We live in a world of guided missiles and misguided men. — Martin Luther King, Jr. A grave concern confronting the civil aviation community is that, with the proliferation of military activity will inevitablyMore
The International Day of the Air Traffic Controller is celebrated on October 20th each year. This day marks the anniversary of IFATCA (International Federation of Air Traffic Controllers’ Associations), which was founded on the 20th October 1961.
The air navigation system comprises the aggregate of organizations, people, infrastructure, equipment, procedures, rules, and information used to provide the airspace users with air navigation services including air traffic services. “Air traffic service” is a generic term meaning variously, flight information service, alerting service, air traffic advisory service, and air traffic control service. Air traffic control services comprise three services: area control service, which provides air traffic control services for controlled flights; approach control service which guides aircraft approaching a State’s territory and aerodrome control service, which relates to the provision of air traffic control services for aerodrome traffic
In the earliest days of aviation, so few aircraft were in the skies that there was little need for ground-based control of aircraft. In Europe, though, aircraft were often flown in different countries, and it soon became apparent that some kind of standard rules were needed. In 1919, the International Commission for Air Navigation (ICAN) was created to develop “General Rules for Air Traffic.” Its rules and procedures were applied in most countries where aircraft operated.
Air Traffic Controller’s Duties
To many of those uninitiated to this valuable and critically important profession, it sounds as though anyone can direct a plane. In fact, it is just the opposite. It is both an arduous and precision-oriented job which cannot be done just by anyone. It requires specially trained professionals who have to be alert every minute during which they are on duty at the control tower. Globally, air traffic control services offer information relayed by people by means of radio communication involving extremely short time periods and using a standard set of terminology in the English language, even in regions of the world where English is not the first language.
The Global Air Navigation Plan of the International Civil Aviation Organization (ICAO) says: “ “The air traffic controller’s job consists of complex tasks demanding a high degree of skill and active application of unique cognitive abilities such as spatial perception, information processing, reasoning and decision making. The controller must know where all the aircraft under his/her responsibility are and determine how and when to take action to ensure that they remain separated from each other, while also seeing to their requests and needs for descent, climb, take off, departure etc”.
There are no international rules governing the liability of the air traffic controller. However, there are various international guidelines that would give individual States both an impetus and direction to enact their own internal laws in this regard. Article 28 of the Chicago Convention provides an overarching requirement that obligates contracting States to provide in their territories airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices established from time to time pursuant to the Convention. The “other air navigation facilities” referred to in article 28 of the Chicago Convention include Air Traffic Services, which is a combination of services provided to support the safe and expeditious flow of air traffic.
ICAO has established Standards and Recommended Practices for licensing of air traffic controllers. Part of this licensing process recognizes that there are prescribed ICAO language proficiency requirements based on a proficiency rating scale identifying Holistic Descriptors. These descriptors in turn require the air traffic controller, as a proficient speaker, to communicate effectively in voice only (telephone/radiotelephone) and in face to face situations; communicate on common, concrete and work related topics with accuracy and clarity; use appropriate communicative strategies to exchange messages and to recognize and resolve misunderstandings in a general and work related context; handle successfully and with relative ease the linguistic challenges presented by a complication or unexpected turn of events that occurs within the context of a routine work situation or communicative task with which the air traffic controller is otherwise familiar; and use a dialect or accent which is intelligible to the aeronautical community.
Responsibility and Liability
The provision of air traffic control services is the responsibility of the State, but it can delegate this responsibility to private entities. which does not derogate the accountability of the State for damage caused by such entities.
In August 2006, a Swiss court indicted eight employees of the Swiss air traffic control authority, Skyguide, for their involvement in the plane crash which occurred in 2002 in Ueberlingen.. The Skyguide staff were charged with negligent manslaughter for their role in the air crash in which 71 people died when two jets collided over Swiss-controlled airspace in southern Germany. The defendants were accused of organizational shortcomings that led to a single air traffic controller being left in charge of the area where the crash occurred on July 1, 2002, and with providing insufficient information to him about technical work in progress that decisively affected the communications and radar systems. In their report, German investigators stated that Skyguide’s main control tower radar had been switched off and the main telephone line was down.
In a parallel development, a German court ruled that Germany wrongly subcontracted its airspace control to Skyguide and was partly liable for the damage caused. The ruling was in response to a civil lawsuit filed by the Russian airline company that owned the passenger jet. However, common law courts, particularly in the United States, have not strictly adhered to this overarching concept. In a world of congested airways, the additional problem of faulty communication between the players involved, particularly the air traffic controller and the technical crew of an aircraft in flight, does not help.
Liability issues of an air traffic controller are intrinsically linked to the controller’s relationship with the pilot with whom the former communicates. This relationship, between the controller and the pilot, has been called the “continuum of dependence”. It has been generally recognized that the fundamental principle of liability is based on whether the pilot was flying under Visual Flight Rules (VFR) which gives the pilot absolute freedom to manoeuvre his aircraft, or Instrument Flight Rules (IFR) when visibility could be nil. In the former instance, the air traffic controller would not be generally held liable for a midair collision as the pilot has full visibility. This is based on the pilot’s responsibility to “see and be seen”.
There is no doubt that liability of the air traffic controller is an expanding concept and the continuum of dependence is no longer an absolute concept. Courts are showing a greater willingness to ascribe to the controller liability for negligent performance of duty, irrespective of whether such duty is incorporated or inscribed in the Air Traffic Control Procedures Manual and the extent to which the pilot is required to adhere to instructions therein. In the 1975 US case of Baker v. United States, the Court held that the manual cannot be considered as “the Bible” of air traffic control or a set of regulations having the force of law.
Air traffic controllers cannot shift liability to the State on the basis of State responsibility to provide air traffic services, which is a responsibility recognized by the Chicago Convention. A case in point, was in Eastern Airlines v. Union Trust Co. which established the rule that air traffic controllers had no discretion to be negligent in their work and that they could not shelter themselves behind the fact that they worked for an instrumentality of State in matters pertaining to their individual liability which clearly established liability criteria regarding the provision of air navigation services in the United States
ICAO has called on States to make improvements to the air traffic management system through supporting software that could assist the controller with conflict prediction, detection, advisory and resolution.1ICAO’s focus of concentration is on a unified strategy which establishes a mechanism integrating the efforts to increase transparency and disclosure of safety related information. Although the unified strategy extends to encompass all areas of safety of flight including airworthiness, it is incontrovertible that the overall philosophy of the strategy will apply to the provision of air navigation services as well.
One of the most fundamental aims of ICAO is to ensure the safe and orderly development of international civil aviation. To this end, and as part of its unified strategy, ICAO suggested the establishment of regional safety oversight organizations along the lines of European Aviation Safety Agency (EASA) of Europe. Responsibility of the State to ensure the provision of air navigation services is immutable, and as stated earlier, there is no legal impediment to a State handing over the physical task of provision of services to a private entity while retaining its oversight role. Within the overarching umbrella of State responsibility, there are various models of air navigation service providers.
Accordingly, in the present context, it is common to see a State largely in a supervisory role retaining its ownership of air space, drafting national legislation; determining governance over air navigation service providers; continuing to hold responsibility for certification and designation of service providers a well as setting regulations, while the service provider provides a public function in managing airspace with the broad spectrum of safety and efficiency.
We live in a world of guided missiles and misguided men. — Martin Luther King, Jr.
A grave concern confronting the civil aviation community is that, with the proliferation of military activity will inevitably come the endangerment of air routes.
While the 41st Session of the Assembly of the International Civil Aviation Organization (ICAO) was going on last week, The Democratic Peoples’ Republic of Korea (DPRK, which is a member of ICAO), launched, without prior notification to the international community, two short-range ballistic missiles 22 minutes apart on a trajectory over its eastern waters, seemingly in defiance of the redeployment of an aircraft carrier by the United States near the Korean Peninsula, which had been in response to Pyongyang’s previous launch of a nuclear-capable missile over Japan.
A missile is “a guided airborne ranged weapon capable of self-propelled flight usually by a jet engine or rocket motor”. Missiles are also known as guided missiles or guided rockets. Missile launching by North Korea has been conducted in recent times with contumacious disregard of sanctions already imposed on the country, prompting some to say that North Korea might be aiming at international recognition of its might as a nuclear State, and coercing the international community to lift sanctions imposed against it. The recent launches were ominous in that they landed between the Korean Peninsula and Japan. The first missile flew 350 kilometers (217 miles) and reached a maximum altitude of 80 kilometers (50 miles) and the second flew 800 kilometers (497 miles) on an apogee of 60 kilometers (37 miles). Japanese Prime Minister Fumio Kishida called the launches “absolutely intolerable”.
This contentious issue has a long history which can be traced back to nearly 24 years. The consequences of the nuclear missile firings of 5 July 2006 by DPRK brought to bear the hazards and grave dangers such activities pose to civil aviation. In this instance, missiles launched by DPRK crossed several international air routes over the high seas. It was revealed that, when extrapolating the projected paths of some of the missiles, it appeared that they could have interfered with many air routes, both over Japan and the air space of the North Pacific Ocean. This is not the first instance of its kind. A similar incident took place on 31 August 1998 in the same vicinity in which the North Korean missiles were fired in July 2006. An object propelled by rockets was launched by North Korea and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in north-eastern Japan.
The impact area of the object was in the vicinity of the international airway A590 which is known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day. The member States of ICAO at the 32nd Session of the Assembly (Montreal 22 September–2 October 1998) adopted Resolution A32-6 (Safety of Navigation) which considered that, on August 31, 1998, an object propelled by rockets was launched by a certain Contracting State and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in North-eastern Japan and that the impact area of the object was in the vicinity of the international airway A590 which was known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day and concluded that the launching of such an object vehicle was done in a way not compatible with the fundamental principles, standards and recommended practices of the Convention on International Civil Aviation (Chicago Convention) and noted that it was necessary that international aviation should be developed in a safe and orderly manner, and that the Member States of ICAO will take appropriate measures to enhance further the safety of international civil aviation.
The ICAO Response
ICAO’s response at the currently ongoing Assembly – which concludes on 7 October of this year – was to consider a draft resolution titled Unannounced missile launches by the Democratic People’s Republic of Korea anchored on earlier United Nations Security Council Resolutions 1718 (2006), 2087 (2013), 2270 which demanded that the Democratic People’s Republic of Korea not conduct any launch using ballistic missile technology and strongly condemning the Democratic People’s Republic of Korea when doing so, in violation and flagrant disregard of the Security Council’s Resolutions. In adopting these resolutions, the United Nations Security Council cited Chapter VII of the United Nations Charter which sets out the UN Security Council ‘s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and nonmilitary action to “restore international peace and security”.
The ICAO Assembly recalled that on an earlier occasion the ICAO Council had, on 6 October 2017, expressed its strong condemnation of the continued launching of ballistic missiles by the Democratic People’s Republic of Korea over or near international routes without advance notification, which seriously threatens the safety of international civil aviation and represents a serious risk to international civil aviation, affirmed that the ICAO Secretariat should avoid all technical activities with the Democratic People’s Republic of Korea, of a direct or indirect nature The Assembly also noted that the ICAO Council, on 1 June 2022, had condemned in the strongest possible terms the recent spate of unannounced missile launches and urged the Democratic People’s Republic of Korea to act in accordance with and respect for the Chicago Convention , and to comply with applicable ICAO Standards and Recommended Practices.
Mention of the Chicago Convention brings to bear many facts. The ICAO Assembly noted the matter of unannounced missile launches had been brought to its attention by the Council of ICAO under Article 54 k) of the Chicago Convention, which provides that the Council had a mandatory duty to Report to the Assembly any infraction of the Convention where a contracting State has failed to take appropriate action within a reasonable time after notice of the infraction.
From an aeronautical perspective, Annex 11 (Air Traffic Services) to the Chicago Convention, which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft. Annex 2 to the Convention (on rules of the air) contain provisions for co-ordination between military authorities and air traffic services and co-ordination of activities potentially hazardous to civil aircraft. These provisions specify that air traffic services authorities must establish and maintain close co-operation with military authorities responsible for activities that may affect flights of civil aircraft. The provisions also prescribe that the arrangements for activities potentially hazardous to civil aircraft must be coordinated with the appropriate air traffic services authorities and that the objective of this co-ordination must be to achieve the best arrangements which will avoid hazards to civil aircraft and minimize interference with the normal operations of such aircraft.
Annex 2 also stipulates those arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, must be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention. Standard Annex 11 explains that the objective of the coordination referred to in the earlier provision must be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft.
ICAO has no jurisdiction over military activities per se in the context of a State’s decision on its military activities. What is discussed above pertains solely to dangers posed to civil aviation by uncoordinated military activities in the air. In this context what is relevant is coordination between civil and military activities. Article 3 c) of the Chicago Convention states that no state aircraft of a contracting State must fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. Of course, this applies to military aircraft and not to guided missiles which are by definition guided military weapons that are stabilized in altitude either by remote control or by a mechanism within themselves.
Although ICAO Resolutions are nothing more than the outcome of political compromises and no legal legitimacy can be ascribed to them, it must be admitted that the Resolution of the 41st Session of ICAO’s Assembly is at least a condemnation of the missile launching by North Korea. What is needed in addition is a concentrated effort by the members of the United Nations (which are also ICAO member States) to enter into a concrete and effective agreement that would protect civil air transport from pernicious military activities in the air.
On October 2009 ICAO took a proactive step by convening, in collaboration inter alia with NATO and EUROCONTROL (European Organization for the Safety of Air Navigation), The Global Air Traffic Management Forum On Civil/Military Cooperation which discussed subjects such as understanding common requirements and diverse operating needs; the need to move toward a more interoperable and seamless Global Air Navigation System; security and sovereignty considerations; Unmanned Aircraft Systems (UAS): Needs and challenges; and regional and national airspace planning.
It might be worthwhile to expand this event at a global level with the military authorities of ICAO member States.
Owning a drone does not a pilot make ~ Alex Morritt
Once every three years (unless otherwise convened) the international aviation community emerges in all its collectivity to gather at the Assembly of the International Civil Aviation Organization (ICAO). The 41st of such Assemblies was convened on 27 September this year and will go on discussing matters affecting international civil aviation until it concludes on 7 October.
One of the much-discussed items in the past as well as the present (and which will go on in the future) is the remotely piloted aircraft system (RPAS) which has been defined by ICAO as “an unmanned aircraft that is flown from a remote pilot station”. This definition per force and per se is elusive in its epistemic sense in that the fact that the title RPAS connotes that the aircraft is “piloted” means it requires a pilot whereas the definition requires the plane only to be “flown” from a remote location which could also mean that the aircraft could have some degree of being controlled by human involvement, thus making RPAS different in analogy from say, a driverless car.
Technically, a drone is a remotely piloted aircraft (RPA) and is just one type of unmanned aircraft. Drones include elements such as ground control stations, data links and other support equipment. A similar term is an unmanned-aircraft vehicle system (UAVS), remotely piloted aerial vehicle (RPAV), remotely piloted aircraft system (RPAS). Drones are intrinsically linked to air traffic management and air traffic growth which doubles once every 15 years. This growth can present a conundrum. On one hand, traffic growth is a sign of increased living standards, social mobility and generalized prosperity. On the other hand, air traffic growth can lead to increased safety risks if it is not properly supported by the regulatory framework and infrastructure needed.
The importance of RPAS to aviation is significant in the current context as it is used in multifarious scenarios and practices such as geology and mapping; recreation and health care; archaeology and forestry; forensics and missing person searches; firefighting and rescue. Additionally, RPAS is used in television production as well as tracking migration and drug trafficking and human smuggling, along with border control. RPAS also comes in handy in rapidly diversifying commercial uses such as goods transport and the transport of medical supplies and agro-food, as well as precision driven aerial photography.
Some confusion arises when this definition is often associated with the fundamental principle enunciated in Article 8 of the Convention on International Civil Aviation (otherwise known as the Chicago Convention) the provisions of which ICAO is bound to adhere to in its work (as ICAO was created by the Convention) which says: “No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization of that State and in accordance with the terms of such authorization. Each contracting State undertakes to ensure that the flight of such aircraft without a pilot in regions open to civil aircraft should be so controlled as to obviate danger to civil aircraft.
The perceived clash between the formal definition of RPAS (which cannot be flown without a pilot (in or outside the flight deck) and the Chicago Convention which envisions an aircraft flown without a pilot has still not been clearly addressed by the legal community. However, the two concepts are used in symbiosis when RPAS is discussed. ICAO states, in its Manual on Remotely Piloted Aircraft, that a RPAS is just one type of unmanned aircraft and that all unmanned aircraft, whether remotely piloted, fully autonomous or combinations thereof, are subject to the provisions of Article 8 of the Chicago Convention . Here, one sees an extension of the principle in the Chicago Convention that applies only to aircraft capable of being flown “without a pilot” to “remotely piloted aircraft” in in the Manual. This indeed is a problem in semantics that deserves further discussion.
At the 41st Session of the ICAO Assembly, the Legal Commission of the Assembly was presented with a working paper which inter alia pointed out that “the increase in RPAS operations presents the challenge of keeping State airspace safe. This has prompted States to develop new standards and update existing ones, to ensure that basic rules of operation are followed in national airspace, both controlled and uncontrolled. However, because this is a work in progress, little to no attention has been given to the possibility of civil liability arising from this type of activity, and the potential remedies for damages caused to persons or property by such aircraft”.
The paper called for an air law instrument that would introduce and implement “an international juridical regime that gives States a legally valid instrument to determine civil liability for injury or damage caused by RPAS operations, in view of the growth of such operations for purposes of recreation, aerial work such as photography and recording, aerial cartography, agriculture and agro-food, goods transport, emergency medical units, and delivery of medicines to remote locations among other commercial activities”.
The ICAO Secretariat acknowledged the relevance of this issue in the Secretariat Study Group on Legal Issues related to Pilotless Aircraft (SSG-LIPA).
To begin with, there is significant background information already provided in ICAO documentation although admittedly, none of it pertains to a liability instrument pertaining to RPAS. For example, the ICAO circular on Unmanned Aircraft Systems (UAS) (Cir 328) which contains explanatory information related to remotely piloted aircraft systems. Annex 6 to the Chicago Convention provides that a remotely piloted aircraft system engaged in international air navigation must not be operated without appropriate authorization from the State from which the take-off of the remotely piloted aircraft (RPA) is made. Also, an RPA must not be operated across the territory of another State without special authorization issued by each State in which the flight is to operate. This authorization may be in the form of agreements between the States involved.
An RPA must not be operated over the high seas without prior coordination with the appropriate ATS authority. The authorization and coordination must be obtained prior to take-off if there is reasonable expectation, when planning the operation, that the aircraft may enter the airspace concerned. An RPAS must be operated in accordance with conditions specified by the State of Registry, the State of the Operator, if different, and the State(s) in which the flight is to operate. Flight plans must be submitted in accordance with provisions of the Annex or as otherwise mandated by the State(s) in which the flight is to operate. RPAS must meet the performance and equipment carriage requirements for the specific airspace in which the flight is to operate.
Before disaggregating RPAS into legal principles, there needs to be a discussion on some fundamental issues: RPAS, at least theoretically, can operate in two scenarios – international civil aviation and domestic aviation (within countries); RPAS (to the best of the writer’s knowledge) is not engaged in either international or domestic commercial air transportation; ICAO’s aims and objectives are exclusively focused on international civil aviation; there is already an international liability regime for accidents and liability arising thereof where the damage which causes death or injury to passengers on board or when they are in the process of embarkation or disembarkation can be compensated; in the context of cargo the existing international legal regime says that the carrier is liable for damage sustained in the event of the destruction, loss of, or damage to cargo, upon condition only that the event which caused the damage took place during carriage by air, unless the carrier can prove that the damage resulted from inherent defect, quality or vice of the cargo; defective packing by a person other than the carrier, its servants or agents; an act of war or armed conflict, or; an act of public authority in connection with entry, exit or transit of the cargo; there is already an international liability regime for damage caused by aircraft to third parties or property on the ground; ICAO has no jurisdiction in purely domestic operations of RPAS which are the remit of sovereign States and their legislatures.
So, what is left to discuss?