Should Sri Lanka in view of its State sovereignty, regulate the LOON process?
by Dr. Ruwantissa Abeyratne
Writing from Montreal
Man must rise above the Earth – to the top of the atmosphere and beyond – for only thus will he fully understand the world in which he lives. ~ Socrates
It has been reported that LOON – defined as “a network of stratospheric balloons” - deployed between altitudes of 18km and 25km and calculated to enable remote communities around the world to benefit from internet connectivity, was first introduced as a viable project to be implemented in Sri Lanka in July 2015 through a Memorandum of Understanding signed by and between The Telecommunications Regulatory Commission of Sri Lanka (TRCSL) and Google. Only 21% of the population in the country is connected via the internet and there is a dire need to educate the rural population in accessing information through the internet. However, the project has been in abeyance for some time due to objections from the International Telecommunications Union (ITU) - the specialised agency of the United Nations which has global responsibility for issues that concern information and communication technologies - that the deployment of LOON over Sri Lana may potentially disrupt communications capabilities of neighbouring countries. Upon Sri Lanka’s assurance that such disruption would only occur if the balloons were deployed above the North of Sri Lanka and that it’s proposal was to have the balloons deployed over the South of the country, ITU is reported to be reacting positively to the proposal.
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Should the LOON project be implemented in Sri Lanka, there would be relevant regulatory issues to be considered. Firstly, LOON would have distinct aeronautical features as the balloons would be High-Altitude Long-Endurance (HALE) aircraft operating in the stratosphere – which is the second level of the Earth’s atmosphere – and therefore their operations would come within the basic premise of the Chicago Convention which addresses international civil aviation and provides the each contracting State (country) recognizes that every State has sovereignty over the airspace above its territory. Although the balloons would be flying at altitudes above flight level 600 (60,000-70,000 feet, well over altitudes traversed by commercial aircraft) they have nonetheless to take off and land at low altitudes which would place them within the regime of a global air navigation system.
The inherent problem in this process is seemingly predicated upon the absence of a harmonized global “rule book” that standardizes the aeronautical aspects related thereto. Should Sri Lanka, for instance, in view of its State sovereignty, regulate the LOON process? Diligently working on this dilemma is an industry group called the Upper Airspace Working Group (UAWG), which is “developing positions on policies and strategies concerning national and international regulation, legislation, and standards unique to high-altitude unmanned and manned aircraft, spacecraft and other users”. Some of the principles that are being considered for harmonized regulation are : “Uniform airspace organization and management principles will need to be applicable to all regions; Global principles will be applicable at all levels of density and will affect total traffic volume; Airspace management processes will need to accommodate diverse and dynamic flight trajectories and provide optimum system solutions; When conditions require that different types of traffic be segregated by airspace organization, the size, shape and time regulation of that airspace will be set to minimize the impact on all operations equitably; The complexity of operations may pose limitations on the degree of flexibility; Airspace use will be coordinated and monitored in order to accommodate the conflicting legitimate requirements of all users minimizing constraints on operations; For operations lasting longer than 24 hours, airspace reservations will be expected and planned in advance with changes made dynamically whenever possible. As occurs today, the system will also accommodate unplanned requirements; Structured route systems will be applied only where required to enhance capacity or to avoid areas where access has been limited or where hazardous conditions exist. Otherwise, airspace management principles will remain as flexible as practicable”.
At its Thirteenth Air Navigation Conference held in Montréal, from 9 to 19 October 2018, The International Civil Aviation Organization (ICAO) suggested that ICAO guidance will be needed for regulators on how to accommodate new aircraft within existing global Standards and policies. In addition, requests from States unfamiliar with these types of operations for ICAO and the community for aid can be expected. It was agreed that as higher airspace operations develop and evolve, all aspects within the scope of the Global Air Navigation and Global Aviation Safety Plans (GANP and GASP) will be implemented by ICAO through the well-established processes for assigning technical work to relevant expert groups.
The Conference noted the developments in higher airspace operations and that the number of aircraft and the geographic areas of higher airspace operations continue to grow; and requested ICAO to provide guidance, and as necessary other provisions, on the regulatory aspects of higher airspace operations; ICAO was also requested to work with States and the industry to identify issues affecting the global air navigation system and to proactively address harmonization. The States which have regulated higher airspace operations were requested to share, through ICAO where appropriate, their experience and expertise with other States, while providing, through ICAO and upon request, assistance to other States on the regulatory aspects of higher airspace operations.
Annex 10 to the Chicago Convention on aeronautical telecommunications plays an important role in ensuring that telecommunications and radio aids to air navigation are necessary for the safety, regularity and efficiency of international air navigation. The Annex aims at protecting all aeronautical telecommunication stations, including end systems and intermediate systems of the aeronautical telecommunication network (ATN), are protected from unauthorized direct or remote access. Annex 11 on air traffic services provides that States can designate other States to provide air traffic services on their behalf without giving away their sovereignty, stating further that when it has been determined that air traffic services will be provided in particular portions of the airspace or at particular aerodromes, then those portions of the airspace or those aerodromes are required to be designated in relation to the air traffic services that are to be provided. The designation of the particular portions of the airspace or the particular aerodromes are designated as flight information regions - those portions of the airspace where it is determined that flight information service and alerting service will be provided – and control areas and control zones, which are those portions of the airspace where it is determined that air traffic control services will be provided to IFR (flying by reference to instruments on the flight deck) flights are needed to be designated as control areas or control zones.
This is an area where sustained work by ICAO is needed and it is hoped that the HALE issue is discussed with a sense of purpose and direction at ICAO’s General Assembly which commences on 25th September 2019. Of particular note in this context would be the decision of the Conference of October 2018 referred to earlier, that States with relevant experience in higher airspace operations, share, through ICAO where appropriate, their experience and expertise with other States and provide assistance to other States on the regulatory aspects of these operations. It was also agreed that States expected to benefit from higher airspace operations, agree to consider risk-based operational trials in their airspace. In this regard ICAO was to support ongoing higher airspace operations by providing guidance and, as necessary, other provisions on the regulatory aspects of these operations as well as working with States and industry to share information on current and forecasted needs for higher airspace operations, to identify issues affecting the global air navigation system and to proactively address harmonization for these operations. ICAO was requested to consider establishing a multidisciplinary group of experts to consider needed criteria, operational issues, and operator and provider responsibilities for operations in higher airspace; and develop a performance-based global framework for higher airspace operations considering current and future work in emerging technologies, for example, in the areas of information management and sharing, strategic planning, separation and environmental Standards, situational awareness and security; and ensure that the framework includes flights transitioning through controlled airspace and to and through airspace above FL600, as necessary.
Dr. Abeyratne is former Senior Legal Officer at the International Civil Aviation Organization and author of Air Navigation Law (Springer: 2012).
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