EUROPEAN AIR NAVIGATION PLANNING GROUP (EANPG) … Meetings Seminars and Workshops/FUA... · especially those provisions related to airspace classification (Annex 11, paragraph 2.6)

FUA TF/3 – IP/03 16/01/09

(22 pages) FUA-TF3 IP03 - UN and ICAO.doc

EUROPEAN AIR NAVIGATION PLANNING GROUP (EANPG) FLEXIBLE USE OF AIRSPACE (FUA) TASK FORCE

(FUA-TF/3)

THIRD MEETING

(Paris, 10 to 11 February 2009)

Agenda Item 1: Background information

e) review international legal instruments regarding access to high seas airspace

ICAO provisions related to access to the High Seas

(Presented by the Secretariat)

Summary

The information attached herewith provides an overview of the inter-related provisions that are contained in the United Nations Convention on the Law of the Sea and the Chicago Convention, including the Annexes thereto.

1 Introduction

1.1 The basic principle of freedom of overflight over the high seas is enshrined in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS, Montego Bay, 1982). The rules and regulations regarding international civil aviation operations over high seas airspace are set out in the Chicago Convention and its supporting documentation, including Assembly Resolutions. Although the Chicago Convention addresses international civil aviation, it does recognize sovereign airspace and military needs for access to all airspace.

2 Discussion

2.1 As indicated above, through Article 87 of the United Nations Convention on the Law of the Sea, freedom of overflight over the high seas is enshrined in international law. In support of the foregoing, Article 9 of the Chicago Convention stipulates that States can only prohibit or restrict aircraft over its territory. The term territory is defined in Article 2 of the Chicago Convention. Because the Chicago Convention explicitly excludes high seas from the referenced Articles, States cannot prohibit the movement of aircraft in such airspace. One could argue that aircraft could be excluded because the Chicago Convention does not say one way or the other that a State can or cannot exclude aircraft over the areas of the high seas for which it has accepted the responsibility to provide air navigation services. That is not the agreed interpretation due to the freedom of overflight established in the United Nations Convention. Also, as indicated in its Foreword, Annex 2 constitutes Rules relating to the flight and

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FUA-TF3 IP03 - UN and ICAO.doc

manoeuvre of aircraft within the meaning of Article 12 of the Chicago Convention and shall apply without difference over the high seas. Since the Chicago Convention does not apply to State aircraft (Article 3 of the Convention), access to high seas airspace by State aircraft is not considered in this paper. However, the Chicago Convention, in Article 3 paragraph d), addresses State aircraft regulations in terms of due regard obligations for safety of navigation of civil aircraft.

2.2 When considering access to airspace, the provisions of Annex 2, paragraph 3.1.10 relevant to prohibited and restricted airspaces are relevant. Furthermore, Annex 11 must be kept in mind, especially those provisions related to airspace classification (Annex 11, paragraph 2.6) and the provision of Air Traffic Control Services (Annex 11, Chapter 3). In addition, the Procedures for Air Navigation Services - Air Traffic Management (PANS-ATM) (Doc 4444) includes provisions regarding the implementation of flexible use of airspace. It can be seen from these provisions that air navigation service providers can manage the access and level of service provided to aircraft wishing to operate in any controlled airspace without infringing on the right of State aircraft to operate over the high seas. The definitions used throughout the ICAO provisions should also be referred to.

2.3 States can restrict access over their Territory but they cannot restrict or prohibit access to areas over the high seas. On the other hand, the establishment of danger areas is not strictly limited to airspace over national territory and might in principle take place over the high seas within the Flight Information Region (FIR) for which the Contracting State is responsible for the provision of Air Traffic Services (ATS). However, it should be ensured that the areas concerned be of a reasonable dimension and not be permanent (“at specified times” refers), so as not to interfere with international air navigation as per the Air Navigation Plan (ANP) and, more fundamentally, the principle of freedom of overflight above the high seas. Annex 15 provides provisions regarding the definition and publication of danger, restricted and prohibited areas. Annex 15 also stipulates that the prohibited, restricted and danger areas shall be published at ENR 5.1 of Aeronautical Information Publication (Appendix 1 of Annex 15 refers) and the establishment or discontinuance (including activation or deactivation) as applicable, or changes in the status of prohibited, restricted or danger area shall be promulgated by NOTAM.

2.4 Based on the above, if a State needs to define airspace to be used for military exercises, access and use will only be restricted for civil use when the airspace concerned is active and activation would always depend on prior coordination with the ATC unit concerned and always be promulgated by NOTAM. This does not appear to preclude States from using the principles agreed to in the Flexible Use of Airspace implemented in the EUR Region to manage access to danger areas established over the high seas. However, some parts of the FUA concept may need to be modified to take account of international law.

2.5 When defining an FUA concept for application over the high seas, it is important to choose definitions with care. For example the use of the terms1 Temporary Restricted Areas (TRA) or Temporary Prohibited Areas (TPA) would not be acceptable as they imply restricted or prohibited airspace, which is proscribed by the Chicago Convention. Therefore, the use of all terminology to describe the concept must be in-line with the provisions of the Chicago Convention.

1 These terms ARE NOT used in the FUA Concept applied in the EUR Region. They are given as examples only.

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3 Action by the Task Force

3.1 The Task force should take account of the information presented herein when developing an FUA concept for application over high seas in the EUR Region.

A-1 FUA TF/3 – IP/03 Appendix A


APPENDIX A - EXTRACT FROM THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

PART VII

HIGH SEAS

SECTION 1. GENERAL PROVISIONS

Article 86 Application of the provisions of this Part

The provisions of this Part apply to 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. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.

Article 87 Freedom of the high seas

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 overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific 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.

B-1 FUA TF/3 – IP/03 Appendix B


APPENDIX B – EXTRACTS FROM THE CHICAGO CONVENTION

Article 2

Territory

For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

Article 3

Civil and state aircraft

a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.

b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

c) No state aircraft of a contracting State shall fly over territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.

d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.

Article 9

Prohibited areas

a) Each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization.

b) Each contracting State reserves also the right, exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States.

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c) Each contracting State, under such regulations as it may prescribe, may require any aircraft entering the areas contemplated in subparagraphs a) or b) above to effect a landing soon as practicable thereafter at some designated airport within its territory.

Article 12

Rules of the air

Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering 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 the flight and maneuver 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 contracting State undertakes to insure the prosecution of all persons violating the regulations applicable.

C-1 FUA TF/3 – IP/03 Appendix C


APPENDIX C - ASSEMBLY RESOLUTION A36-13

CONSOLIDATED STATEMENT OF CONTINUING ICAO POLICIES AND ASSOCIATED PRACTICES RELATED SPECIFICALLY TO AIR NAVIGATION, ASSEMBLY RESOLUTION

A36-13

APPENDIX M

Delimitation of air traffic services (ATS) airspaces∗

Whereas Annex 11 to the Convention requires a Contracting State to determine those portions of airspace over its territory within which air traffic services will be provided and, thereafter, to arrange for such services to be established and provided;

Whereas Annex 11 to the Convention also makes provision for a Contracting State to delegate its responsibility for providing air traffic services over its territory to another State by mutual agreement;

Whereas both the delegating and the providing State can reserve the right to terminate any such agreement at any time; and

Whereas Annex 11 to the Convention prescribes that those portions of the airspace over the high seas where air traffic services will be provided shall be determined on the basis of regional air navigation agreements, which are agreements approved by the Council usually on the advice of regional air navigation meetings;

The Assembly resolves, with reference to regional air navigation plans, that:

1. the limits of ATS airspaces, whether over States’ territories or over the high seas, shall be established on the basis of technical and operational considerations with the aim of ensuring safety and optimizing efficiency and economy for both providers and users of the services;

2. established ATS airspaces should not be segmented for reasons other than technical, operational, safety and efficiency considerations;

3. if any ATS airspaces need to extend over the territories of two or more States, or parts thereof, agreement thereon should be negotiated between the States concerned;

4. the providing State in implementing air traffic services within airspace over the territory of the delegating State shall do so in accordance with the requirements of the delegating State, which shall

∗ The expression "ATS airspaces" includes flight information regions, control areas and control zones

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establish and maintain in operation such facilities and services for the use of the providing State as are mutually agreed to be necessary;

5. any delegation of responsibility by one State to another or any assignment of responsibility over the high seas shall be limited to technical and operational functions pertaining to the safety and regularity of the air traffic operating in the airspace concerned;

and, furthermore, declares that:

6. any Contracting State which delegates to another State the responsibility for providing air traffic services within airspace over its territory does so without derogation of its sovereignty; and

7. the approval by the Council of regional air navigation agreements relating to the provision by a State of air traffic services within airspace over the high seas does not imply recognition of sovereignty of that State over the airspace concerned.

Associated practices

1. Contracting States should seek the most efficient and economic delineation of ATS airspaces, the optimum location of points for transfer of responsibility and the most efficient coordination procedures in cooperation with the other States concerned and with the Organization.

2. The Council should encourage States providing air traffic services over the high seas to enter, as far as is practicable, into agreements with appropriate States providing air traffic services in adjacent airspaces, so that, in the event the required air traffic services over the high seas cannot be provided, contingency plans, which may require temporary modifications of ATS airspace limits, will be available to be put into effect with the approval of the ICAO Council until the original services are restored.

D-1 FUA TF/3 – IP/03 Appendix D


APPENDIX D – EXTRACTS FROM ANNEXES 2, 11 AND 15

ANNEX 2

FOREWORD

Applicability

The Standards in this document, together with the Standards and Recommended Practices of Annex 11, govern the application of the Procedures for Air Navigation Services — Air Traffic Management (PANS-ATM, Doc 4444) and the Regional Supplementary Procedures — Rules of the Air and Air Traffic Services, contained in Doc 7030, in which latter document will be found subsidiary procedures of regional application.

Flight over the high seas. It should be noted that the Council resolved, in adopting Annex 2 in April 1948 and Amendment 1 to the said Annex in November 1951, that the Annex constitutes Rules relating to the flight and manoeuvre of aircraft within the meaning of Article 12 of the Convention. Over the high seas, therefore, these rules apply without exception.

On 15 November 1972, when adopting Amendment 14 to Annex 2 relating to authority over aircraft operating over the high seas, the Council emphasized that the Amendment was intended solely to improve safety of flight and to ensure adequate provision of air traffic services over the high seas. The Amendment in no way affects the legal jurisdiction of States of Registry over their aircraft or the responsibility of Contracting States under Article 12 of the Convention for enforcing the Rules of the Air.

CHAPTER 1. DEFINITIONS

Danger area. An airspace of defined dimensions within which activities dangerous to the flight of aircraft may exist at specified times.

Restricted area. An airspace of defined dimensions, above the land areas or territorial waters of a State, within which the flight of aircraft is restricted in accordance with certain specified conditions.

CHAPTER 3. GENERAL RULES

3.1.10 Prohibited areas and restricted areas

Aircraft shall not be flown in a prohibited area, or in a restricted area, the particulars of which have been duly published, except in accordance with the conditions of the restrictions or by permission of the State over whose territory the areas are established.

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ANNEX 11

2.1 Establishment of authority

2.1.1 Contracting States shall determine, in accordance with the provisions of this Annex and for the territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided. They shall thereafter arrange for such services to be established and provided in accordance with the provisions of this Annex, except that, by mutual agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.

Note.— If one State delegates to another State the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. Similarly, the providing State’s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned airspace. Furthermore, the providing State in providing air traffic services within the territory of the delegating State will do so in accordance with the requirements of the latter which is expected to establish such facilities and services for the use of the providing State as are jointly agreed to be necessary. It is further expected that the delegating State would not withdraw or modify such facilities and services without prior consultation with the providing State. Both the delegating and providing States may terminate the agreement between them at any time.

2.1.2 Those portions of the airspace over the high seas or in airspace of undetermined sovereignty where air traffic services will be provided shall be determined on the basis of regional air navigation agreements. A Contracting State having accepted the responsibility to provide air traffic services in such portions of airspace shall thereafter arrange for the services to be established and provided in accordance with the provisions of this Annex.

Note 1.— The phrase “regional air navigation agreements” refers to the agreements approved by the Council of ICAO normally on the advice of Regional Air Navigation Meetings.

Note 2.— The Council, when approving the Foreword to this Annex, indicated that a Contracting State accepting the responsibility for providing air traffic services over the high seas or in airspace of undetermined sovereignty may apply the Standards and Recommended Practices in a manner consistent with that adopted for airspace under its jurisdiction.

2.6 Classification of airspaces

2.6.1 ATS airspaces shall be classified and designated in accordance with the following:

Class A. IFR flights only are permitted, all flights are provided with air traffic control service and are separated from each other.

Class B. IFR and VFR flights are permitted, all flights are provided with air traffic control service and are separated from each other.

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Class C. IFR and VFR flights are permitted, all flights are provided with air traffic control service and IFR flights are separated from other IFR flights and from VFR flights. VFR flights are separated from IFR flights and receive traffic information in respect of other VFR flights.

Class D. IFR and VFR flights are permitted and all flights are provided with air traffic control service, IFR flights are separated from other IFR flights and receive traffic information in respect of VFR flights, VFR flights receive traffic information in respect of all other flights.

Class E. IFR and VFR flights are permitted, IFR flights are provided with air traffic control service and are separated from other IFR flights. All flights receive traffic information as far as is practical. Class E shall not be used for control zones.

Class F. IFR and VFR flights are permitted, all participating IFR flights receive an air traffic advisory service and all flights receive flight information service if requested.

Note.— Where air traffic advisory service is implemented ,this is considered normally as a temporary measure only until such time as it can be replaced by air traffic control. (See also PANS-ATM, Chapter 9.)

Class G. IFR and VFR flights are permitted and receive flight information service if requested.

2.6.2 States shall select those airspace classes appropriate to their needs.

Definitions

Danger area. An airspace of defined dimensions within which activities dangerous to the flight of aircraft may exist at specified times.

Prohibited area. An airspace of defined dimensions, above the land areas or territorial waters of a State, within which the flight of aircraft is prohibited.

Restricted area. An airspace of defined dimensions, above the land areas or territorial waters of a State, within which the A flight of aircraft is restricted in accordance with certain specified conditions.

2.18 Coordination of activities potentially hazardous to civil aircraft

2.18.1 The arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities. The coordination shall be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15.

2.18.1.1 Recommendation.— If the appropriate ATS authority is not that of the State where the organization planning the activities is located, initial coordination should be effected through the ATS authority responsible for the airspace over the State where the organization is located.



2.18.2 The objective of the coordination shall be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft.

2.18.2.1 Recommendation.— In determining these arrangements the following should be applied:

a) the locations or areas, times and durations for the activities should be selected to avoid closure or realignment of established ATS routes, blocking of the most economic flight levels, or delays of scheduled aircraft operations, unless no other options exist;

b) the size of the airspace designated for the conduct of the activities should be kept as small as possible;

c) direct communication between the appropriate ATS authority or air traffic services unit and the organization or unit conducting the activities should be provided for use in the event that civil aircraft emergencies or other unforeseen circumstances require discontinuation of the activities.

2.18.3 The appropriate ATS authorities shall be responsible for initiating the promulgation of information regarding the activities.

2.18.4 Recommendation.— If activities potentially hazardous to civil aircraft take place on a regular or continuing basis, special committees should be established as required to ensure that the requirements of all parties concerned are adequately coordinated.



Annex 11 – Chapter 3

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ANNEX 15

3.6.6 Identification and delineation of prohibited, restricted and danger areas

3.6.6.1 Each prohibited area, restricted area, or danger area established by a State shall, upon initial establishment, be given an identification and full details shall be promulgated (see ENR 5.1 of Appendix 1).

3.6.6.2 The identification so assigned shall be used to identify the area in all subsequent notifications pertaining to that area.

3.6.6.3 The identification shall be composed of a group of letters and figures as follows:

a) nationality letters for location indicators assigned to the State or territory which has established the airspace;

b) a letter P for prohibited area, R for restricted area and D for danger area as appropriate;

c) a number, unduplicated within the State or territory concerned.

Note.— Nationality letters are those contained in Location Indicators (Doc 7910).

3.6.6.4 To avoid confusion, identification numbers shall not be reused for a period of at least one year after cancellation of the area to which they refer.

3.6.6.5 Recommendation.— When a prohibited, restricted or danger area is established, the area should be as small as practicable and be contained within simple geometrical limits, so as to permit ease of reference by all concerned.



APPENDIX 1. CONTENTS OF AERONAUTICAL INFORMATION PUBLICATION (AIP)

ENR 5. NAVIGATION WARNINGS

ENR 5.1 Prohibited, restricted and danger areas

Description, supplemented by graphic portrayal where appropriate, of prohibited, restricted and danger areas together with information regarding their establishment and activation, including:

1) identification, name and geographical coordinates of the lateral limits in degrees, minutes and seconds if inside and in degrees and minutes if outside control area/control zone boundaries;

2) upper and lower limits; and

3) remarks, including time of activity.

Type of restriction or nature of hazard and risk of interception in the event of penetration must be indicated in the remarks column.

E-1 FUA TF/3 – IP/03 Appendix E


APPENDIX E – EXTRACT FROM PANS ATM (DOC 4444)

3.1.5 Flexible use of airspace

3.1.5.1 The appropriate authorities should, through the establishment of agreements and procedures, make provision for the flexible use of all airspace in order to increase airspace capacity and to improve the efficiency and flexibility of aircraft operations. When applicable, such agreements and procedures should be established on the basis of a regional air navigation agreement.

3.1.5.2 Agreements and procedures providing for a flexible use of airspace should specify, inter alia:

a) the horizontal and vertical limits of the airspace concerned; b) the classification of any airspace made available for use by civil air traffic; c) units or authorities responsible for transfer of the airspace; d) conditions for transfer of the airspace to the ATC unit concerned; e) conditions for transfer of the airspace from the ATC unit concerned; f) periods of availability of the airspace; g) any limitations on the use of the airspace concerned; and h) any other relevant procedures or information.

F-1 FUA TF/3 – IP/03 Appendix F


APPENDIX F – EXTRACT FROM THE AIR TRAFFIC SERVICES PLANNING MANUAL (ATSPM) (DOC 9426)

“1.3.3 As regards the provision of services over the high seas or other areas where no sovereign rights are exercised (i.e. Antarctica), ICAO has envisaged that ATS services shall be established in accordance with regional air navigation agreements whereby the totality of interested States in a particular region entrust a State, or a selected number of States, with the provision of air navigation services and more especially ATS, in a specified portion of such airspace (typical examples are those in the North Atlantic (NAT) and the Pacific (PAC) regions). In this respect it should be noted that the assumption of such delegated responsibility by a State, by virtue of a regional air navigation agreement, does not imply that this State is then entitled to impose its specific rules and provisions in such airspace at its own discretion. In fact, conditions of operation therein will be governed by applicable ICAO provisions of a worldwide and supplementary regional nature and specific national provisions may only be applied to the extent that these are essential to permit the State the efficient discharge of the responsibilities it has assumed under the terms of the regional air navigation agreement.”

“3.3.2.2 According to their definitions, a danger area implies the least degree of restriction, while the prohibited area constitutes its most stringent form. It should also be noted, however, that this definition is applied only with respect to airspace which is situated over the territory of a State. In areas where no sovereign rights are exercised (e.g. over the high seas) only danger areas may be established by that body responsible for the activities causing their establishment.”

“3.3.2.4 Over the high seas, regardless of the risk involved, only danger areas can be established. Those who initiate danger area restrictions over the high seas are under an increased moral obligation to judge whether establishment of the danger area is unavoidable and if it is, to give full details on the intended activities therein. It would also appear that activities exceeding a certain risk level should not be conducted in such airspace and that other methods of achieving the desired objective, such as temporary airspace reservations, should be applied.”

“1.2.3 Airspace management (ASM)

1.2.3.1 The objective of ASM is to maximize, within a given airspace structure, the utilization of available airspace by dynamic time sharing and, at times, segregation of airspace among various categories of users based on short term needs. Close co operation between the appropriate authorities on expected and actual utilization of the temporary reserved airspace should result in information being readily available to all parties concerned, i.e. commercial air transport, military operational air traffic and general aviation. ASM is also an adjunct to ATC, as is ATFM.

1.2.3.2 In order to accomplish the above mentioned ASM objective, the following functions are necessary:

a) collection and evaluation of all requests which require temporary airspace allocation;

b) planning and allocation of the required airspace to the users concerned where segregation is necessary;

FUA TF/3 – IP/03 F-2


c) activation or de activation of such airspace within adequately narrow time tolerances, in close co operation with ATC units and civil or military units concerned. The additional route mileage flown by civil aircraft to avoid airspace exclusively reserved for military activities indicates a need for more effective civil/military co ordination. The dimensions, positioning, requirements and use of reserved airspace, danger areas and restricted areas should remain under close scrutiny, and a more efficient utilization of airspace encouraged by minimizing the hours of such activities. The usage of military training areas should also be considered. Every effort should be taken to open up such areas to civil operations whenever operational circumstances permit; and

d) dissemination of detailed information, both in advance and in real time, to all parties concerned.

1.2.3.3 Information on the status of airspace should be available to the ATFM service.”

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EUROPEAN AIR NAVIGATION PLANNING GROUP (EANPG) … Meetings Seminars and Workshops/FUA... · especially those provisions related to airspace classification (Annex 11, paragraph 2.6)