| by Ruwantissa Abeyratne

( August 14, 2014, Montreal, Sri Lanka Guardian) Sometime in July this year, the pilot of a commercial flight operated from Halifax to St. Johns in Canada by Jazz, an airline of Chorus Aviation under the Air Canada brand, reported a drone just above the aircraft merely 300 meters apart. The Jazz aircraft was at 10,000 feet. Transport Canada is investigating as to how the two aircraft would have got so close to each other. There is no evidence that the drone in question was one used for military purposes. Neither is there anything to assume it was meant for any other purpose.

Of course, this is so far a rare occurrence, but given that drones are becoming increasingly prolific, and that the sharing of space in the sky between military and civil aviation is a point of discussion in countries such as China where the airspace tends to get crowded, the aviation community needs to address this issue in greater depth (it must be noted that the International Civil aviation Organization has already discussed this issue internationally and has prudently dedicated an office in its Air Navigation Bureau to address the issue).

The Economist (August 2-8, 2014) reports that China is notorious for its massive flight delays, particularly in eastern and central China (around 65% on some routes) and attributes the problem to the fact that less than 30% of China's airspace is open to civil aviation (compared with more than 85% in the United States). The Economist goes on to say that China's military control of so much airspace is a burden on the air traffic control system, according to an expert: and according to another, if the air force transfers 10% of its airspace to civil aviation use, the move could boost China's GDP by $30 billion a year.

The question as to whether civil aviation and military aviation have demarcated operational regimes or whether they can still function in symbiosis has become an argumentative one, in view of developments in the air transport industry which have occurred over the years. At its incipient stage, civil aviation held closer ties with military aviation since both were the protégés of government, and were controlled by instrumentalities of State. In recent times, however, governments are increasingly ceasing to be the principal actors of commercial aviation, thereby making at least a cosmetic deviation from civil aviation and recognizing the aspects of private enterprise (which often control civil aviation) as the real protagonists in matters pertaining to civilian air transport.

Perhaps the most fundamental difference between the operation of civil and military aircraft lay in the fact that, although they were expected to share the same skies, the procedures by which they did this varied greatly. Civil aircraft depended entirely on predetermined flight paths and codes of commercial conduct which varied depending on aircraft type and types of traffic carried, whereas military aircraft operated in line with the exigency of a situation and were not necessarily always guided by predetermined flight paths. This dichotomy led to the adoption of Resolution A10-19 by the Tenth Session of the ICAO Assembly in 1956. The Assembly Resolution, while recognizing that the skies (airspace) as well as many other facilities and services are commonly shared between civil and military aviation, focused on ICAO’s mandate to promote safety of flight and reinforced the thrust of Article 3(d) of the Chicago Convention, which provides that no state aircraft (which includes military aircraft) . can fly over the territory of another State or land thereon without the authorization of that State. The Resolution called for all Contracting States to co-ordinate between their various aeronautical activities in order that the common use of airspace inter alia be so arranged that safety, regularity and efficiency of international civil air navigation be safeguarded.

The preponderance of weight attributed to military aviation and civil aviation are intrinsically different from each other in their nature and functions. However, both operate in the same air traffic management environment and therefore use common airspace which needs to be stringently managed, not only for safety reasons but also for reasons of efficiency. While military aviation is essential for national security and defence and therefore is a legitimate and indispensable activity, civil air transport is not only necessary for global interaction between nations but it also makes a significant contribution to the global economy. These two equally important activities call for uncompromising cooperation between one another in the shared use of airspace and an enduring understanding of each other’s needs. Military aviation not only includes the operation of conventional aircraft for military purposes but also involves the use of unmanned aerial systems (UAS) and missile testing.

From an aeronautical perspective, Annex 11 to the Convention on International Civil Aviation (Chicago Convention), which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft. The International Standards and Recommended Practices in the Annex contain provisions for co-ordination between military authorities and air traffic services and co-ordination of activities potentially hazardous to civil aircraft. These provisions specify that air traffic services authorities shall establish and maintain close co-operation with military authorities responsible for activities that may affect flights of civil aircraft. The provisions also prescribe that the arrangements for activities potentially hazardous to civil aircraft shall be co-ordinated with the appropriate air traffic services authorities and that the objective of this co-ordination shall be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft. Arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities. There is also explanation s that the objective of the coordination shall be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft. One must of course hasten to add that Article 89 of the Convention stipulates that in case of war, the provisions of the Convention (and, by implication its Annexes) shall not affect the freedom of action of any of ICAO’s member States affected, whether as belligerents or as neutrals. The same principle would apply in the case of any member State which declares a state of national emergency and notifies the fact to the ICAO Council.

The above considerations of safety notwithstanding, it is incontrovertible that cooperation in the activities of military and civil aviation is not only about sharing airspace. It is also about the efficient allocation of airspace to both categories of activity in separating such flights, particularly in the context of military flights which operate in special use airspace and those proceeding to special use airspace across civilian air routes. This brings to bear the inevitable conclusion that there must essentially be coordination between military authorities and air navigation service authorities.

At the Global Air Traffic Management Forum on Civil and Military Cooperation, convened by the International Civil Aviation Organization (ICAO) on 19 October 2009, the International Air Transport Association (IATA) noted that, given the equal importance of civil and military aviation, it was imperative that airspace, which is an international and national resource, be managed as a whole, as a continuum and one common source and not a collection of segregated areas. This called for minimal restrictions on the use of airspace by both users, which in turn called for a structured and systematic management of the scope and duration of the use of airspace.

At the ICAO Forum, the Civil Air Navigation Services Organization (CANSO) underscored the fact that increasing growth in civil air transport and traffic was putting pressure on limited airspace resources and that civil-military cooperation was becoming imperative. CANSO, while calling for a global platform of cooperation, emphasized that the key to successful cooperation is the establishment of trust, respect, transparency and flexibility on all key players and that States could play a lead role in developing a framework of cooperation. It also stated that a regional approach (as against a national approach) was essential, citing EUROCONTROL as a true civil military agency which involved both civil and military offices at policy making level. In summing up, CANSO called for a fully integrated Civil-Military ATM, leading to the complete union of Civil-Military partners at national, regional and global level.

Therefore, in the ultimate analysis, cooperation between civil and military authorities, in accordance with the existing regulations and guidelines is essential, with the underlying consideration that civil aviation, with more than 100,000 flights operated every day carrying 3.2 billion passengers annually (the latter fact according to 2013 air transport figures released by IATA last week), should not under any circumstances be compromised. The prioritizing of civil and military aircraft operations therefore seems to be in favor of civil aviation, even if purely to safeguard life, limb and property.

The author is an aviation consultant and former Senior Legal Officer at the International Civil Aviation Organization

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