I have been called upon to speak to the topic “The Legal Framework of Aeronautical Communications Functions as Embedded in ICAO, NCARs and Other Countries’ Regulations”. However, having regard to the distinctiveness of this audience and the thrust of this Annual General Meeting/Conference, I have been led to adjust the topic and have chosen rather to speak on the topic “The Legal and Operational Frameworks of Aeronautical Communications’ Jobs and Functions”. This is because it will be practically impossible to conceive of the legal dimensions of a set of functionalities without having the need to paint a vivid picture of the operational ramifications of the functionalities. On the other hand, operational issues cannot possibly be conceptualized without exploring the legal and regulatory framework within which the operational contexts are situated.

Aside from this, the subject-matter of aeronautical communications revolves around the safety-critical nature of appropriately formatted and channeled data and information in furtherance of the safety and efficiency of air navigation. So, practices and performance are guided by procedural and regulatory signposts.

A yet another motivation for the choice of this topic may well be the ongoing unhealthy practices within the ANSP environment regarding certain jobs and functionalities that have been unambiguously defined by international SARPs.

THE GLOBAL FRAMEWORK OF CIVIL AVIATION

The global framework of civil aviation operations is anchored on a set of clearly defined and internationally agreed legal, policy, regulatory, methodological and operational frameworks, which prescribe advisory, mandatory, prescriptive or discretionary requirements in respect of activities and interactions within the international civil aviation ecosystem. The overall intention, of course, is the promotion of the safety, security, efficiency, regularity and sustainable development of civil aviation operations.

From both the legal and operational vantage points, the locus classicus of the global framework of civil aviation operations is the Convention on International Civil Aviation, otherwise referred to as the Chicago Convention 1944. Aside from being the instrument that established the International Civil Aviation Organization (ICAO) as a specialized United Nations (UN) agency in accordance with Articles 91(b) and 92(b) of the Convention, the Chicago Convention also embodies Annexes which have the status of international Standards and Recommended Practices (SARPs); Standards being specifications in terms of personnel, procedures, performance, characteristics, material and configuration the uniform application of which is necessary or mandatory for the safety or regularity of international air navigation. Recommended Practices, on the other hand, are specifications in terms of personnel, procedures, performance, characteristics, material and configuration, the uniform application of which is desirable for the safety, efficiency and regularity of international air navigation. All Contracting States of the International Civil Aviation Organization have an obligation in terms of conformance with both Standards and Recommended Practices, pursuant to the provisions of Article 37 to the Convention on International Civil Aviation.

Today, there are a total of 19 Annexes to the Chicago Convention, up from 18 Annexes following the addition of Annex 19 on Safety Management System. It is worth noting that with the 19 Annexes to the Chicago Convention, there are also over 12,000 SARPs, which may be prescriptive, practice or procedure-related and performance-related, although some of these SARPs may assume better representation within a PANS (Procedures for Air Navigation Services) document.

An integral part of the global civil aviation legal framework are a total of five (5) Procedures for Air Navigation Services (PANS), which, frankly speaking, do not enjoy the same status as SARPs. This is because while SARPs are adopted by the ICAO Council in line with Article 37 to the Chicago Convention, subject to the full procedure enshrined in Article 90 to the Convention, PANS are rather approved by the Council and subsequently recommended to Contracting States for worldwide application.

It is worth stating at this juncture that the regulatory, operational and procedural frameworks in place at national, sub-regional and regional levels of civil aviation operations are indeed a domestication of the Chicago Convention, its Annexes and PANS, subject, of course, to the requirements for uniformity imposed by Article 37 to the Convention as well as the waiver enshrined in Article 38 to the Convention.

FRAMEWORKS OF AERONAUTICAL COMMUNICATIONS OPERATIONS

The operational imperatives of aeronautical communications operations are premised upon the safety, efficiency and security of air navigation, which form the crux of a number of Articles to the Chicago Convention, particularly Articles 12, 21, 23, 25, 26, 28, 32 and 37. Of particular significance is Article 28, which defines the obligations of States, as far as they may find practicable, in accordance with the SARPs established under the Convention and in respect of:

• The provision of airports, radio services, meteorological services and other navigation facilities to facilitate international air navigation;
• The adoption and operationalization of the appropriate standard systems of communications procedures, codes, markings, signals, lighting and other operational practices; and
• Collaboration in international measures aimed at securing the publication of aeronautical maps and charts in accordance with established or recommended standards.

Consequently, the aeronautical communications jobs and functionalities are rooted in the Convention on International Civil Aviation. Specifically, the regulatory, procedural and operational frameworks for the provision of aeronautical communications services are established in Annex 10 to the Chicago Convention. These frameworks remain in place as far as the Annex establishing them are in force. Volumes II (Communication Procedures including those with PANS Status) and III (Communication System) of the Annex as well as other technical and guidance documents outline and define the legal, procedural and operational frameworks for the provision of aeronautical communications services by States, pursuant to the obligations provided for in Article 28 to the Convention. These established frameworks relate directly to communication via the Aeronautical Fixed Service (AFS) involving the processing, storage, transmission and reception of aeronautical and non-aeronautical messages including all forms of ATS messages. Nothing has impeached the performance of these functions by aeronautical communicators as long as Annex 10 to the Chicago Convention remains in force.

And coming to talk about it, there are clearly no ambiguities when it comes to the prescriptions established in the Annexes to the Convention on International Civil Aviation. Rather, consequential adjustments or amendments are provided to maintain coherence among the Annexes.

THE NIGERIAN REGULATORY FRAMEWORKS

It is important, at this juncture, to examine the legal and operational frameworks for the provision of aeronautical communications services in Nigeria vis-à-vis the regulatory, organizational and oversight structures established by the Nigeria Civil Aviation Authority (NCAA). It is also important to interrogate the robustness and adequacy of the regulatory structures in place as far as the provision of aeronautical communications services is concerned.

In exercise of its obligations under the Convention on International Civil Aviation, the Nigeria Civil Aviation Authority (NCAA) promulgates the Nigeria Civil Aviation Regulations, Nig. CARs, which are essentially a domestication of international SARPs and procedures for air navigation. The promulgation of these regulations as well as issues surrounding their amendment are facilitated by a rule making process defined in the Authority’s Rule Making Policy and Procedure Manual (PPM), which may be amended every twelve (12) months to sustain its dynamism.

As far as the provision of aeronautical communications services in Nigeria is concerned, the NCAA has, since 2006, been implementing standards for certifying the competence of aeronautical communications personnel in the discharge of its responsibility under Annex 1 – Personnel Licensing – to the Convention and in the exercise of the priviledge under Article 32 to the Chicago Convention.

The legal framework for a standardized system for regulating issues relating to the competence and the certification or licensing of aeronautical communications personnel is enshrined in Nigeria Civil Aviation Regulations (Nig. CARs) Part 2. Sub-section 2.2.1.1 (a) (10) of this Part, which essentially aligns with subsection 1.2 (b) of Annex 1 to the Chicago Convention, provides for the issuance by NCAA of the Aeronautical Station Operator (ASO) licence to aeronautical communications personnel who satisfactorily accomplish the requirements in the same Part. Section 2.9 of the same Part, which aligns with Section 4.7 of Annex 1 – Personnel Licensing – to the Chicago Convention, prescribes the requirements for the issue, renewal or re-issue of the ASO licence. It should be stressed here that section 4.7 of Annex 1 to the Chicago Convention clearly precludes personnel providing Aerodrome Flight Information Service (AFIS) as far as the holding of ASO licence is concerned, while making reference to Circular 211 (Aerodrome Flight Information Service – AFIS) for the necessary guidance relating to the qualifications to be met by AFIS personnel.

It should be noted that Subsection 2.2.2 of the same Part of Nig. CARs provides the legal framework for the identification of an aeronautical station operator (ASO) licence  holder as an integral part of airmen that are required to demonstrate the ability to speak and understand the language used for radio telephony communications in English Language to the Operational Level (s) specified in the language proficiency requirements in the IS (Implementing Standards) 2.2.2 of the same Part of the Nig. CARs. It is highly instructive to observe here that in Kenya, where a robust regulatory framework exists for the oversight of aeronautical communications services, aeronautical communicators are actively involved in the control of air traffic over the Kenyan oceanic airspace, deploying their proficiency in radio telephony communications as prescribed in ICAO Annex 10 Volume II, ICAO Doc 9432 (Manual of Radiotelephony) and other technical and guidance documents.

And that’s as far as what’s in the Nigerian regulatory framework is concerned. As far as what’s out is concerned, it is important to point out here a great omission in the Nigerian regulatory and organizational frameworks, which the NCAA has a duty to rectify using its Rule Making Process, Policy and Procedures as defined in the Authority’s MPP. This phenomenal omission relates to the absence of a regulatory cum organizational framework as well as an oversight mechanism for a set of jobs and functionalities that has been legally authorized through a licence regime administered by the Authority, especially under its obligations as reflected in Annex 1 to the Chicago Convention.

It is quite alarming that Part 14 – Air Navigation Services – of Nig. CARs inadvertently excludes a safety-critical professional area that forms an integral part of the functionalities that drive the safety, efficiency and sustainable development of international air navigation through the timely interchange of safety-critical aeronautical messages. In sharp contrast to what is applicable in a number of States, for example Sri Lanka and Kenya where appropriate regulatory and oversight prescriptions are in place for the provision of aeronautical communications services, Part 14 of Nig. CARs clearly excludes Aeronautical Communications Services. The direct implications of this are:

• The absence of regulatory requirements for the provision of Aeronautical Communications Services in Nigeria, the existence of a mechanism for certifying the competence of aeronautical communications personnel notwithstanding;
• The absence of regulatory, procedural and operational frameworks for the establishment of oversight technical expertise and administrative structures for the regulation of aeronautical communications services.
• The non-inclusion of specific regulatory and operational requirements for the provision of aeronautical communications services in Nig. CARs Part 14, based on standards prescribed in ICAO Annex 10 Volumes II and III.

The exclusion of Aeronautical Communications Services from Part 14 Nig. CARs negates Articles 22, 28 and 32 to the Chicago Convention, which separately speaks to: the adoption of measures to facilitate the safety of international air navigation through the establishment of specific regulations; the provision of services necessary for promoting safe, secure and regular air transport; and the certification of personnel.

The exclusion also negates Section 1.3, Part I of Doc 9379 – Manual of Procedures for Establishment and Management of a State’s Personnel Licensing System – which mandates States to establish appropriate regulatory and organizational structures as well as the necessary technical expertise in a situation of a set of critical functions whose performance has been authorized through the issuance of licences. It should be stressed that the inclusion of Aeronautical Communications Services in Nig. CARs Part 14 will help the Authority in satisfactorily accomplishing the critical elements of safety oversight under its obligations in respect of Doc 9734 (Safety Oversight Manual), especially CE-1, CE-2, CE-3, CE-4 and CE-6.