Civil And Miltary Aviation In Sri Lanka

File Photo: Hong Kong Airport

by Dr. Ruwantissa Abeyratne

(April 19, Quebec, Sri Lanka Guardian) In October 2010, the Parliament of Sri Lanka passed a Bill on civil aviation which was approved by the Cabinet of Ministers on 15 September 2010 to be presented in Parliament for enactment. It pertained to an Act to make provision for the regulation, control, and related matters of civil aviation and to give effect to the Convention on International Civil Aviation (Chicago Convention); and for matters connected therewith and incidental thereto. It is encouraging that the legislature has taken steps to “give effect” to the Chicago Convention, which is the cornerstone of air navigation and air transport treaty law, pertaining to which Sri Lanka deposited its instrument of ratification on 1 June 1948, thus formerly becoming a member of the International Civil Aviation Organization (ICAO). In this context the words “give effect” mean “to make valid; to carry out in practice; and to push to its results”. It also means that there is now a law in Sri Lanka that would execute, perform, and operate provisions of the Convention.

The significance of this piece of legislation, called the Civil Aviation Act of 2008 is that it is a proactive enactment which addresses current issues in aviation and comes at an opportune time when the country is expanding its airport and aviation sector under a leadership with direction and purpose. With the passage of this Act, Sri Lanka has not only recognized its formal and practical adherence to the Chicago Convention but has also incorporated the 18 Annexes to the Convention within its main aviation legislation. This essentially means that Sri Lanka has pledged to follow the Standards and Recommended Practices (SARPs) contained in the Annexes, the adherence to which forms the basis of safety and security audits conducted in its member States by ICAO to determine whether SARPs are being complied with.

This principle is explicitly recognized in the Civil Aviation Act which provides that the provisions of the Chicago Convention relating to safety, regularity, efficiency and security of civil aviation as are specified in the Schedule to the Act would govern all activities relating to civil aviation within the territory of Sri Lanka. The Act applies to aircraft registered in Sri Lanka and personnel licensed under the Act whether or not they are in Sri Lanka, as well as to aircraft registered outside Sri Lanka and to aeronautical services provided within Sri Lanka and users thereof.

An interesting feature of the Act is that it will not apply to aircraft or aerodromes that are exclusively used by the armed forces. However, and notwithstanding this provision, the Act applies to aircraft operated by the armed forces or in the use of the Government if such aircraft were to carry passengers or cargo for hire. This would mean that: a) the Act does not apply in limine to aircraft dedicated exclusively to military services; b) it would however, apply if such military aircraft were to be used to carry either civilians or armed forces personnel if they are carried for hire. In this context, it is interesting to see how the Act would be interpreted on the subject of the use of civil aircraft for military purposes.

In emergency situations, States may acquire or in any other manner use civil aircraft for the transport of military personnel or goods meant for official use. In such circumstances any determination of the category of the aircraft concerned must be made taking into account all pertinent circumstances of the flight. 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.

There are no clear international rules, generally accepted, whether conventional or customary, as to what constitutes state aircraft and what constitutes civil aircraft. Military aircraft, more than any other kind of aircraft including customs and police aircraft, personifies the public or sovereign power of a State, and several attempts have been made to arrive at an internationally acceptable definition thereof. 

A simplistic but apt definition of civil aviation is “aviation activities carried out by civil aircraft”. A civil aircraft has been defined as any aircraft, excluding government and military aircraft, used for the carriage of passengers, baggage, cargo and mail. However, civil aviation comprises in general all aviation activities other than government and military air services which can be divided into three main categories: commercial air transport provided to the public by scheduled or non scheduled carriers; private flying for business or pleasure; and a wide range of specialized services commonly called aerial work, such as agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement et.al. By the same token, military aviation must be aviation activities carried out by military aircraft. Military aircraft have been defined as aircraft that are designed or modified for highly specialized use by the armed services of a nation.

Military aviation therefore can be identified as the use of aircraft and other flying machines for the purposes of conducting or enabling warfare, which could include the carriage of military personnel and cargo used in military activities such as the logistical supply to forces stationed along a front. Usually these aircraft include bombers, fighters, fighter bombers and reconnaissance and unmanned attack aircraft such as drones. These varied types of aircraft allow for the completion of a wide variety of objectives.

Arguably, the most fundamental difference between the operation of civil and military aircraft lies in the fact that, although they are expected to share the same skies, the procedures by which they do this vary greatly. Civil aircraft depend entirely on predetermined flight paths and code of commercial conduct which vary depending on aircraft type and types of traffic carried, whereas military aircraft operate in line with the exigency of a situation and are not necessarily always guided by predetermined flight paths. This dichotomy led to the adoption, at the 10th Session of the ICAO Assembly (Caracas, 19 June to 16 July 1956) of Resolution A10-19 which, while recognizing that the skies (airspace) as well as many other facilities and services were commonly shared between civil and military aviation, focused on ICAO’s mandate to promote the safety of flight.

The distinction between civil and military aviation cannot be made without addressing the purpose for which an aircraft is employed. This is particularly significant in instances where civil aircraft are used for military purposes. The fact that military strategists have come to expect support services from civil aviation is becoming more evident with the increasing need for military operations both in war situations and in instances of human tragedy brought about by civil conflict or natural disasters. There have been many such instances, ranging from the use by British military of chartered commercial cargo aircraft in the Falklands in 1982 to earlier practices of India and Pakistan in 1971 when both countries used civilian passenger aircraft for the transportation of their troops during the Indo-Pakistan war.

The use of civil aircraft for military purposes and vice versa intrinsically brings to bear the issue of sharing of airspace between civil and military aircraft. 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, all of which call for a close look at the use of airspace in the modern context.

ICAO has issued guidelines on the coordination between military authorities and air traffic services (ATS) authorities which recognize in limine that coordination between the responsible military authorities and appropriate ATS authorities is essential to the safety of civil aircraft operations whenever activities potentially hazardous to such operations are planned and conducted by any military units. These guidelines go on to state that in the event that a sudden outbreak of armed hostilities or any other factors preclude this normal coordination process, appropriate State and ATS authorities, civil aircraft operators and pilots-in-command of aircraft must assess the situation based on the information available and plan their actions so as not to jeopardize safety.

The Guidelines recommend that, in the event that a military unit observes that a civil aircraft is entering, or is about to enter, a designated prohibited, restricted or danger area or any other area of activity which constitutes potential hazards, a warning to the aircraft should be issued through the responsible ATS unit. The warning should include advice on the change of heading required to leave, or circumvent, the area. If the military unit is unable to contact the responsible ATS unit immediately and the situation is deemed to be a genuine emergency, an appropriate warning to the aircraft may be transmitted on the VHF emergency channel 121.5 MHz. If the identity of the aircraft is not known, it is important that the warning include the SSR code, if observed, and describe the position of the aircraft in a form meaningful to the pilot, e.g. by reference to an ATS route and/or the direction and distance from an airport or an aeronautical radio navigation aid, an established waypoint or reporting point. In the case where an unauthorized aircraft is observed visually to be flying in, or about to enter a prohibited, restricted or danger area, the following visual signal is prescribed by the International Standards in Annex 2 to the Chicago Convention — Rules of the Air, Appendix 1 to indicate that the aircraft is to take such remedial action as is necessary. The Guidelines caution that the importance of co-ordinating with the responsible ATS unit(s), whenever possible, the issuance of any warnings and advice to civil aircraft regarding changes of flight path should be emphasized in any briefings or instructions given by military authorities to their units, since uncoordinated warnings and associated navigational advice, when followed, may result in a potential risk of collision with other aircraft in the area.

The objective of the co-ordination between the military authorities planning activities potentially hazardous to civil aircraft and the responsible ATS authorities is to reach agreement on the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of civil aircraft. Ideally, this means the selection of locations outside promulgated ATS routes and controlled airspace for the conduct of the potentially hazardous activities. If the selection of such locations is not possible due to the nature and scope of the planned activities, temporary restrictions imposed on civil air traffic should be kept to a minimum through close co-ordination between the military units and the ATS unit.