Legal Obligations and rights of States and the transition to the Net-Centric

Information Environment

Legal Obligations and rights of States and the transition to the Net-Centric

Information Environment

Montreal, June 2008 Denys Wibaux

Director, Legal BureauICAO

Montreal, June 2008 Denys Wibaux

Director, Legal BureauICAO

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The Chicago ConventionThe Chicago Convention

- A treaty between States setting rights and obligations for the States vis-à-vis one another- Article 28 - Article 15 - The constitution of ICAO- The Annexes: art 37 and 38

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Annex 15Annex 15

3.1.1.Each Contracting State shall a) provide an aeronautical information; b) agree with one or more Contracting State(s) for the provision of a joint service; or c) delegate the authority for the provision of the service to a non-governmental agency, provided the SARPS of this Annex are adequately met

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Annex 15 (Cont’d)Annex 15 (Cont’d)

Chapter 3 sets obligations for the StatesBasically the State is responsible to maintain certain quality/integrity of data Copyright of States on their AIS products is recognizedCost recoveryContent of AIP and Notams

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The change against the existing legal framework (Cont’d)

The change against the existing legal framework (Cont’d)

If AIM is the digitalization or full computerization of aeronautical information and data previously provided on paper, difficult at this stage to assess the institutional or legal implicationsPooling of resources

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The change towards a Net Centric Information Environment against the

existing International Legal framework

The change towards a Net Centric Information Environment against the

existing International Legal framework

-No legal obstacle in the Convention to the delegation of the provision of services or regulatory functions by States to either a intergovernmental organization or a non-governmental organization, even for profit organization.

hDelegation is practice long standing recognized in ICAO :

h2.1.1 of Annex 11, 1.3.2.1. of Annex 4

hPrecedents exist of States entering into agreements for the provision of services: Eurocontrol and its Upper Area Control Center in Maastricht, EAD database, COCESNA, ASECNA, EASA and certification, Galileo Joint Undertaking

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Functions and Purposes of multinational agencies or

arrangements

Functions and Purposes of multinational agencies or

arrangements

International Operating Agencies

Joint Charges Collection Agencies

Multinational Facilities and Services

Joint Financing Arrangements

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International Operating AgenciesInternational Operating Agencies

A separate entity providing air navigation services

Example:

hASECNAhCOCESNAhEUROCONTROL

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Multinational Facility or ServiceMultinational Facility or Service

A Group of State Jointly Establish a Common Facility or Service

– Example: EGNOS

Flexible Structure – with or without a formal international body

- Example: CAR/SAM RVSM Regional monitoring agency

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Chapter 15 and Joint Financing Arrangements

Chapter 15 and Joint Financing Arrangements

Chapter 15 of the Chicago Convention: a potential arsenal largely unemployed, particularly art 69, 70 and 71

Danish and Icelandic Joint FinancingAgreements

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FormsForms

International organization created by a treaty: ASECNA, COSECNA, EUROCONTROL

An entity established under a legislative act or secondary law of an international organization

A company incorporated and registered under the domestic Law of a State: Inmarsat, supervised by IMSO

A Public-Private Partnership: GALILEO

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Constitutive InstrumentsConstitutive Instruments

hA treaty requiring ratification

hAn intergovernmental agreement

hLess formal instrument, such as MoU: advantages and inconvenients

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Substantive Legal IssuesSubstantive Legal Issues

hCompliance with ICAO SARPs : Article 28: Responsibility of States to provide services in their respective territory. Relieve of responsibility as provided for in Article 83 bis is an exceptionhApplication of the principle of cost

recoveryhPotential liabilityhIntellectual property rights

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Compliance with ICAO SARPsCompliance with ICAO SARPs

Responsibility under Article 28 of the Chicago Convention remains with States

Safety and security regulations must be respected

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LiabilityLiability

No uniform liability system

Application of domestic law

Adequate insurance or other arrangements may be necessary