Air Navigation ServicesCross-border provision of air navigation
services with specific reference to Europe: Safeguarding
transparent lines of responsibility and liability
Cross-border provision of Air Navigation Services with specific
reference to Europe: Safeguarding transparent lines of
responsibility and liability PROEFSCHRIFT ter verkrijging van de
graad van Doctor aan de Universiteit Leiden, op gezag van Rector
Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het
College voor Promoties te verdedigen op donderdag 29 november 2007
klokke 11.15 uur door Niels van Antwerpen geboren te Nieuw-Vennep,
in 1975
Promotiecommissie promotores: prof. dr. P.P.C. Haanappel
prof. mr. L.J. Brinkhorst
co-promotor: dr. P.M.J. Mendes de Leon referent: dr. F.P. Schubert
(CEO Skyguide, Geneva) leden: prof. B. Havel (DePaul University,
Chicago) prof. dr. S. Hobe (University of Cologne) prof. mr. J.H.
Nieuwenhuis mr. R.D. van Dam (EUROCONTROL, Brussels) Een
handelseditie zal verschijnen bij uitgeverij Kluwer Law
International te Alphen a/d de Rijn onder ISBN 13 -
9789041126887
For I dipt into the future, far as human eye could see, Saw the
Vision of the world, and all the wonder that would be; Saw the
heavens fill with commerce, argosies of magic sails, Pilots of the
purple twilight, dropping down with costly bales; Heard the heavens
fill with shouting, and there rain’d a ghastly dew From the
nations’ airy navies grappling in the central blue; Far along the
world-wide whisper of the south-wind rushing warm, With the
standards of the peoples plunging thro’ the thunder-storm; Till the
war-drum throbb’d no longer, and the battle-flags were furl’d In
the Parliament of man, the Federation of the world. There the
common sense of most shall hold a fretful realm in awe, And the
kindly earth shall slumber, lapt in universal law. From Locksley
Hall (1842) Alfred, Lord Tennyson
II__
Acknowledgements As Leonardo da Vinci said: ‘when once you have
tasted flight, you will forever walk the earth with your eyes
turned skyward, for there you have been, and there you will always
long to return’. I was fortunate in tasting air- and space law and
related policy through the post- graduate teaching program of the
International Institute of Air and Space Law (Leiden University) by
joining its first advanced masters of law program in air- and space
law in the summer of 2000. The atmosphere of the institute, its
network and, not less important, the classmates of the first year’s
teaching program, have heavily contributed to the thoughts and
enthusiasm that lies behind this study. Trying to mould ideas and
building paradigm shifts is definitely a challenge and a constant
struggle with oneself and, not less important, one’s laptop
computer. The colleagues of KLM Royal Dutch Airlines have been of
great support. I wish to express my indebtedness in particular to
Jan-Ernst de Groot, Barbara van Koppen, Irene Schoute, Ben Berends
and the entire team of the Corporate Legal Services. In relation to
the subject to this study, I would like to thank Dr. Tissa
Abeyratne, Jiefang Huang and Nicolas Banerjea-Brodeur for their
spontaneous assistance to show me the way to various ICAO
documents. Furthermore, in order to obtain the most topical
information and further insides in the field of European air
navigation services, Ann-Frédérique Pothier of EUROCONTROL has been
of great support. Also, I thank Prof. Dr. Paul Dempsey of the
Institute of Air- and Space Law (McGill University) for making
himself available to exchange views and observations on the topic
of this study and the beloved Maria D’Amico for her great help and
organisational support within McGill University. Lastly, I would
like to express my indebtedness to Peter van Fenema and George
Tompkins Jr. who were always available to provide advice, joy and
laughter. I must also mention the help of Paula van der Wulp and
Judith Sandriman for managing the organisational challenges at the
Leiden University and Anna Rich for her loyal support over the
years and making herself available for making the final
corrections. Also I would like to express my gratitude to Frank
Manuhutu who was always there to exchange views, host dinner
parties and drinks as well as Jeroen Vink for the cover design. I
shall of course, never forget the love, support and patience of my
parents, the pater familias Theo van Antwerpen and my friends
during all these years that have made the research bearable. Niels
Arnoud van Antwerpen Leiden, November 2007
Table of Contents ACKNOWLEDGEMENTS
..................................................................................................................
II
TABLE OF CASES
..............................................................................................................................VI
LIST OF ABBREVIATIONS AND ACRONYMS
............................................................................IX
CHAPTER 1 INTRODUCTION
.................................................................................................11
1.1 TECHNOLOGY AND
TRAGEDIES........................................................................................................11
1.2 THE MID-AIR COLLISION NEAR ÜBERLINGEN (LAKE
CONSTANCE)...................................................15 1.3
OBJECTIVE AND RESEARCH
QUESTIONS............................................................................................19
1.4 DIVISION OF CHAPTERS
....................................................................................................................22
CHAPTER 2 THE INTERNATIONAL LEGAL FRAMEWORK
..........................................25 2.1 INTRODUCTION
................................................................................................................................25
2.2 PRINCIPLES OF INTERNATIONAL (AIR)
LAW.....................................................................................25
3.4.3 Enforcement
.........................................................................................................................64
3.5 PRELIMINARY
REMARKS..................................................................................................................65
IV Table of contents PART 2 THE INTERRELATIONSHIP BETWEEN
EUROCONTROL AND THE EUROPEAN COMMUNITY
(INCLUDING EASA)
..................................................................................................................66
3.6 EUROPEAN COMMUNITY, EUROCONTROL AND
EASA................................................................66
3.7 CONCLUDING REMARKS
...................................................................................................................80
CHAPTER 4 CROSS-BORDER PROVISION OF AIR NAVIGATION
SERVICES.............85 4.1 INTRODUCTION
................................................................................................................................85
4.2 CROSS-BORDER AND EXTRA-TERRITORIAL PROVISION OF AIR NAVIGATION
SERVICES ..................86
4.6.1 Amending the Chicago
Convention....................................................................................129
4.6.2 The Regional Air Navigation Plan (RANP)
.......................................................................130
4.6.3 Positioning the RANP in international
law.........................................................................134
4.6.4 The RANP as a multilateral vehicle
...................................................................................140
5.3.1 Luxembourg
.......................................................................................................................156
5.3.2 Belgium
..............................................................................................................................156
5.3.3 The
Netherlands..................................................................................................................157
5.3.4 Germany
.............................................................................................................................160
5.3.5 Austria
................................................................................................................................162
5.3.6 Switzerland
.........................................................................................................................163
5.3.7
Ireland.................................................................................................................................164
5.3.8 United Kingdom
.................................................................................................................164
Table of contents V 5.4 THE ORGANISATION OF AIR NAVIGATION SERVICE
PROVIDERS IN THE EUROPEAN COMMUNITY..167
5.4.1 Air Carrier Transportation: Operating License and Route
License ....................................167 5.4.2 Air
Navigation Services: Certification and
Designation.....................................................169
5.4.3 Service Provision Regulation – Entry into Force
...............................................................171
5.4.4 The Organisation of Air Navigation Service Providers
......................................................172 5.4.4.1
Principal Place of Operation and Registered Office (Ownership and
Control) ................................ 172 5.4.4.2
Regulatory........................................................................................................................................
173 5.4.4.3
Liability............................................................................................................................................
174
5.5 LIABILITY FOR (CROSS-BORDER) AIR NAVIGATION SERVICES
......................................................174 5.5.1
Traditional Liability
Concepts............................................................................................174
5.5.2 The Draft Convention on the Liability for Air Traffic Control
..........................................176 5.5.3 Inter-State
Liability Concepts for Cross-Border Service
Provision....................................178
5.6 TOWARDS A HARMONISED CROSS-BORDER LIABILITY REGIME FOR THE
EUROPEAN COMMUNITY
................................................................................................................181
5.6.1 Conceptual Liability Framework: Inter-State Liability and
Third Parties on the Ground ..182 5.6.2 Contractual liability
framework for the benefit of aircraft
operators..................................188 5.6.2.1 The Airways
Corporation of New Zealand
......................................................................................
189 5.6.2.2 Draft contractual framework for GNSS (CNS/ATM)
......................................................................
191 5.6.2.3 Airports and
Airlines........................................................................................................................
194 5.6.2.4 Preliminary
Remarks........................................................................................................................
195
5.7 CONCLUDING REMARKS
................................................................................................................197
CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS
.............................................201 6.1 INTRODUCTION
...............................................................................................................................201
6.2 ESSENTIAL ELEMENTS FOR CROSS-BORDER PROVISION OF AIR NAVIGATION
SERVICES ...................202 6.3 STRENGNTHENING THE RULEMAKING
ROLE OF EUROCONTROL IN THE EUROPEAN COMMUNITY
................................................................................................................205
6.4 THE ESTABLISHMENT OF TRANSPARENT LINES OF STATE RESPONSIBILITY
BY ALLOCATING RESPONSIBILITY TO THE SUPERVISING AUTHORITY UNDER A
MODEL DELEGATION AGREEMENT ....207 6.5 THE REGIONAL AIR NAVIGATION
PLAN AS MULTILATERAL VEHICLE FOR CROSS-BORDER ARRANGEMENTS
............................................................................................................................209
6.6 ESTABLISH TRANSPARENT LINES OF (INTER-STATE) LIABILITY FOR THE
PROVISION OF CROSS-BORDER AIR NAVIGATION
SERVICES..................................................................................210
6.7 EXTRAPOLATING THE CONCLUSIONS AND RECOMMENDATIONS BEYOND
EUROPEAN AIRSPACE....212 APPENDIX I: MODEL AGREEMENT FOR
CROSS-BORDER PROVISION OF AIR NAVIGATION
SERVICES..........................................................................215
APPENDIX II: STRUCTURE OF PROPOSAL (GRAPHIC)
.....................................................220
SAMENVATTING (SUMMARY IN DUTCH)
...............................................................................221
Table of Cases International Court of Justice Case Concerning the
Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United
States of America)…………………………………… 137 Case of the S.S. “Wimbledon”
(United Kingdom, France, Italy, Japan v.
Germany)……………………………………………………………………………….. 28 Chorzów Factory case
(Germany v. Poland)……………………………………………… 100 Interpretation of the
Statute of the Memel Territory (United Kingdom, France, Italy,
Japan v. Lithuania)……………………………………… 94 Lighthouses in Crete and
Samos (France v. Greece)……………………………………… 93 European Court of
Justice Flaminio Costa v. Ente Nazionale Energia Elettrica (Costa
v. Enel)…………………….. 57 N.V. Algemene Transport- en Expeditie
Onderneming Van Gend & Loos v. Nederlandse Administratie der
Belastingen (Van Gend en Loos)……………………… 56 Germany Bashkirian
Airlines v. Bundesrepublik Deutschland…………………………….... 15-19, 106
The Netherlands Vereniging Bewonersgroep Tegen Vliegtuigoverlast v.
Dagelijks Bestuur van de Deelgemeente Hillegersberg-Schiebroek
(Rotterdam Airport-case)……………………… 40 New Zealand Airways
Corporation of New Zealand Ltd. v. Geyserland Airways Ltd. and
White Island Airways Ltd……………………………………………………….…….. 189 United
States of America Beattie et al v. United States of America
(1984)…………………………………………... 92 Beattie et al v. United States of
America (1988)…………………………………………... 92 Blumenthal v. United States of
America (1960)………………………………………….... 89 D’Aleman v. Pan American
World Airways (1958)……………………………………….. 89 Faat v. Honeywell Int’l
(2005)…………………………………………………………….. 17 Richards v. United States of
America (1962)……………………………………………… 89 Smith v. United States of
America (1993)…………………………………………………. 93
VII
Table of International Conventions and Other Agreements The
treaties referred to in this study are listed in alphabetical order
in accordance with the abbreviations listed below, including the
place and date when they were concluded. Accession Protocol
Protocol on the Accession of the European Community to the
Eurocontrol International Convention relating to Co-operation for
the safety of air navigation of 13 December 1960, as variously
amended and as consolidated by the Protocol of 27 June 1997
(Brussels, 8 October 2002)
Amended Convention Protocol Amending the “EUROCONTROL”
International
Convention Relating to Co-operation for the Safety of Air
Navigation with Annexes 1, 2 and 3 (Amended Convention), 1430 UNTS
279
Antarctic Treaty Antarctic Treaty, 1 December 1959, 402 UNTS 71
ASECNA Convention Convention relative à la création de l’Agence
pour la
Sécurité de la Navigation Aérienne en Afrique et à Madagascar [The
Convention on the creation of the Agency for the Safety of Air
Navigation in Africa and Madagascar], as amended in Dakar, 25
October 1974 (Unpublished)
Chicago Convention Convention on International Civil
Aviation,
7 December 1994, 15 UNTS 295 Convention on the Law of United
Nations Convention on the Law of the Sea, the Sea 10 December 1982,
21 ILM 1261 COCESNA Convention Convenio Constitutivo de la
Corporación Centroamericana
de Servicios de Navigación Aérea [The Agreement to Constitute the
Central American Corporation for Air Navigation Services]
(Tegucigalpa, 26 February 1960)
EC Treaty Consolidated Version of the Treaty Establishing the
European Community, 2002 OJ (C 325/3-159) EEC Treaty Treaty
Establishing the European Economic Community, 25 March 1957, 298
UNTS 3 (also referred to as
Treaty of Rome) ESCS Treaty Treaty Establishing the European Coal
and Steel
Community, 261 UNTS 140 EURATOM Treaty Treaty Establishing the
European Atomic Energy
Community (EURATOM Treaty), 298 UNTS 167 EUROCONTROL Convention
“EUROCONTROL” International Convention Relating to (1960)
Co-operation for the Safety of Air Navigation,
523 UNTS 117
VIII Joint Financing Agreement Agreement on the Joint Financing of
Certain Air Navigation (Greenland) Services in Greenland as amended
by the Montreal Protocol of 1982 (ICAO Doc 9585) Joint Financing
Agreement Agreement on the Joint Financing of Certain Air
Navigation (Iceland) Services in Iceland as amended by the Montreal
Protocol of
1982 (ICAO Doc 9586) Liability Convention Convention on
International Liability for Damage Caused by
Space Objects, 29 March 1092, 961 UNTS 187 Montevideo Convention
Montevideo Convention on Rights and Duties of States,
26 December 1933, 165 LNTS 19 Montreal Convention Convention for
the Unification of Certain Rules for
International Carriage by Air, 28 May 1999 (ICAO Doc 9740)
Montreal Protocol The Protocol to Amend the Convention on Damage
Caused
by Foreign Aircraft to Third Parties on the Surface, 23 September
1978 (ICAO Doc 9148)
Outer Space Treaty Treaty on Principles Governing the Activities of
States in the
Exploration and Use of Outer Space, including the Moon and other
Celestial Bodies, 10 October 1967, 610 UNTS 206
Revised Convention Protocol consolidating the EUROCONTROL
International
Convention Relating to Co-operation for the Safety of Air
Navigation of 13 December 1960, as variously amended, Brussels, 27
June 1997 (EUROCONTROL, September 1997 Edition)
Rome Convention Convention on Damage Caused by Foreign Aircraft to
Third
Parties on the Surface, 7 October 1952, 310 UNTS 181 Route Charges
Agreement Multilateral Agreement Relating to Route Charges,
12 February 1981, 1430 UNTS 123 Vienna Convention on the Vienna
Convention on the Law of Treaties, 23 May 1969, Law of Treaties 8
ILM 679 Warsaw Convention Convention for the Unification of Certain
Rules Relating to
International Carriage by Air, 12 October 1929, 137 LNTS 11
IX
List of Abbreviations and Acronyms AASL Annals of Air and Space Law
ADIZ Air Defence Identification Zone AEA Association of European
Airlines Air Law Air and Space Law AJIL American Journal of
International Law ANS Air Navigation Services ANSP Air Navigation
Service Provider ATC Air Traffic Control ATFM Air Traffic Flow
Management ATM Air Traffic Management ATS Air Traffic Services
CADIZ Canadian Air Defence Identification Zone CANSO Civil Air
Navigation Services Organisation CDM Collaborative Decision Making
CEATS Central European Air Traffic Services Upper Area Control
Centre CHICAGO Chicago Convention CFMU Central Flow Management Unit
CNS Communication, Navigation and Surveillance DOHSA Death on the
High Seas Act EANPG European Air Navigation Planning Group EASA
European Aviation Safety Agency EC European Community ECAC European
Civil Aviation Conference ECR European Court Reports EJIL European
Journal of International Law ENPRM Eurocontrol Notice of Proposed
Rule Making ERA European Regions Airline Association ESARR
Eurocontrol Safety Regulatory Requirement ETS European Treaties
Series EUROCONTROL European Organisation for the Safety of Air
Navigation FAA Federal Aviation Administration FABs Functional
Airspace Blocks FBA Functional Blocks of Airspace FIR Flight
Information Region FTCA Federal Tort Claims Act FUA Flexible Use of
Airspace GNSS Global Navigation Satellite System GPS Global
Positioning System IATA International Air Transport Association
ICAO International Civil Aviation Organization ILM International
Legal Materials JALC Journal of Air Law and Commerce LJIL Leiden
Journal of International Law LNTS League of Nations Treaty Series
LoA Letters of Agreement Maastricht UACC EUROCONTROL Maastricht
Upper Area Control Centre MET Meteorological Services NILR
Netherlands International Law Review NUAC Nordic Upper Area Control
centre
X OJ Official Journal of the European Union PICAO Provisional
International Civil Aviation Organization PIRG Planning and
Implementation Regional Group RAN Meeting Regional Air Navigation
Meeting RANP Regional Air Navigation Plan RU Regulatory Unit of
EUROCONTROL RVSM Reduced Vertical Separation Minima SES Single
European Sky SESAR Single European Sky ATM Research programme SRC
Safety Regulation Commission of EUROCONTROL TCAS Traffic alert and
Collision Avoidance System UNTS United Nations Treaty Series ZLW
Zeitschrift für Luft- und Weltraumrecht
11
CHAPTER 1 INTRODUCTION 1.1 Technology and Tragedies In the old days
pilots depended on daylight and clear visibility in order to
operate a flight. They used landmarks such as rail-tracks, rivers
and roads, to navigate the aircraft to their final destination.
There was no supporting radio connection from the ground and
controllers at airports, if at all available, limited their
services to the waiving of flags or providing guidance through
signage or lightning signals to provide pilots with particular
landing- or take-off instructions. From the 1930s, airport control
towers were gradually equipped with radio equipment that allowed
direct contact with pilots. Radio aid was improved and subsequently
also used for en-route air navigation services enabling pilots to
plot their position by using radio beacons on the ground. The
introduction of radar after the Second World War enabled ground
personnel to identify and to plot the position, heading and air
speed of aircraft. With the improvement of radio communication,
this gradually resulted in a worldwide system of air navigation
services. According to the annual report issued by EUROCONTROL’s
performance review commission of 2006, which covers the airspace of
the member states of EUROCONTROL, there were no less than 9,2
million controlled general air traffic flights in 2005. Traffic
increased by 3.9 per cent compared to the previous year.1 A
long-term prediction of the number of flights up to 2025 shows a
trend of sustained traffic growth. Depending on scenarios with
higher economic growth and lower fuel price, the number of flights
range from 1.6 times to 2.1 times higher than the total number of
flights in the year 2003, which were around 8, 3 million controlled
flights.2 The growth of air traffic requires the generation of
sufficient airspace capacity without jeopardising aviation safety.
Various techniques and organisational developments have been
implemented and pursued in order to provide sufficient capacity to
meet the air traffic demand. First of all, EUROCONTROL’s Central
Flow Management Unit (CFMU) has made a big contribution by
enhancing the flow of air traffic throughout the European
continent.3 The CFMU monitors capacity variations, delays,
conflicts and unused air traffic control slots on an ongoing basis.
Based on the outcome of this comparison, air traffic control slots
are allocated, updated and (if applicable) re-routings are offered
to aircraft operators in order to avoid overload of particular air
navigation sectors as well as unnecessary flight delays. By
optimising the use of the available airspace capacity and by
offering alternatives to aircraft operators the CFMU safeguards the
smooth flow of traffic throughout European airspace.
1 EUROCONTROL, Performance Review Commission: Performance Review
Report: An Assessment of Air Traffic Management in Europe during
the Calendar Year 2005 (April 2006), at 5. EUROCONTROL is an
international organisation which has as objective the development
of a seamless pan-European air traffic management system. For
additional information on the member states of EUROCONTROL and the
organisation’s institutional structure, see Ch. 3.3.4. The
Performance Review Commission is one of the advisory bodies within
the institutional structure of EUROCONTROL. 2 EUROCONTROL,
Long-Term Forecast of Flights 2004-2025 (December 2004), at 3. 3
The CFMU is an operational unit of EUROCONTROL and became
operational in 1996. It matches flight-plans of aircraft operators
with the available air navigation service capacity. For additional
information, see EUROCONTROL, Central Flow Management Unit: Making
Optimum Use of Europe’s Airspace (2001). See also EUROCONTROL, CFMU
Operations: Executive Summary - Edition 2002 (2002) and
EUROCONTROL, Basic CFMU Handbook: General & CFMU Systems -
Edition 8 (2002).
12 Introduction
Another newly emerging technology that has been used to enlarge the
available capacity of airspace to the airspace users is the
implementation of Reduced Vertical Separation Minima (RVSM) in
forty-one states on the European continent as of January 24, 2002.
Aircraft operate along pre-defined air traffic corridors where
ground-based air traffic control ensures a safe separation of
aircraft. The RVSM makes it possible to reduce the vertical
separation between aircraft and six additional air traffic
corridors were introduced which allows more aircraft to fly in the
same volume of airspace. The total volume of air traffic that can
ultimately fly through a single corridor is still limited and there
remain crossings of particular corridors. This continues to put a
heavy burden on the ground-based controlling system that have to
separate aircraft at such crossings. The introduction of a
satellite based Communications, Navigation and Surveillance/Air
Traffic Management (CNS/ATM) system could break through this
traditional pattern. By enhancing onboard instruments and by
facilitating an interchange with satellite systems aircraft could
eventually operate in an area of airborne separation systems rather
then having to rely on the traditional ground-based controlling
systems and fixed airspace routings. In this case, aircraft would
no longer have to fly along the pre-defined routings, which would
boost the available airspace capacity as aircraft could use all
remaining airspace. This system presupposes a redistribution of
tasks between traditional ground-based and airborne traffic systems
in the aircraft. It would enable the aircraft operator to define
the most efficient routing for their aircraft, rather than being
bound to pre-defined routings.4
Beside the introduction of new technology, the traditional
organisation of airspace blocks should also been taken into
account. A revision of the airspace blocks could be a way to
increase available airspace capacity. One of the achievements on
the European continent has been the launch of Flexible Use of
Airspace (FUA) where airspace is no longer designated for exclusive
military- or civil purpose but considered as a single continuum to
be used flexibly on a day-to-day basis. Airspace segregation, for
example military training in a particular portion of airspace, is
temporary and based on real use by the military for a specified
period. Outside the time intervals used by the military, the
airspace it can be used for civil purposes, which boost airspace
capacity. The flexible use of airspace, CFMU, RVSM or CNS/ATM are
only partial solutions to the problem in Europe. The main obstacle
is the overall organisation of controlled airspace. The national
air navigation service providers traditionally offer services in
the airspace over the territory of the state where they are based
and restrict their air navigation service provision to the airspace
boundaries that coincide with the territorial boundaries of the
state. Based on EUROCONTROL’s statistical reference of 2006 there
were no less than 69 area control centres providing air traffic
control to aircraft in the upper airspace.5 En-route air navigation
inefficiencies alone are estimated to cost airspace users between
Euro 880 million and Euro 1.4 billion per annum. The main component
of the cost of fragmentation is that many national air navigation
control centres operate below their optimum economic size. Other
major reasons for the cost of fragmentation are the multiplication
of ATM systems (piecemeal procurement, sub-optimal scale in
maintenance) and duplication of associated
4 Within the United States of America this concept is commonly
referred to as free flight whereas in Europe the concept is
referred to as free routing. Although in principle they both refer
to CNS/ATM, the difference is that in European airspace the
aircraft will remain subject to clearances by air navigation
service providers whereas this is not the case in the free flight
environment developed in the United States of America. For
additional information, see F.P. Schubert, ‘Pilots or Controllers:
Who’s liable in the free flight environment’, 2002 (February)
Avionics Magazine. See also J. Terlouw, ‘Air Traffic Control from
the Cockpit’, 2003 (September) CANSO News. 5 EUROCONTROL, Report
commissioned by the Performance Review Commission: The Impact of
Fragmentation in European ATM/CNS (April 2006), at 28.
Chapter 1 13
support (training, administration and research and development).6
There are national initiatives to mitigate the adverse impact of
fragmentation costs by way of the corporatisation and privatisation
of national air navigation service providers. However, they tend to
limit themselves to projects within a single air navigation service
provider and do not focus on the efficient flow and routing of
aircraft beyond the national airspace.7 Under the umbrella of the
Single European Sky, the European Community tries to break through
the current organisation of air navigation services. The main
objectives of the Single European Sky initiative are firstly to
improve safety; secondly overall efficiency; closely related to the
latter is the third objective; optimise airspace capacity, and
fourthly to minimise air traffic delays. The last objective of the
Single European Sky is to establish a harmonised regulatory
framework. This is of a different nature to the preceding
objectives and should be considered as an enabler of the first four
objectives.8 In terms of the aforementioned first objective, the
enhancement of safety, the aim is to improve the levels of safety
so that the risk per flight, i.e. the accidents and risk-bearing
incidents attributed to ATM, decrease, whereas the volume of air
traffic increases. With respect to the second objective,
efficiency, this should be considered as a twofold objective. The
first goal is to improve cost-effectiveness by reducing the unit
costs of the air navigation service providers. Cost-inefficiencies
arise from low productivity of the systems and high support costs,
mainly due to the already previously mentioned fragmentation of the
air navigation systems, duplication of infrastructure and
small-scale facilities preventing full exploitation of scale
effects. A reduction in unit costs will have an impact on the
operating costs of the airline industry that are picking up the
bill for the provision of air navigation services. At the same
time, the objective efficiency has a second goal as this objective
also aims to improve the flight-efficiency of the airline industry.
The improvement of flight-routing will lower flight-times and
increase the airline’s operating efficiency in terms of connection
times but also lower its operating costs as there will be a
reduction in fuel burn. Consequently, the reduction in fuel burnt
and emissions will have an environmental impact. Although major
improvements have already been made in respect of the third and
fourth objectives, this being the optimisation of airspace capacity
and reducing air traffic delays, the expected growth of general air
traffic and the expected increased demand for air navigation
services by very light jets makes the capacity and demand balance
particularly fragile.9 One of the cornerstones of the Single
European Sky is the establishment of Functional Airspace Blocks
(FABs) which envisages that there are ultimately blocks of
controlled airspace that are defined irrespective of the underlying
national state boundaries. Within such FABs, the provision of air
navigation services should no longer be exclusively the domain of
air navigation service providers that are based within the
territory of that state, but it should be allowed to have air
navigation service providers that have their principal place of
operation in the territory of another state.10 This kind of
provision of air navigation services is commonly referred to as the
cross-border provision of air navigation services. In 2005,
EUROCONTROL and the European Community launched the Single European
Sky ATM Research Programme (SESAR) that covers civil- and military
aviation players, legislators, industry operators and users, both
ground and airborne. The parties will define, commit to and
ultimately implement a pan-European program that eliminates the
so-far
6 Ibid., at 55-56. 7 See Ch. 5.3. 8 EUROCONTROL, Performance Review
Commission: Evaluation of the Impact of the Single European Sky
Initiative on ATM Performance (December 2006), at 7-8. 9 Ibid., at
15-16 and 24-27. 10 For additional information on the requirements
that should be met under the Single European Sky Regulations to for
air navigation service providers, including the requirement of
principal place of operation, see Ch. 5.4.2.
14 Introduction
fragmented approach to air navigation services and supports the
Single European Sky legislation. Within this context, the parties
focus on the transformation of the overall European air navigation
system by synchronising plans and actions of the different partners
and resources. The first part of SESAR is a definition phase. By
early 2008, there should be a European ATM Master Plan based on
future aviation requirements identifying the actions and needs to
achieve the objectives. This will be followed by a development
phase (2008-2013) which covers development, validation work and
preparation of regulatory measures to implement the master plan.
Finally, there is the deployment phase (2014-2020). In this phase,
there should be management of the changes in the European ATM,
which will result in an optimal outcome.11
Notwithstanding the technological improvements and organisational
developments, the European continent has also been witnessing major
aircraft collisions that were interrelated with the provision of
air navigation services. This study is exclusively focusing on
damage resulting from air navigation service provision. Accidents
or incidents connected with contributory negligence between pilots
and air navigation service providers, such as in the Tenerife
disaster of 27 March 1977 where in dense fog two Boeing 747
aircraft of Pan American World Airways and KLM Royal Dutch Airlines
collided and where communication misunderstandings between the air
traffic controller and the pilots of the KLM aircraft played an
important role, will not be discussed. The first accident that
solely relates to the provision of air navigation services involves
the collision of a Spanish chartered Coronado 990 aircraft and a
DC-9 aircraft from Iberia. On 5 March 1973 amidst a strike by the
civil air traffic controllers in France the aircraft collided in
mid-air near the French city of Nantes. The pilot of the Coronado
was able to land the damaged aircraft, but the DC9 exploded,
killing all sixty-eight people on board. The French air force, that
had been providing air navigation services during the strike,
denied that there was a link between the accident and the strike.12
This mid-air collision has been considered the first European
mid-air collision caused by air navigation services.13 Three years
later, on 10 September 1976, there was another mid-air collision of
two aircraft in the airspace over the former Republic of
Yugoslavia. The accident occurred near the small town of Vrbovec,
between a Trident aircraft of British Airways and a DC9 operated by
Inex Adria. All crew and passengers, one hundred and seventy-six
people, were killed. As the accident occurred whilst the aircraft
were under air traffic control from the Zagreb-based air navigation
service provider, the accident is commonly referred to as the
Zagreb mid-air collision.14 In the evening from 1-2 July 2002,
there was a mid-air collision in the airspace over southern
Germany. In contrast to the previous mid-air collisions, this
accident involved cross-border provision of air navigation services
as the aircraft, whilst flying through German airspace, had been
under the air traffic control of a Swiss based air navigation
service provider. The merits of the accident shall be separately
discussed in Chapter 1.2. On other occasions, mid-air collisions
have been avoided. For example on 18 February 2004, two
jet-aircraft that were subject to air traffic control were on a
collision course near the French city, Rheims. A collision was
avoided by the swift response of the crew of Swiss International
Airlines and KLM Royal Dutch Airlines. The pilots took evasive
action based on their on-board Traffic alert and Collision
Avoidance Systems (TCAS). If both aircraft are fitted with the TCAS
system and the TCAS detects that the aircraft are on a potential
collision
11 EUROCONTROL, SESAR: Single European Sky ATM Research (February
2006). 12 ‘1973: Mid-Air Collision kills 68’, BBC News on the Web:
On this day 5 March 1973. <http://news.bbc.co.uk/onthisday>
(Visited 1 May 2007). 13 P. Domogala, ‘The Zagreb Collision
Revisited’, (2001) 40 The Controller 26. 14 For additional
information, see P. Marn, Comparative Liability of Air Traffic
Services, (unpublished), thesis of 15 October 1980 submitted to the
Institute of Air and Space Law of McGill University,
Montreal.
Chapter 1 15
course, the computer system on the aircraft will ultimately advise
the pilot of one aircraft to descend whereas the system on board
the other aircraft will at the same time advise its pilot to climb.
The Swiss aircraft and KLM aircraft came within 15 and 35 seconds
of colliding.15 The range of technological and organisational
improvements and the mid-air collision tragedies serve as a grim
introduction to this study on cross-border provision of air
navigation services. After revisiting the peculiarities concerning
the cross-border provision of air navigation services surrounding
the mid-air collision near Überlingen and explaining why this
tragic collision is of importance for this study (1.2) the
objectives and research questions of this study will be specified
(1.3) which will be followed by the division of the Chapters (1.4).
1.2 The mid-air collision near Überlingen (Lake Constance) The
merits of the case surrounding the mid-air collision near
Überlingen (Lake Constance) and the court ruling by the German
District Court are important with respect to the leitmotiv of this
study, which focuses on the cross-border provision of air
navigation services whilst safeguarding transparent lines of
responsibility and liability. This is because the opinion of the
District Court can be mirrored in similar situations where states
allow cross-border provision of air navigation services in the
airspace over their territory by an air navigation service provider
that is based in and subject to the supervision of the authorities
of another state. On the evening of 1 July 2002, two jet aircraft
collided in mid-air at an altitude of 34.890 feet (around 10.600
meters) in the airspace over southern Germany. The accident
occurred north of the German city Überlingen, near Lake Constance,
and involved a Boeing 757 freighter of DHL International Ltd., on
its way from Bergamo, Italy, to Brussels, Belgium, and a Russian
charter flight, a Tupolev TU154, operated by Bashkirian Airlines,
which was heading from Moscow, Russia, to Barcelona, Spain. The
aircraft were flying at the same altitude and, as illustrated in
Figure 1.2 below, approach and collided at a 90-degree angle.
Figure 1.2 Collision of the Boeing 757 and the Tupolev TU154.16
Based on bilateral arrangements between Switzerland and Germany,
the Swiss based air navigation service provider, Skyguide, was the
provider of air navigation services in this portion of airspace
over the South-German territory. Therefore, a Swiss-based air
navigation services provider was in charge of the provision of air
navigation services to the aircraft involved. Whilst monitoring the
two en-route aircraft in German airspace, the air traffic
controller was at the same time also monitoring a delayed Airbus
aircraft (“Airbus”) that was approaching Friedrichshafen
airport.
15 ‘Incident in French airspace’, Press Release by Swiss
International Airlines of 18 February 2004. 16 This figure has been
copied from the Bundesstelle für Flugunfalluntersuchung [German
Federal Bureau of Aircraft Accident Investigation], Investigation
Report on the Accident (near) Überlingen/ Lake of Constance/
Germany on 1 July 2002 (AX001-1-2/02) of May 2004, at 72.
16 Introduction
The air traffic controller instructed the Tupolev to descend to
350.000 feet and continued his work by concentrating on the Airbus
flight operations. The Boeing and Tupolev were both equipped with
airborne Traffic Alert and Collision Avoidance Systems (TCAS) and
at the same time that the air traffic controller was monitoring the
flight operations of the Airbus, the airborne Traffic alert and
Collision Avoidance Systems (TCAS) alerted the crew of the Boeing
and the Tupolev that they were flying on intersecting flight paths.
The TCAS instructed the crew of the Tupolev to climb, which was
contrary to the instructions of the air traffic controller and, at
the same time, the TCAS instructed the DHL aircraft to descend.
Because the Airbus’s call to the air traffic controller overlapped
with the TCAS report by the Boeing (its crew reporting that it was
going to descend) the air traffic controller did not receive this
message. Furthermore, the controller was firm in his belief that
the ‘descend’- instruction issued to the Tupolev was responded to
in time and therefore had left the aircraft unattended,
concentrating on the Airbus operations.17 The Tupolev was
confronted with conflicting information and followed the air
traffic controller instruction to descend, whereas its TCAS system
had advised it to climb. The air traffic controller had not
realised that the Boeing had already started to descend and gave
another instruction to the Tupolev to expedite descent. The latter
instruction was given by the air traffic controller, as the crew of
the Tupolev had not verbally replied to the first air traffic
control instruction.18 On the Russian cockpit voice recorder, the
investigators were able to destillate that the co-pilot pointed out
the conflict between the TCAS warnings and the instructions of the
Skyguide staff. The TCAS system subsequently advised the Tupolev to
increase climb, increase climb but five seconds after this message
it came to a collision, albeit that at the very last moment the
Tupolev crew noticed the recognisable Boeing and abruptly tried to
in vain to initiate a climb. Because of automated systems air
traffic controllers in Germany had noted the collision course of
the aircraft and have tried to notify their Swiss colleagues.19 All
71 crewmembers and passengers of both aircraft, of which 49 were
children, were killed. What made the accident even more dreadful
was the murder of the Swiss air traffic controller who was on duty
on the night of the mid-air collision. He was stabbed to death in
2004 by a Russian relative whose wife, son and daughter had been
killed in the aircraft crash.20 Skyguide accepted full
responsibility for the errors made within its organisation and took
immediate precautionary safety measures.21 Furthermore, at the
request of Skyguide and together with the governments of Germany
and Switzerland, Skyguide created a compensation fund for the
financial relief of the bereaved.22 Payments would be made for loss
of income, including additional compensation, on the assumption and
in accordance with standards that would have been applied if the
relatives had been based in Switzerland bearing
17 Ibid., at 85. 18 Ibid., at 70-71. 19 Ibid., at 44. 20 ‘Swiss
Confirm Russian Father Held’, BBC News on 1 March 2004. <
http://news.bbc.co.uk/2/hi/europe/3522105.stm> (Visited 3 May
2007). 21 ‘Skyguide Apologizes to the victims’ families’, Press
Release by Skyguide of 19 May 2004. 22 Skyguide, Annual Report
(2003), at 15.
Chapter 1 17
a Swiss nationality.23 There are reports that the compensation fund
has paid out one hundred and fifty thousand US dollars per
deceased.24
The Russian based aircraft operator, Bashkirian Airlines brought a
claim against the Federal Republic of Germany and the German
District Court of Konstanz released its opinion in July 2006.25
According to Bashkirian Airlines, the German state should indemnify
the company for damage to its aircraft and indemnify the company
for damage claims against the airline by third parties, including
but not limited to those persons legally representing the estate of
the passengers and crew on board the Tupolev, claims from DHL
International Ltd. for the loss of the Boeing freighter aircraft
and, last but not least, claims that could be brought against the
airline by Honeywell Ltd.26 The District Court had to assess
whether the Federal Republic of Germany was liable for these
damages. This, despite the fact that the air navigation service
provider was a Swiss-based entity operating under the supervision
of the Swiss authorities. The merits of the case are therefore
closely connected to the leitmotiv of this study: how to pursue
cross-border provision of air navigation services whilst
safeguarding transparent lines of responsibility and liability?
First, the District Court had to decide what law should be applied
and what was the competent forum to deal with the case. As the
accident had occurred in German airspace, the District Court held
that, in terms of applicable law and competent forum, the case had
to be decided in a German court and would be subject to the
national laws of Germany.27 Next, the District Court had to judge
whether the German state was liable for damages that had arisen
from the mid-air collision. For this analysis, the District Court
considered the national laws of Germany and the available bilateral
cross-border arrangements between Germany and Switzerland. Because
of German law, the court argued that there was liability for the
German state as far as it concerns acts of an agent performing an
official function on its behalf. The performance of
23 ‘Flugunfall vom 1 Juli 2002 bei Überlingen’, Presseerklährung
von Dr. Alexander von Ziegler, Vertreter des Entschädigungspools
(gebildet durch die Schweizerische Eidgenossenschaft, die
Bundesrepublik Deutschland und Skyguide) [Aircraft accident of 1
July 2002 near Ueberlingen, Press Release by PD Dr. Alexander von
Ziegler acting as representative of the compensation fund (This
fund was created by Switzerland, Germany and Skyguide)]. 24
‘Überlingen, Weiter Streit um Schadenersatz, Zwei Jahre nach der
Flugzeugkatastrophe’ [Überlingen, Additional fights over
compensation: Two years after the Aircraft catastrophe],
Stuttgarter Zeitung On-line of 1 July 2004.
<http://www.stuttgarter-zeitung.de>. ‘Skyguide erzielt
Teileinigung, Rund 150.000 Dollar Schadenersatz pro Opfer’
[Skyguide reaches agreement on liability division around 150.000 US
Dollars per victim], Neue Zürcher Zeitung AG of 30 June 2004.
<http://www.nzz.ch>. 25 Bashkirian Airlines v. Bundesrepublik
Deutschland, (2006) with the District Court of Konstanz
(Landgericht Konstanz 4. Zivilkammer) under case number 4 O 234/05
H. 26 Ibid., at 10-12. The manufacturers Thales and Honeywell have
manufactured TCAS systems on board the aircraft. Damage claims were
brought against Thales and Honeywell in the United States. In Faat
v. Honeywell Int’l, (2005) WL 2475701 (D.N.J. Oct. 5, 2005) the
District Court of New Jersey dismissed the claim against Honeywell
on the basis of forum non conveniens, subject to the following
conditions: 1) Plaintiffs were ordered to refile their claims in
the Court of First Instance in Barcelona (Spain); 2) All defendants
must submit voluntarily to the Court of First Instance in Barcelona
and to furnish the Plaintiff’s counsel with the details of their
process agent; 3) All defendants agreed voluntarily to waive any
statute of limitations or personal jurisdiction defences in Spain;
4) All defendants agreed to satisfy any final judgement rendered
against them by the court in Spain; and 5) All defendants agreed to
be bound by their responses to discovery requests which had already
been serviced on them in the New Jersey litigation. If the
defendants materially breached any of these conditions, plaintiffs
would be permitted to refile their actions before the District
Court in New Jersey. 27 See Bashkirian Airlines v. Bundesrepublik
Deutschland (case number 4 O 234/05 H), supra note 25, at 16-18.
The German court declares itself competent to deal with the matter
and holds that the material laws are those of Germany based on lex
loci delicti.
18 Introduction
air navigation services in German airspace is deemed an official
(public) task and liability claims for air navigation services are
channelled to the German state.28 Whereas according to the national
law of Germany air navigation services in German airspace are to be
exclusively provided by the German air navigation service provider
DFS, in reality these services were provided by the Swiss-based air
navigation service provider. According to the District Court, the
fact that services were being provided by Skyguide did not alter
the nature of the services being offered for which, in case of
failure, due to German law triggers the liability of the German
state. In the interpretation by the court of German laws, with
respect to the performance of its services, the Swiss based
provider should be considered as the agent performing the air
navigation services on behalf of the German state.29 Therefore, the
German state because of its national law is the actor bearing
liability for the damages arising from the accident. The District
Court also examined the bilateral arrangements that were concluded
between Germany and Switzerland for the sake of cross-border
provision of air navigation services. The court, whilst examining a
treaty (which had not been signed) and a Letter of Agreement that
had been concluded at the level of the German and Swiss air
navigation service providers, came to the conclusion that the
states had not concluded a treaty.30 Notwithstanding the
non-existence of a bilateral agreement, the District Court
continued by elaborating on the fact that treaties only have a
binding effect between states and that the content hereof has no
binding effect on the individuals of a state. Had the parties
agreed on a provision dealing with liability in a treaty and had
such arrangement been incorporated into the national laws of
Germany, the outcome could have been different.31 The court ruled
in its partial judgement that Germany has to indemnify Bashkirian
Airlines for third-party damage claims. The court has yet to rule
on the other aspect of the claim lodged by the Russian carrier,
which deals with the extent of damages to be awarded by the German
state to
28 For further details on the organisation of air navigation
services in Germany, see Ch. 5.3.4. 29 See Bashkirian Airlines v.
Bundesrepublik Deutschland (case number 4 O 234/05 H), supra note
25, at 20-21. 30 Ibid., at 48-52. According to the treaty (not
signed) the German state would be liable for errors made by the
Swiss air navigation service provider in German airspace on the
same basis as it would be liable for its own air navigation service
provider. However, the District Court held that the treaty had no
binding effect and the Letters of Agreement did not constitute a
treaty either. 31 Ibid., at 57-58: Quote “b) Die Haftung der
Beklagten nach Art. 34 GG, § 839 BGB kann im Übrigen nur durch
Gesetz aufgehoben oder eingeschränkt werden (Papier in Maunz/Dürig,
Art. 34 Rn 237), was auch für die subsidiäre Ausfallhaftung (§ 839
Abs. 1 S. 2 BGB) gilt (Papier a.a.O., Rn 240). Daraus folgt: Die
LoA könnten selbst dann nicht die Haftung der Beklagten für das
Flugzeugunglück vom 1.Juli 2002 in Frage stellen, wenn die LoA als
ein wirksames Verwaltungsabkommen nach Art. 59 Abs. 2 Satz 2 GG zu
bewerten wären. Verwaltungsrechtliche Vereinbarungen zwischen
Hoheitsträgern entfalten Rechtswirkungen nämlich nur zwischen
diesen, weil sie Ausfluss der Verwaltungs- und Organisationshoheit
sind und deshalb nur exekutiv wirken (Papier a.a.O., Art. 34 Rn
283). Gegenüber Entschädigungsansprüchen betroffener Staatsbürger,
wobei § 839 BGB Ausländer in seinen Schutzbereich einbezieht, haben
völkerrechtliche Verträge nach Art. 59 Abs. 2 Satz 2 GG
infolgedessen nur dann rechtliche Relevanz, wenn diese
Vereinbarungen durch Gesetz als innerstaatliches Recht umgesetzt
werden (P. Kirchhoff in Handbuch des Staatsrechts, Band III, § 59
Rn 155). Völkerrechtliche Verträge werden auch nicht allein durch
den völkerrechtlichen Grundsatz der Vertragstreue in Verbindung mit
Art. 25 GG zu innerstaatlichem Recht (Herdegen in Maunz/Dürig, Art.
25 Rn 8 und 9). Man kann die Rechtslage auch von der These der
Beklagten (Bundesrepublik Deutschland) ausgehend betrachten und
gelangt zum selben Ergebnis: Folgt man ihrer Meinung, mit den LoA
seien Hoheitsrechte der Bundesrepublik auf die Schweiz übertragen
und damit die eigene haftungsrechtliche Verantwortung übergegangen
oder eingeschränkt worden, so wären die LoA ihrem materiellen
Inhalt nach nicht nur Verwaltungsabkommen über technische
Regelungen der Flugaufsicht, sondern Bundesrecht betreffende
völkerrechtliche Verträge nach Art. 59 Abs. 2 S. 1 GG, die zu ihrer
Wirksamkeit der innerstaatlichen Transformation durch ein
förmliches Vollzugsgesetz bedurft hätten (Maunz in Maunz/Dürig,
Art. 59 Rn 37).“ End of quote.
Chapter 1 19
Bashkirian Airlines.32 Germany has appealed the judgement and the
partial court ruling of the District Court is not the final
decision. Furthermore, beside the liability for damages, the Swiss
authorities commenced criminal investigations and charged eight air
traffic controllers on charges of manslaughter and negligence.33 As
reflected in the opinion of the District Court, the German state is
liable for damages. German national law does not allow the state to
redirect the claim from Bashkirian Airlines to the Swiss-based air
navigation service provider. In addition, the lack of a bilateral
agreement between Germany and Switzerland prevents Germany from
seeking recourse to the Swiss state to recoup any damages that it
has paid towards parties like Bashkirian Airlines. It would of
course be advisable for Germany to enter into a solid legal
bilateral agreement with Switzerland to remedy any such discussions
for the future. At the same time, the outcome of this court case
also casts a shadow over the wide-scale cross-border service
provision of air navigation services in general. Eventually, this
could result in a slow-down of wide-scale implementation of
cross-border service provision altogether. After all, on the basis
of the German ruling, states may be reluctant to allow air
navigation service providers that, similar to Skyguide, are based
in the territory of another state and rely on the host state’s
supervision to provide air navigation services in their airspace.
1.3 Objective and research questions As illustrated in Chapter 1.1,
there is a continuous increase in the flow of air traffic
traversing the airspace of the European Community triggering a
greater demand of air navigation services. However, there are also
other problem areas in the world that encounter the difficulties of
matching airspace demand of the airspace users (airlines) with the
availability of suitable and sufficient air navigation services
such as for example in the United States of America. The Air
Traffic Organization of the Federal Aviation Administration (FAA)
is guiding about 50,000 aircraft every day and the airspace in the
north-eastern corridor of the United States with major
international airports is one of the busiest in the world. Through
airspace redesign, the FAA has increased efficiency and reliability
of air navigation services in that particular aviation area.
Another example of dense air traffic is the Asia-Pacific region
that has seen a strong increase in commercial flights. The states
in that region will in due course also have to revisit the
traditional way in which their national air navigation service
providers are offering air navigation services to airspace
users.
32 See Bashkirian Airlines v. Bundesrepublik Deutschland, (2006)
(case number 4 O 234/05 H)¸ supra note 25, at 62. The court-ruling
is partial judgement (Grund- und Teilurteil). Although the German
state should indemnify the Russian airline from claims of third
parties, the District Court did not decide on the extent of the
damage amounts claimed by the airline because of difficult
questions of Russian law that had to be answered. Bashkirian
Airlines was not the legal owner of the aircraft which triggered
the question as to wheter or not damages can still be awarded due
to the fact that the airline suffers economic loss from not being
able to make use of the aircraft. The extent of the damages to be
awarded shall be decided in the final court ruling of the court. 33
To the knowledge of the author the Federal Government of Germany
has appealed the judgement of the District Court. See also, S.
Hobe, ‘Current Liability Problems of German Air Traffic Services:
Überlingen and Other More Recent Developments’, in EUROCONTROL
(ed.), proceedings of the workshop: Responsibility and Liability in
ATM – moving targets in a changing European Airspace, organised by
EUROCONTROL in 2006, at 5. Also, P. Nikolai Ehlers, ‘Case note:
Lake Constance Mid-Air Collision: Bashkirian Airlines v. Federal
Republic of Germany’, (2006) 32 Air Law 75, at 79. The eight air
traffic controllers faced with charges of manslaughter and
negligence were all employed by Skyguide at the time of the
accident and face jail sentences of up to fifteen months if found
guilty. See, ‘Swiss charged over 2002 air crash’, BBC News on the
Web of 7 August 2006. <
http://news.bbc.co.uk/1/hi/world/europe/5253696.stm> (Visited 19
May 2007). See also ‘Swiss go on trial over air crash’, BBC News on
the Web of 15 May 2007.
<http://news.bbc.co.uk/1/hi/world/europe/6656487.stm>
(Visited19 May 2007).
20 Introduction The focus of this study is on the European
Community where relatively small portions of upper airspace are
subject to the provision of air navigation services by multiple air
navigation service providers. Contrary to, for example, the United
States of America where large air navigation service corridors can
be redefined within the airspace of a single state, for the
European Community counts that realignment of air navigation
service corridors within the airspace of a single state is only
possible up to a very limited extent. In order to enhance the
efficient flow of air traffic and free up available airspace in the
European Community for the purposes of air navigation services,
this requires another approach. One of the solutions is the
provision of cross-border air navigation services as envisioned
under the Single European Sky regulations. This implies
cross-border provision of air navigation services by air navigation
service providers in blocks of airspace that are defined
irrespective of the territorial boundaries of the underlying
states. Those air navigation services could even be provided by air
navigation service providers, or groups of air navigation service
providers, that are based in the territory of a state, other than
the state in whose airspace those services are being provided. The
mid-air collision near Überlingen illustrates the need to reflect
and reconsider the way cross-border provision of air navigation
services is being formalised. After all, the opinion of the German
District Court illustrates that claims for damages are not per se
directed against the air navigation service provider, but depending
on the preference of the plaintiffs and subject to the applicable
national law, can also be directed against the state in whose
airspace the air navigation services are being provided. Besides
the question as to where to file the claim, there is also the
question as to what is the applicable law and competent forum
according to which the liability claims should be dealt with.
Depending on the circumstances of the damage inflicted because of a
mid-air collision damage claims can be filed against the operator
and the owner of the aircraft, airline personnel, passengers on
board the aircraft (or in case of death those persons legally
representing their estate), owners of cargo which was on board the
aircraft, as well as by third parties suffering damage on the
ground. At the same time, due to the nature of cross-border service
provision where the air navigation service provider has his
principal place of operation in a state other than the state in
whose airspace the services are being provided, damage may be
inflicted on the state in whose airspace the cross-border services
are being provided and this state may also wish to claim damages.
This study will focus on three main aspects dealing with the
provision of cross-border air navigation services in European
airspace, and more particularly the European Community. First, the
international- and European legal framework dealing with air
navigation services will be considered. Secondly, the question of
state responsibility for the provision of air navigation services
will be taken into account and, last but not least, attention is
paid to the question of liability for damages inflicted by air
navigation service providers. Due to the ongoing flow of position
papers, documents and legal articles in the field of air navigation
services, the author has made the decision to base its findings,
paradigm shifts on the available resources on this topic up to 1
June 2007. For the sake of clarity, this study does not focus on
the complications faced by certain air navigation service providers
that are offering both civil- and military air navigation services.
In The Netherlands there is a separate provision of military- and
civil air navigation services. The military has its own air
navigation service system that is in charge of policing national
airspace. However in Germany and Switzerland the air navigation
service providers are providing air navigation services both for
civil- and military airspace users. The military policing of German
and Swiss airspace are therefore embedded in the organisational
structures of both air navigation service providers. This
complicates matters if these organisations wish to expand their
provision of air navigation services beyond their national
airspace. After all, the state in whose airspace services are being
offered may, although not being reluctant against the civil
expansion of the foreign air navigation service provider in its
airspace or collaboration efforts undertaken between the civil
aspects of air navigation
Chapter 1 21 services, not look forward to have foreign military
control and involvement in its airspace for reasons of national
security. Beside brief reference to civil- and military
arrangements as far as flexible use of airspace is concerned in
Chapter 1.1 this study will not further elucidate this matter but
will concentrate on the civil aspects related to air navigation
services and will examine the international- and national legal
framework for purposes of cross-border provision of air navigation
services for civil aviation. In relation to the first part of this
study, the international- and European legal framework dealing with
air navigation services, the provision of air navigation services
states have always been subject to the rulemaking- and, to a
certain extent, enforcement competencies of international
organisations. Besides the global international legal framework for
air navigation services laid out in the Chicago Convention and the
role of ICAO, there are at least three international bodies in the
European Community that, up to a certain extent, have rulemaking-
and enforcement competencies. These are the European Civil Aviation
Conference (ECAC), the European Organisation for the Safety of Air
Navigation (EUROCONTROL) and, last but not least, the European
Community with its agency the European Aviation Safety Agency
(EASA). To what extent have these international organisations
received rulemaking- and enforcement competencies in the field of
air navigation services? Within this context, this study will look
closely at the interrelationship between EUROCONTROL and the
European Community. Despite the different institutional structures
of the two international organisations, each having its own
regulatory- and enforcement mechanisms, the European Community has
aceeded to the revised convention of EUROCONTROL and therefore
became bound to its law-making and enforcement competencies. At the
same time, the European Community incorporates rules established
through EUROCONTROL rulemaking procedures in its own legal order.
What is the impact of such accession on the rulemaking- and
enforcement competencies of the international organisations as far
as this concerns the operational efficiency of cross-border
provision of air navigation services? Does the legal order of the
European Community prevail over the legal order of EUROCONTROL? The
second part of this study concentrates on state responsibility and,
more specifically, how to establish clear lines of state
responsibility in the context of cross-border provision of air
navigation services. States are encouraged through the
aforementioned developments and to enhance efficiency by
facilitating cross-border provision of air navigation services and
allow air navigation service providers to offer air navigation
services in their airspace whilst the providers have their
principal place of operation outside their territory (or vice
versa). Meanwhile states have entered into various forms of
bilateral- and multilateral arrangements to facilitate limited
cross-border service provision in their airspace. Have they
considered the issue of state responsibility in the arrangements
they concluded? Is it possible to relieve a state from state
responsibility if such state allows the provision of air navigation
services in their airspace by a foreign air navigation service
provider that has his principal place of operation in another state
in the event the air navigation service provider fails to meet
international obligations imposed on the state under the
aforementioned international- or European legal framework? The last
part of this study concentrates on liability for damages arising
out of the provision of air navigation services. Whereas
traditionally air navigation service provision was performed by air
navigation service providers that formed part of the governmental
structure, such providers have been transformed into corporatised
and privatised entities outside the governmental structure.
However, have states also considered imposing a clear liability
regime on the air navigation service provider if things go wrong
and, furthermore, have they considered the issue of liability if
their air navigation service providers engage in cross-border
service provision activities? In order to determine whether states
have laid down a clear liability framework under their national law
in terms of the liable actor, the laws to be applied and the
competent forum, an analysis must be made of the national laws of
states. Due to the
22 Introduction rearrangement of national air navigation service
provision envisioned by the European Community through its Single
European Sky regulatory framework, an analysis of these regulations
must also be made. Beside the issue of national laws, how should
questions of inter-state liability be dealt with? For the benefit
of transparent lines of liability, should states enact specific
inter-state liability regimes that at the same time take into
account the issue of damages suffered by third parties on the
ground? Moreover, is it useful for aircraft operators to engage in
a contractual-based liability framework with the air navigation
service providers for the benefit of transparent lines of liability
in case of cross-border provision of air navigation services? An
attempt will be made to answer these questions in accordance with
the structure that is explained in the following Chapter 1.4. 1.4
Division of chapters Chapter 2 will start by giving a brief
overview of the principles of public international law such as
state, territory, sovereignty and jurisdiction, after which the
international legal framework of the Chicago Convention will be set
out. ICAO, through its rulemaking- and enforcement powers, has
played an important role for the development of air navigation
services. The organisation has implemented a harmonised framework
of air navigation services and imposes obligations to which states
are bound when air navigation services are provided in their
airspace. Chapter 3 will analyse and evaluate the European legal
framework for air navigation services, which is imposed by
international bodies such as ECAC, EUROCONTROL and the European
Community. On the basis of the analysis and evaluation of the
regulatory- and enforcement competencies of EUROCONTROL and the
European Community, this Chapter will discuss the interrelationship
between the two organisations, including EASA. Also, a number of
comments and observations will be made with respect to the manner
in which these international organisations could co-exist in the
field of air navigation. Chapter 4 will analyse the concept of
cross-border provision of air navigation services and differentiate
this type of provision of air navigation services from other kinds
of air navigation service provision. This Chapter will discuss
extra-territorial air navigation service provision over the high
seas and in airspace of undetermined sovereignty and, lastly, the
provision of air navigation services in autonomous entities. This
Chapter focuses on the need to establish transparent lines of
responsibility when states or their air navigation service
providers engage in cross-border provision of air navigation
services. After setting out on what basis states bear state
responsibility for the provision of air navigation services in
their airspace, a number of inter-state bilateral- and multilateral
cross-border arrangements will be examined. To what extend have
states dealt with the rationale of state responsibility when
allowing a foreign air navigation service provider of another state
or an international organisation providing air navigation services
in their airspace? After the above analysis, this Chapter will
consider whether the international legal framework laid down by the
Chicago Convention allows states to delegate state responsibility
when they engage in cross-border provision activities and allow a
foreign air navigation service provider (subject to the regulatory
and enforcement competencies of another state) to provide air
navigation services in their airspace. Can states be relieved from
state responsibility for cross-border provision of air navigation
services and, if so, to what extent can they give binding effect to
such delegation of state responsibility against third-party states?
Does such possibility exist under the Chicago Convention? Chapter 5
concentrates on the establishment of transparent lines of
liability. Traditionally, air navigation service was provided by
governmental agencies that could be subject to state liability.
However, many air navigation service providers have been subject to
a first wave of restructuring where states restructured the
traditional governmental agencies into corporatised or privatised
entities. In this respect, states have enacted specific national
laws governing their
Chapter 1 23 air navigation service providers and several national
air navigation service providers and their national laws will be
analysed in this Chapter. This is followed by a review of the
Single European Sky regulations as these regulations are designed
to trigger a second wave of restructuring of air navigation service
providers in the European Community. Next, the national laws and
obligations under the Single European Sky will be revisited for the
purpose of establishing transparent lines of liability in case of
cross-border provision of air navigation services. Which entity is
liable, what laws should be applied and what is the competent
forum? After the review of the traditional liability concepts
embedded in the national laws of states, the issue of cross-border
provision of air navigation services is taken into account. Have
states considered transparent lines of liability in their national
laws when their air navigation service providers engage in
cross-border provision of air navigation services? Have states
concluded inter-state liability agreements that deal with damage
arising from the provision of air navigation services by an air
navigation service provider that has his principal place of
operation in the territory of another state, but causes damage to
third parties on the ground in the territory of the other state?
Furthermore, should aircraft operators and air navigation service
providers engage in contractual agreements establishing transparent
lines of liability in case of cross-border provision of air
navigation services? Last, to what extent should a legislator take
up action in this respect? Triggered by the consolidation
developments and the regulatory restructuring that are taking place
in the European air navigation services industry, this study will
restrict itself to establishing transparent lines of responsibility
and liability for cross-border provision of air navigation services
in the airspace of the European Community. On the basis of the
findings in this study, Chapter 6 will enumerate the essential
elements required for cross-border provision of air navigation
services and provide a number of final recommendations and
conclusions on the best way to pursue cross-border provision within
the European Community. This Chapter will conclude by extrapolating
the conclusions and recommendations for the benefit of cross-border
provision of air navigation services beyond European
airspace.
25
CHAPTER 2 The International Legal Framework 2.1 Introduction Any
legislative efforts in the field of air navigation services and,
more specific, cross-border provision of air navigation services,
should first be approached from an international angle. After all,
in an effort to create a level of international uniformity in the
field of civil aviation the International Civil Aviation
Organization (ICAO) has, as an international legislator,
established the international legal framework for air navigation
services. For the development of such a unified framework of air
navigation services, ICAO relies on rulemaking- and enforcement
competencies that are embedded in the founding treaty of that
international organisation, the Convention on International Civil
Aviation (henceforth also cited as the Chicago Convention or
Chicago).34 This Chapter discusses the rulemaking and enforcement
powers of ICAO in the field of air navigation services, with
special reference to the cross- border provision of air navigation
services. The topics that will be dealt with in this Chapter have
been divided in the following manner: first, for the purpose of
understanding the principles state, territory, airspace as well as
the intrusion on state sovereignty because of the voluntary
restriction on the exercise of national competencies by states in
favor of international organisations, attention will be paid to
these fundamental principles of international law (2.2). Next, the
institutional structure of ICAO will be discussed by picturing the
core bodies as well as the regional air navigation regions and
regional bodies including their respective interrelationships
(2.3.1). The global structure of air navigation services and
terminology as developed by ICAO will then be dealt with (2.3.2).
This is followed by the analysis and evaluation of rulemaking
competencies that have been awarded by the member states to ICAO
(2.3.3). In addition, the limited enforcement competencies of ICAO
will be analysed and evaluated (2.3.4). Final remarks and
conclusions shall serve as an introduction to the alternative
developments that are taking place in the context of the European
legal framework, which will be discussed in Chapter 3 (2.4). 2.2
Principles of International (Air) Law 2.2.1 State, Territory,
Airspace There are no cogent standards as to what constitutes a
state, but the objective criteria as enacted in the Montevideo
Convention appear to represent the qualifications that should be
met.35 According to the opening article of the Montevideo
Convention, the state as a person of international law should
possess the following qualifications: it should have a permanent
population, a defined territory, a government exercising government
authority and, lastly, a capacity to enter into relations with
other states. Shaw addresses that, despite the fact that there is
no rule prescribing the minimum area of territory, in order to
qualify as state, it should at least possess some portion of the
earth’s surface.36 The territory of the state includes the airspace
above its land, national waters and territorial sea, but the
vertical limit of the airspace remains unclear. Air law has defined
the term airspace, thus leaving unanswered the question as to where
precisely the boundary lies in relation to outer space. The
boundary has been held to be between 80 and 120 kilometres,
although states, for licensing space activities, have sometimes
fixed an arbitrary limit in their national laws where activities
over a certain altitude (100 kilometres) are subject to
particular
34 1944 Convention on International Civil Aviation, 15 UNTS 295. 35
1933 Montevideo Convention on Rights and Duties of States, 164 LNTS
19. 36 M.N. Shaw, International Law (1997), 331.
26 The international legal framework
licensing requirements.37 If the lack of a suitable definition
results in serious complications, states always fix an arbitrary
limit to the upper frontier of their territories by way of
bilateral or multilateral agreements.38 When considering the term
“territory” under international law, territory is not limited by
adopting analogies of real property but concentrates on the extent
of governmental capabilities exercised, or capable of being
exercised, within a designated area and population.39 The same
reasoning applies to the Chicago Convention.40 According to this
Convention, the territory of a state shall be deemed the land areas
and territorial waters adjacent thereto that are under the
sovereignty, suzerainty, protection or mandate of such state.41 The
drafters of the Chicago Convention therefore also presumed that
there should at least be a state that is capable of exercising
particular powers over a particular territory. The state should
have the capacity to perform acts in the international sphere and
have exclusive competence with respect to issues affecting its
territory up to the extent that it has voluntarily limited or
delegated the exercise of these capabilities based on an
international agreement. These subjective criteria are captured in
terms of sovereignty and jurisdiction and will be discussed in
Chapter 2.2.2 below. State refers to the highest degree of
political organisation and should not be confused with nation.
Nation refers to a body of people of more or less the same race,
religion, language and historical traditions, commonly referred to
as nationals.42 2.2.2 Sovereignty, Jurisdiction and Delegation of
National Competencies According to Article 1 Chicago, the
contracting states to the Chicago Convention recognise that every
state has complete and exclusive sovereignty over the airspace
above its territory. This is followed by Article 2 Chicago that
says that the territory of a state shall be deemed the land areas
and territorial waters adjacent thereto under the sovereignty,
suzerainty, protection or mandate of such state. International law
is based on the concept of the state. The state on its turn relies
upon the foundation of sovereignty, where the external dimension of
sovereignty expresses the supremacy of the state as legal person,
whereas sovereignty internally expresses the supremacy of the
governmental institutions.43 Sovereignty is sometimes erroneously
interchanged with jurisdiction. Whereas sovereignty is shorthand
for the legal personality of the state, jurisdiction refers to
particular aspects of the substance, especially rights, claims,
liberties and powers of the state.44 In other words, the internal
dimension of sovereignty stands for the absolute and comprehensive
jurisdiction over the people who find themselves
37 According to the Space Activities Act of Australia (as amended
in 2002) which regulates the launch from, and the return to,
Australia of space objects and the launch of space objects by
Australian nationals outside Australia, any launching activities
over 100 kilometres are subject to the licensing requirements as
further defined in this Act. Upon defining this boundary, the
Australian government explained to the legal subcommittee of the
Committee on the Peaceful Uses of Outer Space of the United Nations
that it did not try to define or delimit outer space, but merely
tried to give greater certainty about where the Act applies and the
activities that the Act regulates. For additional information, see
the Space Activities Act 1998 (Act No. 123 of 1998 as amended in
2002) of Australia. See also, United Nations, Committee on the
Peaceful Uses of Outer Space: National legislation and practice
relating to definition and delimitation of outer space, UN Doc.
A/AC.105/865/Add. 1 (2006), at 2. 38 B. Cheng, The Law of
International Air Transport (1962), 121. 39 J. Crawford, The
Creation of States in International Law (1979), 42. 40 1944
Convention on International Civil Aviation (Chicago Convention), 15
UNTS 295. 41 Art. 2 Chicago Convention. 42 C.N. Okeke,
Controversial Subjects of Contemporary International Law (1973),
20. 43 See M.N. Shaw, supra note 36. 44 I. Brownlie, Principles of
Public International Law (1998), 106.
Chapter 2 27
on the territory of that state.45 In order to avoid any ambiguity
within the context of this study when referring to sovereignty,
this term will refer to the external dimension, the state as actor
on the international playing field having statehood. Jurisdiction,
in this study, refers to the internal dimension of the sovereign
entity on which basis the state exercises rulemaking- and
enforcement powers. Jurisdiction is broken down into jurisfaction,
the power to legislate and interpret legislation, and jurisaction,
the power to enforce said legislation and carry out laws,
judgements and sentences.46 What does this distinction imply when
applied to the Chicago Convention? According to the aforementioned
opening articles of the Chicago Convention, every contracting state
has complete and exclusive sovereignty over the airspace above its
territory and the territory shall be deemed the land areas and
territorial waters adjacent thereto under the sovereignty of such
state. The Chicago Convention is open for adherence by states,
whether or not members of the United Nations or associated
states.47 Combining this requirement with the opening articles of
the Chicago Convention, the Convention picks up the external
dimension of sovereignty – statehood- which is a prerequisite for
becoming a signatory state to the Convention whereas the reference
to sovereignty in the opening articles of the Chicago Convention
should be understood as referring to the internal dimension hereof,
the jurisdiction of the state. Due to the recognition in the
Chicago Convention of the internal dimension of sovereignty and the
fact that no scheduled international air service may be operated
over or into the territory of a contracting state, except with the
special permission or other authorisation of that State and in
accordance with the terms of such permission or authorisation,
states retained exclusive control of the air columns above their
territories.48 This gave states the opportunity to control market
access and protect their home market and their flag-carrier against
the international air traffic market to/from and through their
territory. Through the framework of bilateral air services
agreements states were able to control access to their airspace by
negotiating air traffic rights.49 Because this study focuses on the
provision of cross-border air navigation services, this will not be
further discussed. The Chicago Convention explicitly recognises the
fact that aircraft must comply with local rules and regulations of
the underlying state whilst flying through its airspace, at any
altitude, albeit that this should be on a non-discriminatory basis.
The laws and regulations of a contracting state relating to the
operation and navigation of aircraft while within its territory
shall be applied to the aircraft of all contracting states without
distinction as to nationality and
45 P.H. Kooijmans, ‘Tolerance, sovereignty and self-determination’,
(1996) 43 NILR 211. 46 The phraseology jurisfaction and jurisaction
is commonly used in air- and space law and introduced by Professor
Cheng. For additional information, see B. Cheng, ‘The Legal Regime
of Airspace and Outer Space: The Boundary Problem Functionalism
versus Spatialism: The Major Premises’, (1980) 5 AASL 323, at 340.
See also, B.Cheng, ‘The Commercial Development of Space: The Need
for New Treaties’, (1991) 19 Journal of Space Law 17, at 37. 47
Arts. 92-93 Chicago Convention. 48 Art. 6 Chicago Convention. 49 B.
Havel, In Search of Open