35TH ANNUAL CONFERENCE, Tunis, Tunisia, 15-19 April 1996
WP No. 139
Responsibility and Liability of Operating in Delegated Airspace
During the past few years the number of Letters of Agreement between ACC’s or national administrations, both bilateral and multilateral has greatly increased as a result of the need for a more rational management of airspace that is impossible if strictly bind to national borders. The Legislative process for this kind of action is generally lengthy and either because of that or for any other reason, is often disregarded. The consequences however, may have a direct impact on ATCO’s.
Under the Chicago Convention, Article I, “every State has complete and exclusive sovereignty over the airspace above its territory”, the definition of territory being “the land areas and territorial waters”. There is no provision in the Convention for delegation of sovereignty. Although Chapter XVI (Article 77 to 79) admits the possibility of “pooled services”, it is then questionable whether this includes the kind of arrangement based upon which a State/agency, be it public- owned or private, undertakes the provision of ATC over the territory of another State. It has then to be assumed that every ATCO is acting in accordance with its national laws and regulations.
Should this be true, the frame for liability would be the normal one, that is: the ATCO should only be considered liable in the State in which he/she is employed. In such event, the responsibility would be, in most cases, automatically transferred from the employee to the employer, notwithstanding the court rights of the employer against his employee. For various reasons, States, and more recently State or even private agencies in charge of providing ATS, have undertaken to sign Letters of Agreement establishing authority over airspace, disregarding the basic concept of sovereignty as describe above.
In such cases, it is commonly accepted that the applicable rules are the ones existing in the delegating agency/state, although the ATCO’s operate in a different agency/state where a different set of rules is applicable. The matter is even more dubious if we look at the provision of ATS over international waters. In such cases, there isn’t even any sovereignty, it’s basically international airspace where the provision of ATS has been trusted to one of ICAO’s contracting States. The ATCO will apply his national rules and regulations and by that fact keep on the “safe side”. But is it possible for two or more Air Traffic Control units to establish Letters of Agreement distorting the boundaries as recognised by ICAO? In other words, is it possible to establish procedures which depart from the agreed by the contracting States over airspace belonging to the international community and over which the provision of ATS has been trusted to one of ICAO contracting States? And in such case, what rules is the ATCO to apply and what are the boundaries for his responsibility?
As described, it is self- evident that we are dealing with two different sets of issues. The first is that there are no rules, other then the ones established by the Convention regarding contracting States, who cover the departure from commonly agreed rules. That is: although the Convention foresees the possibility of pooled services, this has been understood as a possibility reserved to the contracting States. A reality in the late 40’s that has nothing to do with today’s reality.
Depending on the position taken as to the above issues, the responsibility of the ATCO varies. Namely, it cannot be established before it is decided whether the existing agreements- and the ones to be- have legal existence and therefore have any binding strength towards the ATCO itself. Should the answer be no, then the ATCO’s legal liability should be evaluated on the single basis of the relation employee/employer.
If, as an employee you use the rules determined by your employer you are complying with your national rules and therefore your employer will be the sole responsible for the provision of such services, including in the event of an incident or accident, unless there is proven criminal intent or gross negligence on the ATCO’s side.
MA’s should warn their national Administrations on the need to comply with international law when undertaking to sign Letters of Agreement. MA’s should make known to their national Administrations that ATCO’s decline all responsibility on incident/accidents occurring over so called “delegated airspace” if the legal procedures for such delegation have not been fulfilled, unless there was proven criminal intent or gross negligence or a deviation from the national applicable procedures.
It is recommended to Conference, that this paper be accepted as Information Material.
Last Update: February 12, 2020