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

174 EXPANDING GLOBAL NAVIGATION SERVICESavailable facilities. Obviously, a hypothetical decisionby the European authorities to exempt Europeancommercial airlines from paying or a decision to reducethe amount payable by European commercial shipperswould not only be contestable under the MFN rules ofthe WTO but would be in stark violation o f the nodiscriminationprinciples as adopted under the ICAOCharter. It is doubtful that such a decision would beviolating the Outer Space Treaty while on the otherhand a decision to grant access to non-Europeanairlines access to the basic service on condition ofsubscribing to the Level 3 service would.On the other hand, denial o f service on politicalgrounds is a violation of the global access principle,particularly in relation to aviation and maritime usagewhere safety is of the essence. Where denial can forinstance not be justified on grounds of national securityor technical reasons, and where denial is so clearlyselectively applied to one country or a group ofcountries, given the global nature of GNSS and thegrowing dependence on it, that action by the providerstate should be considered in violation of the nondiscriminationprinciple. It is however important thatthis principle be strictly defined in order to avoidpossible abuse and danger to the provider state. Fromthat perspective, the state denied service could alsounder certain circumstances be made to justify why itstill needs to be granted access. This situation couldhowever only be applied in cases of blatant andcontinuous threat to use the technology as a weaponagainst the provider or any third state.Liability of the GNSS SpaceSegment ProviderGNSS liability should under nocircumstances be equated to liability oftelecommunications services101GNSS satellites have often been equated totelecommunications satellites. The rationale for suchaction is to be able to utilise the traditional disclaimersexisting in telecommunications law.While satellites broadcasting integrity andmonitoring information could be so equated, theprimary navigation satellites such as GPS, GLONASSand the planned Galileo are not. Though satellitemaintenance and correction data is transmitted from themaster control centres to the GNSS satellites, theprimary signals received from GPS and GLONASSsatellites are propagated independently from groundcontrol. The ephemeris data is generated on board,using atomic clocks and emitted quite independent ofhuman interference. Thus while communicationschannels are merely conduits, navigation satellites arenot.In addition to the technical issue, navigationsatellites would be playing a more important role in theassurance o f safety of life. In a sole means environment,where aircraft would have to depend on satellitenavigation systems, the unavailability o f such signalscould mean the death o f hundreds o f persons. Whilehuman loss is imaginable as a result of atelecommunications breakdown or unavailability, thelikelihood, extent and impact would pale compared witha navigation satellite failure.GNSS liability should therefore be seen for what itis—liability arising from a error in satellite navigationandnot be saddled with telecommunications lawdisclaimers.GNSS space segment providers shouldbe held liable in international law fordamage to persons and property arisingfrom errors in or unannouncedunavailability of GNSS signals101 Henaku, op.cit. note 3 p. 172. On disclaimers, see p 220.The thrust of this thesis is to accept the fact thatdamage arising from the crash or collision of aircraft,which event is caused by errors in or the unannounced