Aircraft Flying with ‘Due Regard’

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Aircraft Flying with ‘Due Regard’

41TH ANNUAL CONFERENCE, Cancun, Mexico, 15-19 April 2002

WP No. 89

Aircraft Flying with ‘Due Regard’

Presented by SC1


1.1 At the 40th IFATCA conference in Geneva, SC1 accepted the work item concerning aircraft with ‘due regard’, with particular emphasis on the south Pacific operations and RVSM implementation issues.

1.2 The principle of ‘Due Regard’ requires that State aircraft must operate in international airspace with due regard to the safety and regularity of all other aircraft.

1.3 ‘Due Regard’ applies to government (State) aircraft operating in international airspace (not the territorial airspace of any nation or state, International Straits overlapped by territorial seas, Archipelago Sea Lanes, or contiguous Zones)


2.1 The concern has been raised in particular with United States Department of Defence (DoD) aircraft operating with ‘Due Regard’ within controlled airspace in the South China Sea areas. These aircraft have been operating with 1000 ft vertical separation above FL290 (even flight levels) squawking a discrete code/ mode C and not in communication with a civil ATC provider.

2.2 Controllers have been vectoring aircraft clear of these targets, as the military aircraft’s intentions are unknown and the mode ‘C’ has not been validated.

2.3 The safety concerns have been heightened with the implementation of RVSM in the Western Pacific. Aircraft that had previously been operating with 1000ft separation are now operating at the same flight levels as the RVSM aircraft.

2.4 Freedom of the high seas includes the right of aircraft of all nations to use the airspace over the high seas. In accordance with the Geneva Conference on Law of the Sea, 1958, and international law, all countries must exercise this freedom with reasonable regard for the interests of other nations. In accordance with Part 1, Chapter 1, Article 3 (d) of the Convention on International Civil Aviation, the Contracting States of ICAO “undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.”

2.5 It is the policy of the DoD and in accordance with Department of Defence Directive (DoDD) Number 4540.1, that all U.S. military aircraft and firings shall operate with due regard for the safety of all air and surface traffic. Further, when practical and compatible with the missions, U.S. military aircraft operating on the high seas shall observe ICAO flight procedures.

2.6 DODD 4540.1 states that flight operations shall be conducted away from high- density traffic areas, when possible. Areas for aircraft and firing activities shall be selected so as not to interfere with established air routes and ocean shipping lanes. Normally, routine point-to point and navigation flights shall follow ICAO flight procedures.

2.7 There are operational situations that do not lend themselves to ICAO flight procedures such as: military contingencies, classified missions, politically sensitive missions, or routine aircraft carrier operations or other training activities. The DoDD 4540.1 discusses ‘Due Regard’ and stipulates the conditions for the military commander to be his own air traffic control agency and to separate his aircraft from all other air traffic. Operations not conducted under ICAO flight procedures are conducted under the ‘due regard’ or ‘operational’ prerogative of military aircraft and are subject to one or more of the following conditions:

  • Aircraft shall be operated in visual meteorological conditions; or
  • Aircraft shall be operated within radar surveillance and radio communications of a surface radar facility; or
  • Aircraft shall be equipped with airborne radar that is sufficient to provide separation between themselves, aircraft they may be controlling, and other aircraft; or
  • Aircraft shall be operated outside controlled airspace.


3.1 The first option is to do nothing. Provisions are already in place whereby it is the responsibility of the State aircraft to remain clear of civil traffic. The controllers working the airspace in which these aircraft fly may feel a sense of responsibility to separate their aircraft from these targets, but in reality no responsibility exists. It is a moral obligation, rather, that creates a workload on the controller. It is no different than working low level traffic and observing a VFR target with a mode ‘c’ readout that could be traffic for an IFR aircraft. The controller points out the traffic and asks the pilot if he wants to be separated from the traffic. This may not be an ideal situation within international airspace where language could be a barrier. Many countries, including Canada, have agreements with the military where the military has the freedom to fly within controlled airspace without speaking to a controller, but takes responsibility for separating their aircraft from civil traffic.

3.2 The second option is to make a recommendation where IFATCA supports a set of international guidelines for aircraft flying with ‘due regard’. In the situation put forward in the South Pacific, an increased measure of safety would exist if the aircraft were to operate 500 feet off the flight levels. A set of guidelines would be difficult to arrange that could accommodate the different capabilities of the member States. It would probably be a simpler solution to address the individual needs of problem areas.


4.1 That this paper be accepted as information material.

Last Update: September 29, 2020  

March 13, 2020   324   Jean-Francois Lepage    2002    

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