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 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 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.
Mr Karsten Theil, Regional Director of the ICAO European and North Atlantic Office and Secretary of the EANPG, chaired the meeting. Mr Jacques Vanier, from the ICAO European and North Atlantic (EUR/NAT) Office was the Secretary. Assistance was provided by Mr George Firican, Mrs Carole Green, Mr Elkhan Nahmadov and Mrs Nikki Goldschmid also from the same Office. 27 participants representing 10 States or grouping of States and International Organisations were in attendance. Apologies were received from Baltic States, Italy and NATMC who were unable to attend. Lists of participants and of contacts are at Appendix A.
The following agenda was adopted:
Agenda Item 1: Background information
agenda and work schedule
decision of EANPG/49
provisions stemming from the Chicago Convention
the current provisions for the application of the FUA concept in sovereign airspace in the EUR Region
input from States
Agenda Item 2: Expansion of the FUA concept to include high seas airspace
proposals from Eurocontrol to extend the FUA concept to the high seas
identify elements of the FUA concept that would need to be included in plans to expand its application to the high seas
The Group recalled that it had been convened in follow up to EANPG Conclusion 49/11 in response to a proposal presented to the EANPG to expand the use of the FUA Concept developed by Eurocontrol to high seas airspace. To provide the framework to implement the change, it was recognised that it may be necessary to amend the ICAO EUR Regional Supplementary Procedures (SUPPS) (Doc 7030) and other related ICAO documents. However, a critical condition to be able to amend the SUPPs was that the proposed amendment should not contravene the related Procedures for Air Navigation (PANS) or Standards and Recommended Practices (SARPs) provisions. The EANPG had agreed that improved safety and efficiency of the airspace should be pursued wherever possible and that the FUA was a very useful tool to move towards that goal. Mindful of the above and taking into account that considerable experience with the use of the FUA existed in the EUR Region and the work done in this respect by EUROCONTROL, the EANPG had agreed to request the ICAO Regional Director of the European and North Atlantic Regions to establish a task force to develop provisions to support the expansion of the FUA in such a way that they could be used globally and be in line with the ICAO provisions related to the high seas. The task force should be composed of State representatives from the European and North Atlantic Regions as well as participants from EUROCONTROL and the European Commission. In order to facilitate the development work, the ICAO Regional Director was requested to associate ICAO Headquarters with this task. Finally, it was agreed that the COG should present EANPG/50 with draft proposals for amendment as required.
EANPG Conclusion 49/11 - Development of ICAO provisions to support the expansion of the Flexible Use of Airspace (FUA)
the ICAO Regional Director establish a task force to develop ICAO provisions regarding the expansion of the FUA concept to the high seas, taking account of the legal constraints. The task force be composed of:
State representatives from the European and North Atlantic Regions; and
EUROCONTROL and the European Commission for their technical expertise; and
ICAO Headquarters to be invited to participate in the work of the task force; and
the task force present the results of its work to EANPG/50.
Provisions stemming from the Chicago Convention
As indicated in paragraph 1.1 above, a pre-condition to amending any ICAO provisions was to ascertain that the proposal for amendment would not contradict international law affecting access to high seas airspace. With this in mind, the Task Force was presented with the results of a study carried out by the secretariat which provided an overview of the inter-related provisions that are contained in the Chicago Convention, the Annexes thereto and the United Nations Convention on the Law of the Sea that regulate freedom of access to high seas airspace. The Task Force noted that the basic principle of freedom of overflight over the high seas is enshrined in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS, Montego Bay, 1982), and that this freedom shall be exercised by all States with due regard for the interest of other States. The rules and regulations regarding high seas airspace are set out in the Chicago Convention and its supporting documentation, including Assembly Resolutions. Although the Chicago Convention addresses international civil aviation, it does recognize sovereign airspace and military needs for access to all airspace.
As indicated above, 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 manoeuvre of aircraft within the meaning of Article 12 of the Chicago Convention and shall apply without exception over the high seas.
It was 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.
States can restrict access over their Territory but they cannot restrict or prohibit access to areas over the high seas. On the other hand, the establishment of danger areas was not limited to airspace over national territory but can be established over the high seas. However, it should be ensured that the areas concerned be of a reasonable dimension and not be permanent (“at specified times” refers), so as not to interfere with the international air navigation as per the Air Navigation Plan (ANP) and, more basically, the above-mentioned principle of freedom of overflight above the high seas.
As regards notification of activation and deactivation, Annex 15 provides provisions regarding the definition and publication of danger, restricted and prohibited areas. Annex 15 also stipulates that the prohibited, restricted and danger areas shall be published at ENR 5.1 of Aeronautical Information Publication (Appendix 1 of Annex 15 refers) and the establishment or discontinuance (including activation or deactivation) as applicable, or changes in the status of prohibited, restricted or danger area shall be promulgated by NOTAM.
When considering access to airspace, the provisions of Annex 2, (paragraph 3.1.10) concerning prohibited and restricted airspaces are relevant. Furthermore, Annex 11 must be kept in mind, especially those provisions related to airspace classification (Annex 11, paragraph 2.6) and related Air Traffic Control Services (Annex 11, Chapter 3). Cognizance should also be taken of the Council interpretation of Annex 11 paragraph 2.1.2 (Secretary General state letter AN 13/13.5-91/39 of 17 May 1991) regarding the implementation of controlled airspace over the high seas. In addition, provisions concerning arrangements for activities potentially hazardous to civil aircraft (paragraph 2.18.1) need to be considered. The Procedures for Air Navigation Services - Air Traffic Management (PANS-ATM) (Doc 4444) provides for the implementation of flexible use of airspace. These provisions enable ANSPs to provide services to aircraft wishing to operate over the high seas without infringing the right of State aircraft to operate in these areas. The definitions used throughout the ICAO provisions must also be kept in mind.
Based on the above, if a State needs to define airspaces to be used for military operations, the access and use by civilian traffic shall only be regulated when the airspace concerned is active; its activation would always depend on prior coordination with the appropriate ATS authority and always be promulgated by NOTAM. This does not appear to preclude States from flexible management of access to such areas established over the high seas, based on coordination between appropriate civil and military authorities . However, when defining a concept for the application of FUA over the high seas, it is important to choose definitions with care to ensure that all terminology used to describe the concept must be in-line with the provisions of the Chicago Convention and the UNCLOS (1982).
Current provisions for the application of the FUA concept in sovereign airspace in the EUR Region
The Group was provided with an overview of the FUA Concept that had been established by Eurocontrol. The Concept provided for the publication of Temporary Reserved Areas (TRA), Temporary Segregated Areas (TSA) and Conditional Routes (CDR). The activation and deactivation of the TRAs and TSAs and the consequential changes in availability of the CDRs would be dynamically managed. This would allow airspace which was temporarily unavailable to become available to all air traffic as soon as possible after the activities which prompted the reservation or segregation had ended.
The Group recalled that the ICAO provisions regarding the establishment of Danger, Restricted and Prohibited areas accommodated activation and deactivation of these areas; in other words, these areas were not required to be permanent. Indeed, the ICAO provisions specifically stated that “every effort should be taken to open up such areas to civil operations whenever operational circumstances permit.”
Input from States
Several 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. All States expressed their support for efforts to increase the safety and efficiency of operations in high seas airspace. They also agreed that increased civil/military coordination and communication would facilitate these efforts and ensure that safety and efficiency would be exploited to the maximum degree possible. Finally, all States acknowledged the provisions regarding the right of access to high seas airspace for all aircraft and agreed that implementation of the FUA Concept would require ensuring that these rights were respected (paragraph 2.2 also refers).
Expansion of the FUA concept to include high seas airspace Proposals from Eurocontrol to extend the FUA concept to the high seas
Representatives from Eurocontrol provided explanations of the FUA Concept and how it could be applied in high seas airspace. It was acknowledged that international law enshrined the rights of all aircraft to have free and unrestricted access to high seas airspace, and the Task Force also recalled the obligation of all States to ensure that their State aircraft are operated with due regard to the safety of navigation of civil aircraft. The Task Force agreed that a common application of an FUA Concept over the high seas would help to achieve the following safety and efficiency objectives:
FUA could contribute to the mission effectiveness of State aircraft through real-time airspace availability and utilisation.
More efficient use of airspace over the high seas, in particular, where high seas airspace interfaces with high density core areas, i.e. European airspace.
Static structures of today over the high seas in the European Region would not facilitate forecasted traffic demand or requirements. Dynamic manageability would facilitate better utilisation of airspace which is a scarce resource.
Meeting the demands of all user requirements and expectations in more efficient and dynamic manner through collaborative decision making and enhanced coordination and communication channels.
The airspace should not be designated as either pure civil or military airspace, but rather be considered as a continuum in which all user requirements have to be accommodated to the extent possible. Such arrangements should facilitate greater interaction between States.
FUA concepts and related airspace structures (which may not currently be identified under FUA terminology) will enable the seamless development of FUA over the high seas.
Greater flexibility of the airspace utilisation and its management will contribute to an overall environmental benefit.
Identify legal impediments
On the basis of the information presented by the Secretariat, the Task Force determined that no legal impediments existed to prevent the implementation of an FUA Concept over the high seas. However, in arriving at this decision, caveats were identified that needed to be taken into account when developing the Concept. The rules of access to airspace over Sovereign Territory, as defined in Article 2 of the Chicago Convention, and the high seas are different. Therefore, it would not be possible to implement all parts of the FUA Concept developed by Eurocontrol over high seas airspace. Another caveat was the need to choose definitions with care to ensure that they were compatible with ICAO provisions including that they did not convey the notion of “exclusion or restriction” from high seas airspace.
Develop a roadmap
The Task Force acknowledged that it was not possible to finalise its mission in one meeting; it did however examine ways and means to advance the task so as to provide EANPG/50 with a progress report in December 2008. It was agreed that a small working group consisting of representatives with technical knowledge of airspace management from the following States and international organisations be established: Greece, Turkey, United Kingdom, United States, the European Commission, Eurocontrol. In addition, the Secretariat agreed to ask the Russian Federation and representatives from the Baltic States and the North Atlantic Treaty Organisation (NATO) Air Traffic Management (ATM) Committee (NATMC) to participate in the working group.
The working group, which would be led by the ICAO secretariat and assisted by Eurocontrol, would be tasked to deliver 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 will be scheduled prior to COG/42 in October 2008. The COG would then present the final report to EANPG/50 in December 2008 and propose that the Task Force be disbanded.
The Task Force was informed that a dedicated forum had been created on the ICAO EUR/NAT website to facilitate the work. To that end, all participants were requested to nominate a focal point who would be tasked with carrying out the work.