOAC (Aden Airways), High Court of Justice, Queens Bench Division, United Kingdom, 18 February 1953.35 (1) 1955 Protocol to Amend the Convention for the Unifi cation of Certain Rules Relating to International Carriage by Air, The Hague, 478 UNTS 371; ICAO Doc. 7632; (1955) USAvR 521; (2) 1961 Convention supplementary to the Warsaw Convention, for the Unifi cation of Certain Rules relating to International Carriage by Air performed by a Person Other than a Contracting Carrier, Guadalajara, 500 UNTS 31; ICAO Doc. 8181; (1961/1962) JALC 52; (1963) USAvR 313; (3) 1971 Protocol to amend the Warsaw Convention, Guatemala, ICAO Doc. 8932/2; 10 ILM 613 (1971); (1973) USAvR 522; (4) Additional Protocol No. 1 (2, [3], 4) to amend the Convention on the Unifi cation of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12th October 1929 (as amended by the protocol[s] Done at the Hague on 28 September 1995 [and at Guatemala city on 8 March 1971]), Montreal, 25 September 1975, ICAO Doc. 9145; ICAO Doc. 9146; ICAO Doc. 9147; ICAO Doc. 9148 (5) Agreement relating to Liability limitations of the Warsaw Convention and the Hague Protocol Montreal 1966 (1966) USAvR 450.36 For the history, merits and fl aws of the Warsaw Convention and its Protocols see B. Cheng, A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999), 53 ICLQ 833-859 (2004); M. Milde, The Warsaw System of Liability, 24 Annals of Air & Space Law 167 (1999); Haanappel, supra note 30, at 68; Diederiks-Verschoor, supra note 7, at 59-113.37 See Cheng, supra note 36 at 842-844; Haanappel, supra note 30; Diederiks-Verschoor, supra note 7; F. G. Von der Dunk, Galileo and Liability: Towards a Coherent System?, 5(2) Newsletter of the Outer Space Committee of the Section on Business Law 7 (2003). Note that the Montreal

174 CHAPTER SIX

To date, inter alia, most aspects of a carrier’s liability towards its passengers continue to be preserved with the entry into force, on 4 November 2003, of the 1999 Convention for the Unifi cation of Certain Rules for International Carriage by Air opened for signature on 28 May 1999. (Montreal Convention hereinafter). The Montreal Convention like the Warsaw Convention only unifi es “certain” rules and therefore in those areas not covered by the Convention, national private laws will remain applicable and the law of confl icts or private international law serves to determine which national laws will be applicable, considering the nature of S-APC service provision which constitutes an activity with an underlying cross-border element. For the sake of brevity, the following have been identifi ed as summarising the more substantive features of the Montreal Convention:

Incorporates the provisions of the 1961 Guadalajara Convention and Montreal Protocol No 4 (relating to cargo) (Chapter V, Articles 4-15);Incorporates, in substance, the liability provisions of the 1995 IATA Intercarrier Agreements relating to liability for passenger injury or death (Articles 17, 21);Establishes a so-called ‘fi fth jurisdiction’ where an action for damages may be brought for damages for passenger injury or death (Article 33);Relaxes the prior requirements as to the contents of passenger documentation (passenger ticket and baggage check) and the cargo airway bill (in accordance with Montreal Protocol No 4 now in effect) (Article 3, Article 5);There is no sanction imposed for non-compliance with the new documentation requirements (Article 3(5), Article 9);While not mandated by the Convention, carriers are obliged to make advance payments in the case of accidents causing passenger injury or death, “if required by [the carrier’s] national law” (Article 28). Resolution No 2 to the Final Act of the Conference urges carriers to make advance payments and encourages State Parties to the new Convention “to take appropriate measures under national law to promote such action by carriers”;There is an express provision that “punitive, exemplary or any other non-compensatory damages shall not be recoverable” in any action to which the Convention applies (Article 29);A right of recourse, in favour of any person liable under the Convention, against any other person is expressly recognised (Article 37);

Convention does not contain provisions indicating that once the Convention enters into force, those States which have ratifi ed it, would automatically denounce the Warsaw Convention.

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•

•

•

•

•

LIABILITY 175

There is a provision mandating State Parties to require their carriers “to maintain adequate insurance covering their liability” under the Convention (Article 50);There is no provision allowing the recovering of damages for mental injury of a passenger.38

In the event that a passenger suffers damage as a result of the use of portable electronic devices on board an aircraft, four pertinent questions need to be answered on the issue of liability viz: (i) who is liable towards the passenger?; (ii) can the liable party be exonerated?; (iii) what are the limits (if any) of liability?; and (iv) what would be the proper fora for the institution of proceedings? In other words, and based upon the hypotheses, who would be liable towards the passengers that have suffered either death or grievous bodily harm resulting from the mid-air collision and subsequent crash of an aircraft in the territory of country D. The aircraft itself is registered on the Aircraft Register of country B, and constitutes part of the fl eet owned and operated by an air carrier incorporated, headquartered and domiciled in country C. In answering these questions, certain provisions of the Montreal Convention must be relied upon, including Articles 1, 17, 20, 21, 28, 29 and 33 respectively. This examination may seem unrealistic considering that though the issue of EMI and portable electronic devices have been the subject of penal proceedings, the said issues have never been the subject of civil litigation. Article 17 (1) states that

the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.39

From the foregoing defi nition of a carrier’s liability, certain aspects warrant a closer examination. In particular, the reference by Article 17(1) to “damage sustained”, “death or bodily injury”, and “accident”. The reference to “damage 38 See G. N. Tompkins, Montreal Convention of 1999: This is the Answer, IBA Section on Business Law, Aviation Law, at 21-22 (2000); cf. B. Cheng, supra note 36; C. F. Krause, Aviation Tort and Regulatory Law, Vol. I (2002), at paragraphs 11:13 to 11: 35; Haanappel, supra note 30, at 74-76; .Diederiks-Verschoor, supra note 7, at 113-121; Unmack, supra note 20, 221- 308; Milde, supra note 36, at 155-186; T. Whalen, The New Warsaw Convention: The Montreal Convention, 25 (1) Air & Space Law 12-26 (2000); J. Rattray, The New Montreal Convention for the Unifi cation of Certain Rules for International Carriage by Air – Modernisation of the Warsaw System: the Search for Consensus, 4 TALC 59-77 (2000); V. Poonoosamy, The Montreal Convention 1999 – A Question of Balance, 4 TALQ 79-85 (2000); A. G. Mercer, The 1999 Montreal Convention – A New Convention for a New Millennium, 4 TALQ 86-106 (2000); L. Weber, The Modernization and Consolidation of the Warsaw System of Air Carrier Liability: The Montreal Convention of 1999, in M. Benkö and W. Kroll (Eds.), Air and Space Law in the 21st Century, Liber Amicorum Karl-Heinz Bockstiegel 247-255 (2001); W. Muller-Rostin, The Montreal Convention of 1999: Uncertainties and Inconsistencies, 7 TALQ 218-224 (2003). 39 Article 17 Warsaw Convention contains somewhat similar provisions.

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176 CHAPTER SIX

sustained” especially when read together with the provisions of Article 29,40 would mean that only compensatory damage is recoverable by the passenger,41 to the exclusion of any punitive, exemplary or other non-compensatory damages. Relate this scenario to the circumstances under which the liable party (i.e. the carrier) may be exonerated (to which we shall return in greater detail) from liability and damages actually recoverable by the passenger in monetary terms, under the provisions of Articles 20 which states that

If the carrier proves that the damage was caused or contributed to by the negligence or wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage,

and Article 21 which states that1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000

Special Drawing Rights (SDRs)42 for each passenger, the carrier shall not be able to exclude or limit its liability.

2. The Carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:i. such damage was not due to the negligence or other wrongful act or

omission of the carrier or its servants or agents; or ii. such damage was solely due to the negligence or other wrongful act or

omission of a third party.

On the issue of “death or bodily injury” the meaning of death remains incontrovertible, and although on the subject of “bodily injury” some writers43 predict that this will in time be clarifi ed by the evolving jurisprudence, it is important to distinguish these words from those used under the original

40 Article 29 (Basis of Claims) provides that [i]n the carriage of passengers, […] any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

41 Article 17(1) also makes reference to “passenger”. Interestingly, the Convention does not defi ne the word “passenger”. Rather Article 1(1) renders the Convention applicable to “all international transportation of persons” and Article 1(2) indicates that the Convention is applied per the contract made by the parties, thus implying that there must be a contract of carriage in existence for the Convention to apply. See L. B. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 73-75 (2000). See also Block v. Compaigne Nationale Air France, 386 F.2d 323 (5th Cir. 1967).42 Convertible SDRs of the International Monetary Fund.43 Milde, supra note 36, at 178; Haanappel, supra note 30, at 80-88; Whalen, supra note 38, at 17.

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Warsaw Convention viz. “wounding or any other bodily injury”, and especially the French translation of these words as lesion corporelle, which has led to the conclusion that mental injury can only be compensated if there is also physical injury. In other words, damages for mere mental anguish may not be recoverable.44 As far as the scope of this work is concerned, compensation for mental injury is to be noted, considering that as it has already been stated, anecdotal reports of portable electronic device incidents are diffi cult to verify as it is virtually impossible to duplicate the original conditions with the same device, aircraft, location, radio frequency environment, and air-borne systems’ settings. What this implies therefore is that the chances of an accident investigation revealing on-board portable electronic device use as the cause of an accident which has given rise to damage sustained by a passenger remains very unlikely. In a position paper delivered by the former IATA General Counsel, Lorne Clarke in 1999, a list was made of numerous unexpected events outside the normal operation of an aircraft which ought to qualify as Article 17 accidents and which would cause severe mental anguish, fear, fright, anxiety, i.e. “mental injury” unaccompanied by any “bodily injury”.45 The paper identifi ed such events to include inter alia, near miss with other aircraft en route, on approach, or on departure; “accidental” emergency landing announcement; emergency landing; gear malfunction resulting in passengers being warned to prepare for gear collapse on landing; unruly passenger behaviour in-fl ight and crew

44 This is because the view on mental injury continues to evolve and the existing case law is not uniform on the subject. See Eastern Airlines v. Floyd, 499 U.S. 530 (1991); Air France v. Saks, 105 S Ct 1338 (1985). In Kotsambasi v. Singapore Airlines Ltd (Supreme Court of New South Wales, August 1997), the Court of Appeal held that:

the term ‘bodily injury’ for the purposes of the Warsaw Convention does not include a purely psychological injury […]. The general approach to the interpretation of an international convention is by the application of the rules of interpretation recognised by customary international law as well the provisions of the Vienna Convention on the Law of Treaties. The words are fi rst read literally and then, if the meaning is unclear, the courts are to give effect to the intention of the signatories to the convention including object and purpose of the convention […]. Municipal (domestic) Law can assist interpretation especially if the signatories had regard to the municipal law of particular contracting parties […] courts are not at liberty to consider any word as superfl uous or insignifi cant.

For decisions to the contrary, see the Scottish judgement in King v. Bristow Helicopters, [2001] 1 Lloyd’s Rep. 95. See also the decision of the Israeli Supreme Court in Daddon v. Air France, (1984) 1 S&B AvR VII/141. cf. R. Garcia-Bennett, Psychological Injuries under Article 17 of the Warsaw Convention, 26(1) Air & Space Law 49-55 (2001); A. Mercer, Liability of Air Carriers for Mental Injury under the Warsaw Convention, 28 (3) Air & Space Law 147-187 (2003); R. I. R. Abeyratne, Mental Injury Caused in Accidents During International Air Carriage – a Point of View, 3 TALQ 206-230 (1999).45 See International Case Notes and Commentaries, 4 TALQ 51-52 (2000), at 51-52.

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handling of situation; and loss of cabin pressure. This writer submits that all of above listed events are capable of being caused by the un-authorised use of portable electronic devices during critical stages of fl ight operations. Just as in our hypothesis, passenger A’s laptop is suspected to have caused a mid-air collision. Nonetheless, the Case Note commentary to Spielberg, et al. v. American Airlines, Inc., concludes by stating:46

Is $150,000 for 30 seconds of subjective fear, fright and anxiety – “mental injury” standing alone – unreasonable, excessive, shocking? These questions can be answered authoritatively only by the trial judge and the appellate court if asked to review the awards. In the meantime, three things remain clear. First, in claims of this nature – stand alone mental injury claims based on fear, fright and anxiety – there is no sound basis on which to predict what a jury may award in damages. Secondly, for international air transportation governed by the Warsaw Convention (as well as the Montreal Convention), the Floyd case remains a precedential barrier to such awards in the United States. Finally, it is well that IATA stood its ground at the Montreal Conference in May 1999 and succeeded in keeping mental injury as a stand-alone compensatable injury out of the new Convention.

In the opinion of this writer, the possibility of identifying the use of portable electronic device as giving rise to stand alone mental injury, such as was stated by the Presiding Judge in the aforementioned case of R v. Neil Whitehouse to the effect that the Defendant “had no regard for the alarm that would be caused to passengers by [...] [his] stubborn and ignorant behaviour” probably justifi es the need for passengers to be able to claim compensation for mental distress. A remedy that is currently not available under the Warsaw System or the Montreal Convention. Furthermore, an action for compensation under the Montreal Convention requires that there must have been an accident, a term which has been discussed in the case of Air France v. Saks, where it was stated that “[l]iability under Article 17 of the Warsaw Convention arises only if the passengers injury is caused by an unexpected or unusual event or happening or happening that is external to the passenger. This defi nition should be fl exibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”47 A defi nition of this nature would certainly encompass the injuries that passengers could sustain as a result of the unlawful use of portable electronic devices.48 One more issue which requires mention under the provisions of the Montreal Convention is the one relating to jurisdiction. In this regard and under Article 28 Warsaw Convention, a claimant had a choice of four fora within which a claim could be brought, including: the place of domicile of the carrier; the place of carriers principal place of business; the place where the 46 No. 96 Civ. 4763 (SDNY, 7 October 1999), 4 TALQ 52-53 (2003). 47 Air France v. Saks, supra note 44.48 For a detailed examination of the term accident, see Goldhirsch, supra note 41, at 80-84.

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carrier has a place of business through which contract is made; and the place which is the destination of the journey.49 All with the condition-precedent that a chosen forum must be located in the territory of a High Contracting Party. These provisions have been preserved under the Montreal Convention albeit with the addition of a fi fth jurisdiction under that Convention’s Article 33 which will now allow claimants to bring actions in their place of principal and permanent residence if the opponent has some (commercial) presence in the same place.50

Simply put therefore, the exoneration from liability and the quantum of compensation in case of death or injury of passengers on board the aircraft resulting from an accident (which is understood to have occurred within the meaning of the term) under the Montreal Convention adopts a two tier system, such that:

In the fi rst scenario the carrier is strictly liable and compensation is up to a limit of 100,000 SDRs, thereby making the carrier unable to exclude or limit its liability;In the second scenario, i.e. beyond the sum of 100,000 SDRs, liability is based on fault, with a reversed burden of proof. In other words, the carrier is not liable above the sum of 100,000 SDRs if it is able to prove that the damage was not due to the its negligence or other wrongful act or omission of its servants or agents. Furthermore, the carrier may not be obliged to pay any compensation beyond 100,000 SDRs if it is able to prove that the damage was solely due to the negligence or other wrongful act or omission of a third party.

Therefore, the defence of contributory negligence may be applied by the carrier in respect of all claims including the fi rst 100,000 SDRs for passenger injury or death. Note that it would still be necessary for the claimant (i.e. the passenger) to establish the causation between the death or bodily injury and the extent to which the accident caused such death or bodily injury as well as the quantum of loss suffered. As one writer51 put it, two key factors govern the civil liability of airlines: the presumption of liability that is imposed upon the airline and the liability limits that apply to protect the airline from unlimited liability and spurious claims. Viewed at a glance therefore, whilst on the one hand the airline is

49 For an examination of the four alternative Warsaw Convention jurisdictions, see Unmack, supra note 20, at 278-279; and Goldhirsch, supra note 41, at 176-188.50 An additional aspect of jurisdiction pertains to the principle of forum non conveniens, i.e., where a court, which has valid jurisdiction over a case which has been started before it, recognizes there is an alternative jurisdiction which is more appropriate to hear the case, and orders its transfer to that alternative jurisdiction. US Courts apply the doctrine of forum non conveniens to the Warsaw Convention whilst English courts do not. See Feng Zhen Lu v. Air China International Corp,(US DC EDNY, 1992; 24 AVI 17, 369 1992-5).51 R. I. R. Abeyratne, Aviation Trends in the New Millennium 173 (2001).

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subject to stringent standards of liability, on the other, it is protected by provisions which limit its liability in monetary terms and allow a complete or partial defence in rebuttal of the presumption. In the words of another commentator, in relation to claims for bodily injury, the Montreal Convention incorporates a defence indicating that the carrier shall not be liable in respect of claims for an amount in excess of 100,000 SDRs to the extent it can show the damage was not due to the negligence of the carrier, its servants or agents or that the damage was solely due to the negligence of a third party.52 This commentator also submits (albeit admitting that the gradation is a fi ne one) that there are likely to be instances of accidents arising as a result of conduct on the part of the carrier which is not negligent in the sense of careless or breaching some duty but in respect of which it might reasonably be argued that steps which the carrier could have taken might, in particular circumstances, have been appropriate and therefore, reasonably necessary. In the context of this work, Ritchie examined the issue by comparing analogous situations, such as those situations in which it is a passenger’s activity, rather than an external force such as weather, mechanical failure, or pilot error, that endangers passengers.53 Ritchies’ analogy is succinct at shedding more light on the matter. She contends rightly that before take-off, the fl ight attendants make the standard safety presentation, covering everything from how to fasten a seat belt to how to use the seat cushion as a fl oating device. This is in line with the provisions of the sample operational guidelines (examined hereinbefore) which airlines have been advised to adopt with regards to the use of portable electronic devices during fl ights. It is assumed therefore that failure to specifi cally warn the passengers about the risk using portable electronic devices will render the airline liable in the event of an accident.54 Furthermore, the airlines possess a duty to limit the passengers’ use of portable electronic devices especially during take-off and landings. Although fl ight attendants may be involved in monitoring the use

52 S. Gates, The Montreal Convention of 1999: a Report on the Conference and on What the Convention Means for Air Carriers and Insurers, 3 TALQ 190 (1999).53 C. Ritchie, Potential Liability from Electromagnetic Interference With Aircraft Systems Caused by Passengers’ On-Board Use of Portable Electronic Devices, 61 JALC 683-720 (1996).54 A comparison is made here with falling luggage in the case of Schwamb v. Delta Air Lines, Inc, 516 So. 2d 452 (La. Ct. App. 1987) where fl ight attendants directed the passengers to ensure that all items were stowed either above or below seats and to call for assistance in stowing their luggage if necessary. The jury found that the announcement did not adequately guard against passengers’ foreseeable negligence in stowing and removing items. The appellate court upheld the fi ndings of Delta’s sole liability and awarded the plaintiff $885,000 in damages.

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of portable electronic devices during fl ights, passenger tendencies to ignore standard safety warnings create an environment in which the use of portable electronic devices in violation of airline policy is rife.55

Bearing the arguments above in mind, one is led to ask whether a crew’s failure to ensure that all passengers have stopped using their portable electronic devices during take-off and landing is tantamount to “negligence or other wrongful act or omission of the carrier or its servants or agents” under the relevant provisions of the Montreal Convention. Contrast this with the notion that a plaintiff might argue that airline advertising targets business passengers with promises of a fl ying offi ce creates an environment encouraging passengers to use laptop computers etc throughout the fl ight. In the opinion of this writer a legal impasse is created because, whilst on the one hand a carrier would be found liable for failure to act when one passenger intentionally harms another,56 the carrier would, on the other hand, be exonerated for harm resulting from a passengers negligence57 (contributory negligence), unless of course there is evidence that the carrier failed to guard against such foreseeable negligence.58 As we know this scenario is undermined by the fact that passenger tendencies to ignore standard safety warnings create an environment in which the use of portable electronic devices in violation of airline policy is rife.

5. Collisions, Surface Damage and Liability

Whilst under the Warsaw and Montreal systems of liability discussed hereinbefore, the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, there is currently a different regime applicable to damage caused on the surface of the earth by aircraft as well as damage caused by an air collision. In the context of this work and from the preceding chapter fi ve, it has been established that the greatest danger to fl ight from portable electronic devices occur during the take-off and landing phases. Furthermore, reports of portable electronic device incidents are diffi cult to verify as it is virtually impossible to duplicate the original conditions with the same device, aircraft, location, radio frequency environment, and air-borne systems’ settings, thus implying that the chances of an accident investigation revealing on-board portable electronic device use as the cause of an accident which has given rise to damage sustained by a passenger remains very unlikely. Nonetheless, if it can be argued successfully, that fl ight anomalies could also take place outside 55 For an analysis of passenger behaviour on board aircraft see L. J. Thomas, Passenger Attention to Safety Information, in R. Bor (Ed.), Passenger Behaviour, 118-127 (2003).56 Lopez v. Southern Cal. Rapid Transit Dist., 710 P. 2d 907, 915 (Cal. 1985).57 Harrison v. Northwest Orient Airlines, Inc., 677 F. Supp. 131, 132, 134 (S.D.N.Y. 1987).58 Brosnahan v. Western Air Lines, Inc., 892 F.2d 730, 733-34 (8th Cir. 1989); Rodriguez v. New Orleans Pub. Serv., Inc., 400 So. 2d 884, 887-88 (La. 1981).

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of the take-off and landing phases, the worst case scenario, being a mid-fl ight collision, and possible subsequent surface damage on the earth, needs to be examined alongside the attendant liability considerations. An illustration of how the aforementioned hypothesis would apply in practice is the 4 October 1992 crash of an El Al Cargo Boeing 747 on a suburb of Amsterdam. In this instance the general negligence rules of the Netherlands Civil Code were applied to questions of fault and liability. Other national examples of surface damage caused by aircraft can be made under UK Law considering that the UK is not a party to the Rome Convention and has addressed surface damage liability issues in its Civil Aviation Act of 1982 which imposes strict liability on the operator of an aircraft for material loss or damage caused to persons or property on the surface by an aircraft while in -fl ight, taking-off or landing. Bearing the above illustration in mind, it is important to make a number of preliminary observations relevant to this aspect of liability.

Firstly, the number of signatory States to the relevant international legal instruments,59 governing liability for surface damage, i.e., the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,60 (45 Signatory States), supplemented by the Protocol to amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,61 (6 Signatory States) are very few in number. The impact of this limitation in signatory States bears upon the geographical applicability of the Rome Convention and its singular amending Protocol. Secondly, the nature of liability for damage suffered within the scope of the Rome Convention always arises in tort or under an act in the absence of any contract. Contrast this with liability under the Warsaw/Montreal system which may be contractual or tortuous. Thirdly, because the Rome Convention remains widely un-adopted, States have developed their own laws where the Convention does not apply. In fact, many but not all States have adopted strict liability where negligence does not have to be proved. On the other hand, for instance under Dutch law and the laws of some US states, negligence has to be proved.62 In other words, the law applicable to damage done by aircraft on the surface of the earth tends to be the local law of the land, either general tort law, usually based upon fault/negligence, or law specifi cally designed for damage done by aircraft on the surface,

59 For an account of the history and making of the applicable international legal instruments, see Diederiks-Verschoor, supra note 7, at 147-150.60 Opened for signature, 7 October 1952, Rome, 310 UNTS 181; ICAO Doc. 7634; (1952) JALC 447; (1963) USAvR 318.61 Opened for signature, 23 September 1978, Montreal, ICAO Doc. 9257.62 Unmack, supra note 20, at 362.

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usually based upon strict liability (such as in France, Germany and the UK).63 This point is confi rmed by the Rome Convention itself which mandates its applicability only to damage caused by foreign aircraft on the surface of the earth, and only if the country where the damage is caused and the country where the aircraft is registered are Parties to the Convention.64 Fourthly, as opposed to the Warsaw/Montreal liability system under which there are potential confl ict of law problems, under the Rome Convention’s system of liability there are fewer of such confl icts usually because the determination of fault and/or strict liability is simply governed by the law of the place where the accident occurred.

Another aspect of liability which also merits attention is that which arises from an aerial collision. An unfortunate event which, though not a very common occurrence in civil aviation, remains one that does give rise to legal repercussions when it takes place with the attendant capability of wide-spread destruction of lives and property. In this regard, the applicable rules can also be found in Article 7 Rome Convention, which, it has been contended, only covers the subject in very general terms, albeit expressing the fact that the operator of the aircraft may be held liable even when he is not guilty of causing the collision.65 The said Article states inter alia that “when two or more aircraft have jointly caused such damage, each aircraft concerned shall be considered to have caused the damage and the operator of each aircraft shall be liable, each of then being bound under the provisions and within the limits of liability of this Convention.” The simplicity of this regulation when applied to the legal complexities that may arise, based upon the hypothesis stated within this work, re-confi rms earlier views66 contending that the only provision in international law with any relevance to the matter is hardly adequate for the purpose.67

6. Some Considerations on State Responsibility and Liability68

With respect to the determination of criminal and/or civil liability the preceding discussion leads to a number of observations. Firstly, the burden of liability

63 Haanappel, supra note 30, at 86.64 See Articles 1 and 23 of the Rome Convention. Article 24 states that damage caused in the air, is outside the scope of the Convention.65 Diederiks-Verschoor, supra note 7, at 172.66 Id.67 The last attempt at revising the law and regulation applicable to aerial collision culminated in the preparation of a draft Convention in 1964.68 For an account of the historical and legal background of state responsibility, see C. Eagleton,

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for damages arising from the use of personal electronic devices on-board aircraft lies on either the air carrier or the offending passenger. We will recall however that in our hypotheses, the in-fl ight entertainment system is linked to an aircraft earth station mounted on the fuselage of the aircraft through which bi-directional signals are being transmitted, to and from a commercial communications satellite located on geostationary orbit. The geostationary commercial communications satellite it was mentioned has been authorised to transmit radiocommunications signals using radio frequencies co-ordinated in accordance with the ITU Radio Regulations and based upon a space segment license issued by the authorities of Country E. A Nation State. Furthermore, the extent to which the State jurisdiction on the one hand and the sovereignty principle on the other, apply to outer space was discussed in chapter four. Note that the 1967 Outer Space Treaty, in its Article II thereto, provides “Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” It can be implied that States do not exercise sovereignty in outer space, but that the spacecraft/satellite(s) located in orbit over which radiocommunications signals by which S-APC services are offered, remain subject to the jurisdictional powers exercised by States, albeit under separate provisions of the Outer Space Treaty including inter alia, Articles VI, VII, and VIII. It was also stated hereinbefore that the Outer Space Treaty makes provision, in its Articles VI and VII respectively, for the responsibility and liability of States involved in space activities. More importantly, Article VI of the Outer Space Treaty imposes responsibility on States parties to the Treaty to ensure that any space activity carried out by government agencies or non-governmental entities is performed

The Responsibility of States in International Law 3-25 (1928; reprint 1970); K. Zemanek, Causes and Forms of International Liability, in B. Cheng and E. D. Brown (Eds.), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on His Eightieth Birthday 319-321 (1988). On the general subject of state obligation and responsibility, see T. A Berwick, Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes, 10 Georgetown International Environmental Law Review 257, at 259 (1998); A. E. Boyle, State Responsibility and Liability for Injurious Consequences of acts not Prohibited by International Law: A Necessary Distinction?, 39 ICLQ 1 (1990); T. Street, The Foundation of Legal Liability (1906), cited in Eagleton, supra, at 3, note 1; J. L. Brierly, The Basis of Obligation, in H. Lauterpacht and C.H.M. Waldock (Eds.), International Law and Other Papers 1-67 (1958); I. Brownlie, System of the Law of Nations – State Responsibility Part I (1983); E. Jimenez de Arechaga & T. Attila, International State Responsibility, in M. Bedjaoui (Ed.), International Law: Achievements and Prospects 347-380 (1991); J. Crawford, The International Law Commission’s Articles on State Responsibility – Introduction, Text and Commentaries (2002); J. Crawford & S. Olleson, The Nature and Forms of International Responsibility, in M. Evans (Ed.), International Law 445-472 (2003); L. Henkin et al., International Law – Cases and Materials 544-594 (1980); M. Fitzmaurice, C. Flinterman, L. Erades, Interactions between International Law and Municipal Law – a Comparative Case Law Study, 395-410 (1993).

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safely and in conformity with the Outer Space Treaty and existing regulations of that State. Space activities performed by non-governmental entities are also subject to continual supervision by that State party. Article VIII of the Outer Space Treaty further re-affi rms the right “of a State Party to the Treaty on whose registry an object is launched into outer space is carried” to retain jurisdiction and control over such objects (in the context of this work, such objects would be the satellites or space segment over which signals for S-APC service provision are being transmitted). When one considers the possible liability of States involved in certain activities such as those described in this work, it is of great importance to note that what is referred to as responsibility of States in international law is essentially different from that of individuals under private law. It is trite to state that the systems of law which govern the two relationships are different in theory and in practice. It would thus be dangerous to draw analogies between responsibility, as it has developed between states, and the liability in private law, of one citizen toward another.69 We will recall that liability has been defi ned as “a condition of being responsible for a possible or actual loss, penalty, evil, expense or burden”, and as “the state of being bound or obliged in law or justice to do, pay, or make good something.”70

Bearing this defi nition in mind, one is able to appreciate the statement by Eagleton that an enquiry as to the origins of obligation in jurisprudence forces one back to moral axioms and therefore that the conception of liability is founded on an axiomatic principle.71 In support of this view, Eagleton argues that human society has long recognized certain rights as accruing to its members – rights which prescribe correlative duties on the part of others. Obligation therefore is the owing of a duty, and behind it, claiming the performance of that duty, is responsibility.72 That said, whilst the members of human society referred to above are in fact individuals or citizens, members of the community of nations are States, and thus responsibility in international law appears as a result of much the same forces as those giving rise to the rights and obligations of individuals and citizens in human societies. In the case of States however, from the moment that the right of the separate and equal existence of states was admitted, it became necessary to set up rules to guard those rights. Therefore certain rules were picked out for enforcement by the community of nations, and to the accepted norms of international law, states may now be forced to submit.73 However, as stated earlier, the machinery of 69 Eagleton, supra note 68, at 3, note 2. With respect to terminology compare “state responsibility” with “international liability”, see Zemanek, supra note 68, at 319 and 327; Berwick, supra note 68, at 259; Boyle, supra note 68.70 Black’s Law Dictionary (5th ed. 1979).71 Street, supra note 68.72 Eagleton, supra note 68, at 3. For a comprehensive historical account on the subject of state obligation, see: Brierly, supra note 68, at 1-67; see also Brownlie, supra note 68, at 1-8.73 Eagleton, supra note 68, at 5.

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enforcement for international law is essentially different from that of private law. This is because, recognizing no common superior, states have mutual consent as the basis for their rules of conduct. No new rule may be enforced upon a state without its own individual agreement to that rule. Therefore, it is upon this agreement to observe the rules of the community that international responsibility was founded.74 Responsibility in international law has been defi ned to mean “the principle which establishes an obligation to make good any violation of international law producing injury, committed by the respondent state.”75 What is important to note here is the use of the word violation. In the context of this work, however, we know as Zemanek has stated, that socio-economic or strategic necessities have compelled states to undertake or to permit new activities which may be perceived by other states as harmful or risky because their prejudicial effects, particularly in the case of an accident, are not and cannot be limited to the territory of the state undertaking or permitting them.76 Zemanek, in this respect, refers to the peaceful uses of outer space and the use of nuclear energy, both for peaceful and military purposes as pertinent examples. Reference to the principle of State responsibility can also be found in the dictum of the Permanent Court of International Justice in Factory at Chorzow77 (Jurisdiction), where the court stated that: “it is a principle of international law that the breach of an engagement involves an obligation to make reparation.” Consequently on the international plane, responsibility is the necessary corollary of obligation: every breach by a subject of international law of its international obligations entails its international responsibility.78 Similarly, Article 1 of the International

74 Id.75 Id., at 22.76 Zemanek, supra note 68, at 320..77 1927 PCIJ (Ser. A), No 9, at 21. See the following cases where the principle set out in Article 1 has been applied by the ICJ, viz.: Phosphates in Morocco, Preliminary, Objections, 1938 PCIJ (Ser. A/B), No, 74, at 28; Corfu Channel, Merits, 1949 ICJ Reports 4, at 23; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, 1986 ICJ Reports 14, at 142, para. 283, and 149, para. 292; Gabčikovo-Nagymaros Project (Hungary v. Slovakia), 1997 ICJ Reports 7, at 38, para. 47; For an account of the relations between the law of treaties and the law of State responsibility, see R. Lefeber, The Gabčikovo-Nagymaros Project and the Law of State Responsibility, 11 Leiden Journal of International Law 609 (1998). For those instances where the ICJ has referred to the principle of State responsibility see Reparation For Injuries Suffered in the Service of the United Nations, 1949 ICJ Reports 174, at 184; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, 1950 ICJ Reports 221. It is also on record that a number of arbitral tribunals have repeatedly affi rmed the principle in: Dickson Car Wheel Company Case, United Nations Reports of International Arbitral Awards, IV RIAA 669, at 678 (1931); International Fisheries Company Case, IV RIAA 691, at 701 (1931); British Claims in the Spanish Zone of Morocco Case, II RIAA 615, at 641 (1925); Armstrong Cork Company Case, XIV RIAA 159, at 163 (1953); Rainbow Warrior (New Zealand v. France), XX RIAA 217 (1990).78 Crawford & Olleson, supra note 68, at 445.

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Law Commissions (ILC) Articles on State Responsibility for Internationally Wrongful Acts, adopted in 2001, provides that “[e]very internationally wrongful act of a State entails the international responsibility of that State.”79 Crawford in his commentaries on the ILC Draft Articles notes:

Article 1 states the basic principle underlying the articles as a whole, which is that a breach of international law by a State entails its international responsibility. An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, fi rst, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such an act […]. The term “international responsibility” covers the new legal relations which arise under international law by reason of the internationally wrongful act of a State.80

While the aforementioned draft treaty provision refers to international responsibility for the internationally wrongful act of a State, a distinction must be made with the concept of State liability for harmful consequences of lawful activities which since 1974, constituted the focus of enquiries conducted by the International Law Commission.81 It has been argued that the search for principles governing liability for “lawful activities” seems to fl y in the face of all existing legal experience.82 Drawing an analogy from the incident of damage to Canada caused by the Soviet Cosmos 954 nuclear-powered satellite in 1978,83 the argument goes further to claim that in any case the practice of States and the jurisprudence of international tribunals fail to support the concept of liability for lawful activities.84 Brownlie’s argument is supported by a statement to the effect that:

State liability and strict liability are not widely supported at the international level, nor is liability for any type of activity located within the territory of a State in the performance of which no State offi cials or agents are involved. The case law on the subject is scant and the basis on which some claims of compensation between States were eventually settled is open to different interpretations. The role of customary international law in this respect is equally modest.85

Nonetheless and with specifi c reference to Article VI of the Outer Space Treaty, it has also been proposed by Marchisio that a special signifi cance

79 See Crawford, supra note 68, at 77.80 Id.81 Boyle, supra note 68, at 1-26; Brownlie, supra note 68, at 49-50. 82 Brownlie, supra note 68. 83 For discussions on this incident see P. G. Dembling, Cosmos 954 and the Space Treaties, 6 J. Space. L. 129-136 (1978); S. Gorove, Cosmos 954: Issues of Law and Policy, 6 J. Space. L. 137-146 (1978); P. P. C. Haanappel, Some Observations on the Crash of Cosmos 954, 6 J. Space. L. 147-149 (1978).84 Brownlie, supra note 68. 85 P. S. Rao, First Report on the Legal Regime for Allocation of Loss in Case of Transboundary Harm Arising Out of Harzadous Activities, UN Doc. A/CN.4/531, 21 March 2003, para. 3.

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must be attached to the principle contained in Article VI of the Outer Space Treaty on international responsibility of States for all national space activities, whether such activities are carried out by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions of the treaty.86 He argues that this principle goes further than the rules of general international law relating to State responsibility. If in fact the general principle of international law is that States are not responsible in principle for private conducts (emphasis mine), in the meantime it is also a principle of general international law that States must in any case respond for having neglected to take all reasonable measures to prevent private offensive acts from being committed. In his view Article VI encompasses all the legal consequences of national activities in outer space, as provided for by international space law, namely not only the obligation to reparation in case of violations of international obligations by public or private entities, but also the obligation to compensate damage according to the special regime set forth in Article VII, which together with the 1972 International Liability Convention depicts a victim-oriented discipline of absolute responsibility/strict liability for damages caused by space objects on the surface of the earth or to aircraft in fl ight.87 Therefore there is a further consequence arising from the accountability provided by Article VI, namely the recourse by States to legislative action at the national level to answer for private space activities covered by their international responsibility and to the legal consequences thereof. Marchisio’s argument is buttressed by that of Kopal to the effect that “in the past, States assumed a direct responsibility not only for their own space activities but also for the activities of private persons of their nationality.”88

In the context of this work and for the purposes of determining State liability, it is pertinent to note fi rstly that we have established previously the liability attaching to damages suffered by a passenger as stemming from a contractual relationship. In other words “contractual liability”, defi ned as “the liability which arises from a contract or agreement”, and thus fundamentally dealing with liability as between parties to a contract regarding activities undertaken

86 S. Marchisio, The 1983 Italian Law N. 23 on the Compensation for Damage Caused by Space Objects, 54 (2) ZLW 261-270 (2005). 87 For analysis and discussions on the provisions and applicability of this Convention, see O. Ogunbanwo, International Law and Outer Space Activities 140-180 (1975); B. Cheng, Convention on International Liability for Damage Caused by Space Objects, in N. Jasentuliyana & R. S. K. Lee (Eds.), Manual on Space Law, 83-172 (1979); K. Wiewiorowska, Some Problems of State Responsibility in Outer Space Law, 7 J. Space. L. 23-38 (1979); C. Q. Christol, The Modern Law of Outer Space 59-128 (1982); M. D. Forkosch, Outer Space and Legal Liability, 69-119 (1982); G. Zhukov & Y. Kolosov, International Space Law 101-108 (1984); E. R. C. van Bogaert, Aspects of Space Law 161-176 (1986). 88 V. Kopal, The Work of the United Nations (COPUOS), in K-H Boeckstiegel (Ed.), Project 2001 – Legal Framework for Commercial Use of Outer Space 1, at 19 (2002).

LIABILITY 189

in relation to damage suffered in the context of the contract and its subject matter.89 Secondly, that third party liability arising from collisions and surface damage could be caused to third parties not formally or contractually related to the person or entity causing the damage. The third parties themselves being wholly unaware of the possibility of suffering damage or being able to take any precautionary measures. The question thus arises as to whether any claims may be made against the provider of the space segment, i.e., the company that operates the geostationary communications satellites and/or the nation State (E in our hypothesis) responsible for its authorisation and continuing supervision. In particular, can the burden of liability which may arise within the chain of events and relationships formed through end-to-end provision of S-APC, be borne by a nation State? In this respect, there is a distinction between the exercise of jurisdiction and control and the assumption of liability. This is because the liability regime applicable to damage caused by space objects derives from the 1972 Convention on International Liability for Damage Caused by Space Objects (Liability Convention). The Liability Convention in its Article 1(a) considers damage to mean “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international organizations.” Whilst the Convention does not defi ne liability strictly speaking, it supplements the Outer Space Treaty and establishes “strict”/“absolute” and “fault” liability for different kinds of damage caused as a result of space activities, thus refl ecting the provisions of Article VII to the Outer Space Treaty. In other words, the Liability Convention provides a formula for apportioning the burden of liability, by distinguishing between damage caused on the surface of the earth or to an aircraft in fl ight, and damage caused elsewhere than on the surface of the Earth. Thus, for damage caused by a space object on the surface of the earth or to an aircraft in fl ight the Convention introduces absolute liability (Articles II and IV) and for damage caused by a space object elsewhere than on the surface of the earth fault liability will apply. (Article III and IV (b)). The party liable to pay compensation for damage under the Liability Convention’s Article II, is regarded as the “launching State” defi ned to mean: (i) a State which launches or procures the launching of a space object; (ii) a State from whose territory or facility a space object is launched.90 On a related note, Article VIII of the Liability Convention empowers States (emphasis mine) to bring claims against one another in respect of damage suffered by it or its nationals otherwise referred to as the rule of “nationality of claims.”

89 Black’s Law Dictionary (5th ed. 1979), Haanappel, supra note 30; F.G. von der Dunk, Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and GALILEO, 30 J. Space. L. 129-167, at 134 (2004).90 Further provision is made under Articles IV, V and VI of the Liability Convention for joint liability when two or more States launch a space object in a collaborative effort.

190 CHAPTER SIX

At this point, it is necessary to determine if and how this liability regime, applicable under the Liability Convention, is relevant to, or could be applied to the damages with attendant liability, that may arise from the transmission of radiocommunication signals over a satellite which are ultimately (irrespective of whether the signals are received directly through an aeronautical earth station affi xed to the aircrafts fuselage, or routed through an earth based ground earth station) used/employed by airline passengers through portable or fi xed cabin-installed electronic devices on-board the said aircraft. In shedding light on this query, Von der Dunk asserts that the application of the Liability Convention further depends upon the damage being caused by a space object.91 Damage caused without the involvement of a space object, i.e. an object defi ned by Article 1(d) of the Liability Convention to include the component parts of a space object as well as its launch vehicle and parts thereof (emphasis mine), cannot be compensated under the liability Convention. This statement brings us to the status of radiocommunications signals transmitted for non-safety AMSS purposes. Firstly, we cannot but acknowledge, as we have seen in preceding parts of this chapter, the existence of a separate set of rules which continue to be relevant to damages suffered by passengers on-board aircraft or damages suffered by third parties on the ground, under the current air law regime. Secondly, even if it were to be the signals transmitted from the satellites which constitute the primary cause for an accident leading to a right to compensation – for instance due to signal interference – we are bound to consider the provisions of Article S4 of the ITU Radio Regulations which require Member States “to [simply] avoid causing harmful interference to services rendered by stations using frequencies assigned in accordance with the Table of Frequency Allocations.” And in the event that such harmful interference is indeed caused, the Radio Regulations pursuant to Article S.11.41 indicate that “the State will immediately eliminate this harmful interference.” Thirdly, the provisions of Article 36 of the ITU Constitution provides that “members accept no responsibility towards users of the international telecommunication services, particularly as regards claims for damages.” We recall that international telecommunication services are defi ned in the Annex to the ITU Constitution as “the offering of a telecommunication capability between telecommunication offi ces or stations of any nature that are in or belong to different countries.” Furthermore, one could assume that there may be a lacuna in the law as no detailed provisions are made in the Radio Regulations for procedures to be adopted in the event that an accident is caused as a result of interference between radio signals. However, from a practical point of view, even where an accident and attendant liability has arisen from the more pertinent satellite

91 F. von der Dunk, Public Space Law and Private Enterprise; The Fitness of International Space Law Instruments for Private Space Activities, in Proceedings of the Project 2001 – Workshop on Legal Issues of Privatising Space Activities 28 (1999).

LIABILITY 191

service offered to the aviation industry through positioning satellites for aircraft navigation purposes, the jurisprudence remains unsettled as is refl ected in a plethora of arguments put forward by several writers.92 For these reasons, this writer submits that the liability regime stemming from the Outer Space treaties would not apply to portable electronic device related accident on-board an aircraft, neither would they apply with regards to a portable electronic device related accident caused by an aircraft leading to damages sustained by third parties on the ground, where attendant liability gives rise to cause of action, consequent upon a breach of contract – at least within the foreseeable future. Consequently, liability issues stemming from the use of portable electronic devices on-board aircraft will, where they do arise, be dealt with pursuant to the provisions of the existent regime governing international air transport. Although in those areas not covered by the international air law instruments, national private laws will remain applicable, meaning that the law of confl icts or private international law will serve to determine which national laws are applicable.

92 See the contributions in 3 (1) Newsletter of Committee Z (Outer Space) of the International Bar Association Section on Business Law (2000): F. von der Dunk, The Bigger Picture: Public International Law and the Future of GNSS; P.B. Larsen, Future GNSS Legal Issues; P. Kulkarni and P. Mendes de Leon, Liability for Damage to Civil Aviation Within the Context of GNSS; I. Lagarrigue, Are Existing Navigation Satellite Liability Provisions Adequate to Govern a Navigation Satellite Malfunction?; L. Weber and Jiefang Huang, ICAO and the GNSS.

193

CHAPTER SEVEN

Institutions, State Practice and Regulation in the 21st Century

In the over forty decades of space exploitation and exploration, commercial activities in outer space have largely consisted of satellite communications. Whilst the maritime and land-mobile sectors can now be regarded as mature, the next growth area in the mobile satellite sector of the satellite communications industry is the non-safety aeronautical mobile satellite service sector. A sector which until recently was subject to an intergovernmental monopoly, maintained by the former International Maritime Satellite Organization (INMARSAT), is now poised to expand in an era marked by the convergence of communications technologies and services, alongside the privatisation, commercialisation, deregulation and liberalisation of air transport and satellite communications services. This chapter is intended to draw conclusions from the preceding parts of this work highlighting what the law is, as opposed to what the law ought to be, and makes recommendations relating to what the law as it is, should be if the rules were changed to accord with good policy.

1. Moving Into the 21st Century

A joint press release issued by Lufthansa and Connexion-by-Boeing dated 11 May 2004, announced the successful launch of the Lufthansa FlyNet system commencing its service offering on Monday, 17 May 2004, on-board fl ight LH 452 from Munich to Los Angeles.1 It was announced that the FlyNet service would permit unrestricted in-fl ight internet access with a laptop or other mobile 1 See Lufthansa FlyNet: a new era in global mobile communications, Connexion by Boeing and Lufthansa offer broadband access for high-fl ying surfers, at http://cms.lufthansa.com/fl y/de/en/inf/0,4976,0-0-1144004,00.html, last accessed on 20 October 2004.

194 CHAPTER SEVEN

terminals via a Wireless Local Area Network (WLAN). Using the satellite connection provided by Connexion-By-Boeing, Lufthansa passengers are now able to surf the internet, send e-mails with attachments or set up a secure data connection via a Virtual Private Network (VPN) to their company’s intranet or mail server.2 Furthermore, passengers will gain access to the free FlyNet on-board internet portal, which contains over a thousand pages of constantly updated news, weather, travel and lifestyle information. The portal will also offer shopping possibilities. The communiqué stated that FlyNet has already been installed on fi ve A340-300 aircraft. After the start of the service on the route Munich – Los Angeles further destinations, for example in Asia, will follow, anticipating that by the Spring of 2006 Lufthansa’s entire long-haul fl eet of 80 Airbus A340, A330 and Boeing 747-400 aircraft will be equipped with the technology. FlyNet is available in all classes in the entire cabin as the connection to the server uses a WLAN system. All passengers (First, Business and Economy) will therefore be able take advantage of the FlyNet service using their own laptops from anywhere in the cabin. However, an additional electricity supply for passengers own laptop terminals is only available in First and Business Class. This development is similar to that contained in a press release issued by London based satellite operator Inmarsat Ltd, dated 26 September 2003.3 The announcement set out plans by Swiss based airline technology provider SITA, to launch an in-fl ight text messaging service that would allow passengers to input up to 160 characters, incorporating words, numbers and certain country-extended character sets via their in-seat telephone in-fl ight entertainment screen. This would enable airlines, airports and other travel companies to text their staff and passengers with important information about their travel plans, including reservations, fl ight information or promotional messages. That press release, citing results of an annual Airline IT Trends Survey, conducted by SITA and Airline Business magazine, stated that by the end of 2003, 25 percent of airlines would offer e-mail and 22 percent will provide text services to passengers on-board their aircraft. It also predicted that by 2006 fi gures would rise to 46 percent offering e-mail and 45 percent offering text services. Earlier on in the same year, Inmarsat had already launched its new mobile packet data service (MPDS) intended to complement the successful 64kbit/s ISDN service, which had been available since the launch of Swift64 in April 2002. It was reported that MPDS, considered an ‘always on’ connection which charges users only for the amount of data sent or received, would bring web-based applications to the passenger’s seat, causing passengers to pay only for

2 For the current list of routes on which FlyNet is available, see http://cms.lufthansa.com/fl y/de/en/inf/0,4976,0-0-1144059,00.html, last accessed on 20 October 2004.3 See In-fl ight Text Messaging Gets Clearance 4 Take-off, at http://about.inmarsat.com/news/00014165.aspx, last accessed on 26 July 2006.

INSTITUTIONS, STATE PRACTICE AND REGULATION IN THE 21ST CENTURY 195

the data received or transmitted across the satellite link. The said MPDS is currently available through Swift64 avionics developed by EMS Technologies, Honeywell/Thales, Rockwell Collins and Thrane & Thrane, and is offered through a range of Inmarsat service providers with initial approvals obtained through Arinc, SITA, Stratos and Telenor. The facts stated hereinbefore confi rm the rate at which major advances in technology have taken place in this fi eld of human endeavour through the 1980s and into the new millennium. Considering that although fi xed or mobile browsing of the internet, sending e-mails with attachments or setting up a secure data connection via a VPN to a corporate entity’s intranet or mail server is now common place, these activities have traditionally been far removed from the commercial aircraft environment. A glaring fact, because the state of the art on 14 February 1989 was the ability by passengers to place a simple satellite telephone call aboard a specially equipped British Airways Boeing 747 fl ying from London’s Heathrow Airport to New York’s JFK Airport.4 These strides in technological and marketplace offerings signal the inevitable march towards convergence in the S-APC service sector, since it is anticipated that this rapidly developing marketplace will soon include the provision of audio-visual services over the planned AirTV system.5 AirTV is expected to provide over sixty channels of live television (in multiple languages) and 40Mbps of internet, e-mail and data services to aircraft. Note that audio-visual services encompass what are defi ned as Direct Broadcast-Satellite services (DBS),6 i.e., “a radiocomunication service in which signals transmitted or retransmitted by space stations are intended for direct reception by the general public. In the broadcasting satellite service, the term direct reception shall encompass both individual and community reception.” The rules applicable to the reception of TV signals in general are different from those applicable to traditional voice and data services provided over satellites.7 As far back as the 1960s, the medium of television gave rise to what has been described as an international awareness of both immense potential advantages as well as potentially serious problems.8 This awareness, it is contended9 received its fi rst comprehensive expression in the report of a Working Group on Direct Broadcast Satellites, established

4 INMARSAT Press Release NR89/3/aero, 14 February 1989.5 See AirTV Signs With Arianespace to Launch its First Broadband In-Flight Entertainment/Communications Satellite in 2007, 23 September 2004, at http://www.airtv.net/press_release_092304.html, last accessed on 26 July 2006.6 Article 1 paragraph 38, RR.7 United Nations Principles Governing the Use by States of Artifi cial Earth Satellites for International Direct Television Broadcasting (Resolution 37/92 of 10 December 1982, UN Doc./A/Res/37/92). See T. Brisibe, Broadcasting-Satellite Services In Airspace of the High Seas: Some Legal and Regulatory Considerations, 46 Coll. L.Outer Space (2003). 8 N. Jasentuliyana & R. S. K. Lee (Eds.), Manual on Space Law, Vol. I, at 284 (1979). 9 Id.

196 CHAPTER SEVEN

in 1968 by the United Nations General Assembly, to “study and report on the technical feasibility of communication by direct broadcast from satellites and the current and foreseeable developments in this fi eld, including comparative user costs and other economic considerations, as well as the implications of such developments in the social, cultural, legal and other areas.”10 That report recognized the promise of unprecedented progress in communications and understanding between peoples and cultures. It also identifi ed benefi ts such as improved health and education and a greater fl ow of news and more information, more extensive intercultural programmes and the development of closer ties between peoples of countries and within countries. For developing countries, the report stated that DBS services would permit the acceleration of their national programmes of integration, economic development, health, agriculture, education, communal development and culture. However, alongside the aforementioned potential benefi ts, the following adverse effects were recognized as capable of resulting if the new technology were abused. The adverse effects included:

Programmes deliberately transmitted from a State in order to achieve certain political objectives, e.g. propaganda, incitement and interference with internal affairs of the recipient State;Programmes which while not unfriendly, contain material or employ techniques that would be prohibited in the receiving States. This could include programmes containing violence or obscenity or even commercial advertising messages, particularly where subliminal advertising techniques might be employed;Programmes that are unwanted largely because they are foreign. This could include news or public information programmes that depict events from the viewpoint of the originating State. It could include programmes that serve to depict a foreign way of life in such a manner as to glorify that way of life or belittle the culture of others or to raise expectations in the receiving country.

Jasentuliyana and Lee writing in the late 1970s referred to a deadlock in the process of developing international instruments to govern DBS. Stating that, as to the matter of form, there is no consensus to conclude binding legal instruments. As for the substance, there is no consensus to adopt prohibitive or even detailed regulations.11 At present there is a deadlock in the process of developing international instruments to govern DBS.12

10 UN General Assembly Resolution 2453 (XXIII), 20 December 1968.11 Jasentuliyana & Lee, supra note 8, at 284. 12 N. Jasentuliyana & R. S. K. Lee, The Distribution of Programme Carrying Signals Transmitted By Satellite, in N. Jasentuliyana & R. S. K. Lee (Eds.), Manual on Space Law, 239-253 (1979); J. Busak, The Need for an International Agreement on Direct Broadcasting By Satellites, 1 J. Space L. 139-154 (1973); A. Armando Cocca, The Supreme Interests of Mankind Vis-á-Vis The Emergence of Direct Broadcast; 2 J. Space L. 83-94 (1974); C. Christol,

•

•

•


The position subsists to this day. High tariffs continue to be imposed on audio-visual imports. They are also restricted to quotas, and some countries have decided that only a limited portion of the existing market can be served by foreign businesses. This attitude was maintained in the negotiations that led to the General Agreement of Tariffs and Trade (GATT) in 1974. In this instance, some States participating in the negotiations insisted that motion pictures should be exempted from the national treatment obligation that constituted a pillar of the GATT. The national treatment obligation is a basic principle of international trade rules and policy. National treatment obligations generally prohibit discrimination on the basis of nationality. Under GATT Article III, the central national treatment obligation in GATT prohibits discrimination between imported and domestically produced goods with respect to internal taxation or other government regulation. The GATS Article II contains the obligation to grant the most-favoured nation (MFN) treatment to all services and service suppliers of any WTO member. This implies the prohibition of de facto as well as de jure discrimination between foreign services and service suppliers. A member may also exempt itself from this obligation.13 As a result of this demand, a clause was inserted in Article IV of the GATT, whereby the establishment and maintenance of fi lm screen quotas were specifi cally permitted. The purpose was to guarantee that a minimum percentage of total screen time would be allotted to fi lms of national origin. Several years after the Uruguay round of negotiations leading up to the GATS, only thirteen countries adopted commitments of the audio-visual sector. Today the fi gure has risen to nineteen through accessions but remains far below the level of market openings achieved in other economic sectors. In the light of the above, it is certain that what were previously thought of as separate actors, namely telecommunications, information technology and media are coming together via a process referred to as convergence. Convergence itself is a phenomenon defi ned as the digitization of all media forms and the adoption of compatible digital formats by all networks and information appliances.14 In the words of Freiden, convergence could be regarded as a solvent that dissolves broadcasting, postal and telephone networks, cinema, newspaper and book publishing, photography, musical

The 1974 Brussels Convention relating to the Distribution of Programme Carrying Signals Transmitted By Satellite: An Aspect of Human Rights, 6 J. Space L. 19-35 (1977); P. Rainer, et al., Satellite Broadcasting 242-266 (1985); D. Fisher, Prior Consent to International Direct Satellite Broadcasting 152-186 (1990); C. Christol, Space Law – Past, Present and Future 115-130 (1991); M. Lesueur Stewart, To See The World – The Global Dimension in International Direct Television Broadcasting By Satellite 3-100 (1991).13 D. Luff, Current International Trade Rules Relevant to Telecommunications Services, in D. Geradin & D. Luff (Eds.), The WTO and Global Convergence in Telecommunications and Audio-Visual Services, 34 (2004).14 M. Mueller, Convergence a Reality Check, in D. Geradin & D. Luff (Eds.), The WTO and Global Convergence in Telecommunications and Audio-Visual Services, 311-312 (2004).

198 CHAPTER SEVEN

recording, calendars, clocks and money into One Big (distributed) Medium, the medium itself being an integrated information communications and entertainment market place (ICE).15 He goes further to state that for various ICE market segments (such as S-APC) to function without trade barriers and competitive distortions, the legal, regulatory and trade policy regimes involved must adapt to changed circumstances. Furthermore, efforts to liberalise and deregulate telecommunications have generated less success and more harm than anticipated, primarily because technological and market convergence raise new issues even as old ones do not simply evaporate through the remedy of competition. Simply put, the legal, regulatory and trade policy-making apparatus has not kept pace with ICE convergence. Freiden, who advocates what the law as it is should be if the rules were changed to accord with good policy, has the support of other entities and writers. For instance, the Final Communiqué issued by the Forum on Telecommunication Regulation in Africa (licensing in the era of convergence), meeting under the auspices of the ITU in Kampala, on 3 to 5 November 2004, observed the rapid pace at which telecommunications technology is moving towards convergence and the need to adapt the legal, institutional, policy and regulatory frameworks globally. The Forum also noted that the transition towards unifi ed or convergent licensing should be properly analyzed, taking into account the real situation in each nation State, as there is no single regulatory solution to address convergence. In this respect, other authors have noted the importance, now more than ever for each individual economy to determine what types of policies are needed to create an environment and network infrastructure that would greatly facilitate information and communication technologies (ICT) and overall networked readiness.16 Paua further outlines a legal and regulatory framework with the salient elements that should be considered in crafting an environment for networked readiness. Thus elements of a legal framework would include: a basic legal framework (property rights and contract law) revision and creation of relevant legislation (e-commerce); and harmonization with international law. Whilst elements of a regulatory framework would include: regulatory capacity (establishing an independent and effective regulatory agency); degree of regulation (choosing an appropriate level of regulation) and regulatory process (licensing/auctions, standard setting, dispute resolution, interconnection.). On a similar note, Ricupero contends that uncertainty over the legal framework governing ICT use may inhibit the adoption of ICT.17 For example, in online transactions and issues such as infrastructure security, laws and regulations 15 See R. Frieden, Wither Convergence: Legal, Regulatory and Trade Opportunism in Telecommunications, in D. Geradin & D. Luff (Eds.), The WTO and Global Convergence in Telecommunications and Audio-Visual Services 323 (2004).16 F. Paua, Global Diffusion of ICT: a Progress Report, in S. Dutta, B. Lanuin & F. Paua (Eds.), The Global Information Technology Report 2003-2004, at 49 (2004).17 R. Ricupero, Getting the Framework Right, in WSIS 2003 Connecting the World 82 (2003).


that provide for appropriate security of data and networks, and for a safe operating environment, are critical components of a coherent development strategy because they form the underlying foundation of government support for ICT. In as much as this work is concerned with the international law and regulation of S-APC, and with the on-going progression towards convergence in the provision of S-APC services, it is proper to acknowledge the need for convergence of regulation and regulatory dimensions. This will allow stakeholders, such as mobile-satellite operators, national regulators and policy makers, to manage the rapidly evolving sector trends successfully and to be better prepared for a re-shaped industry.

2. International Instruments, Institutions, Geo-Politics and Industry

2.1. Relevant Legal and Regulatory Instruments

The provision of S-APC in the context of international law and regulation is subject to the interpretation and application of a fair number of treaties18 applicable in the realms of air law, space law, international telecommunications, the law of the sea and the Polar Regions, as well as the international trade aspects of international economic law. The primary reason for determining whether certain agreements, statements or other action constitute a treaty,19 is that rights and obligations may then arise to which the law of treaties is applicable. The relevance and effect20 of treaties in the context of this work, does raise issues on the amendment of Treaty provisions. We noted also in chapter three, that resolutions, technical rules and standards which do not necessarily have the effect and force of treaties, applicable especially in the aviation and telecommunications fi elds, have a big role to play in the regulation of S-APC service provision. The legality of some pertinent technical regulations and standards needs to be addressed. Furthermore, recent years have witnessed a proliferation of new 18 Defi ned as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Article 2(1) (a) of the 1969 Vienna Convention on the Law of Treaties, 1158 UNTS 331. 19 There are many designations used other than ‘treaty’ to refer to an international agreement, for example, ‘convention’, ‘protocol’, ‘declaration’, ‘charter’, ‘covenant’, ‘agreement’, ‘concordant’, although treaty is the accepted generic term. Article 2(1) (a) of the 1969 Vienna Convention on the Law of Treaties confi rms that it is the effect of an agreement, rather than the nomenclature attributed to it that is relevant.20 It is outside the scope of this work to delve in depth into the binding nature of a treaty and state obligation.

200 CHAPTER SEVEN

kinds of bilateral or multilateral agreements referred to as “Memorandum of Agreements/Understanding”, formulated to settle temporary measures and perhaps serve as ad hoc complements to treaties and conventions of traditional diplomacy.21 MoUs have been defi ned22 variously as “a written document executed by the parties which establishes policies or procedures of mutual concern. It does not require either party to obligate funds and does not create a legally binding commitment” or as “a written document executed by the parties which creates a legally binding commitment and may require the obligation of funds.” While the subject of MoUs and their relevance to portable electronic devices is discussed in the following section, suffi ce it to state that, underlying this variety of instruments is the global nature of S-APC service provision, that can only be truly effi cient in a legal and/or regulatory context that is uniform on as wide a scale as possible.

2.2. Applying the Regimen – A Bird’s Eye View

For the sake of illustration, in order to use the Connexion-by-Boeing system, the passenger will plug in a personal laptop computer or other device, such as a personal digital assistant (PDA), through a jack in the seat. This will connect the passenger through the aircraft’s cabin distribution subsystem to the aircraft’s in-fl ight entertainment system and to internet and media servers located aboard the aircraft. After the connection is made, the passenger can choose from a menu of audio/video offerings, internet and intranet access, airline information and in-fl ight shopping. Passengers will be able to pay for Internet and intranet access through personal credit cards or through pre-established accounts. Certain services may be provided by the airline at no charge to the passenger. The Connexion-by-Boeing system also supported operation of a WLAN network on board aircraft, in accordance with IEEE 802.11 a, b, and g. In an October 2003 submission to the Asia Pacifi c Economic and Telecommunications and Information Working Group,23 Connexion-by-Boeing reported that a number of countries already authorized its operations within their territories, including the United States, Canada, several countries throughout Europe, and Sudan.24 In addition, the civil aviation authorities of 21 P. A. Salin, Non-Trade Globalisation Issues and Space Communications, 7 Telecom. & Space L. 130, at 147 (2001).22 Defi nitions are those provided by the United States Federal Aviation Administration.23 See Bringing Broadband to Aircraft, a Brief Introduction, at http://www.apectelwg.org/apecdata/telwg/28tel/bw/telwg28-BB-07.htm, last accessed on 2 November 2004.24 This is in accordance with paragraph iii of the Annex to ICAO Resolution 36/1 of 1992 which provides inter alia that the use of radiocommunications apparatus on-board aircraft shall be in

compliance with the requirements of the International Telecommunication Convention and the Radio Regulations adopted thereunder as amended from


the United States, Germany, and the United Kingdom had issued necessary authorizations for installation and operation of its systems including air worthiness certifi cations and aircraft radio licenses for each Connexion-by-Boeing equipped aircraft.25 This operator also submitted that several countries concluded that licensing of AESs operating in accordance with relevant ITU-R Recommendations and the Chicago Convention is not necessary. In many such cases a simple authorization is granted by letter, upon notifi cation by the AMSS operator. Connexion-by-Boeing therefore, in making recommendations to States deciding whether formal authorization of Connexion-by-Boeing is necessary, suggests that administrations may wish to consider several characteristics of Connexion-by-Boeing which differentiate it from a typical Mobile Satellite Service (MSS) or Global Mobile Personal Communications by Satellite (GMPCS) service in evaluating their domestic legal and regulatory requirements. The company therefore wishes administrations to conclude that additional authorizations are not needed for its service to aircraft in or over their territories, or that a simple letter of notifi cation may suffi ce. The stated Connexion-by-Boeing characteristics include the following:

1.) Aircraft Radio License: that in accordance with the 1944 Chicago Convention, all AESs installed on aircraft will be licensed by the fl ag nation of that aircraft. This Aircraft Radio License will be endorsed by the aircraft’s civil aviation administration or national regulatory authority prior to Connexion-by-Boeing’s operation on that particular aircraft.

2.) Recommendation ITU-R M.1643:26 that Connexion-by-Boeing’s operations will comply with this technical ITU Recommendation, thus ensuring compatible spectrum use with domestic operations in the 14-14.5 GHz band.

3.) Approved Satellite Facilities: that Connexion-by-Boeing will operate within coordinated levels for the transponders it leases on a satellite authorized to provide service to the country.

4.) Data Service: that unlike traditional telephony-based GMPCS services, Connexion-by-Boeing will provide IP-based data services, including high-speed internet, corporate intranet access, travel information, as well as non-safety related operation services to airlines and crew.

5.) Minimal Contacts: that distinct from traditional GMPCS and MSS services, Connexion-by-Boeing’s airborne service will in most cases have no local infrastructure, no local service providers, and no impact on local networks. Connexion-by-Boeing’s broadband to aircraft service is offered to a

time to time, including the applicable radio frequencies, the avoidance of harmful interference with other services and priority for aeronautical communications relating to distress, safety and regularity of fl ight; and compliance with any technical and operating conditions set forth in the applicable regulations of the Member State in or over whose territory the aircraft is operating.

25 In accordance with Article 30 of the 1944 Chicago Convention.26 For a summary of the events leading to the adoption of ITU-R Recommendation M.1643 at the WRC 2003, see chapter fi ve supra.

202 CHAPTER SEVEN

very narrow mobile market – aircraft passengers and crew traversing the country’s airspace. Especially in cases of overfl ight by foreign aircraft, there is minimal contact with and impact to the overfl own country.

Assessing the characteristics of Connexion-by-Boeing service identifi ed above by its provider raises a number of interesting questions, considering inter alia what the defi nition of GMPCS and MSS services in fact constitute. In this respect we had established in chapter three of this work, that GMPCS is defi ned as a personal communication system providing transnational, regional or global coverage from a constellation of satellites accessible with small and easily transportable terminals. Whether the GMPCS satellite systems are geostationary or non-geostationary, fi xed or mobile, broadband or narrowband, global or regional, they are capable of providing telecommunication services directly to end users. GMPCS services include two-way voice, fax, messaging, data and even broadband multimedia.” MSS services on the other hand, are “a radiocommunication service between mobile earth stations and one or more space stations, or between space stations used for this service; or between mobile earth stations by means of one or more space stations. This service may also include feeder links necessary for its operation.”27 The following example will illustrate how the regimen detailed above is applied in practice. At the ITU/BDT Arab Regional Workshop on Licensing, convened in Amman, Jordan from 2 to 4 September 2003, the Jordanian Telecommunications Regulatory Commission declared that it would be amongst the fi rst countries to license what it referred to as “Two-way Broadband AMSS” in the Arab region. This licensing process would be based upon completion by applicants of the appropriate forms and payment of a fee based on spectrum usage, set at 4,000.00 Jordanian Dinar (per annum). The license would be issued on the following conditions: (a) the service shall not cause harmful interference; (b) the service must accept interference; and (c) it shall not be utilized for Air Traffi c Control purposes. As this example shows, the characteristics of the Connexion-By-Boeing service leads to the submission that in fact the Connexion-By-Boeing system and the service it offered could rightly be classifi ed as a GMPCS, MSS or AMSS service. Variations in semantics and service classifi cations are not new in the telecommunications industry and have been referred to by Freiden,28 as opportunities for regulatory arbitrage, i.e. opportunities to tilt the competitive playing fi eld to one’s advantage by exploiting differences in classifi cations and qualifying for a status with less regulatory obligations and comparatively fewer market access opportunities for competitors. He contends that, depending on one’s perspective, clever and unanticipated outcomes help blunt the adverse and meddlesome impact of poorly drafted legislation and trade policies, or forestall the full achievement of essential public policy objectives. Although

27 Article 1 paragraph 27, Radio Regulations.28 Freiden, supra note 15.


the concept of regulatory arbitrage appears to have its roots in the fi nancial services industry, where particular fi nancial services or products are booked in an entity with the intention of reducing regulatory costs and/or oversight, it is now common place in the telecommunications industry as well. For instance, Voice over Internet Protocol (VoIP), hailed as one of the major applications of broadband internet, involves the use of internet protocol to transmit voice calls over the internet in packets of data (like sending an email) instead of connecting a call conventionally over a single open circuit. VoIP services are traditionally offered by Internet Service Providers (ISPs). In this respect, the European Commission has issued guidance on VoIP in the past. An issue that will certainly be revisited in view of the new pan European e-communications regulatory framework, which came into effect in July 2003.29 Thus, for the moment, in Europe, one standard is that if VoIP comes with no quality-of-service guarantees, then it is not regulated. Government stances on VoIP regulation vary widely around the world. In Canada, the government is leaning toward imposing traditional telephone regulations on start-up VoIP companies. In Singapore, the regulators favour a hands-off approach, encouraging new providers and competition. In Egypt and Thailand, only the incumbent State owned telephone companies will be allowed to provide telecom services. In the US differences exist among the 50 states. New York has decided it has the authority to regulate start-up VoIP providers because its service fi ts the legal defi nition of service that the state of New York regulates. Other US States are looking to regulate only those portions of VoIP that absolutely require it. Generally, however, and in spite of the variations in national regulatory regimes highlighted above, once crucial aspect in the debate over VoIP regulation, especially in the US where VoIP looks set to take off, is the regulatory effect of obtaining an ISP license. In other words ISPs can offer internet-mediated long distance telephone services (i.e. VoIP services) free of interconnection charges and the duty to make universal service contributions like that borne by competitors. Therefore there is a greater incentive to obtain a relatively burden free ISP license with the attendant authorisation to offer long distance telephone services as opposed to an expensive traditional long distance telephony carrier license. With skilful

29 The new EU Communications regulatory framework was designed to create harmonized regulation across Europe, aimed at reducing entry barriers and fostering prospects for effective competition to the benefi t of consumers. The framework itself is comprised of fi ve Directives including: the Framework Directive – Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services; the Access Directive – Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities; the Authorisation Directive – Directive 2002/20/EC on the authorisation of electronic communications networks and services; the Universal Service Directive – Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, and; the Privacy Directive – Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector.

204 CHAPTER SEVEN

manoeuvring, both incumbents and market entrants can provide unregulated services functionally equivalent to what a substantially regulated carrier offers. This involves securing an appropriate license in a classifi cation that exempts the operator from more burdensome regulatory duties, or qualifi es the operator to tap into cost-savings or cost-avoidance opportunities. Simply put, VoIP provides profi table opportunities for incumbents and newcomers alike to offer services functionally equivalent to conventional telephony, but treated in a manner that subjects the service to little or no regulation and accrues lower operational costs. In the light of the foregoing, it is submitted that technological innovations and market convergence in telecommunications require commensurate adjustments in the legal and regulatory arena, particularly when ventures can now provide functionally equivalent services yet face different regulatory treatment. In this respect, it is further submitted that, within the context of this work and in crucial circumstances, the legislation is not poorly drafted but is simply in-adequate, generally non-uniform, and as stated earlier, has not kept pace with technological evolution and convergence, taking place in the face of emerging competition.

2.3. Re-inventing Pertinent Aspects of the Regimen

As far as the relevant treaties, resolutions, technical regulations and standards are concerned, the issues arising which require solutions derive particularly from: the amendment of treaty provisions; legality of some technical regulations/standards; and the MoUs which may or may not be legally binding. If indeed, as this work argues, in certain crucial circumstances the regimen is antiquated, it is because at the crux of the matter are the provisions of Article 30 Chicago Convention which certainly have not kept pace with the developments in S-APC technology. Proposals to amend Article 30 are not new. The Poonoosamy Report stressed that such a course of action is neither realistic nor effective, for even assuming that such an amendment would, as it must, be considered necessary or at least desirable by the ICAO Assembly, it would have to be approved by a two-thirds majority at the Assembly. Furthermore, even when ratifi ed by at least two-thirds of the total number of the member States, it would only be binding on those States which ratifi ed it. (See discourse below.) On a similar note, it was contended that Article 30 restates a fundamental principle of international law which cannot easily be tampered with, because ICAO Assembly Resolution A4-3 which provides for policy and programme concerning the amendment of the Convention, requires that an amendment of the Convention may be appropriate when either or both of the following tests are satisfi ed:30

30 M. Milde, Legal Aspects of Global Air-Ground Communication, in G. R. Bacelli (Ed.), Liber


i) When it is proved necessary by experience;ii) When it is demonstrably desirable or useful.

The jurisprudence of the day believed31 that it would not be realistic to expect that the ICAO Assembly would agree that either or both tests are satisfi ed. It is submitted that if a proposal to amend the provisions of Article 30 were to be re-considered today, it would, without doubt, pass the tests specifi ed above. However, even if this were to be the case, an added and even more daunting dimension peculiar to the Chicago Convention is worth mentioning. In this respect the Resolution A4-3 provides that “Article 94 of the Convention should be maintained in its present form.” This directive has far reaching consequences because it is believed to perpetuate the immutability of outdated provisions of the Convention.32 Article 94 of the Convention embodies the “consensual” principle characterized by “concealed unanimity” for any amendments of the Convention.33 Article 94 of the Convention prescribes a relatively simple procedure for the amendment of the Convention. A decision to amend the Convention is to be taken by a two-thirds majority of the Assembly.34 Such a decision would not, in theory, appear to be diffi cult to achieve by a very low number of votes: with 189 Member States the minimum quorum of the Assembly is 95 States;35 two-thirds majority of the minimum quorum would be 64 States and such a number would be suffi cient to approve an amendment to the Convention. However, under Article 94 (a) of the Convention the approved amendment comes into force “in respect of States which have ratifi ed such amendment when ratifi ed by the number of contracting States specifi ed by the Assembly. The number so specifi ed shall not be less than two-thirds of the total number of contracting States.” (Italics added). The consequence of Article 94 is that an amendment ratifi ed by two-thirds of all ICAO member States (currently 126 States) does not apply erga omnes but only with respect to those who have ratifi ed it. This situation is believed to date back to the antiquated system of the League of Nations requiring unanimity of consensus.36 The modern practice, pioneered in the Charter of the United Nations37 adopted just few months after the adoption of the Chicago

Amicorum Honouring Nicolas Mateesco Matte – Beyond Boundaries, 215-226 (1989).31 Id., at 223.32 M. Milde, Chicago Convention at Sixty – Stagnation or Renaissance?, 29 Annals of Air and Space Law 443-471 (2004).33 M. Milde, Chicago Convention – 45 years later: A Note on Amendments, 14 Annals of Air and Space Law 207 (1989).34 Under the Rules of Procedure for the Assembly (Doc. 7600) this is to be interpreted as two-thirds of all delegations registered at the Assembly who have not notifi ed their departure.35 Article 48(c) of the 1944 Chicago Convention.36 Article 5 1919 Covenant of the League of Nations, Blackstone’s International Law Documents, 1-8 (2001).37 Article 108 of the United Nations Charter, UNTS, vol. 1, at xvi.

206 CHAPTER SEVEN

Convention, is based on the erga omnes principle. Under this principle, an amendment enters into force for all members of the UN when adopted by two-thirds majority of the General Assembly and ratifi ed by two-thirds of the members of the United Nations, including all members of the Security Council.38 A scenario which is lacking under the Chicago System. As far as the standards, technical regulations and other international instruments (such as MoUs) are concerned, the norms or standards to which communications equipment for non-safety aeronautical purposes are manufactured are of paramount importance. This is because, it is conformity to these norms and standards that will foster acceptance of the equipment by licensing States. Some observers have noted that international regulatory and standard setting activities by non-State actors facilitate the development of modern cartels.39 For instance, the European Telecommunications Standards Institute (ETSI) created in 1998, is comprised of member organizations, service providers, network operators and equipment suppliers which appear to be controlled by the fi rms regulated. The existence of ETSI is a key element of the harmonization process that contributes to the slow emergence of a European telecommunications market and information society. Salin argues that reading the ETSI statutes would reveal that this body has a “supranational”40 status, thus illustrating the same trend which has affected the membership of the ITU, since it includes business corporations in its membership. Whether or not a standard setting body such as ETSI is “supranational” and/or a cartel remains debatable and it is submitted that the ETSI has the status of a non-governmental organization. Nonetheless on the issue of cartels, the effect of a “major supplier” with “market power” in a “relevant market” capable of taking actions that lessen

38 The erga omnes principle would safeguard the unity and homogeneous nature of the amended instrument and would not contravene the principle of consensual sovereignty of States since they freely agreed to comply with the said principle.39 Salin, supra note 21, at 140. See also N. MacCormick, Questioning Sovereignty, Law, State, and Nation in the European Commonwealth (1999).40 Indeed the ETSI is offi cially responsible for standardization of information and communication technologies (ICT) within Europe. These technologies include telecommunications, broadcasting and related areas such as intelligent transportation and medical electronics. ETSI unites 688 members from 55 countries inside and outside Europe, including manufacturers, network operators, administrations, service providers, research bodies and users – in fact, all the key players in the ICT arena. ETSI plays a major role in developing a wide range of standards and other technical documentation as Europe’s contribution to world-wide ICT standardization. This activity is supplemented by interoperability testing services and other specialisms. ETSI’s prime objective is to support global harmonization by providing a forum in which all the key players can contribute actively. ETSI is offi cially recognized by the European Commission and the EFTA secretariat. ETSI’s Members determine the Institute’s work programme, allocate resources and approve its deliverables. As a result, ETSI’s activities are closely aligned with market needs and there is wide acceptance of its products. See http://www.etsi.org/about_etsi/5_minutes/5min_a.htm, (last accessed on 26 July 2006).


rivalry or competition in the said market, raises issues on competition policy. An issue which was the subject of the landmark decision of the WTO Panel, ruling in favour of the United States against Mexico in the fi rst successful case directly involving matters of competition policy. In other respects, even though the United States Federal Aviation Administration is a national regulatory authority, it sets and signifi cantly infl uences the standards for aeronautical equipment certifi cation worldwide. Similarly, as at 17 March 2002 the list of signatories to the non-binding GMPCS MoU (discussed hereinbefore in chapter 5, section 1.3) included: Administrations (i.e. States), System Operators, Manufacturers, Service Providers and other entities dealing with satellite telecommunications. The number of signatories stood at one hundred and sixty four (164) entities, including eighty (80) member States of the International Telecommunication Union. The impact of these technical regulatory and standard setting scenarios described above constitutes what can be regarded, in certain cases as international governance by national regulatory authorities and non-State actors. In the words of one writer (albeit addressing a different issue), what seems to be happening is an evolution in the exercise of national sovereignty.41 A transformation that begs the question as to whether the traditional notion of what constitutes customary international law has not undergone a paradigm shift. This is because customary international law is typically associated with State practice. Practice of sub-State entities is normally linked to the respective State if it is considered relevant at all. Taking this state of affairs even further, it has been argued that the international community is no longer exclusively composed of sovereign States and that hence customary international law cannot be based on State practice alone.42 In other words, if we are to recognize that behaviour patterns accompanied by legitimate expectations of compliance are relevant at all levels (State, sub-State, non-governmental etc) of the authoritative process of decision making, the classifi cation of this process as State practice is no longer accurate. Whilst Schreuer’s argument may have an unpleasant effect somewhat like throwing a bomb into the church, it remains an argument that is not without support. Thus, it has been re-iterated as trite, that customary international law making describes an amorphous process in which a pattern of behaviour developed by States acting in their self-interest over a long period of time is coupled with opinions that the practice refl ects a legal obligation.43 Treaties may then codify the practice in normative terms, leading to the emergence of a new international law on the practice or subject in question. However, 41 P. Haanappel, The Transformation of Sovereignty in the Air, 20 Air & Space L. 311, 317 (1995).42 See C. Schreuer, The Waning of the Sovereign State: Towards a New Paradigm for International Law, 4 EJIL 457 (1993).43 J. Charney, Universal International Law, 87 AJIL 529, at 534-535 (1993).

208 CHAPTER SEVEN

traditional customary international law formation may have suffi ced when both the scope of international law and the number of States were limited. Today, rather than State practice and opinio juris, multilateral forums, which in the opinion of this writer include the ETSI and the GMPCS MoU Group, often play a central role in the creation and shaping of contemporary international law, albeit with the implied approval of States. Major developments in international law have been initiated through proposals or resolutions debated in such forums. There, representatives of States and other interest groups come together to address important international problems of mutual concern. Sometimes these efforts result in a consensus on solving the problem and express it in normative terms of general application. At other times, the potential new law is developed through the medium of international relations or the practice of specialized international institutions such as in the context of this work, the ITU. That process draws attention to proposed rules and helps to shape and crystallize it. Of crucial importance is the fact that consensus, defi ned as the lack of expressed objections to the rule, by participanting States may often be suffi cient. Those solutions that are positively received by the international community through State practice or other indications of support will rapidly be absorbed into international law, notwithstanding the technical legal status of the form in which they emerged from the multilateral forum. Therefore, whilst the process described hereinbefore, may not conform to traditional customary international lawmaking, nothing in the foundations of the international legal system bars such an evolution in the international lawmaking process.

2.4. The CNS/ATM Institutional and Legal Framework – The Long Road to Utopia

An exhaustive study of the legal and regulatory aspects of S-APC addressing licensing issues, frequency management, trade issues and international satellite operators including the political dimension, extra-territoriality and supra-nationality, which is what this work has set out to achieve, would remain far from complete without an examination of the applicable institutional framework. An overview was provided earlier in chapter three with particular attention paid to international institutions comprised of the International Civil Aviation Organization (ICAO), the International Telecommunication Union (ITU) and the World Trade Organization (WTO). Fundamental to any proposal on the institutional arrangements pertaining to S-APC is the fact that S-APC is not an activity conducted in isolation, but one which forms a part of the Aeronautical Telecommunications Network (ATN). The ATN in turn constitutes a major component of the global system on Communications Surveillance Navigation / Air Traffi c Management (CNS/ATM). A system of


which, inter alia, the institutional aspects remain the subject of an investigation currently being conducted by ICAO. In this regard, the ICAO Assembly Resolution A32-20, paragraph 5, had instructed the Council and the Secretary General, within their respective competencies, and beginning with a Secretariat Study Group, to:

a) ensure the expeditious follow-up of the recommendations of the Worldwide CNS/ATM Systems implementation Conference, as well as those formulated by the Panel of Legal and Technical Experts on the Establishment of a Legal Framework with Regards to GNSS especially those concerning institutional issues and questions of liability; and

b) consider the elaboration of an appropriate long-term legal framework to govern the operation of GNSS systems, including consideration of an international convention for this purpose, and to present proposals for such a framework in time for their consideration by the next ordinary session of the Assembly.

It is on record that the Secretariat Study Group on Legal Aspects of CNS/ATM systems held fi ve meetings between April 1999 and March 2001.44 Based upon the progress report described above at the 33rd Session, it was decided inter alia:

a) that further work on the legal aspects of CNS/ATM systems be carried out so as to fi nalize the concept of a contractual framework for CNS/ATM as an interim framework and provide a path toward its implementation, including the consideration of an international convention, having regard to the following guidance to:1) be mindful of States’ reliance on others to provide all or part of their

CNS/ATM services;2) consider carefully the kinds of relationships States should have with

providers of services or elements of services; and3) ensure that States retain full responsibility under the Chicago Convention

for services provided on their behalf; andb) that a report be presented to the next ordinary session of the Assembly.

Pursuant to this decision, the Secretariat Study Group on Legal Aspects of CNS/ATM systems fi nalized its work in January 2004. It reports to have reviewed the current legal framework applicable to CNS/ATM systems, identifi ed certain inadequacies, discussed in detail a contractual framework for the systems, and studied the possibility of an international convention for this purpose.45 Specifi c details of progress made to date include the production of a Charter on the Rights and Obligations of States Relating to GNSS Services (Assembly Resolution A32-19) and a Statement of ICAO Policy on CNS/

44 ICAO Doc. A33-WP/34, Progress Report on the Establishment of a Legal Framework with regard to CNS/ATM Systems including GNSS.45 The fi nal report on the work of the Secretariat Study Group on Legal Aspects of CNS/ATM systems is set out in Final Report on the Work of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems, the Appendix to Doc. A35-WP/75, 28/07/04.

210 CHAPTER SEVEN

ATM Systems Implementation and Operation (approved by the Council on 9 March 1994. The report noted the general agreement that there is no legal obstacle to the implementation of CNS/ATM and that nothing in the concept is inconsistent with the Chicago Convention. The Group also found no substantive gaps in the major national liability systems it studied, except for two specifi c and limited procedural concerns having to do with sovereign immunity and inconvenient forums for claims in some countries. The report refl ects consideration of a contractual framework involving detailed discussions aimed at concluding a set of contractual clauses in the form of a Draft Contractual Framework Relating to the Provision of GNSS Services. No consensus was reached on this issue. There were two schools of thought in the Study Group regarding an international convention as a long-term legal framework to govern the operation of GNSS systems. One was that, at present, not enough experience had been gained with the implementation of CNS/ATM systems, and GNSS in particular, and that it was therefore premature at this point to elaborate and draft an international convention. The other was that an international convention was necessary and desirable. As far as the communications aspect of CNS/ATM was concerned which is of direct relevance to S-APC and to this work in general, it is reported that

with respect to the issue of liability and other legal principles relating to communications by satellite, the Group noted the widespread use of liability disclaimer clauses in the telecommunications industry, including the satellite communications industry. The Group reached consensus with respect to the fi nding that despite the current practice on limited liability, the legal regime for telecommunications had not improved public confi dence in the system. The use of communication satellites, as compared to the use of terrestrial systems, did not present any new legal issues at the current stage. The disclaimer clause was almost universally used. It was the air traffi c service providers’ responsibility to arrange redundancy of communication services to satisfy the requirements relating to reliability, availability and continuity of the services. On the other hand, in the light of further experience with CNS/ATM, and if deemed necessary and opportune, the issue of the limitation of liability in communication services could be further studied in the future.

What the aforementioned means is that issues pertaining to the communications (as well as surveillance) aspects of the CNS/ATM system have been relegated to the back-burner, whilst attention is paid to navigation, which is perceived as deserving greater priority.

3. Concluding Remarks and Moving Towards Uniformity

The text of the 1992 Poonoosamy Report, in its Call for Solutions, suggests inter alia the adoption of a multilateral instrument. Such a multilateral


instrument would be modelled on the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1985. The agreement would confer to the parties thereto, in their mutual relationship, the right for the aircraft of their registry to initiate public correspondence while in the airspace of any other party, subject to specifi ed conditions and limitations. That Report also acknowledged the fact that the proposal for a multilateral instrument closely refl ected ICAO practice in the development of law, as ICAO had demonstrated that it could in fact conclude a multilateral agreement in record time. It was, however, argued that a multilateral solution would be procedurally too elaborate. It would require considerable preparatory work and could be time consuming in its implementation to be able to deal effectively and diligently, even within ICAO’s established record time, with the urgent legal problem at hand. Reluctance to conclude a multilateral agreement was further compounded by the fact that the INMARSAT Agreement of 1985 had still not entered into force at that time. This position was supported by the said INMARSAT in an Information Paper submitted to the 28th Session of the ICAO Legal Committee,46 stating “[i]t is considered that a multilateral agreement would be only a long term solution. As global aeronautical satellite public correspondence services have already commenced, other appropriate measures are needed at the earliest possible date to ensure that prospective users have full access to available communications facilities.” Interestingly the Introductory Note presented by the ICAO Secretariat to the Legal Committee’s 28th Session,47 noted that “[w]ith respect to the specifi c method, many States showed preference for a new multilateral agreement although most of the States would not object to a bilateral solution.” In this respect, Milde stated48 “[t]he experience of INMARSAT in connection with Ship Earth Stations within the territorial sea and ports proved that there is a need for a specifi c multilateral arrangement to enable the operation of Ship Earth Stations within the territorial seas and ports. It must be concluded that the present state of law would require a similar arrangement to enable non-safety air-ground radio transmission from aircraft in fl ight over the sovereign territory of a foreign State.” Milde further predicted, that “[i]t is quite likely that the years 1990–1991 will see the adoption of a new legal instrument enabling global air-ground satellite based communications from a civil aircraft in fl ight.”49 As we now know, what in fact emerged in the year 1992 was the adoption of ICAO Council Resolution 36/1. In the opinion of this author, the adoption of a Resolution represented a compromise, balancing the interests of a satellite operator eager to see the authorisation of an already active mobile-satellite service by States, bearing in mind the economic interests of the proponents

46 See ICAO Doc. LC/28-WP/4-3.47 See ICAO Doc. LC/28-WP/4.48 Milde, supra note 30, at 218.49 Id., at 226.

212 CHAPTER SEVEN

advocating freedom of the air, without forgetting the interests of those proponents of economic control advocating absolute sovereignty over their airspace. The preceding parts of this work give cause for the conclusion that assessing the regimen applicable to S-APC, reveals an antiquated body of rules and regulations, which has experienced a degree of harmonization especially in the technical regulatory aspects. In a number of critical circumstances the regimen can be construed as inadequate, as its preparedness for the regulatory convergence occurring in the 21st century remains non-asymmetrical. Furthermore, the regimen though applicable to technologies delivered to the civil aviation industry, is one that is infl uenced by issues which include inter alia, globalization in telecommunications. In general therefore, certain trends are perceptible in the role of actors in the international telecommunications regulatory system applicable to S-APC and in the authoritative power structures. States have in fact delegated or relinquished some of their functions to other actors on the sub-State level as well as on the Inter-State level. And as far as the traditional sources of international law are concerned, recent developments appear to have led to the emergence of forms of governance without the presence of formal State or inter-State institutions in the international arena.50 Although this writer acknowledges the fact that international law has traditionally viewed the capacity of non-State actors to enter into international agreements with some reserve. Classical international law, it has been contended,51 and rightly so, is based on a high degree of uniformity of the participating States. Even though, as it has also been contended,52 in many aspects this uniformity is a legal fi ction, it is necessary to re-think the current international legal and regulatory framework and propose a new one. Albeit hoping that in the process of re-construction, one should not and does not always desire and/or achieve a re-invention of the wheel. Accordingly, a proposed Draft Agreement on the Use of Aircraft Earth Stations in the Airspace of National Territories is set forth as an annex to this work.

3.1. Drawing Upon the Lessons From the Past

It is necessary to balance the rights of sovereign States to regulate their telecommunications within the framework of their national policies, against the need for satellite operators and their S-APC service providers to comply

50 F. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989); J. N. Rosenau & E.-O. Czempiel (Eds.), Governance without Governance: Order and Change in World Politics (1992) cited in R. B. Hall & T. J. Biersteker, The Emergence of Private Authority in Global Governance 4 (2002).51 Schreuer, supra note 42, at 473.52 Id.


with international legal and regulatory frameworks. This equilibrium must be achieved bearing in mind the fact that operators and their service providers ought to gain competitive access to national markets under transparent and non-discriminatory regulatory procedures. Thus, for as long as the issues are not addressed, S-APC service provision will remain a very complex business. To the exclusion of technical regulations and standards, in the fi eld of international law and regulation of mobile-satellite services, two international instruments serve as reference points from which comparisons may be made. These include fi rstly, the 1985 International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports, applicable to the maritime mobile-satellite service sector. And secondly, the GMPCS MoU and Arrangements referred to by States and industry, especially with respect to the land mobile-satellite service sector. Both instruments have been successful in providing a uniform framework for the respective services which they seek to regulate. Both instruments are contained as Annexes to this work. Before proceeding to explain the salient aspects of the two aforementioned instruments, it is necessary to fi rstly, briefl y re-visit the nature of airspace above national territory including the territorial sea and ports. And secondly, re-visit the historical developments and the marked differences between maritime and aeronautical services. Perhaps this might shed some light on why the INMARSAT Agreement of 1985 could not have been constituted as also applicable to aeronautical services, i.e., to airspace other than simply to the territorial sea and ports. Strictly speaking, the airspace above the territorial sea (which would include ports) of a coastal State is an integral part of its airspace. A principle described hereinbefore in chapter four, and one which is well established in customary international law as refl ected in Articles 1 and 2 of the 1944 Chicago Convention. It is therefore appropriate to submit that the salient aspects of the INMARSAT Agreement of 1985 dictate, in accordance with navigational rights established under international law, that parties shall permit in their territorial seas and ports the operation of approved ship earth stations appertaining to the maritime space communication system provided by INMARSAT and properly installed aboard ships fl ying the fl ag of any other party. Such permission would, however, at all times be restricted to the use of maritime mobile-satellite frequencies, and subject to compliance by the INMARSAT Ship Earth Stations with the applicable Radio Regulations of the ITU as well as the conditions set forth in the Agreement’s Article 2. Furthermore, under the Agreement, the operation of the INMARSAT Ship Earth Stations shall be subject to conditions that include inter alia, preserving the peace, good order and security of the Coastal State; avoiding harmful interference to other radio services operating within the boundaries of the Coastal State’s territory; ensuring priority to distress and safety transmissions in accordance with relevant international conventions and, in particular, the Radio Regulations of the ITU.

214 CHAPTER SEVEN

The GMPCS MoU on the other hand, as was discusses earlier in chapter fi ve, section 1.3, was prepared in an attempt to overcome specifi c problems which had the potential to limit the viability of GMPCS systems, while at the same time taking into account the genuine concerns of regulatory bodies. To put it simply, national authorities were invited to mutually recognise type approval and marking procedures for GMPCS terminals, to continue to strive for a single procedure for type approval and to exempt GMPCS terminals from the requirements of individual licenses when the essential criteria given in the arrangements are met. The end result, it was hoped, would facilitate regional, global and transborder roaming of GMPCS terminals.53

From the foregoing it is obvious that the INMARSAT Agreement belongs to that category of treaties in which the primary objective of the contracting parties is the stipulation of reciprocal rights and duties with a view to facilitating the circulation of satellite communications terminals employed on maritime platforms. In comparison, under the GMPCS MoU and Arrangements, the participating States undertook primarily to adjust their national laws and practices to international licensing standards, through the mutual recognition of type approval procedures between States, in order to achieve uniformity in the facilitation of mobile-satellite services with a particular focus on land mobile-satellite services. It is submitted that the solution provided through the interpretation of Article 30 of the 1944 Chicago Convention and the subsequent adoption of the 1992 ICAO Resolution 36/1, serving as the legal foundation for the provision of S-APC services, was appropriate in the prevailing circumstances where there was a singular operator aiming to provide S-APC services. At present, however, not only has the technology advanced considerably, the number of players in the fi eld in addition to those waiting in the wings is steadily on the rise. It is therefore appropriate to recommend that a specifi c and comprehensive multilateral instrument formulated within the remit of the appropriate institutional authority, of a binding nature, and supplemented by national laws, would provide lasting solutions. With regards to the regulation of aerospace activities and as far as the involvement of private entities in such activities is concerned, experience has shown a pragmatic approach. Aswers to the questions raised in this work, lie increasingly in the national laws that do apply than in treaty obligations that may or may not be easily interpreted. This is not to state a preference for national regulatory means over treaty mechanisms, but to ensure that perceived gaps in the international framework are supplemented whilst encouraging the evolution of international law.

53 T. Brisibe, Policy and Regulatory Developments in Asia-Pacifi c after the GMPCS-MoU and the WTO General Agreement on Trade in services: A Case for GMPCS System Operators, 21 (3) PTR 28 (2000).

215

Conclusions and Summary

As a result of technological developments, the S-APC service sector of the mobile-satellite industry is witnessing the coming together of what were previously thought of as separate actors, namely telecommunications, information technology and media. This development has brought to the forefront a challenge to law and regulation. Traditionally, technical assumptions applicable to each of the aforementioned actors (i.e., telecommunications, information technology and media) were translated into basic concepts and defi nitions. In other words, telecommunications was seen primarily as a network-based activity, conducted in real time on the basis of two-way, point-to-point networks. Media on the other hand, was also considered as a network-based activity conducted in real time, but functioning according to different parameters. Here the network is one-way (only from the emitter to the receiver, with no feedback) and point-to-multipoint. Finally, information technology and computing were not originally seen as network based activities, but rather as localised activities, conducted in one place. Based on this premise, whole regulatory constructions were built on each one of the aforementioned models, with the aim of addressing specifi c policy concerns arising in each case (with the exception of IT, where no such concerns were deemed to arise). Bearing in mind the fact that the provision of S-APC constitutes a fraction of what is regarded as the info-communications industry, it is submitted that, amongst other issues, one of the primary international legal instruments applicable to S-APC derived from provisions of the 1944 Chicago Convention is antiquated and has not kept pace with technological evolution and convergence. For instance, European low-cost carrier Ryanair recently announced that it would equip its entire fl eet of Boeing 737s with small base stations, called picocells, by OnAir, a technology company backed by Airbus, Europe’s aviation giant. The picocells will use satellite links to allow mobile phones to be used during fl ight without interfering with ground-based networks. It appears that though the technical obstacles have been overcome, regulatory approvals have yet to be obtained. Technological developments such as this make one recall the regulatory frameworks surrounding terrestrial

216 CONCLUSIONS AND SUMMARY

mobile telephony in contradistinction to the regulatory frameworks applicable to satellite services. The contradiction leads one to the submission that the legal and regulatory regimen is un-predictable, unclear and thus prone to engendering asymmetric interpretation and application, through regulatory arbitrage by various stakeholders. It is also important to note that dealing with communications such as S-APC requires an understanding of the international context. Communications system have to deal with inter alia standard problems, such as how information is coded, what protocols are to be used for different functions, what frequencies are to be used, and so on. As a consequence of State sovereignty these are issues which States may choose to determine, or leave to their respective communications services to sort out for themselves. However, as has been established earlier on in this work, the authority of a State extends only to its own jurisdiction. As soon as the question of communications being entered into across jurisdictions arises, the need for international agreement on such matters becomes obvious. Ironically, the origination and/or termination of communications within the territories of States, implies that international telecommunications frameworks cannot be considered or applied without due regard being given to domestic or national/municipal regimes. As far as the international regulation of telecommunications is concerned, the WTO deals with, inter alia, domestic regulations that impede trade liberalization. The ICAO focuses on, inter alia, international regulations that guarantee the safety and regularity of fl ight. Likewise, the primary purpose of the ITU lies in providing a forum, mechanisms and procedures within which international telecommunications can be established and made to work effi ciently and with minimal mutual interference.1 This work presents a solution in the form of an Agreement set out hereinafter. It is submitted that the said Draft Agreement should be facilitated under the auspices of the ICAO. This is based on the fact that ICAO remains the primary international body with the competence to establish international standards and procedures (SARPs) relating to aeronautical satellite telecommunications. This submission is made in spite of the ITU’s mandate which makes it without any doubt the United Nations’ specialised agency for telecommunications in general and radio frequency allocation in particular.

1 F. Lyall, Communications Regulation: The Role of the International Telecommunication Union, Information Paper, 3 The Journal of Information, Law and Technology (1997), available at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/lyall/ (last accessed 25 September 2006).

217

Draft Agreement on the Use of Aircraft Earth Stations On-Board Aircraft for Non-Safety

Purposes

THE STATES PARTIES

Fully recognizing the sovereign right of each State to regulate its telecommunications and the International Telecommunication Union Instruments1

Notinga) the availability of aircraft earth stations for communications using

satellite communications systems which interconnect with the public telecommunications network;

b) that various technically and operationally different aeronautical mobile-satellite service networks have been designed to provide non-safety aeronautical mobile-satellite services;

c) that these aeronautical mobile-satellite service networks provide access to a variety of non-safety communication applications to and from aircraft on a global basis;2

1 Explanatory Note – Article 24 paragraph 1 of the ITU Radio Regulations state thatNo transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by the government of the country to which the station in question is subject.

2 Explanatory Note – The Aeronautical Mobile-Satellite system operator encompasses several distinct functions. The Space segment, gateway segment, and the services distribution functions comprise the complete Aeronautical Mobile-Satellite System. Depending on specifi c

218 DRAFT AGREEMENT

d) the aeronautical mobile-satellite service (Route) is reserved for communications relating to safety and regularity of fl ights, primarily along national or international civil air routes;

e) that the aircraft earth stations will be affi xed to aircraft operated especially by airlines offering international air services;

f) that circulation of aircraft earth stations is usually a subject of a number of national and international rules and regulations including satisfactory conformity to mutually agreed technical standards and operational requirements;

g) that frequency bands have been allocated to the aeronautical mobile-satellite services in accordance with the Radio Regulations of the International Telecommunication Union;

h) that regulations on the use of aircraft earth stations often differ from one country to another and that it would be desirable to harmonize such regulations to facilitate the entry, use and exit of aircraft earth stations when deployed in the airspace of different countries.

Recalling the provisions of the Convention on International Civil Aviation, signed at Chicago, on 7 December 1944; the International Telecommunication Union Constitution and Convention of the International Telecommunication Union, Decisions, Resolutions and Recommendations, Final Acts of the Plenipotentiary Conference of the International Telecommunication Union (Kyoto, 1994), Instruments amending the Constitution and Convention of the International Telecommunication Union (Geneva, 1992) (Geneva, 1995);the Radio Regulations, edition of 2004 adopted by the World Radiocommunication Conference (Geneva, 1995) and subsequently revised and adopted by the World Radiocommunication Conference (Geneva, 1997), the World Radiocommunication Conference (Istanbul, 2000) and the World Radiocommunication Conference (Geneva, 2003) including all relevant Appendices, Resolutions, Recommendations and International Telecommunication Union -Radiocommunications Sector Recommendations incorporated by reference.

Aeronautical Mobile-Satellite these functions may be provided by a single entity or various combinations of separate entities.

ON THE USE OF AIRCRAFT EARTH STATIONS ON-BOARD AIRCRAFT FOR NON-SAFETY PURPOSES 219

Convincedof the need to establish a global legal framework on issues related to the circulation of aircraft earth stations.

Have agreed as follows

ARTICLE 1

Defi nitionsFor the purposes of this agreement:

(a) “Aircraft earth station” means a mobile earth station in the aeronautical mobile service, other than a survival craft station, located on board an aircraft;

(b) “Aeronautical Mobile-Satellite Service” means a service in which mobile earth stations are located on board aircraft;

(c) “Agreement” means the present agreement, including its Schedule;(d) “Aircraft” means any machine that can derive support in the atmosphere

from the reactions of the air;(e) “Circulation” means to traverse the airspace of a State Party and to use

the aircraft earth station within the framework of a licensing scheme without the need for obtaining individual authorization for the aircraft earth station in the territory of the State Party;

(f) “Competent Authority” means any organization designated by a State Party as competent for legal and regulatory issues addresses in this Agreement;

(g) “Airspace” means the land areas and territorial waters adjacent thereto under the sovereignty of an individual State;

(h) “Party” means a State for which the Agreement has entered into force or being provisionally applied;

(i) “Signatory” means a Party, or the competent authority designated by a Party, which has signed this Agreement and for which it has entered into force or being provisionally applied;

(j) “Type Approval” means the process through which the conformity of aircraft earth stations with regulatory technical requirements is assessed. A variety of procedures (ranging from obligatory third party testing to manufacturer’s declaration of conformity) are already in place.

220 DRAFT AGREEMENT

ARTICLE 2Notwithstanding the provisions of Article 30(a) Chicago Convention 1944, and in accordance with the provisions of this Agreement, each State Party shall permit in their airspace, the circulation of aircraft earth stations licensed by another State Party.3

ARTICLE 34

1) The circulation of an aircraft earth station in the airspace of a State Party shall be subject to the following conditions, as appropriate:

3 Explanatory Note – Article 30(a) Chicago Convention 1944 provides that[a]ircraft of each contracting State may, in or over the territory of other contracting States, carry radio transmitting apparatus only if a license to install and operate such apparatus has been issued by the appropriate authorities of the State in which the Aircraft is registered. The use of radio transmitting apparatus in the territory of the Contracting State whose territory is fl own over shall be in accordance with regulations prescribed by that State.

4 The Radio Frequency allocation for Aeronautical Mobile-Satellite Services lies in the L-band between 1616-1626.5 MHz. The Radio Regulations at Article 9 (7) paragraph 962 provide that

[i]n certain circumstances provided for in Article 38, N 38 and 59, aircraft stations are authorized to use frequencies in the bands allocated to the maritime mobile service for the purpose of communications with stations of that service (see No. 4148).Paragraph 963: Aircraft earth stations are authorized to use frequencies in the bands allocated to the maritime mobile-satellite service for the purpose of communicating, via the stations of that service, with the public telegraph and telephone networks.

Article 48 Paragraph 3571 Radio Regulations also provides that[s]tations on board aircraft may communicate, for purposes of distress and for public correspondence, with stations of the maritime mobile or maritime mobile-satellite services. For these purposes they shall conform to the relevant provisions of Chapter IX or N IX and Chapter XI, Articles 59 (Section III), 61, 62, 63, 65 and 66.

Furthermore, Paragraph 3 of Annex to the ICAO Resolution 36/1, 1992 provides forcompliance with the requirements of the International Telecommunication Convention and the Radio Regulations adopted thereunder as amended from time to time, including the applicable radio frequencies, with respect to the avoidance of harmful interference with other services and priority for aeronautical communications relating to distress, safety and regularity of fl ight; and compliance with any technical and operating conditions set forth in the applicable regulations of the Member State in or over whose territory the aircraft is operating.

Finally some State parties may fear revenue loss resulting from bypass of their Public Switched


a) it shall have been type approved and of a standard designated in the Schedule to this Agreement;

b) it shall bear a readily visible mark of type approval endorsed by a State designated in the Schedule to this Agreement;

c) it shall not be prejudicial to the peace, good order and security of the country in which it is operating;

d) it shall not cause harmful interference to other radio services within the country in which it is operating;

e) it shall give priority to other forms of communications in accordance with relevant international conventions including the International Telecommunication Union Constitution, Convention and Radio Regulations;

f) the provision of agreed non-safety aeronautical mobile-satellite service traffi c originating in or routed through a State Party’s airspace, to the authorities of the State Party at the latter’s request;

g) provision of assistance with measures intended to identify unauthorized traffi c fl ows.

2) At any time after the entry into force of this Agreement, each State Party may, by written notifi cation to the Depository, designate an additional aircraft earth station type or standard and satellite system operator to be included in the Schedule. The additional aircraft earth stations type or standard and satellite system operator shall be deemed to be included in the Schedule as from the day following the date on which the Depository has received such written notifi cations from the States Parties.5

ARTICLE 46

Each State Party shall recognize operating licences issued by or under the authority of other State Parties for aircraft earth stations circulating in their airspace. They shall not require licences to be reissued in their countries for

Telephone Network (PSTN). Others may harbour security and national sovereignty concerns, thus requesting access to traffi c data. This will also allow those State parties to monitor those operators that have not been explicitly authorised to provide the non-safety aeronautical mobile satellite service.5 Explanatory Note – Type Approval procedures are mainly intended to ensure that aircraft earth stations do not harm networks, other users, or other equipment. Because State parties and/or their designated Competent Authorities have various Type Approval procedures under differing legal regimes, it may not be possible to arrive at a single procedure. However, it is desirable for State parties and/or their designated Competent Authorities to mutually recognize Type Approval and marking procedures of aircraft earth stations. 6 The exemption of aircraft earth stations from a requirement for an individual license facilitates global circulation.

222 DRAFT AGREEMENT

such aircraft earth stations nor shall they impose any licensing or operating fees on such uses.

ARTICLE 5Each State Party shall take the necessary steps to designate a competent authority responsible for the administration of the provisions of this Agreement and shall notify the name and address of such authorities to the Depository.

ARTICLE 67

State Parties will periodically review the results and consequences of this agreement. When appropriate, State Parties will consider the need for improvements and make suitable proposals for modifying and updating the scope of this agreement.

ARTICLE 7A State may become a Party to this Agreement by:

a) signature; or b) signature subject to ratifi cation, acceptance or approval, followed by

ratifi cation, acceptance or approval.

ARTICLE 88

This Agreement shall enter into force thirty (30) days after the date on which ten States have become Parties, and shall thereafter enter into force for a State thirty days after it has signed the agreement, or deposited its instrument of ratifi cation, acceptance or approval.

ARTICLE 99

A State Party may withdraw from this Agreement at any time by notifi cation to the Depository. Such withdrawal shall take effect ninety days after the 7 Explanatory Note – The recommended solution (i.e. this Agreement) must be framed in such a way that its policy objectives would, on the one hand, be fulfi lled irrespective of how the future unfolds and, on the other hand, come under constant review to ensure that they are still appropriate in the light of changed circumstances, whatever they may be.8 Explanatory Note – Ratifi cation by a relatively small group of States (10, 15 or 25) would increase the expectation that the number of parties would grow as the interest of States in the subject matter develops. Adapted from Article 8 of the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1985.9 Explanatory Note – Adapted from Article 9 of the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1985.


date of receipt by the Depository of the State Party’s written notifi cation to withdraw.

ARTICLE 1010

1) The Secretary-General of the International Civil Aviation Organization shall be the Depository of this Agreement.

2) The Depository shall, in particular, promptly notify all State Parties and Signatories to this Agreement of: a) any signature of this Agreement; b) the date of entry into force of this Agreement; c) any deposit of instruments of ratifi cation, acceptance or approval; d) the date on which a State has ceased to be a Party to this Agreement; e) any other notifi cations and communications relating to this Agreement.

3) Upon entry into force of this Agreement, the Depository shall transmit a certifi ed copy to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. At the same time, the Depository shall transmit a certifi ed copy of this Agreement to the International Civil Aviation Organization.

ARTICLE 11This Agreement is established in a single original in the [English] and [ ] languages, [all texts being equally authentic,] and shall be deposited with the Depository, who shall send a certifi ed copy to State Parties and Signatories. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement. DONE AT [ ] on this _____________________ day of _________________ of the year ______________

The Schedule

Designated type or standard of aircraft earth stationDesignated satellite system operator

10 Explanatory Note – ICAO remains the primary international body with the competence to establish international standards and procedures (SARPS) relating to aeronautical satellite telecommunications.

224 DRAFT AGREEMENT

DRAFTING SOURCES

1.) Arrangements Pursuant to the Global Mobile Personal Communications By Satellite Memorandum of Understanding to facilitate the Introduction and Development of Global Mobile Personal Communications by Satellite & Procedures for Notifi cation & Implementation of the Arrangements. ITU Document No. 11-E 7 June 2003

2.) ICAO Assembly Resolution 36/1 1992 (superseded and currently known as Resolution A 29-19).

3.) International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1985.

4.) Comments of Inmarsat (UK) on the GMPCS Memorandum of Understanding to the GMPCS Informal Group meeting convened at the 1997 ITU World Telecommunication Policy Forum, Geneva.

5.) Draft Regional Agreement on the Transborder Use of Land Mobile Earth Stations submitted by Inmarsat (UK) to the GMPCS Informal Group meeting convened at the 1997 ITU World Telecommunication Policy Forum, Geneva.

6.) Agreement relating to the International Telecommunications Satellite Organization “INTELSAT” (with annexes and operating agreement) (1971).

225

Appendix AInternational Agreement on the Use of INMARSAT Ship Earth Stations

Within the Territorial Sea and Ports

PREAMBLE

The State Parties(hereinafter referred to as “Parties”) to this Agreement,

Desiringto achieve the objectives envisaged in Recommendation 3 of the International Conference on the Establishment of an International Maritime Satellite System, 1975-1976, and

Having Decidedto improve the distress and safety of life at sea communications, and the effi ciency and management of ships,

Have Agreed as follows:

ARTICLE 1(1) Pursuant to the provisions set forth in this Agreement and in accordance

with navigational rights established under international law, Parties shall permit in their territorial seas and ports the operation of approved ship earth stations appertaining to the maritime space communication system provided by the International Maritime Satellite Organization (INMARSAT) and properly installed aboard ships fl ying the fl ag of any other Party (hereinafter referred to as “INMARSAT Ship Earth Stations”).

(2) Such permission shall at all times be restricted to the use of maritime mobile-satellite frequencies by the INMARSAT Ship Earth Station and shall be subject to compliance by the INMARSAT Ship Earth Station with the applicable Radio Regulations of the International Telecommunication Union and the conditions set forth in Article 2 of this Agreement.

226 APPENDIX A

ARTICLE 2(1) The operation of INMARSAT Ship Earth Stations shall be subject to the

following conditions: (a) it shall not be prejudicial to the peace, good order and security of the

Coastal State; (b) it shall not cause harmful interference to other radio services operating

within the boundaries of the Coastal State’s territory; (c) it shall give priority to distress and safety transmissions in accordance

with relevant international conventions and, in particular, the Radio Regulations of the International Telecommunication Union;

(d) safeguard measures shall be taken, subject to relevant safety regulations, during the operation of INMARSAT Ship Earth Stations in an area containing the presence of explosive gases, in particular during operations relating to oil and other infl ammable substances;

(e) INMARSAT Ship Earth Stations shall be subject to inspection by the authorities of the Coastal State at the latter’s request, without prejudice to the navigational rights established under international law.

(2) In this Agreement, “Coastal State” means the State in whose territorial sea and ports the INMARSAT Ship Earth Station, subject to the provisions of this Agreement, is operating.

ARTICLE 3Parties may, without prejudice to navigational rights established under international law, restrict, suspend or prohibit the operation of INMARSAT Ship Earth Stations in ports and areas of territorial sea specifi ed by them. Without prejudice to the entry into force of such restriction, suspension or prohibition, as determined by the Party, it shall be notifi ed to the Depositary of this Agreement as soon as possible.

ARTICLE 4Without prejudice to distress and safety communications, the permission referred to in paragraph (1) of Article 1 of this Agreement may be limited to the rights which the fl ag State grants under paragraph (1) of Article 1 within its territorial sea and ports to the ships of the Coastal State concerned.

APPENDIX A 227

ARTICLE 5Nothing in the present Agreement shall be construed as preventing the granting of any wider facilities by a Party in respect of the operation of INMARSAT Ship Earth Stations.

ARTICLE 6This Agreement shall not apply to warships and other government ships operated for non-commercial purposes.

ARTICLE 7(1) Any State may become Party to this Agreement by:

(a) signature; or (b) signature subject to ratifi cation, acceptance or approval, followed by

ratifi cation, acceptance or approval; or (c) accession or adhesion.

(2) This Agreement shall remain open for signature in London from 1 January 1986 until it enters into force and shall thereafter remain open for accession or adhesion.

ARTICLE 8(1) This Agreement shall enter into force thirty (30) days after the date on

which twenty-fi ve (25) States have become Parties.(2) For a State whose instrument of ratifi cation, acceptance, approval, accession

or adhesion is deposited after the date on which this Agreement enters into force, this Agreement shall enter into force on the date of such deposit.

ARTICLE 9A Party may withdraw from this Agreement at any time by notifi cation to the Depositary. Such withdrawal shall take effect ninety (90) days after the date of receipt by the Depositary of the Party’s written notifi cation to withdraw.

ARTICLE 10(1) The Director General of INMARSAT shall be the Depositary of this

Agreement. (2) The Depositary shall, in particular, promptly notify all Parties to this

Agreement of:

228 APPENDIX A

(a) any signature of this Agreement; (b) the date of entry into force of this Agreement; (c) any deposit of instruments of ratifi cation, acceptance, approval,

accession or adhesion; (d) the date on which a State has ceased to be a Party to this Agreement; (e) any other notifi cations and communications relating to this Agreement.

(3) Upon entry into force of this Agreement, the Depositary shall transmit a certifi ed copy to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. At the same time, the Depositary shall transmit a certifi ed copy of this Agreement to the International Telecommunication Union and to the International Maritime Organization.

ARTICLE 11This Agreement is established in a single original in the English, French, Russian and Spanish languages, all the texts being equally authentic, and shall be deposited with the Depositary, who shall send a certifi ed copy to Parties.

In Witness Whereofthe undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

Done at Londonon this sixteenth day of October of the year One Thousand Nine Hundred and Eighty Five. [Signatures not reproduced here.]

229

Appendix BUnited States Aviation Safety Reporting System compilation of data on portable electronic device’s attributed to having created anomalies with

aircraft systems

Anomaly Phase Possible causeNAV CDI needle swing (off course) CL tape playersCDI needle swings ER chess playerErroneous navigation signal of VOR station ER Dictaphoneloss of VOR capability ER? Cell phoneHSI’s discrapancies cell phoneNAV compass & CDI oscillation (off course PEDsoff VOR course ER Cell phoneoff course tape playermusic blocked VHF communications FM radiocommunications blocked GR/CL Nintendo, Cell phone, notebooksoff course tape machine+Nintendooff course ER Cell phoneboth VORs lost, no VOR audio signal ER Cellphoneall directional gyros lost 25 radio’s, 1 laptopcompass error; off course ER laptop, comp.game2 missed approaches FA PED suspectedloss of all autonav functions CL 3 laptopsloc receiver anomaly; missed app. FA PED suspectedcompass precess 10deg ER laptopOmega NAV unreliable ER tv set suspectedHSI errors TA,CL,ER cellphonenav compass sys error; off course CL cellphonetemp loss of com freq. cd playerINS nav errors electronic gamesoff course cellphoneeng fuel ctlr + vhf radio interference cellphoneoff course laptopEMI interference & radio alt fl ag ER cd-players (2)erratic cdi indications ER 2 gameboysautopilot erratic AP cellphone suspectedoff course gameboynav radio interference; off ILS course AP computer gameEMI interference causes a split between the compass system in fl ight ER laptopboth LOC and GS ‘OFF’ fl ags showed just prior to the OUter Marker AP PED suspectedsignifi cant LOC rate of defl ection AP PED possibleloss of Captain EFIS display AP 8 laptopselectronic compass erratic cd playerinterferring transmitter AP cellphoneNAV and COM radio problems PED suspectedoff approach path AP PED suspectedoff course due to drifting FM PED suspectedHSI discrepencies PED suspectedEICAS interference, airspeed discrep. ER, DC PEDloss of COM frequency cellphoneILS, radio altimeter, and primary fl ight display went out 20 cellphones

231

Appendix CMemorandum of Understanding to Facilitate Arrangements for Global

Mobile Personal Communications by Satellite, Including Regional Systems

(GMPCS-MoU)

Fully recognizing the sovereign right of each State to regulate its telecommunications and the ITU’s Instruments;

in recognition of the report by the Chairman of the 1996 World Telecommunication Policy Forum, including the Opinions and voluntary principles;

taking into account relevant national laws and regulations, including those concerning licensing and frequency assignments;

convinced a) of the need to reach regional, and preferably global, arrangements on issues related to facilitating circulation of user terminals as follows: - permission to carry a terminal into a visited country but not to use it; and - permission to carry a terminal into a visited country and to use it within the framework of a licensing scheme (i.e. without the need for obtaining individual authorization for the terminal in the visited country); as well as technical conditions for placing terminals on the market; b) that such arrangements would necessarily include as a matter of priority the conditions pursuant to which Administrations would grant mutual recognition of type approval of terminals, mutual recognition of terminal licensing, recognize the marking of terminals and permit terminals to be placed on the market; and that such arrangements could form the basis of national regulations on these matters; the Signatories to this Memorandum

232 APPENDIX C

of Understanding, who include Administrations, GMPCS operators, service providers and manufacturers, hereby agree to cooperate, according to their respective roles and competencies, on the following issues:

ARTICLE 1 - TYPE APPROVAL OF TERMINALS The Signatories will develop arrangements on the essential requirements necessary for the type approval of terminals, and the means by which such approvals will be mutually recognized. The type approval standards should be based on the relevant ITU Recommendations, and should be impartial with respect to all GMPCS technologies.

ARTICLE 2 - LICENSING OF TERMINALS The Signatories will develop arrangements on the means by which licences should be granted based on general licences (e.g. class licences or blanket approvals). Such arrangements will be drawn up and include the means by which these general licences will be mutually recognized.

ARTICLE 3 - MARKING OF TERMINALS The Signatories will develop arrangements on the marking of terminals which will permit their recognition and the implementation of the arrangements on mutual recognition of type approval and licensing.

ARTICLE 4 - CUSTOMS ARRANGEMENTS The Signatories will develop recommendations to their competent authorities proposing exemption of GMPCS terminals from customs restrictions when brought into a country on a temporary or transitory basis.

ARTICLE 5 - ACCESS TO TRAFFIC DATA The Signatories will develop arrangements for GMPCS operators to provide, on a confi dential basis, within a reasonable period of time to any duly authorized national authority which so requests, appropriate data concerning traffi c originating in or routed to its national territory, and to assist it with any measures intended to identify unauthorized traffi c fl ows therein.

ARTICLE 6 - REVIEW The Signatories will periodically review the results and consequences of their cooperation under this Memorandum of Understanding. When appropriate,

APPENDIX C 233

the Signatories will consider the need for improvements in their cooperation and make suitable proposals for modifying and updating the arrangements, and the scope of this GMPCS-MoU. Done in:[date]signed:

234 APPENDIX C

Arrangements Pursuant to the GMPCS MoU to Facilitate the Introduction and Development of Global Mobile Personal

Communications by Satellite (GMPCS)(As agreed at the Third Meeting of Signatories and Potential Signatories

of the GMPCS-MoU, Geneva, 6-7 October 1997)

I. INTRODUCTION

On 21-23 October 1996, the fi rst ITU World Telecommunication Policy Forum (WTPF) met in Geneva to discuss "Global Mobile Personal Communications by Satellite" (GMPCS). That meeting was attended by 833 delegates, representing 128 Member States and 70 Sector Members. At that meeting, the WTPF engaged in a general discussion of the policy and regulatory issues raised by the early introduction of GMPCS services. By consensus, the WTPF adopted fi ve Opinions, which are refl ected in the Report by the Chairman of the WTPF (Final Report dated 22 December 1996). Opinion No. 2 of the fi rst WTPF called for Administrations to facilitate the early introduction of GMPCS services and to cooperate internationally in developing and harmonizing policies to facilitate the introduction of GMPCS. Opinion No. 2 also recognized that GMPCS System Operators will take steps to inhibit the use of their systems in any country that has not authorized their GMPCS service. Opinion No. 4 adopted by the WTPF recognized that, because some GMPCS systems are already in operation and others will be brought into operation as early as 1998, urgent action is needed to facilitate the global circulation and transborder roaming of terminals. Opinion No. 4 also recognized that the early introduction of GMPCS services will be facilitated by a commonly agreed upon GMPCS Memorandum of Understanding (MoU) to be used as a framework for arrangements to facilitate the global circulation and transborder roaming of GMPCS Terminals. On 14 February 1997, pursuant to Opinion No. 4, an informal group of Administrations, GMPCS operators, service providers, and manufacturers met and fi nalized the GMPCS-MoU.

II. PREAMBLE

The GMPCS Arrangements that follow have been developed, pursuant to Opinion No. 4 and the related GMPCS-MoU, by Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and Manufacturers of GMPCS Terminals. The objective of these Arrangements is to provide a framework for the introduction of GMPCS, including: 1) the permission to carry a terminal into a visited country and to use it, within the framework of a licensing scheme (i.e. without the need for obtaining individual authorization for the terminal in the visited country); 2) the permission to carry the terminal into a visited country but not

APPENDIX C 235

to use it; and 3) the technical conditions for placing terminals on the market. Under the provisions of these Arrangements, the participants will be able to cooperate in the development of GMPCS to the benefi t of users worldwide. The benefi ts of GMPCS will be fully realized when a signifi cant number of Administrations and/or Competent Authorities offer necessary authorization for service provision and access to spectrum.

III. SCOPE OF THESE ARRANGEMENTS

1. These Arrangements do not alter or affect the sovereign right of each Administration and/or Competent Authority to regulate its telecommunications, as recognized in the Constitution and Convention of the ITU.

2. All Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers are invited to implement these Arrangements. Implementation of these Arrangements or any of their provisions is voluntary.

3. It is the intention and understanding of all parties implementing these Arrangements that the Arrangements are consistent with and in furtherance of the GMPCS-MoU, the voluntary principles adopted by the WTPF as contained in Opinion No. 2, and the relevant treaty provisions of the ITU legal instruments.

4. These Arrangements provide a framework for the following:a) Facilitation of mutual recognition of Type Approvals of GMPCS

Terminals;b) Simplifi ed licensing of GMPCS Terminals; c) A method of identifi cation (marking) of GMPCS Terminals;d) Access to traffi c data by authorized national authorities.

5. Pursuant to Article 4 of the GMPCS-MoU, a Recommendation on the principles for customs procedures to facilitate unrestricted transborder movement of GMPCS terminals is also included.

IV. DEFINITIONS

Unless otherwise indicated, the terms listed below will have the following meanings for purposes of the Arrangements and Recommendations herein:1. Administration - Any governmental department or service responsible for

implementing these Arrangements or parts thereof.

236 APPENDIX C

2. Circulation - Ability to carry a GMPCS Terminal into a visited country. In these Arrangements, circulation includes:a) Permission to carry a terminal into a visited country and to use it within

the framework of a licensing scheme (i.e., without the need for obtaining individual authorization for the terminal in the visited country); and

b) Permission to carry a terminal into a visited country but not to use it. 3. Competent Authority - Any organization competent for regulatory issues

addressed in these Arrangements.4. Constellation of satellites - One or more satellites, geostationary or non-

geostationary, operated as a system.5. GMPCS Service Provider - Any entity commissioned by a GMPCS

System Operator to provide GMPCS services to the public within a country and which may require an authorization to do so under the applicable legislation of the country concerned.

6. GMPCS System - Any satellite system (i.e., fi xed or mobile, broadband or narrow-band, global or regional, geostationary or non-geostationary, existing or planned) providing telecommunication services directly to end users from a constellation of satellites.

7. GMPCS System Operator - The entity responsible for the operation of a GMPCS System.

8. GMPCS Terminal - A user terminal intended to be operated with a GMPCS System.

9. License - An authorization to carry and use a GMPCS Terminal. According to the national regime, the license can be any of the following:a) An individual license, whereby for each terminal a separate authorization

is issued;b) A general license or class license, whereby one generic authorization

is issued, which applies to all users and to all terminals of a given category;

c) A license exemption, whereby there is an exemption from requiring an individual license for each terminal;

d) A blanket license, whereby an operator or service provider is authorized to use a certain number of technically identical terminals.

10. Licensing - The issuance of a license or other authorization by an Administration and/or Competent Authority in conformity with the national laws and regulations of that country and the ITU Radio Regulations and relevant Resolutions.

APPENDIX C 237

11. Sector Member - An entity or organization authorized to participate in the work of one or more Sector(s) of the ITU in conformity with the relevant provisions of the ITU Convention.

12. Type Approval - The process through which the conformity of GMPCS Terminals with regulatory technical requirements is assessed. These technical requirements are mainly intended to ensure that GMPCS Terminals do not harm networks, GMPCS users, other users, or other equipment. A variety of procedures (ranging from obligatory third party testing to manufacturer's declaration) may be in place.

13. Single mode terminal - A terminal which is capable of operating with only one GMPCS system.

14. Multimode terminal - A terminal which is capable of operating with a GMPCS system and, additionally, one or more other GMPCS systems or terrestrial mobile systems.

15. GMPCS - MoU Mark - A Mark, agreed upon by the Signatories of the GMPCS-MoU, that may be affi xed on GMPCS Terminals pursuant to these Arrangements. The appearance of the Mark, including its size and wording, will be determined by the signatories of the GMPCS-MoU with appropriate consultations with other affected parties.

V. GENERAL PROVISIONS

The Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers implementing these Arrangements understand and recognize that:1. A variety of GMPCS Systems are at different stages of development and

implementation, including some already in service.2. GMPCS Systems provide or will provide global and/or regional coverage.3. GMPCS Systems will typically be characterized by the use of system-specifi c

GMPCS Terminals, manufactured by GMPCS Terminal Manufacturers and designed to be operated with specifi c GMPCS Systems.

4. The bringing into operation of new GMPCS Systems is subject to satisfactory progress of frequency coordination in accordance with the procedures established by the ITU Radio Regulations and relevant Resolutions.

5. The use of the spectrum, assigned by Administrations and/or Competent Authorities for GMPCS Terminals used with GMPCS Systems, will be in accordance with the allocations of the ITU Radio Regulations and relevant Resolutions.

238 APPENDIX C

6. Because Administrations and/or Competent Authorities have various Type Approval procedures under differing legal regimes, it will not be possible to arrive at a single procedure in the short term; however, it is desirable for Administrations and/or Competent Authorities to mutually recognize Type Approval and marking procedures for GMPCS Terminals.

7. It is desirable for Administrations and/or Competent Authorities to continue to strive for a single procedure for Type Approval.

8. The exemption of GMPCS Terminals from a requirement for an individual license facilitates regional and global circulation and transborder roaming.

9. Administrations and/or Competent Authorities, GMPCS System Operators and GMPCS Service Providers will likely specify data exchange requirements in order to service customers properly and to best comply with national legislative or regulatory requirements.

10. Existing and planned GMPCS Systems will vary technically in the level of detail of information captured by the System.

11. GMPCS System Operators and GMPCS Service Providers are subject to the national laws and regulations in each country in which GMPCS Services are being provided.

12. Customer specifi c information must be protected by GMPCS System Operators and GMPCS Service Providers as private and confi dential information.

13. Each GMPCS System Operator shall take steps to inhibit the use of its system in any country that has not authorized its GMPCS service

14. GMPCS Terminals brought into a country to be placed on the market will be subject to applicable customs duties, if any, and the technical and regulatory requirements of that country.

VI. SPECIFIC PROVISIONS

The Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers implementing these Arrangements agree to the following specifi c provisions:A. Type Approval and Marking of GMPCS Terminals (GMPCS-MoU

Articles 1 and 3)1. GMPCS Terminals may be required to meet the following requirements

(hereinafter referred to as "essential requirements"):

APPENDIX C 239

a) Safety;b) Electromagnetic compatibility (EMC); andc) Effective use of the radio spectrum and orbital resources, including

electromagnetic interference (EMI). 2. Compliance with the above essential requirements may be demonstrated, at

the discretion of the relevant Administration and/or Competent Authority, by conformity to appropriate ITU-R Recommendations, international, regional, or national standards, or technical specifi cations. Manufacturers may, at the discretion of the relevant Administration and/or Competent Authority, be allowed to demonstrate compliance by other means.

3. Administrations and/or Competent Authorities will make their national administrative procedures for Type Approval publicly available, non-discriminatory, and consistent with the objectives of these Arrangements. It is recommended that Administrations and/or Competent Authorities consider whether compliance can be demonstrated through a declaration from the GMPCS Terminal Manufacturer without additional procedures.

4. An Administration and/or Competent Authority that has issued Type Approval pursuant to these Arrangements for a class of GMPCS Terminals is encouraged to notify the ITU, upon the request of the GMPCS Terminal Manufacturer, specifying: a) Name of the Administration and/or Competent Authority;b) Name of GMPCS Equipment Manufacturer;c) Name of GMPCS System Operator;d) Model number(s) or similar identifying information of GMPCS

Terminal(s); ande) The date Type Approval was granted.

Administrations and/or Competent Authorities are also encouraged to submit to the ITU copies of the standards, specifi cations, and/or procedures used for Type Approval.

5. A GMPCS Terminal Manufacturer may affi x the GMPCS-MoU Mark to a GMPCS Terminal provided that the following conditions are met: a) At least one Administration and/or Competent Authority having

implemented these Arrangements has issued a Type Approval for a class of GMPCS Terminals which includes the unit and has notifi ed this to the ITU in accordance with paragraph 4 of this Arrangement;

b) The Operator of the GMPCS System with which the subject GMPCS Terminal is to be used has notifi ed the ITU that it has implemented these

240 APPENDIX C

Arrangements and that it has authorized the subject GMPCS Terminal for connection to its GMPCS System; and

c) The GMPCS Terminal Manufacturer has notifi ed the ITU that it has implemented these Arrangements.

d) The GMPCS Terminal Manufacturer has been authorized to affi x the GMPCS-MoU Mark by an entity designated by the signatories of the GMPCS-MoU to authorize use of the GMPCS-MoU Mark.

6. Administrations and/or Competent Authorities are encouraged to accept the Type Approval granted by other Administrations and/or Competent Authorities denoted by the GMPCS-MoU Mark or any other mark evidencing Type Approval without the need for additional testing or the submission of test reports. Such acceptance may be subject to the successful conclusion of mutual recognition agreements on conformity assessment or other reciprocal arrangements. Administrations and/or Competent Authorities are encouraged to accept, whenever possible, existing test reports.

B. Licensing (GMPCS-MoU Article 2)1. Administrations and/or Competent Authorities that have implemented

these Arrangements are recommended not to require individual licenses for GMPCS Terminals, provided that:a) these terminals operate within the frequency bands identifi ed for such

use by the Administration and/or Competent Authority in question;b) the GMPCS service, with which the GMPCS Terminals operate, has

been legally authorized if required, pursuant to national laws and/or regulations;

c) the transmissions from the GMPCS Terminals are under the operational control of the GMPCS System Operator and/or the GMPCS Service Provider;

d) the GMPCS Terminals meet the relevant essential requirements in these Arrangements; and

e) necessary measures are taken to avoid harmful interference between services.

2. Administrations and/or Competent Authorities are recommended to cooperate in the development of GMPCS to the benefi t of all users and to offer authorization of service provision and access to frequency spectrum, subject to national laws and regulations.

3. Administrations and/or Competent Authorities implementing these Arrangements are recommended to allow the circulation and use of

APPENDIX C 241

GMPCS Terminals, either single mode or multimode, provided that the GMPCS Terminals have been demonstrated to meet the essential requirements in these Arrangements, as may be indicated by the presence of the GMPCS-MoU Mark or another recognized mark.

4. Administrations and/or Competent Authorities that have implemented these Arrangements are recommended to allow the circulation of GMPCS Terminals (either single mode or multimode) on a temporary or transitory basis without permission to use for all GMPCS systems.

5. Administrations and/or Competent Authorities implementing these Arrangements may, consistent with these Arrangements, issue blanket or class licenses for GMPCS Terminals or may exempt the GMPCS Terminals from individual licenses.

C. Access to Traffi c Data (GMPCS-MoU Article 5)1. Consistent with applicable national legislation in the country where

GMPCS service has been authorized, and recognizing technical differences between systems existing and planned, GMPCS system operators or service providers will provide to Administrations and/or Competent Authorities implementing these Arrangements, on a confi dential basis, within a reasonable period of time to any authorized national authority which so requests, agreed GMPCS traffi c data originating in or routed to its national territory; and will assist with measures intended to identify unauthorized traffi c fl ows.

2. Under these Arrangements, all future designed GMPCS systems should be structured to provide appropriate traffi c data.

3. Existing Agreements between Administrations and/or Competent Authorities and GMPCS System Operators and/or GMPCS Service Providers will not be affected by these Arrangements.

4. Traffi c data to be provided pursuant to these Arrangements do not include confi dential customer information, except as provided for by national laws and regulations in each country in which GMPCS services are being provided.

D. Recommendations on Customs Matters (GMPCS-MoU Article 4)The Administrations and/or other Competent Authorities, implementing these Arrangements should recommend to their competent national authorities that:1. Duties on GMPCS Terminals placed on the market be reduced or removed,

in particular by signing instruments such as the Information Technology Agreement.

242 APPENDIX C

2. GMPCS Terminals be exempt from customs-related restrictions and fees when visiting or transiting countries on a temporary basis.

3. Administrations and/or other Competent Authorities, as well as the ITU Secretariat, if appropriate, work with the World Customs Organization to ensure that GMPCS Terminals are entitled to treatment as a traveller’s personal effects for purposes of entry into a country on a temporary or transitory basis.

4. Administrations and/or Competent Authorities undertake, within the framework of their national laws, regulations, and international obligations, to bring their legal and regulatory procedures in line with the provisions of the Istanbul Convention on Temporary Admission, and other relevant internationally recognized agreements.

5. Administrations and/or Competent Authorities take all practicable measures to bring to the attention of customs offi cials the need to permit the temporary or transitory entry into their countries of GMPCS Terminals without unduly burdensome restrictions.

VII. NOTIFICATION AND IMPLEMENTATION PROCEDURES

1. The ITU Secretary-General will write to all Administrations and/or Competent Authorities, Sector Members, Signatories to the GMPCS-MoU, and all non-signatories that have been participating in the development of these Arrangements inviting them to implement these Arrangements.

2. Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers intending to implement these Arrangements are encouraged to notify the ITU Secretary-General at the earliest possible date their intention to implement the Arrangements and the date by which the Arrangements are planned to be implemented. Upon implementation of the Arrangements, Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers that have implemented these Arrangements will notify the ITU Secretary-General how these Arrangements have been implemented. To this end:a) Administrations and/or Competent Authorities intending to implement

these Arrangements on a national level are encouraged to ensure that relevant national telecommunications regulations and customs requirements support the full realization of the goals of these Arrangements.

APPENDIX C 243

b) Administrations and/or Competent Authorities implementing these Arrangements should notify the Secretary-General of the specifi c GMPCS Systems that are authorized to operate in the country.

c) GMPCS System Operators that implement these Arrangements should inform the Secretary-General which GMPCS Terminals are authorized for connection to their systems and which GMPCS Service Providers are authorized by them.

d) Administrations and/or Competent Authorities, ITU Sector Members, GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal Manufacturers should inform the Secretary-General of any provisions of these Arrangements they do not intend to implement.

e) The ITU Secretary-General should be notifi ed of any changes in the information provided pursuant to these Arrangements.

3. The Secretary-General of the ITU will be the depository of these Arrangements and will make information about the Arrangements readily available to all Administrations and/or Competent Authorities, all Sector Members, all GMPCS System Operators, all GMPCS Service Providers, and all GMPCS Terminal Manufacturers. The ITU will also maintain a list of standards and specifi cations that are used for Type Approval.

4. The Secretary-General will periodically publish, including electronically, a report on the implementation of these Arrangements, which will include: a list of all entities that have implemented the Arrangements, or any part thereof; the GMPCS Systems that are authorized in each country; a list of the GMPCS Terminals that have been granted approval pursuant to these Arrangements indicating the countries that have granted Type Approval; and such other information as may be requested by the Signatories to the MoU and/or the entities that have notifi ed the ITU that they have implemented these Arrangements.

5. Some of the provisions in these Arrangements may require action and ongoing activities by the ITU. The entities implementing these Arrangements are invited to work with the ITU to ensure that the ITU has the capability, authority, and resources to perform the functions it is expected to perform pursuant to these Arrangements.

245

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Documents

International Civil Aviation Organization

The Committee to Review the Application of Satellite and Other Applications and other Techniques to Civil Aviation (Aviation Review Committee), Final Report, Volume I, 31 January 1982ICAO Doc. ALLPIRG/4-WP/29 1/2/01, Agenda Item 2.1: Interregional coordination and harmonization mechanism – Harmonization of air navigation systems (Montreal, 6-8 February 2001)ICAO Doc. AN-CONF/10, 3A-3. (1991)ICAO Doc. AN-CONF/11-IP/1ICAO Doc. AN-CONF/11-WP/202, Report of Committee B to the Conference on Agenda Item 7 (Montreal, 22 September - 3 October 2003)ICAO Doc. AN-WP/5380, Use of Space Technology in the Field of Air Navigation (Review of Technical Aspects of Aerosat Council Recommendations) 13 September 1982ICAO Doc. A33-WP/34, Progress Report on the Establishment of a Legal Framework with regard to CNS/ATM Systems including GNSS

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BIBLIOGRAPHY 263

ICAO Doc. C-WP/8126, attachment 1ICAO Doc. LC/28-WP/4-1 4/1–Report of the Rapporteur on the Legal Aspects of the Global Air-Ground CommunicationsICAO Doc. LC/28-WP/4-2 presented by the Delegate of ArgentinaICAO Doc. LC/28-WP/4-3 presented by the Observer of INMARSATICAO Doc. LC/28-WP/4-4 presented by the Delegation of the United KingdomICAO Doc. LC/29-WP/8-1, 10/3/94, Secretariat Study submitted to the ICAO Legal Committee 29th SessionICAO Doc 9503, FANS/3 (Excerpt) Report on Agenda Item 6ICAO, Doc. 9583, Report of the Tenth Air Navigation Conference, Montreal 5-20 September 1991, AN-CONF/10, 1991ICAO Doc 9588-lC/188 Legal Committee 28th Session Report, 1992ICAO Doc. 9599, A29-LE Assembly, Legal Commission, 1992, Report and MinutesFinal Report on the Work of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems–Appendix to Doc. A35-WP/75, 28/07/04

International Telecommunication Union

ITU-R Recommendation M.1643 – Technical and Operational requirements for aircraft earth stations of aeronautical mobile-satellite service including those using fi xed-satellite service network transponders in the band 14-14.5 GHz (Earth-to-space)ITU Document RGQ17/1/029-E, 4 September 2003, Draft Final Report on ITU-D Question 17/1: Satellite Regulation in developing CountriesITU-T Recommendation E.116 05/97 – International Telecommunication Charge Card ServiceITU-T Recommendation E.118 02/01 – International Telecommunication Charge CardΙTU-T Recommendation E.215, Telephone/ISDN numbering plan for the mobile-satellite services of Inmarsat, (05/97).ITU-T Recommendation Q.1151, Interworking with Satellite Mobile Systems – Interfaces for Interworking Between the Inmarsat Aeronautical Mobile Satellite system and the International Public switched Telephone Network ISDN, (03/93)WRC 2000 Resolution 216 Possible broadening of the Secondary allocation to the mobile-satellite service (Earth-to-space) in the band 14-14.5 GHz to cover aeronautical applications

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Others

Business Requirements for Aeronautical High Speed Mobile Satellite Services (BRAHMSS) project (European Space Agency contract n°14444/00/NL/DS). Ref: 00-251/CG/CR, Rev. 2.1 ECC/DEC/(03)03. ECC Decision of 17 October 2003 on the withdrawal of ERC Decision (97)08ERC Decision ERC/DEC/(92)01, Decision of October 1992 on frequency bands to be designated for the coordinated introduction of the Terrestrial Flight Telecommunication SystemERC Decision ERC/DEC/(97)08, Decision of 30 June 1997 on Management of Schiever plan for the Terrestrial Flight Telecomunications systemEUROCAE ED-14 / RTCA DO 160, Environmental Conditions and Test Procedures for Airborne Equipment aircraftEUROCAE ED-12 / RTCA DO 178, Software Considerations in Airborne Systems and Equipment Certifi cationFCC Paves the Way for New Broadband Services in the Air, FCC NEWS, 15 December 2004, available at http://www.broadbandwirelessreports.comFCC to Examine Ban on Using Cellular Telephones on Airborne Aircraft, FCC NEWS, 15 December 2004, available at http://www.broadbandwirelessreports.comFinal Acts of International Conference on the Establishment of an International Maritime Satellite System, Inter Governmental Maritime Consultative Organization, London, 1976Inmarsat aeronautical system defi nition manual module 7: Commissioning procedures for an Inmarsat aircraft earth station, June 2000.International Air Transport Association: Bandwidth and Spectrum Requirements for Aeronautical Mobile Satellite Services (AMSS) in the Initial Decades of the 21st Century, 1st Edition Effective March 1991Joint Aviation Authorities Temporary Guidance Leafl et No 29 (Guidance Concerning the Use of Portable Electronic Devices on-board aircraft)Joint Statement of the United States and the Union of Soviet Socialist Republics, of 23 September 1989, ILM, 28 (1990)O. Ercetin, M. O. Ball & T. Leandros, Next Generation Satellite Systems for Aeronautical Communications, National Centre of Excellence in Aviation Operations Research NEXTOR, Technical Report 2000-1 (ISR T.R. 2000-20)Northern Sky Research, Next Generation Mobile Satellite Services – Evaluating opportunities in Land, Air and Sea Segments, December 2004

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Radiocommunications Agency of the United Kingdom, Strategy for the future use of the Radio Spectrum, 2002Regulation (EC) No 1592/2002 of the European Council and Parliament of the Council of 15 July 2002 on common rules in the fi eld of aviation and establishing a European Aviation Safety AgencyReport ST-2001-37466, Wireless Cabin Deliverable, 5 Market Survey and Recommendations, 28 August 2003Study for the European commission on the regulation of airspace management and design – Final Report, 14th May 2001Thales Avionics Limited and ESYS plc, Study of Requirements for Wideband Aeronautical Services: European Satellite Testing Centre contract number 14443/00/NL/DS, Final Report, 2001UN Doc. A/AC.105/769, Historical Summary on the Consideration of the Question on the Defi nition and delimitation of outer space – Report of the SecretariatUnited Nations, Space Activities and Resources, UN Review, UN Doc. A/AC.105/193 (1977)United States of America, Department of State, Publication 2820, International Organizations and Conferences Series IV, Proceedings of the International Civil Aviation Conference, Chicago Illinois, November 1 – December 7. 1944, Vol. I & Vol. IIUnited States Code of Federal Regulations, Title 14, Aviation and SpaceWorld Airline Entertainment Association, White Paper: Internet Working Group Content and Services, Version 1.0, Adopted August 2001World Intellectual Property Organization, Intellectual Property Handbook: Policy Law and Use

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267

Samenvatting

Hoofdstuk 1

Er zijn veel ontwikkelingen op het gebied van infrastructuur en technologie in luchtvaart en telecommunicatie. Traditioneel richtte luchtvaartcommunicatie zich op het verzekeren van veilig, effi ciënt en probleemloos vliegen. Sinds de tachtiger jaren van de vorige eeuw kwamen hier ook andere, niet aan veiligheid gerelateerde aspecten bij, namelijk die vorm van communicatie die passagiers en bemanning in staat stelt om dezelfde communicatiemiddelen te gebruiken als op de grond. In het nieuwe millennium zullen deze niet aan veiligheid gerelateerde aspecten in de luchtvaartcommunicatie aan belang toenemen door verschillende oorzaken. De combinatie van internationale luchtvaart en internationale communicatie vormt een uitdaging op het gebied van recht, beleid en regelgeving. Deze uitdagingen vormen het onderwerp van dit boek. Het proefschrift geeft een gedetailleerde analyse van de oude, huidige, en toekomstige internationale wet- en regelgeving over niet aan veiligheid gerelateerde aspecten van mobiele satelliet luchtvaartcommunicatie. Het proefschrift sluit af met wat het recht zou moeten zijn indien de huidige regels in overeenstemming zouden worden gebracht met goed beleid. Het proefschrift behandelt de volgende onderwerpen: de geschiedenis en ontwikkeling van publieke luchtvaartcommunicatie per satelliet; instellingen en relevante regelgeving die hiertoe ontwikkeld zijn; de effecten van soevereiniteit; het huidige regime; en vraagstukken over aansprakelijkheid.

Hoofdstuk Twee

Dit hoofdstuk begint met een vergelijking van de chronologie in ontwikkelingen van publieke luchtvaartcommunicatie via de grond en via satelliet. De technologieën die nu gebruikt (of gepland) worden voor het brede aanbod aan dienstverlening op het gebied van mobiele satellietcommunicatie in de

268 SAMENVATTING

luchtvaart worden in dit hoofdstuk besproken. De ontwikkeling van satelliet-gestuurde publieke luchtvaartcommunicatie en het operationele raamwerk voor de daarmee samenhangende diensten worden in dit hoofdstuk uiteengezet. Een uitgebreide beschrijving wordt gegeven van de technologieën die thans gebruikt (of voorgesteld) worden voor het grote aanbod aan dienstverlening op het gebied van luchtvaartcommunicatie per satelliet binnen de structuren van communicatiesatellietnetwerken. Aandacht wordt gegeven aan het scala van commercieel georiënteerde hoge snelheid data en breedband diensten en de voorgestelde draadloze diensten. De sector van de mobiele-satellietindustrie ontwikkelt zich snel en wordt verder onderzocht tegen de achtergrond van de verdergaande privatisering en concurrentie die gekenschetst wordt door een verschuiving van een door de overheid gecontroleerde vliegtuigmaatschappijen en satellietsystemen, zoals de voormalige International Maritime Satellite Organization (INMARSAT), naar een systeem met toenemende participatie van de private sector.

Hoofdstuk Drie

Na het operationele raamwerk in het vorige hoofdstuk behandeld te hebben, wordt in dit hoofdstuk de reikwijdte van de relevante internationale wet- en regelgeving bestudeerd en de activiteiten van relevante instellingen uiteengezet. Hoofdstuk drie gaat in op de wet- en regelgeving voor publieke luchtvaartcommunicatie via satelliet, die ontwikkeld is door internationale organisaties zoals de Internationale Civiele Luchtvaart Organisatie, de Internationale Telecommunicatie Unie, de Wereld Handelsorganisatie en de Wereld Intellectuele Eigendom organisatie. Voorts wordt in dit hoofdstuk een grote hoeveelheid van bindende en niet-bindende regels voor de internationale luchtvaart, internationale satelliet telecommunicatie, internationale handelsaspecten en internationale auteursrechten (inclusief de bescherming van programmainhoud) besproken, die van toepassing zijn op het verlenen van publieke luchtvaartcommunicatie diensten via satelliet.

Hoofdstuk Vier

De centrale rol in dit boek van staatssoevereiniteit rechtvaardigt een grondige analyse van de effecten van die soevereiniteit op telecommunicatie, luchtvervoer en dienstverlening die gelijktijdig uitgevoerd worden in verschillende luchtkolommen boven nationale gebieden, de Noordpool, Antarctica en de volle zee. Wat betreft de huidige internationale regelgeving die thans van kracht is, wordt, ondanks hun technische invalshoek, speciale aandacht gegeven aan ITU Radio Regulations; ITU Sector Recommendations; ICAO Council Resolutions; internationale auteursrechtelijke regelgeving; nationale

SAMENVATTING 269

operationele procedures en wetten. Het vorige hoofdstuk gaf een analyse van de verschillende juridische regels waarbinnen publieke luchtvaarcommunicatie via satelliet plaatsvindt. Centraal hierbij staat het concept van soevereiniteit, dat wel of misschien niet bestaat, dat niet toepasbaar is of juist relevant, met betrekking tot specifi eke jurisdictie en/of activiteiten die voortvloeien uit multilaterale of bilaterale verdragen. Uit dat concept vloeien territoriale rechten voort die toekomen aan een Staat die uitgewisseld kunnen worden tussen Staten. Omdat dat concept verdere aandacht verdient, gaat dit hoofdstuk over de wisselwerking tussen, enerzijds, het soevereiniteitsbeginsel binnen de respectievelijke jurisdicties en activiteiten, en, anderzijds, de impact daarvan op de bepalingen van publieke luchtvaartcommunicatie via satelliet.

Hoofdstuk Vijf

Hoofdstuk drie beschreef de instellingen en de wettelijke kaders die van toepassing zijn op publieke luchtvaartcommunicatie via satelliet. Hoofdstuk vijf behandelt de huidige internationale regelgeving die voortvloeit uit de amendementen op de ITU Radio Regulations aangenomen op de World Radiocommunications Conference in 2003. Voorts komen in dit hoofstuk aan de orde: de ITU Radiocommunications and Development Sector Recommendations die thans van kracht zijn; ICAO SARPS; de huidige statenpraktijk in de implementatie van de 29th ICAO Assembly Resolution 36/1; nationale operationele procedures voor het gebruik van draagbare elektronische apparaten aan boord van vliegtuigen; internationale tariefbeginselen; het beleid van individuele luchtvaartmaatschappijen over het gebruik van draagbare elektronische apparaten aan boord; auteursrechtelijke regels en de bescherming van programma inhoud.

Hoofdstuk Zes

In dit hoofdstuk wordt de reikwijdte van aansprakelijkheid, inclusief de gevolgen daarvan op internationaal privaatrechtelijke en publiekrechtelijke gebied uitgebreid onderzocht. Tevens worden juridische precedenten en bepalingen van de meest recente internationale instrumenten die van kracht zijn besproken. Op basis van voorgaande delen van dit proefschrift worden toekomstgerichte aanbevelingen gedaan, om te komen tot een geschikte wet- en regelgeving voor de mobiele-satelliet communicatiesector die beschouwd wordt als de komende groeimarkt. Hoofdstuk zes probeert aansprakelijkheid vast te stellen voor die gevallen waarin passagiers aan boord van een vliegtuig draagbare elektronische apparaten gebruiken die mogelijk via andere elektronische hardware in verbinding staan met het grondstation of radiocommunicatie antenne. Luchtvaartmaatschappijen kunnen ook aansprakelijk worden gesteld

270 SAMENVATTING

voor schade die geleden wordt door passagiers of derden. Daarom is het onderwerp van aansprakelijkheid voor schade als gevolg van het gebruik aan boord van draagbare elektronische apparaten belangrijk voor deze dissertatie. Het probleem van strafrechtelijke en/of civiele aansprakelijkheid wordt besproken in het kader van de internationale verdragen en regelgeving die van kracht zijn, inclusief het huidige systeem van aansprakelijkheid krachtens de inwerkingtreding van de 1999 Montreal Convention. Staatsaansprakelijkheid en de positie van individuele luchtvaartmaatschappijen worden onderzocht en relevante jurisprudentie wordt besproken.

Hoofdstuk Zeven

In de ruim vierhonderd jaar van ruimte-exploitatie en ruimte-onderzoek bestaan commerciële ruimteactiviteiten grotendeels uit satellietcommunicatie. De maritieme en land-mobiele sectoren in de satellietcommunicatie industrie kunnen thans als volwassen beschouwd worden. De sector voor luchtvaartcommunicatie voor niet aan veiligheid gerelateerde aspecten kan als de komende groeimarkt gezien worden. Deze sector, tot voor kort onderdeel van een intergouvernementeel monopolie, beheerd door het voormalige International Maritime Satellite Organization (INMARSAT), zal zich uitbreiden in een tijdperk dat gekenmerkt wordt door convergentie van communicatietechnologie en diensten, naast privatisering, commercialisatie, deregulering en liberalisering van het luchttransport en satellietcommunicatiediensten. Hoofdstuk zeven trekt conclusies op basis van het onderzoek in de voorgaande hoofdstukken en geeft aan wat het recht is, wat het recht zou moeten zijn en geeft aanbevelingen hoe de huidige regelgeving aangepast moet worden om in overeenstemming met goed beleid te worden gebracht.

Curriculum Vitae

Tare Brisibe

Born: 13 August 1968, Benin, Nigeria

Education

Bachelor of Laws – University of Jos, Nigeria, 1990Master of Space Studies – International Space University, Strasbourg France, 1999

Professional Qualifi cations

Barrister & Solicitor of the Supreme Court of Nigeria – Nigerian Law School, Lagos, 1990Solicitor of England & Wales – BPP Law School, 2006

Work History

Associate – Adegbite Adeniji & Co Legal Practitioners, Lagos, 1991-1992Junior Associate – Babalakin & Co, Legal Practitioners, Lagos, 1992-1996Stagiare / Associate – Le Goueff Attorneys, Luxembourg, 2000Regulatory Information Offi cer – Inmarsat Limited, London, 2001 - 2004Assistant Director, Legal – National Space Research and Development Agency, Nigeria, 2005 to Present

Awards

Recipient of the First Prize, 1999 Pacifi c Telecommunications Council, Essay Contest

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