NON-CONTRACTUAL LIABILITIES FROM CIVILIAN VERSIONS OF GNSS: CURRENT TRENDS, LEGAL CHALLENGES AND POTENTIAL

Galileo is to be Europe’s own Global Navigation Satellite System (GNSS). It is expected to provide a highly accurate, guaranteed global positioning service under civilian control. It will be interoperable with the Global Positioning System (GPS), the US version of GNSS. Remarkably enough, whereas GPS was introduced as a purely military system, Galileo will be the first solely civilian GNSS, offering a great number of useful -everyday life- applications. It is expected to become fully operational by the year 2020 as part of Horizon 2020, the EU’s funding program for research and innovation.
For the operation of Galileo, advanced technology will need to be employed. A number of satellites will be placed into fixed orbits in outer space; the satellites will be constantly emitting navigational signals indicating their position at any given time and in a very precise way. The navigational signals will be received by any person possessing the necessary technology, such as a GNSS receiver (the so-called navis technology). When receiving the signals from at least four satellites, the receiver can accurately pinpoint the position of persons and goods around the globe. There will be many benefits in using this technology, such as more efficient navigation of different modes of transportation (i.e. navigation of planes or ships). Besides navigational data, Galileo satellites will provide information for timing and positioning. Hence, various applications concerned with the synchronization of economic networks (i.e. at banks or financial institutions) or scientific applications related to the environment and meteorology are expected to emerge. Nonetheless, where there are advantages, there are also risks and legal challenges. Questions relating to the civil liability of the Galileo’s system operator in the event of a GNSS failure -especially liabilities connected to signal provision in space- have attracted significant interest lately. For example, a failure in signal provision (i.e. signal loss or an erroneous signal) resulting from negligence with respect to the GNSS operator may lead to damage scenarios with catastrophic consequences: an aircraft crash in a densely populated area, or a shipwreck with disastrous effects for the environment would be two examples.
Following these observations, several questions must be asked from a liability law perspective. Inter alia: what are possible civil liability implications emanating from the advent of civilian versions of GNSS such as the EU’s Galileo? Can the provision of defective information from signals lead to liability implications? What would be the responses under current legal provisions? And lastly, what need may arise in the future for the initiation of a centralized approach, for instance a unified instrument, either at EU or international level, regulating liabilities for the signal in space provision?
Interestingly enough, once the first GNSS structures such as the US GPS or Russian GLONASS became operational, the issue of liability from a signal failure was not of such significant concern in light of their mostly military nature. Presently, the situation has changed to an important extent: due to the advent of new non-military versions such as Galileo, the issue of liability connected to the provision of navigational signals has become topical. This research aims at examining the foregoing questions related to civil liability implications (mainly non-contractual liabilities) from the perspective of civilian versions of GNSS. The EU’s Galileo will be the most prevailing example examined in the present study. The research attempts to investigate the civil liability ramifications especially from the GNSS-Galileo operator’s perspective. Since the governance issues surrounding the operation of Galileo are still subject to debate, the research features two hypothetical case studies: on the one hand, a public governance scheme with the EU operating the system and possible liabilities against the EU, and on the other hand, a private governance scheme with a private entity operating the system and potential liabilities towards the private operator. Both case studies are examined from a de lege lata and a de lege ferenda perspective. Yet, the present research attempts to identify some future proposals. As it is argued, the issue of GNSS liability should be first regulated at regional level rather than international level. In this respect, the EU could, for example, possibly promote a future EU Regulation. Moreover, and as established by the analysis of the present study, such a Regulation should contain two elements, a substantive and procedural one. For the resolution of disputes connected to signal provision in space, the rule of strict liability and liability channeling onto the operator from a substantive viewpoint may depict the peculiarities contained within the field of satellite navigation more efficiently. Most importantly, and as far as the resolution of such disputes is concerned, this study argues that binding arbitration may be a plausible and alternative option to be considered in the foreseeable future. To this end, certain inspirations can potentially be drawn by the new PCA Rules of Arbitration on Outer Space Disputes adopted recently in December 2011.