Proceedings of the Workshop - United Nations Office for Outer ...

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172 EXPANDING GLOBAL NAVIGATION SERVICEShe wishes, one should do so in such a manner as not toinjure another or his property. This general principle oflaw is operative and effective in national as well asinternational law and applicable to states as to privatecitizens93. The International Law Commission's (ILC)consideration of the question of "International liabilityfor injurious consequences arising out of acts notprohibited by international law" has resulted in considerableattention being given to this rule reflected inthe maxim sic utere tuo ut alienum non laedas.One may recall the vivid expression of the rule andits application in the landmark arbitral award of theTrail Smelter Arbitration94 where it was thus stated:“... (n)o State has the right to use or permit the use ofits territory in such a manner as to cause injury byfumes in or to the territory of another or the propertiesor persons therein, when the case is of serious consequenceand the injury is established by clear andconvincing evidence.”Reliance95Additionally, the freedom of the provider state is alsolimited by the feet that states will be relying on theoffers made to permit the use of GPS, and the fa c t thataircraft operators are relying on the system to navigate.This legal principle of reliance, also referred to asthe Good Samaritan principle, is applied in its variousforms in many legal systems throughout the world.93 Handelskwekerij G.J. B ier B.V. et al. v. M ines de Potassed'Alsace S A . (MDPA) District Court of Rotterdam, 8 January1979, N J (1979) No. 113:313 at 319. Translated in vol X I NYIL(1980), 326.94 UN Reports of International Arbitral Awards vol. III, 1965.95 Henaku, op.cit. note 3 p. 197.As succinctly rationalised by a common lawexpert96, though the law will not heed the promisee'sdisappointment at losing the benefit of a promisedperformance97, it does not disqualify him from complainingof genuine tort losses inflicted on him by thepromisor.The law does not require the existence of anintimate personal relationship. Furthermore, a duty maybe found in justifiable reliance on a more generalassumption of protective care. Thus the railways havebeen held liable for level crossing accidents to personswho relied on a practice of signals or closing gates atthe approach of trains, the argument being that, thepromisee, the railways ought to have contemplated thatif a self-imposed duty is ordinarily performed, thosewho know of it will draw an inference if on a givenoccasion it is not performed98.In the US, the Good Samaritan doctrine holds thatwhenever one voluntarily comes to the aid of anotherand the latter relies upon such an undertaking, there isimposed a duty of care upon the former99. The principlehas been applied in many US cases, among which someinvolving air traffic control100.96 J.G. Fleming, The Law o f Torts, 149 (8th ed. 1992).97 This is in virtue of the common law doctrine that considerationmust support even a promise.98 M ercer v. S.E. & C.R. R ly [1922] 2 KB 549 at 554, per Lush J.99 Sections 323 and 324A, Restatement of the Law (second) Torts,vol. 2, American Law Institute Publishers, 1965. Section 323provides:"One who undertakes, gratuitously, or for consideration,to render services to another which he should recognize asnecessary for the protection of the others person or things,is subject to liability to the other for physical harmresulting from his failure to exercise reasonable care toperform his undertaking if: a) this failure to exercise suchcare increases the risk of such harm or: b) the harm issuffered because of the other's reliance upon theundertaking.”100 Ingham v. Eastern Airlines, 373 F. 2d 227 at 236 (2nd Cir.,)cert . denied, 389 U.S. 931, 88 S.C.T 295, 19 L. Ed. 2d 292(1967). This case involved the failure of a FAA approach
EXPANDING GLOBAL NAVIGATION SERVICES 173The Good Samaritan doctrine can be applied to thepromise to provide GNSS signals to the civilcommunity. The provider states were not compelled byany international duty to so promise the signals tostates. By undertaking to offer the signals to theinternational community, the providers have placedthemselves in the position of the parabolic GoodSamaritan and have consequently assumed a duty ofcare involving taking all necessary measures not tocause injury to any state or any user for that matter.Any unannounced interference by signal providerswhich result in damage to any state or citizen of anystate will result in liability claims being brought againstthe provider state. Thus the provider is required to actas any private person or private company will act wheninvolved as promisor and provider of satellitenavigation services.Universal Access and NondiscriminationUniversal Access and discrimination are two sides ofthe same coin. The ICAO Charter on Rights andObligation of requires that states have access to GNSSservices on non-discriminatory basis. This clearly is anapplication of the principle of non-discrimination asespoused in the Outer Space Treaty.Logically, access can only be had within thegeographical coverage area of the GNSS system inquestion. Thus MSAS systems providers are notrequired, unless they profess to be able to do so, toprovide their services to cover all North Atlantic orNorth African routes.Additionally, the non-discrimination clause is onlyapplicable when service is available to the whole areaunder the same terms and conditions. Some of theconditions, which could later lead to the inapplicabilityof the non-discriminatory clause, are charges and thenature of the receiver equipment on board a particularaircraft. While, in the interest of safety, it is importantto make GNSS services available to all states andoperating aircraft, it should still be possible to denyaccess to some states or transport operators who refuseto pay for the service offered when globally agreedcharges are introduced. Of course such denial shouldnot violate the primary objective of international air andmaritime navigation, namely: the safety principle. TheGNSS service provider has a responsibility of beingreasonable in its denial process putting it into operationafter a reasonable time has elapsed and the state,marine or aircraft operator concerned has beeninformed within a reasonable time. A reasonable periodis required because no state has the right to, by itsaction of denying access to a particular state, marine oraircraft operator, create danger to internationalnavigation and thereby breach the safety ofinternational transportation.The introduction of differentiated services under theGalileo system raises a very practical issue. Is theprovision of smart cards allowing different users toreceive and accordingly pay for different services aviolation of the principle of non-discrimination? It maybe recalled that the Commission Communicationsuggests the introduction of different levels of service:• Level 1 service to the mass market• Level 2 a certifiable serviceLevel 3 safety of life and security-relatedservices.controller to inform incoming aircraft that visibility had droppedfrom one mile to three quarters of a mile. The plane crashed whileattempting to land while at the same time engulfed in swirlingground fog. The US government was found liable with the Courtholding that a duty arose with the government voluntarilyassuming the responsibility of providing control services when itwas not required by statute to do so. One essential factemphasised in this judgement was the fact of reliance bypassengers and pilots on the governments services.Level 1 would be available free of charge, at leastuntil the US and Russia review their policies regardingcharging for their signals. Level 2 and 3 would becontrolled access services, available to subscribers inreturn for fees. From the above, it may be correctlysurmised that I do not consider it unlawful to introducediscriminated service as long as the all users in thesame lass are offered the opportunity to make use of the
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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48low earth orbit. This commercial
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SESSION FOURExpanding Global Remote
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223Annex IITHIRD UNITED NATIONS CON
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