FUA TF-WG/1 – Summary of Discussions1

FUA TF-WG/1

SUMMARY OF DISCUSSIONS OFTHE WORKING GROUP OF THE TASK FORCE ON THE FLEXIBLE USE OF AIRSPACE (FUA TF-WG)

(Brussels, 29 to 30July 2008)

  1. Introduction
  2. At its Forty-Ninth Meeting, the European Air Navigation Planning Group (EANPG)decided that a Task Force on Flexible Use of Airspace should be convened to initiate the work to develop a concept for the Flexible Use of Airspace (FUA) over high seas airspacethat took account of international agreements regarding freedom of use of the airspace over the high seas (EANPG Conclusion 49/11 refers). The First Meeting of the Task Force on the Flexible Use of Airspace over the high seas was held in the ICAO European and North Atlantic Office from 20 to 22 May 2008.
  3. The Working Group was informed that it had been established because the Task Force itself had acknowledged that it was not possible to finalise its mission in one meeting. The Working Group, which would be led by the ICAO secretariat, was tasked with delivering a proposed FUA Concept, including proposed amendments to ICAO documentation, applicable to the high seas airspace that was cognisant of the United Nations Convention on the Law of the Sea (Montego Bay 1982) and the Chicago Convention. The draft Concept would be presented to the FUA Task Force at its next meeting, which would be scheduled prior to COG/42 in October 2008 (paragraph below 4.1refers). The COG would then present the final report to EANPG/50 in December 2008 and propose that the Task Force be disbanded.
  4. Mr Jacques Vanier, from the ICAO European and North Atlantic (EUR/NAT) Office chaired the meeting. In his opening remarks, Mr Vanier expressed ICAO’s appreciation to the participants for attending the meeting at short notice during the summer holiday period. He explained that this was the only opportunity when the majority of stakeholders could attend so as to be able to complete the task on time for EANPG/50 scheduled for December 2008. He also thanked the United States for hosting the meeting.
  5. The lists of participants and of contacts are at AppendixA.
  6. The Working Group noted that the following agenda had been prepared to guide the discussions. However, instead of adhering to a fixed agenda, it was agreed that a less formal approach, one which concentrated on open debate, be taken.

Agenda Item 1:Background information

a)decision of FUA TF/1 (Report)

b)round table discussion about the way ahead

Agenda Item 2:Expansion of the FUA concept to include High seas airspace

a)review the legal instruments that may prescribe the application of the FUA over the High seas

b)examine the EUROCONTROL Specification for the application of the Flexible Use of Airspace (FUA)

c)identify elements of the FUA concept that would need to be included in plans to expand its application to the High seas

d)identify legal impediments, if any

e)develop a proposal for a roadmap

Agenda Item 3:Any other business

a)report to the FUA TF

  1. Background information
  2. The Working Group recalled that EANPG Conclusion 49/11 had been agreed in response to a proposal presented by eurocontrolto expand the use of the FUA Concept to high seas airspace. Some uncertainty existed within the EANPG whether or not the proposal was completely in line with the legal instruments that relate to access to high seas airspace.
  3. 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. On the other hand, States cannot prohibit the movement of aircraft over the high seas. Also, as indicated in its Foreword, Annex 2 constitutes Rules relating to the flight and manoeuvres of aircraft within the meaning of Article 12 of the Chicago Convention and shall apply without exception over the high seas.
  4. ICAO stressed that, although the Chicago Convention does not apply to State aircraft (Article 3 of the Convention), Article 3 paragraph d), addresses State aircraft regulations in terms of due regard obligations for safety of navigation of civil aircraft.
  5. The Working Group agreed that any proposals developed must not in any way contradict, or seem to contradict, the above legal instruments as well as others that may be applicable. Furthermore, any language used, whether in definitions or in agreements and/or procedures must not give the appearance that they may contradict the legal instruments. On the other hand, it was agreed that documents such as Standards and Recommended Practices (SARPs), Procedures for Air Navigation Services (PANS), the Air Navigation Plan (ANP) or eurocontroldocumentation related to the FUA were open for debate and if need be for change.
  6. Expansion of the FUA concept to include high seas airspace
  7. In order to structure the discussion, the Working Group agreed to decompose the application of the Flexible Use of Airspace into various smaller components, to disregard those that were outside the remit of the working group as well as those that were already being addressed. It would then concentrate the analyses on the relevant leftover component(s). Firstly, it was agreed that all FUA issues related to sovereign airspace were outside the remit. When examining the FUA applicable over the high seas, it was felt that this could be further broken down into two parts. The first addressed State aircraft operating over high seas airspace which their State has accepted the responsibility for the provision of ATS in accordance with the provisions of Annex 11. In this case, the Working Group recognized that States would normally apply their national regulations regarding FUAbased on the eurocontrolSpecification for FUA. It was agreed that this matter, whilst within the remit, was probably being addressed correctly by the States concerned in accordance with their needs and that it was not necessary to further elaborate on this case.

This left the final case whereby State aircraft from Nation A planned to operate over high seas for which Nation B has accepted the responsibility for the provision of ATS. The Working Group acknowledged that access to the airspace could not be denied nor could these State aircraft be “forced”to participate in the application of the FUA. One notion that was debated at length and agreed to by all was that any procedures or agreements that were to be developed must not give the operators of these aircraft the sentiment that their operations would be restricted in any way. The procedures and/or agreements must also acknowledge that negotiating the use of the airspace was the ideal;however there would be circumstances when only notification of operation would be possible. Exceptionally, operational considerations may preclude either negotiation or notification. The Task Force was informed that Greece was of the opinion that the foregoing should not be considered in the discussions as military activities in international airspace, without prior coordination with the competent ATS authority, according to ICAO regional agreements, practically annul paragraphs 2.16 and 2.17 of Annex 11 of the Chicago Convention and endangered the safety of civil aviation.

3.2With the above elements in mind, the Working Group agreed that the best way forward would be to develop a system whereby the users of the airspace would be encouraged to improve the exchange of information with the Air Navigation Service Providers (ANSP). This would be in line with the general conception that the Task Force itself had begun to formulate during its meeting. In order to encourage the implementation of a negotiation process and to improve the exchange of information, the Working Group agreed that the operators would have to be given some added value. It was felt that the improved safety margins that the ANSPs could provide to these operations as a result of having this additional information should be the added value to be offered. This could be in terms of providing reserved airspace in which the operations would be carried out and the ANSPs would ensure that controlled civil operations would be separated from the reservations. As regards operations in uncontrolled airspace, the value added would be the notification to all airspace users that e.g. military activity was taking place in a defined area and that caution should be used.

3.3To be able to implement the above proposal, it may be necessary to develop some new terminology. In this connection, it was pointed out that precedents existed whereby airspace reservations had been used in ICAO documentation for high seas airspace. Furthermore, the term “Reservation” did not carry with it the notion of exclusion. Therefore, this usage should not be in contradiction with the underlying legal instruments. The Working Group agreed that the terminology to be used to define the airspaces used for these types of operations would require further work before a recommendation could be made. However, it was agreed that as it was necessary to use some terminology to be able to draft the amendment proposal referred to in paragraph 3.7 below. It was therefore proposed to use the term “temporary reserved airspace”.

3.4The Working Group also felt that, for those States that have accepted the responsibility for the provision of ATS over the high seas, a mechanism to coordinate the flexible use of airspace already exists. This mechanism would normally be effected through Airspace Management Cells (AMC), which should act as the focal point for the negotiation/notification of temporary airspace requirements for FUA over the high seas. In addition, Annex 15 already has the necessary provisions to promulgate AIS information submitted by one State whose State aircraft will operate in the high seas portions of another States FIR. These provisions may need to be reviewed in-depth to ensure that all the mechanisms exist but, the framework is in place.

3.5At this stage, the Working Group felt that it had most of the elements to be able to develop a proposal relating to Nation A’s state aircraft operation in airspace for which Nation B has accepted the responsibility for the provision of ATS. The Working group then agreed that some form of a Regional Air Navigation Agreement was necessary to ensure that all States applied the procedures in a consistent mannerand welcomed the offer by France and the United Kingdom to provide information regarding their national procedures. It was felt that the ICAO European Region Basic ANP (Doc 7754), which contained a section on Airspace Management, was the best vehicle to set down the provisions related to the application of FUA over the high seas. It was recalled that the management of the EUR ANP is within the remit of the EANPG and as such, is easier to manage from a regional level. It was however agreed that any provisions developed should have a global view, although they would initially only be used in the EUR Region.

3.6The task of developing the proposed amendment to the EUR ANP to include FUA over the high seas will require resources. ICAO does not currently have any available resources to lead the task. eurocontrolwas requested to investigate whether it would be able to lead this task and to provide a tentative completion date, preferably before the Task Force meeting. The Working Group agreed that it would assist to the extent possible; in particular, NATO was requested to provide inputs at an early stage so that their views could be taken into account at the drafting stage rather than at the consultation stage. The proposed amendment to address FUA over the high seas should include, inter alia, the following:

a)the objective;

b)applicability;

c)focal point;

d)sample agreements;

e)ATC procedures;

f)notification and coordination procedures;

g)AIS publication procedures; and

h)review procedures.

3.7In concluding, it was agreed that the initial implementation of these new provisions should not be mandated but should provide some flexibility in order to offer the operators of state aircraft the reassurance that their right to access the airspace was not being impinged, instead, they should feel that cooperation would provide the added value mentioned in paragraph 3.3 above. The procedures/agreements would need to be reviewed from time to time to adjust them to take account of the concerns that the state aircraft operators or that the ANSPs identify. Hopefully, this should allow for the gradual implementation of the FUA over High seas airspace for most state aircraft operations.

3.8The Working Group examined the proposal that had been submitted to EANPG/49 (EANPG/49 – WP/25) and agreed that the proposed amendments to Annex 11 and to the PANS ATM did not contradict the overriding legal instruments. In fact, the Working Group agreed that the proposed amendments reinforced the current SARPS and PANS relating to FUA. For these reasons, the Working Group believed that the Task Force should endorse the draft amendments to Annex 11 and the PANS ATM shown in AppendixB. However, the member for Greece did express reservations about the need to amend Annex 11 and the PANS ATM and could not therefore endorse the proposal.

3.9TheeurocontrolSpecification for the application of the Flexible Use of Airspace, which was approved on 2 July 2008, contained a section on the Flexible Use of Airspace over the High seas (Paragraph 3.3 [-FUAH-]). This section appeared to be an appropriate place holder for any regionally agreed provisions that would need to be included in eurocontroldocumentation. eurocontrolagreed to examine this matter and report to the Working Group.

  1. Future work
  2. The Working Group agreed to complete its work, preferably by email, by 26 September 2008. Consequently, it proposed that the next Task Force meeting be convened in Paris from 16 to 17 October 2008.

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APPENDIX A – LIST OF PARTICIPANTS

(Paragraph 1.1 refers)

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FRANCE

Andre BERMAN

GREECE

Spyridoula KATIDIOTI

TURKEY

Ergam CAMOZU

UNITED KINGDOM

Peter MARKS

UNITED STATES

Glenn L.SIGLEY

Daniel VACA

David MAY

EUROCONTROL

CayBOQUIST

NATO

Nigel WILLIAMS

ICAO

Jacques VANIER

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FUA TF-WGJuly 2008

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LIST OF CONTACTS

FRANCE / Andre BERMAN / Tel:+33 158 094712
Fax:
Email:

GREECE / Spyridoula KATIDIOTI / Tel:+210 9972402
Fax:+210 9972401
E-mail: hellas_amc@hcaa
TURKEY / Ergam CAMOZU
Turkish Delegation to the European Union
Rur Montoyer 4
1000- Brussels
AyhanÖZTEKİN
DHMI Headquarter (ANSP- Turkey)
Devlet Hava Meydanlari Isletmesi
Genel Mudurlugu
Etiler/Ankara
06330Ankara
TURKEY / Tel:+32 22896253
Fax:+32 25110450
E-mail:
Tel:+903122042290
Fax:+903122220976
E-mail:
UNITED KINGDOM / SeonaidRIDDELL-BLACK
CAA House
45-59 Kingsway
WC2B 6TELONDON
UNITED KINGDOM / Tel:+44 2074536550
Fax:+44 2074536565
E-mail:

Peter MARKS
CAA
CAA House
45-59 Kingsway
WC2B 6TELONDON
UNITED KINGDOM / Tel:+44 2074536510
Fax:+44 2074536565
E-mail:
UNITED STATES / David MAY
Military Liaison Officer
Europe, Africa & Middle East Region
FAA – c/o US Embassy
Boulevard du Régent, 27
B-1000 BRUSSELS
Belgium / Tel:+32 2
Fax:+32 22302597
E-mail:
Daniel VACA
Europe, Africa & Middle East Region
FAA – c/o US Embassy
Boulevard du Régent, 27
B-1000 BRUSSELS
Belgium / Tel:+32 2
Fax:+32 22302597
E-mail:
EUROCONTROL / CayBOQUIST
Eurocontrol - DAP/APN
Rue de la Fusée, 96
B-1130BRUSSELS
BELGIUM / Tel:+32 27293260
Fax:+32 27299003
E-mail:
Heinz BEKESCHUS
Eurocontrol - DCMAC
Rue de la Fusée,96
B-1130BRUXELLES
BELGIUM / Tel:+32 27293453
E-mail:

ZlatkoMEIC
Eurocontrol
Rue de la Fusée,96
B-1130BRUXELLES
BELGIUM / Tel:+32 27294726
Fax:+32 27299003
E-mail:
EUROPEAN COMMISSION / AlfonsoARROYO
Directorate-General for Energy and Trnasport Single European Sky and Modernisation of Traffic Control - International Relations
24 Rue De Mot, 5/37
1049BRUSSELS
BELGIUM / Tel:+32 22995829
Fax:+32 22968353
E-mail:
GillesFARTEK
Directorate General for Energy and Transport Single European Sky and Modernisation of Traffic Control-
International relations
24 rue De Mot, 5-37
1049BRUSSELS
BELGIUM / Tel:+32 22957230
Fax:+32 22968353
E-mail:
NATO / Nigel WILLIAMS
B-1110 Brussels
BELGIUM / Tel:+32 27073658
Fax: +32 27074103
E-mail:
ICAO / Mr Jacques VANIER
Mrs Carole GREEN / E-mail:
E-mail:

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APPENDIX B – PROPOSED AMENDMENTS TO ANNEX 11 AND THE PROCEDURES FOR AIR NAVIGATION SERVICES - AIR TRAFFIC MANAGEMENT (PANS-ATM)

(Paragraph3.9refers)

Annex 11 – Air Traffic Services

2.18.6 Recommendation.— In order to provide added airspace capacity and to improve efficiency and flexibility of aircraft operations, States should establish agreements and procedures providing for a flexible use of all airspace including that reserved for military or other special activities. The agreements and procedures should permit all airspace users to have safe access to such reserved airspace. When applicable, such agreements and procedures should be established on the basis of a regional air navigation agreement.

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Procedures for Air Navigation Services – Air Traffic Management (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.

3.1.5.2Agreements 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;