FUA TF/3 – Summary of Discussions1

FUA TF/3

SUMMARY OF DISCUSSIONS OF THE THIRD MEETING OF

THE TASK FORCE ON THE FLEXIBLE USE OF AIRSPACE

(Paris, 10 to 11February 2009)

  1. Introduction
  2. It was recalled that, at its Forty-Ninth Meeting, the European Air Navigation Planning Group (EANPG) decided that a Task Force on the Flexible Use of Airspace (FUA) should be convened to initiate work to develop a concept for the application of FUAin high seas airspace that 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 was held in the ICAO European and North Atlantic (EUR/NAT) Office from 20 to 22 May 2008. The second meeting was held at EUROCONTROL Headquarters in Brussels from 23 to 24 October 2008.
  3. The Task Force noted that EANPG/50 had endorsed the recommendation of its second meeting that some form of a Regional Air Navigation Agreement was necessary to ensure that all States applied the FUA over the high seas in a consistent manner. To accomplish the assignment, EANPG/50 had prolonged the mandate of the Task Force to the end of October 2009.
  4. Mr Karsten Theil, the Regional Director of the ICAO EUR/NAT Office chaired the meeting and Mr Jacques Vanier, of the same Office, was the Secretary. Twenty-four (24) participants representing eight States and twoInternational Organisations were in attendance. Lists of participants and of contacts are at AppendixA.
  5. In his opening remarks, the Chairman thanked those that had participated in the work of the Task Force so far and expressed ICAO’s appreciation for the cooperation that had been shown by all concerned to address this difficult and sensitive issue. He also thanked EUROCONTROLfor their assistance.
  6. The Chairman informed the Task force that due to resource constraints, it had been necessary to apply a strict prioritisation of ICAO’s tasks at both at the global and regional levels. It had been possible to ensure that the resources required to continue the activities of the Task Force, in accordance with EANPG Decision 50/2, had been made available but secretariat support for activities beyond the envisaged completion date of October 2009 was not available. The representative of EUROCONTROL informed the Task Force that the foregoing statement was in line with EUROCONTROL’S policy on this matter as they also had to rationalise their resources.
  7. The Chairman informed the Task Force that ICAO would hold a global civil/military workshop towards the end of 2009. No specific date had been agreed yet. In addition, two Flexible Use of Airspaceworkshopswould be held in the in EUR Region. These work shops were intended to introduce FUA to those States in the EUR Region which were not members of European Civil Aviation Conference (ECAC). The dates and venues for the workshops had not been established but the first one would probably be held in the first half of 2009.
  8. The Chairman welcomed the representatives from the Russian Federation and Spain and informed the Task Force that apologies had been received from the United States.
  9. The following agenda was adopted:

Agenda Item 1:Background information

a)agenda and work schedule

b)review the action taken by EANPG/50

c)inputs from States

d)inputs from international organisations

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

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

a)elaborate on possible scenarios where an FUA concept could be used over high seas airspace

b)identify elements of the FUA concept that would need to be included in the EUR Regional Air Navigation Plan (ANP)

c)develop terminology

Agenda Item 3:Future work

a)work programme

b)next meeting of the Task Force

c)report to COG/44

Agenda Item 4:Any other business

  1. Background information

Decision of EANPG/50

2.1The Task Force noted the report of EANPG/50 concerning the application of an FUA concept over the high seas. It also noted that the EANPG had supported the suggestion that the “best way” forward would be to develop a process whereby the users of the airspace would be encouraged to improve the exchange of information with Air Navigation Service Providers (ANSP). Furthermore, the EANPG had noted the Task Force recommendation that operators should be given some added value if they participated in the application of FUA. Improved safety margins that the ANSPs could provide to these operations coupled with uninterrupted use of airspace could provide such added value. This could be achieved by providing reserved airspace in which the operations could be carried out and the ANSPs would ensure that controlled air traffic would not interfere with activities within the reservations. As regards operations in uncontrolled airspace, the value added would be the notification to all airspace users that operations that could jeopardise the safety of flight were taking place in a defined area and that caution should be used.

2.2The EANPG had endorsed the recommendation from the Task Force that some form of a Regional Air Navigation Agreement was necessary to ensure that all States applied the FUA in a consistent manner. The EANPG had supported the proposal that the ICAO Air Navigation Plan - European Region (EUR ANP) (Doc 7754), which contained a section on Airspace Management (ASM), was the best vehicle to set down the regional provisions related to the application of an FUA concept over the high seas. It was recalled that the management of the EUR ANP was within the remit of the EANPG and as such, was easier to manage from a regional perspective. It was however stressed that any provisions developed should have a global view, although they would initially only be used in the EUR Region.

2.3The EANPG had also endorsed the Task Force recommendation that the initial implementation of the FUA provisions should not be mandated but should provide some flexibility to airspace users and ANSPs 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 2.1 above.

2.4The EANPG had accepted the Task Force’s recommendation that an amendment to the EUR Regional Supplementary Procedures (SUPPS) (Doc 7030)should not be pursued as it would not be possible to include definitions and it might be difficult to obtain a global consensus.

2.5The EANPG had noted that the Task Force had examined the proposal that had been submitted to EANPG/49 (EANPG/49 – WP/25) to amend Annex 11 and the Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM) (Doc 4444). Although the proposals did not contradict the existing legal instruments, there had been no consensus within the EANPG to support the proposed changes. Therefore the EANPG did not endorse the proposals for amendments and agreed that the Task Force should further refine them if necessary and submit any proposals for change with their final report. It was agreed that the amendments to Annex 11 and the PANS ATM should not be pursued by the Task Force.

2.6The EANPG had agreed that, based on the initial work of the Task Force, a formof the EUROCONTROL FUA Concept could be implemented in high seas airspace of the ICAO EUR Region. To accomplish the assignment, the EANPG had agreed that the mandate of the Task Force be prolonged to the end of October 2009 and that a final report should be submitted to EANPG/51. The EANPG had noted with appreciation that the Russian Federation had agreed to participate in the work of the Task Force starting at the February 2009 meeting.

2.7The EANPG formulated the following Decision which was used to guide the work of the Task Force.

EANPG Decision 50/2 –Development of ICAO provisions to support the expansion of the Flexible Use of Airspace (FUA) concept over the high seas

That, the Task Force established pursuant to EANPG Conclusion 49/11:

a)develop a proposal for the amendment to the ICAO European Regional Air Navigation Plan regarding the expansion of the FUA concept to airspace over the high seas taking account of the need to:

i)increase safety and improve the efficiency of airspace management over the high seas;

ii)provide improved safety and undisturbed use by state aircraft of specified airspace over the high seas;

iii)take account of national state aircraft use of the high seas airspace for which a State has accepted the responsibility for the provision of air navigation services; and

iv)encourage the participation of non-national state aircraft to participate in the application of the FUA Concept in airspace for which a State has accepted the responsibility for the provision of air navigation services;

b)complete its work by October 2009; and

c)provide EANPG/51 with a final report.

International instruments

2.8The Task Force was reminded that Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS) enshrines in international law[1]freedom of flight over the high seas. In addition, Article 9 of the Chicago Convention stipulates that States can only prohibit or restrict aircraft over its territory. Consequently, States cannot prohibit the movement of aircraft over the high seas. Also, as indicated in its Foreword, Annex 2 constitutes Rules relating to flight and manoeuvres of aircraft within the meaning of Article 12 of the Chicago Convention;Annex 2 shall therefore apply without exception over the high seas.

2.9ICAO 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. It was further stressed that any proposals developed for the application of anFUA concept over the high seas 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, agreements or procedures, must not give the appearance directly or indirectly that they may contradict or be at variance with the legal instruments.

Input from States

2.10Several States provided the Task Force with an overview of the systems they had established for managing access to areas where activities dangerous to civil aviation would take place.

Input from international organisations

2.11The Task Force was informed that the European Commission’s (EC) Single Sky Committee (SSC) had reviewed, on 22 January 2009,the specifications on Flexible Use of Airspace developed by EUROCONTROL following a request by SSC/18 to assist the EC in the development of a Community Specification (CS). With the exception of a few minor changes, the SSC had given,in accordance with its advisory procedure, a favourable opinion. It was noted that there had not been any dissenting votes.

2.12Based on the information and considering that the specifications on FUA were now being used as the basis to finalise the means of compliance toEC FUA Regulation No 2150/2005, the Task Force agreed that this document should be taken into account in its work. Copies of the specifications were therefore made available and posted on the restricted access web site as reference material for the Task Force.

  1. Expansion of the FUA concept to include high seas airspace

Elaborate on possible scenarios where an FUA concept could be used over high seas airspace

3.1The Task Force recalled that its working group had developed the following possible scenarios where FUA might be applied:

a)State aircraft operating in sovereign airspace. All FUA issues related to sovereign airspace were considered outside the Task Force’s remit. Therefore, issues related to sovereign airspace would not be included in any analysis nor would the Task Force develop any draft ANP material;

b)State aircraft operating in high seas airspace for which their State has accepted the responsibility for the provision of ATS in accordance with the provisions of Annex 11. In this case, regarding the application of an FUA concept, it was recognized that States would normally apply their national procedures based on the EUROCONTROL Specificationsfor FUA or their national regulations; and

c)State aircraft from Nation A planning to operate in high seas airspace for which Nation B has accepted the responsibility for the provision of ATS. It was acknowledged that access to the airspace could not be denied nor could these State aircraft be “forced” to participate in the application of an FUA concept. It was agreed that any procedures or agreements that were to be developed must not give the operators of these State aircraft the perceptionthat their operations would be restricted in any way. Therefore, 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 oroperational considerations may preclude either negotiation or notification.

3.2The Task force was asked to identify other issues that would be important or that should be taken into account when drafting the ANP material. The Task Force agreed to consider the suggestion that an additional benefit resulting from prior coordination would be the capability of the Airspace Management Cell (AMC) to de-conflict multiple requests to use the same airspace at the same time.

3.3The Task Force then had a round table discussion to clearly identify which types of operations could benefit from these new procedures. It was agreed that “hot scrambles” and other State activities related to actions stemming from a State’s sovereignty could not be included because it would not be possible to carry out prior coordination or it may not be desirable to do so. The Task Force felt that Search and Rescue (SAR) missions might also fit into this category but this would require further examination. The drafting group (paragraph 3.17 refers) should therefore take this into account, bearing in mind Annex 12.

3.4The Task Force agreed that an important element that must be included in the provisions was the establishment of clear lines of communications between the airspace users and the ANSPs. These lines of communications should be clearly reflected inagreementsor arrangementsbetween the parties concerned and should provide some flexibility in the coordination process. It was however recognised that it would not be possible to have agreements or arrangements in place for all potential users of the airspace. Also, the AMC competent for the airspace concerned should be the focal point for the coordination. This should also be reflected in the draft amendment.

3.5In concluding its discussion on this matter, the Task Force agreed that, once the coordination provisions have been agreed and put in place, it would then be possible to apply many of the principles contained in the specifications for FUA developed by EUROCONTROL.

Identify elements of an FUA concept that would need to be included in the EUR Regional Air Navigation Plan (ANP)

3.6The Task Force was presented with a proposal on how a draft amendment could be structured and what the management process would be. The proposal, which, is summarised below, was accepted with the understanding that the States were not committing themselves at this time but were providing ICAO and EUROCONTROL, who would do the actual drafting (paragraph 3.17 below refers), clear direction regarding the structure and content of the deliverable. The entire deliverable would be subject to an in-depth review before being endorsed by the Task Force.

Methodology

3.7The Basic EUR ANP and Facilities and Services Implementation Document (FASID), in Part V.I (ASM), and in particular in the chapter CIVIL /MILITARY COORDINATION (Paragraphs 6 to 10 of ANP and 4 to 5 of FASID) already contains provisions that apply some principles of the FUA Concept, including some related to governing flight of State aircraft over the high seas.

3.8However, expanding this text to accomplish the assignment of implementing some form of the EUROCONTROL FUA Concept over the high seas would require a much more detailed description. It was therefore suggested and agreed that a ‘clean sheet’ approach be applied and that the entire chapter on CIVIL/MILITARY COORDINATION be rephrased to expand it with more detailed provisions using the current text to the maximum extent possible.

Structure

3.9The structure of the proposed amendment should provide the greatest amount of flexibility to managing the documentin order to take account of evolving EUR Region requirements. It was agreed that the same approach used for the EUR Region Air Traffic Flow Management (ATFM) provisions be used for the section on CIVIL/MILITARY COORDINATION. This would entail the following basic structure: