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
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Death is the handmaiden of the pilot. Sometimes it comes by accident, sometimes by an act of God. ~ Albert Scott Crossfield ~ Medical Aspects
On 11 March 2023 an article in the U.S. Sun reported that “a British Airways pilot collapsed and died shortly before he was due to captain a packed jet. He had been preparing to fly from Cairo in Egypt to Heathrow Airport but had a heart attack in the crew’s hotel”.
Infrequently, one hears news of such a sad event: of sudden pilot incapacitation and death, both while flying an aircraft and otherwise. The World Health Organization reported in 2020 that “in 2019, the top 10 causes of death accounted for 55% of the 55.4 million deaths worldwide. The top global causes of death, in order of total number of lives lost, are associated with three broad topics: cardiovascular (ischaemic heart disease, stroke), respiratory (chronic obstructive pulmonary disease, lower respiratory infections) and neonatal conditions – which include birth asphyxia and birth trauma, neonatal sepsis and infections, and preterm birth complications”. Of this, cardiovascular disease is one of the most prominent in occurrence.
Reports of pilot deaths, particularly while piloting aircraft, sometimes appear in media reports. Aviation, Space, and Environmental Medicine in 2012 recorded that “In 2004 there were 16,145 UK/JAR professional pilot license holders. Of the notified medical events, 36 presented as incapacitations; half were cardiac or cerebrovascular… There were four sudden deaths. The type of incapacitation varied with age. A male pilot in his 60s had 5 times the risk of incapacitation of a male pilot in his 40s. The annual incapacitation rate was 40/16,145 = 0.25%”.
BBC on 6 October 2015 reported that “Capt Michael Johnston, 57, was flying the plane with 147 passengers and five crew on board when he “passed away while at work”, as per the announcement of the airline. It was also revealed that he had double bypass surgery in 2006. Live Science of 27 September 2013 reported “ A pilot’s heart attack turned a United Airlines flight to Seattle into a dramatic scene where passengers attempted to save the pilot’s life, and one helped the co-pilot make an emergency landing in Boise, Idaho. The pilot died at the hospital, according to news reports. A midair heart attack is a scary scenario for sure, but the incident last night (Sept. 26) was unusual — heart attacks on flights are rare, and deaths are even rarer. A study of medical emergencies on five major airlines over a nearly three-year period showed that, of the 12,000 passengers who experienced some form of medical emergency during a flight, 0.3 percent (38 people) suffered cardiac arrest, in which the heart stops. The number who died over the study period was 31, according to the study, which was published in May in the New England Journal of Medicine”.
Aviation, Space and Environmental Medicine in March 2004 went on to say “The Chicago Convention in 1944 to standardize practices where uniformity would improve air navigation. In subsequent annexes to the original convention, the regulations that standardize personnel licensing and rules of the air were established that guide the medical requirements for pilots and aircrew today. After evaluation of available data and the potential risks at different times during a flight, ICAO set a goal of less than 1% risk of pilot incapacitation per year to guide the standards for medical examinations. Gastrointestinal issues, earaches, faintness, headache, and vertigo are the most common causes of incapacitation. Less common but more dangerous debilitations such as alcohol intoxication and sudden cardiac death have been implicated in mishaps, so screening for these risks carries high importance”.
Medical assessments carried out periodically on pilots are generally indicative of a pilot’s health but are not a guarantee against unforeseen health conditions.
The Aeromedical Office of the Airline Pilots Association reports that approximately 42 persons with rhythm disturbances contact the office annually. “Over one half of these persons have experienced syncopal episodes, with 5 to 10 in-cockpit syncopes per year. In a review of 102 syncopes over 5 years, less than half were attributed to ventricular arrhythmias. The majority of individuals with ventricular arrhythmias were permanently disqualified from flying, while most individuals with syncope believed to be bradyarrhythmic returned to flight after evaluation.
In Western Europe cardiovascular causes are the most common cause of loss of flying license, and the main cause for disqualification of pilots on medical grounds is cardiac arrhythmia – frequent ventricular premature beats, nonsustained VT, and paroxysmal atrial fibrillation were the most common problem arrhythmias
The evidence suggests that the incapacitation risk limits used by some states, particularly for cardiovascular disease, may be too restrictive when compared with other aircraft systems, and may adversely affect flight safety if experienced pilots are retired on overly stringent medical grounds. States using the 1% rule should consider relaxing the maximum acceptable sudden incapacitation risk to 2% per year”.
Legal and Regulatory Aspects
Legally, a pilot is in a special category: the same as a surgeon who is in charge of a person’s health and a can driver or bus driver in charge of a passenger’s security. Only, a pilot has to ensure the safety of hundreds of passengers all at once. Inasmuch as an airline would be guilty of negligent entrustment in handing over a plane full of passengers to an improperly licensed pilot, a pilot would be guilty of gross negligence – the highest form of negligence – if she jeopardizes the security and safety of the passenger in her charge.
The International Civil Aviation Organization addresses the issue of pilot’s health requirements under Annex 1 (Personnel Licensing) to the Chicago Convention of 1944 and provides further guidance in Procedures and requirements for the assessment of medical fitness which are contained in the Manual of Civil Aviation Medicine (Doc 8984). The International Air Transport Association (IATA) – the trade association of airlines – in its guidelines for flight crew requires the following: the absence of any medical condition or any suspected medical condition that may lead to any form of acute functional incapacity; the absence of any existing or former medical condition – acute, intermittent or chronic – that leads or may lead to any form of functional incapacity; the absence of any use of medication or substances which may impair functional capacity; minimal requirements to the necessary functions such as vision and hearing.
ICAO’s Annex 1 provides that, to satisfy the licensing requirements of medical fitness for the issue of various types of licenses, the applicant must meet certain appropriate medical requirements which are specified as three classes of Medical Assessment: Third Class: This is the most basic of the medical exams. It is required for those attempting to earn a student pilot license, recreational pilot license, and private pilot license.; Second Class: This one is required for anyone attempting to earn their commercial pilot license; First Class: A first class medical certificate is required in order to earn a airline transport pilot certificate.
The United States Federal Aviation Administration states that the main differences between these is how in depth the exam gets and how often you have to have it done. Much of the 3 tests are very similar although the first class medical exam is required to be done annually and includes an Electrocardiogram test if the applicant over the age of 40.
.Recommendation 1.2.4.2 of Annex 1 suggests that from 18 November 2010 States should apply, as part of their State safety programme, basic safety management principles to the medical assessment process of licence holders, that as a minimum include: routine analysis of in-flight incapacitation events and medical findings during medical assessments to identify areas of increased medical risk; and continuous re-evaluation of the medical assessment process to concentrate on identified areas of increased medical risk. This is followed by the recommendation that the period of validity of a Medical Assessment must begin on the day the medical examination is performed.
Here, validity means acceptance as truth or fact which would go towards recognizing a pilot’s suitability to fly an aircraft. An air carrier which wet leases an aircraft to another carrier would be guilty of negligent entrustment. So would any air carrier who employs pilots without checking if the pilot has a valid license.
Human Aspects
Although we tend to glamourize those in aviation, from the confident captain to the glamourous cabin attendant even down to the humble chap in overalls who helps put he aircraft in the sky, they are all human, like the rest of us, subject to the vulnerabilities of humanity. When the I was working at ICAO I once had a meeting with an airline pilot who had been commanding a flight from Europe to Asia. His young first officer, just 38 years old, had been complaining about a pain in his back on the onward flight to Europe. He had informed the captain that it was “just a backache” and that he would get it checked by his brother who was practicing medicine in the city they were bound for. On the return flight the next day, over Zurich, the first officer had mentioned to the captain that his back ache had returned and that he would leave the flight deck for a few minutes to rest. A few minutes later a visibly upset cabin crew member had rushed into the flight deck and told the captain that the first officer had died.
The captain had been grief-stricken as the first officer was a good friend as well as a trusted colleague He had to fly alone the rest of the flight, with mental acuity and equanimity, and when I asked him how he managed the flight he said the worst feeling was the feeling of loneliness in the flight deck, which was overwhelming. The flight deck is a lonely place, even if there are two persons in it. Dr. Vivek Murthy, one time Surgeon General of the United States writing in the Harvard Business Review said: “Loneliness is a growing health epidemic. We live in the most technologically connected age in the history of civilization, yet rates of loneliness have doubled since the 1980s. Today, over 40% of adults in America report feeling lonely, and research suggests that the real number may well be higher”.
Heart attacks often come from nowhere, with no prior warning. However, what must be borne in mind, in the case of pilots is that pilots have negative factors that affect them that other professionals may not have, such as crew fatigue due to overscheduling, disturbance of sleep cycles caused by night flying and missing family events and celebrations, not to mention being away from home constantly. The overbearing loneliness factor may add to this.
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“The loss of MH370 points us to an immediate need. A large commercial airliner going missing without a trace for so long is unprecedented in modern aviation. It must not happen again”. ~ Tony Tyler, Director General, International Air Transport Association (2014)
Just after midnight on 8 March 2014 A Boeing 777 Malaysian Airlines aircraft operating Flight MH 370 took off from Kuala Lumpur on its way to Beijing. 227 passengers and 12 crew were on board. A short time later, the aircraft was lost on radar between the air traffic control areas of Kuala Lumpur and Ho Chi Minh City. Neither the aircraft nor the passengers or anything related thereto has been found so far except for a part of a wing and a few other pieces seemingly coming from the aircraft which were found off the coast of the French Reunion islands, Madagascar, and Mozambique, spawning theories that the plane could have veered off to somewhere in the Indian Ocean – a fact claimed to have been supported by data driven evidence.
All that is known is that at around 1.01 a.m. the aircraft had reached an altitude of 10,700 meters. The source of data transmission in the aircraft – The Aircraft Communication Addressing and Reporting System (ACARS) – on the performance of the aircraft had send its last transmission at 1.07 am and blipped off at around 1:19 A.M. and at 1.21 the last communication from the crew had been recorded whereupon the plane’s communication between the aircraft and air traffic control ceased. This was when the transponder that communicated with the air-traffic control had got switched off just prior to Flight MH 370 entering Vietnamese airspace over the South China Sea.
The Theories
Theories – unsubstantiated by cogent proof – abound. Netflix last week came out with a three-part series which had three theories. One was that it was the pilot who veered off into the Indian Ocean from the designated flight path and crashed the plane in the sea after it ran out of fuel. The second theory was that someone or some people hijacked the aircraft and flew it perhaps to Kazakhstan. The third theory was that the plane was carrying dangerous cargo (which had been loaded in Kuala Lumpur under armed escort) bound for China which was effectively precluded from getting there, perhaps by someone carrying out an armed attack on the plane in mid air.
The three theories came “supported” by some incredible facts. With regard to the first theory, the pilot in command – a seemingly respectable and respected family man who had tons of experience as a pilot with no history of professional irregularity, could have knocked off the electronics, thus making the aircraft invisible to radar; de pressurised the cabin; and put all persons on board to sleep (while he had put on a long lasting oxygen mask and despatched the First Officer out of the flight deck and locked the door), just to trash the aircraft in the Indian Ocean when the fuel tanks emptied. This drastic theory was based on the fact that the pilot had applied a similar deviating route (of going way South into the Indian Ocean) on his home simulator for fun. Thankfully, all concerned ruled out the pilot theory, when the other two theories saw light.
The second theory was that there could have been a Russian connection, as three Russians were on board. One was in first class where here was a “trap door” on the floor, unlocked, which led down to the computer centre of the aircraft. One of these three, it was surmised, could have surreptitiously gone down and disabled all electronic functions of the aircraft, disabled the flight crew and taken the aircraft to say, Kazakhstan.
The third theory – interception – was that someone thought the huge consignment of dangerous and sensitive cargo should not have been allowed to get into the hands of the Chinese, therefore two large aircraft (with huge dishes of some sort fixed on them that could disrupt electronics on any object below them) flew over MH 370 and somehow and possibly “blew up” the aircraft when the captain of MH 370 refused the commands from above to land in some place like the Andaman Islands in the Indian Ocean. Or the aircraft may have landed somewhere in the Indonesian Islands and that is why there is no debris flying around.
Reparation for Loss
Watching this series, I felt intensely sorry for the families left behind who were interviewed. All of the above do not help the grieving father and husband who had lost his wife and two children; a wife whose husband left for Beijing for a job; and a young wife whose husband was a member of the cabin crew on the flight. They never returned.
Technically, as both Malaysia and China have ratified the Montreal Convention of 1999, the dependants are entitled to compensation for death or injury of the passengers on board (not the crew as they were under an employment contract with the airline). But there is a snag. The passengers are not proven to be dead or injured. This compensation would come from the insurers of the airline. As for Malaysia, as the aircraft bore the nationality of the State, some accountability would have to accrue. The BBC reported in 2014 that “the families of passengers on the missing Malaysian passenger plane have begun to receive initial compensation payments of $50,000 (£30,000). So far six Malaysian families and one Chinese family have received the money, and insurers are assessing the claims of 40 more Chinese families. Relatives of all 239 missing passengers can claim up to $175,000 each”. How this was computed was not revealed, although in the context of Malaysian Airlines, the Montreal Convention is clear – that once death or injury is established, there will be a preliminary sum of 100, 000 Special Drawing Rights (around 132,720 US $) which is paid with no questions asked. The plaintiffs can claim more than this amount but beyond the 100,000 SDRs the carrier can circumvent a claim for a higher amount if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
There is also a provision – Article 28 – which admits of advance payments or upfront payments if required by national law, where the carrier should make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments do not presuppose a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
My Take
This absolute mystery at this time of sophisticated technology available through the application of satellite tracking cries out the question “why can’t we have a system of global tracking of any aircraft wherever they are”? Admittedly, on the face of it this is a simple enough question. However, for there to be global tracking of airborne aircraft (or aircraft under the sea or anywhere in the world for that matter) there would have to be some sort of reporting apparatus installed in an aircraft. Of course, one size might not fit all types of aircraft and such a system might take years to perfect.
Whatever the cause might have been for us to believe “beyond reasonable doubt” that there are no survivors; or whether the aircraft disappeared as a result of human intervention or technical malfunction, it is not for us to question our faith in whatever religious doctrine we believe in. As someone crudely put it: “shit happens”.
Ultimately it boils down to the grief-stricken relatives who are still waiting for an answer from the authorities. There is no point in blaming divine intervention. We bring these things upon ourselves. Rabbi Kushner has some wise words to say in his book When Bad Things Happen to Good People: “The painful things that happen to us are not punishments for our misbehavior, nor are they in any way part of some grand design on God’s part. Because the tragedy is not God’s will, we need not feel hurt or betrayed by God when tragedy strikes. We can turn to Him for help in overcoming it, precisely because we can tell ourselves that God is as outraged by it as we are”. Rabbi Yitzchok Kirzner, in one of his articles alludes to the possibility that : “not everything that takes place in the world has a purpose or comes from God. Efforts to reconcile the existence of evil and suffering in the world with God’s justice are a waste of time because they proceed from the false premise that everything that takes place in the world comes from God and has a purpose”.
I believe it is definitely not appropriate to ascribe the disappearance of the aircraft to an inadequacy of divine intervention. As the Dalai Lama once said: “According to the Latin root of the word “religion” would mean “to bind again”. Now how does the concept of binding or tying up come to be applied as the common term for all our various teachings? The common enemy of all moral precepts laid down by the great teachers of mankind is selfishness of mind. For it is just this which causes ignorance, anger and passion which are at the root of all the troubles of the world”.
Perhaps it all boils down to randomness, which seems to leave me with no alternative but to accept Rabbi Kushner’s wise words: “If you have been brave enough to love, and sometimes you won and sometimes you lost; if you have cared enough to try, and sometimes it worked and sometimes it didn’t; if you have been bold enough to dream and found yourself with some dreams that came true and a lot of broken pieces of dreams that didn’t, that fell to earth and shattered, then you can look back from the mountaintop you now find yourself standing on, like Moses contemplating the tablets that would guide human behavior for a millennia, resting in the Ark alongside the broken fragments of an earlier dream. And you, like Moses, can realize how full your life has been and how richly you are blessed. ”
This is how I see the passengers of Flight MH 370 to whom these thoughts are lovingly dedicated. I am still hoping they will come back to us.
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Two possibilities exist: either we are alone in the universe or we are not alone. Both are equally terrifying. Arthur C. Clarke
All sorts of sightings seem to hover over American and Canadian skies these days.
On 13 February 2023 Brian Eversteen reported on Aviation Week that “President Joe Biden has ordered his national security team to begin a review of the policy implications of the series of sightings of unidentified objects that were then downed by U.S. fighter aircraft, as both U.S. and Canadian authorities attempt to recover debris and determine what the objects are.
U.S. fighters shot down a Chinese high-altitude surveillance balloon on Feb. 4. Then, over the course of three days (Feb. 10-12),they downed three other unidentified objects in Alaska, northern Canada, and Lake Huron near Michigan. Debris from the latter three objects have not yet been recovered, as crews face treacherous sea ice, wilderness and deep waters in the locations”.
It has been reported that some of these objects are “benign” – whatever that means, and also that they may not be alien objects. However, it has also been reported (in Free Press Journal FPJ) that the “Chief of the US North American Aerospace Defense Command (NORAD) and Northern Command, General Glen VanHerck stated that he has not ruled out the possibility of extraterrestrial origin behind the recent series of shoot-downs of unidentified flying objects in North American airspace”.
In this context, it is relevant to note that the military shoots down unexplained aerial phenomena (UAP) primarily because of the threat they may post to civilian air traffic. Another reason might be that these UAPs could pose a security threat to the country.
Some experts have (perhaps correctly) said that the appearance of the Chinese balloon should not have prompted the scheduled postponement of the Secretary of State Of the United States to Beijing, arguing that diplomacy must go on. Purely from both a geopolitical and strategic perspective, the idea of increased surveillance seems appropriate. However, President Biden’s call for a policy review on such sightings sounds both pragmatic and politically appropriate, given that the existing policy should first be carefully considered.
In 2021 The Office of The Director of National Intelligence of The United States issued a Preliminary Assessment: of Unidentified Aerial Phenomena – Airborne objects not immediately identifiable. This assessment stated: “The limited amount of high-quality reporting on unidentified aerial phenomena (UAP) hampers our ability to draw firm conclusions about the nature or intent of UAP…in a limited number of incidents, UAP reportedly appeared to exhibit unusual flight characteristics. These observations could be the result of sensor errors, spoofing, or observer misperception and require additional rigorous analysis. There are probably multiple types of UAP requiring different explanations based on the range of appearances and behaviors described in the available reporting. Our analysis of the data supports the construct that if and when individual UAP incidents are resolved they will fall into one of five potential explanatory categories: airborne clutter, natural atmospheric phenomena, USG or U.S. industry developmental programs, foreign adversary systems, and a catchall “other” bin”.
International Policy
International policy regarding UAPs emanating from terrestrial sources can be seen in Article 8 of the Chicago Convention of 1944 which provides that no pilotless aircraft can be flown over or land in the territory of a State without authorization of that State.
There is seemingly no known international policy or agreements on unexplained or unidentified arial phenomena that are of extraterrestrial origin. Avi Loeb writing to Scientific Journal in April 2021 says: “If extraterrestrials eventually arrive at our doorstep, the question is: how should we respond? Clearly, interstellar affairs are not an imminent policy concern for any nation at this moment, so there is no international protocol issued by the United Nations for what to do”. Much would depend on international policy and law on State sovereignty over airspace and the law and policy of individual States.
If in a hypothetical context, one of these UAP is brought down or arrive on land with beings on board, there is some policy that has been propounded, though not in a formal sense. In 1953, Andrew Haley – US attorney and former vice president of the International Astronautical Federation – put forward in an article he published some basic tenets that should be followed if we were to encounter aliens at wherever the meeting takes place: The principles Haley enunciated were a mixture of humanitarian law and natural law to the effect that aliens should be treated as any human would want to be treated, despite the fact that they come from somewhere else. This principle, later recognized as “metalaw had the following aspects: humans should not harm aliens; aliens and humans are equals; humans should recognize the will of aliens to live and to have safe space in which to do so.
There is also no known international policy on who would own extra-terrestrial resources or technology that falls on earth or is brought down. The international community may have to scramble (presumably in the United Nations) to carve out some principles. In this case, the fundamental question would be : would the State in whose territory the property lands own the property? Or, would the international community ascribe analogy that lies in the Outer Space Treaty (OST) – that property that comes from outer space is the province of all mankind? Would the analogy be taken from the Outer Space Treaty ( which incontrovertibly applies to activities in outer space) that prohibits national appropriation by claim of sovereignty, by means of use or occupation, or by any other means? Alex Gilbert and Morgan Brazilian writing in The National Interest say “While the ownership and use of space resources under the OST remains hotly debated, prevailing legal opinions increasingly indicate the use of space resources may be permitted”.
It remains to be seen.
National Policy
In the case of UAP that has its genesis terrestrially and falls on the territory of a sovereign State the picture is somewhat clearer as principles of State sovereignty – which have been extensively discussed and established – would take over, giving way to applicable laws within the territory of that State. In pursuance of Article 8 of the Chicago Convention, a State flown over can exercise its sovereign right to take measures as deemed fit to protect the interests of its people and of that State. Article 1 of the Chicago Convention provides that all States (not only those that have ratified the Convention) recognize that States have sovereignty over the air space above their territories. The Permanent Court of International Justice, when requested for a definition of “air space” in the 1933 Eastern Greenland’s Case, was of the view that the natural meaning of the term was its geographical meaning. The most fundamental assumption that one could reach from this conclusion is that air space is essentially geo-physical, meaning that it is space where air is found. Simplistically put, “air space” has been considered as going upwards into space from the territorial boundaries of a State and downwards to the center of the Earth, in the shape of an inverted cone. This theory, advanced mathematically, in terms of space where air is found, would encompass the atmosphere, which has is layered into components starting from the troposphere (from sea level to about 10 kilometres); the stratosphere ( from about 10 to 40 kilometres up); the ionosphere ( from about 40 to 375 kilometres); and the exosphere ( from 375 to 20,000 kilometres). Based on this methodology, a recent development in aerospace – the sub-orbital flight, which goes up to about 62.5 miles (100 kilometres) above the landmass of the Earth, would hover somewhere in the lower level of the ionosphere, has prompted the conclusion that it is a space flight traversing outer space, while others would maintain that the vehicle does not leave the Earth’s atmosphere and therefore is airborne.
This inexorably ascribes to States the sovereign right to enact domestic laws to the exclusion of other States.
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You are an open wound
And we are standing
In a pool of your blood
Rupi Kaur
25th of January 2023 was significant from a judicial standpoint, but it was a grim reminder of how many lives were stolen in the most violent and egregious way.
The Destruction
One of the worst atrocities in the annals of civil aviation was perpetrated when Flight MH 17 was destroyed over Eastern Ukraine by a ground-based missile. Was Russia to blame? Or was it Ukraine? Or even the airline for flying over dangerous territory? The aircraft operating the flight was shot down in eastern Ukraine about 60km from the Russian border on 17 July 2014, allegedly by pro-Russia separatists. All the 298 passengers – 193 of whom were Dutch – are believed to have died, and some of the remains of those who perished were never recovered. It is now revealed that death was not instantaneous.
Everyone seemingly responsible for the heinous act started deflecting blame, and a little girl (and all others on board) on the flight was forgotten, except for her devastated father who grieved the unbearable loss of his only child.
From then on, everything became clinical and adjudicatory.
Seven and a half years later, The European Court of Human Rights ruled on 25th January 2023 – on a purely procedural and technical issue – that complaints against Russia from Ukraine and the Netherlands should go to trial, but it was not about what the little Dutch girl lost. Who would care anymore, anyway?
The European Court of Human rights, in a press release said: “Among other things, the Court found that areas in eastern Ukraine in separatist hands were, from May 11, 2014 and up to at least January 26, 2022, under the jurisdiction of the Russian Federation” , referring to “the presence in eastern Ukraine of Russian military personnel from April 2014 and the large-scale deployment of Russian troops from August 2014 at the latest.”
The Little Dutch Girl
One day in mid July 2014 a young girl – full of hope for her future and bubbling with the energy of youth – boarded a Malaysian Airlines Boeing 777, in Amsterdam. She had everything in life to be thankful for – a university education, romance and courting, a good life with a warm home and a family – all in front of her. The best was yet to come. It was time for new life to start with the freshness of hope and all the happiness that her young heart could take. Her penalty for being born was not even in the distant horizon.
Her destination was Kuala Lumpur, and she was looking forward to a lighthearted romp on a fun flight and a glorious holiday with her family who were travelling with her.
Yet she did not make it.
Every day, people die of accidents caused by their own negligence, or diseases beyond their control. People also die of intentional killing by others. Somewhat rarely, people suffer death through random acts of violence – like the little Dutch girl. For her there was no second chance. There was no going back to the perfumed meadow of Summer. It was as though an alien sky swallowed her that clear day and the future became an illusion.
There are no answers no good, no evil only a million promises not kept that day when it raised its ugly head. We can only fill the craters with ashes; level the furrows plant grass, trees, flowers lay white gravel path some rustic benches – a public park and hush the cries of orphaned parents.
But there was no one when darkness fell that night and all the lights went out. She should have had someone that she could find. She should not have been alone to weep.
My Reflections
Today, that little girl would have been in her early twenties. What would she be doing? Perhaps reminiscing over her first and only love at university? The first time she saw him and looked down and walked away? How memories of him protecting both under a tiny umbrella when they walked alone in the rain flood her mind? How she forgot to tell him what was on her mind? How she hurt for having forgotten to tell him what was on her mind? How excited she felt when she scored high grades and ran up to tell him? The look on dad’s face when she told him of her grades.
Maybe she would be holding her first born lovingly and tenderly, while her baby peered at her radiant like a pearl in an oyster that had a little door. She would have been overwhelmed with joy as though her whole world had been invigorated by the touch of a butterfly and the splash of a drop of dew. She could have had many days walking through tender meadows of sunshine and warmth amidst the laughter and joy of simple pleasures.
We Failed Her
We did not keep our promises to a little girl who depended on us for her safety We did not have stringent regulations, and Standards to stop that flight. We knew the area was dangerous, infested with unscrupulous elements holding ground-based missiles. Yet we did nothing to prevent the ominous and grave risk that was posed to the flight. We did not have a system of sharing and disseminating threat information in a timely manner. We did not know to whom this information should have been relayed. We don’t seem to have known what risk avoidance was – that it involved a risk assessment technique that entails eliminating hazards, activities and exposures that place valuable assets at risk. In the case of civil aviation within the context of conflict zones this would mean eliminating hazards by avoiding the airspace over that zone entirely. Unlike risk management, which is calculated to control dangers and risks, risk avoidance totally bypasses a risk. The information to States on threats posed to their civil aviation over conflict zones would therefore had to be disseminated through policy and procedure, training and education and technology implementations.
We did not do that.
Sorry little girl. May the doors of heaven open at the sound of your footsteps May a bright angel watch over and follow you through your inevitable journey. May we meet again on the horizon of eternity when our ship finally sails beyond every limit of our sight.
Above all, may we never walk away from you.
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If transportation technology was moving along as fast as microprocessor technology, then the day after tomorrow I would be able to get in a taxi cab and be in Tokyo in 30 seconds ~ W. Daniel Hillis
Known as flying cars by some, air taxis (or flying taxis) are technically known as EVTOL (electric, vertical take off and landing) aircraft. In other words, they are drones propelled by multirotor equipment and are usually designed to carry less than a dozen passengers (there are two seater air taxis in the design phase in China and Germany).. Air taxis are calculated to ease traffic congestion on the roads making it easy for commuters to get from one place to another without being bogged down in traffic. A good example where air taxis could be beneficial is in the context of a rush to the airport to catch a flight or a dash to the railway station to make it to a train which is few and far between during the day. Air taxis take off and land vertically, obviating the need for runways needed by conventional aircraft, and land in vertiports – described as “half airports, half subway stations”.
EVTOLs other uses are in search and rescue operations, transporting organs for transplant, as well as delivery and tourism. It is estimated that in the coming decades there could be hundreds or even thousands of EVTOLs in countries such as the United Kingdom and the United States .
The Economist’s annual journal The World Ahead 2023 says: “air travel turns profitable as international arrivals soar by 30%. But they stay below pre-pandemic levels”. At present only up to one third of air travel pre 2019 can be seen, but the demand for travel is growing. The International Air Transport Association’s (IATA) – the trade association of airlines – has forecast that there will be a return to pre pandemic levels for global airlines by around end-2023, calling it “about the right timeframe”. The use of air taxis would largely be domestic, particularly in large countries such as the United States, Canada, China and India which have large domestic markets. The exponential increase in international air travel would in turn mean that air taxis would be a popular and efficient mode of transport in the context of domestic connections.
The Economist goes on to say: “This will be a crucial year for the aviation pioneers developing electric vertical take off and landing (EVTOL) aircraft …several firms are hoping to obtain the necessary certification in 2023 to commence commercial production, paving the way for the fast passenger services”.
Prior to starting to manufacture these aircraft, manufacturers and regulators would have to agree on safety standards and the latter would have to issue a license for the aircraft before passengers can be carried. BBC Science Focus reports: “Many developers believe their vehicles will be safety certified and cleared for take off by 2025, if not sooner. Boeing, Airbus and Hyundai are some of the familiar names building air taxis. Another is Joby, which bought Uber Elevate, the ride-sharing giant’s foray into eVTOLs, in December 2020. Meanwhile, British firm Vertical claims to have the highest number of conditional pre-orders with the likes of Virgin Atlantic and American Airlines among the investors lining up for its VA-X4 vehicle”. The Report goes on to say that sprawling and congested cities such as Los Angeles i São Paulo, Osaka and Singapore are some of the cities preparing for the advent of advanced air mobility offered by air taxis. In Europe the continent’s first vertiport is being built in France in time for the 2024 Paris Olympics, with the United Kingdom following close.
Regulations on air taxis in most countries are yet to attain fruition. However, air taxis could arguably be considered analogous to any aircraft big or small, and therefore regulators could well be influenced by current international regulations applying to the manufacture of commercial aircraft. Annex 8 to The Chicago Convention which addresses issues of airworthiness of aircraft provides that the State of manufacture is required to ensure that each aircraft, including parts manufactured by sub-contractors, conforms to the approved design, and that the State taking responsibility for the production of parts manufactured under the design approval has to ensure that the parts conform to the approved design.
The Annex begins with an obligatory provision on the State of design of an aircraft by saying that it is required to transmit to every Contracting State which has advised the State of Design that it has entered the aircraft on its register, and to any other Contracting State upon request, any generally applicable information which it has found necessary for the continuing airworthiness of the aircraft, including its engines and propellers when applicable, and for the safe operation of the aircraft, and notification of the suspension or revocation of a Type Certificate. For its part, the State of Registry has to ensure that, when it first enters on its register an aircraft of a particular type for which it is not the State of Design and issues or validates a Certificate of Airworthiness it is required to advise the State of Design that it has entered such an aircraft on its register.
The State of Design has to ensure that, where the State of Manufacture of an aircraft is other than the State of Design, there is an agreement acceptable to both States to ensure that the manufacturing organization cooperates with the organization responsible for the type design in assessing information received on experience with operating the aircraft. The State of Manufacture of an aircraft is obligated to ensure that, where it is not the State of Design, there is an agreement acceptable to both States to ensure that the manufacturing organization cooperates with the organization responsible for the type design in assessing information received on experience with operating the aircraft.
There is also a requirement (not specifically aimed at manufacturers) that compliance with the Standards prescribed as above is required to be established by flight. Chapter 4 of the Annex stipulates that the functioning of all moving parts essential to the safe operation of the aeroplane is required to be demonstrated by suitable tests in order to ensure that they will function correctly under all operating conditions for such parts. Initially air taxis will have crew piloting the aircraft. Annex 8 contains a requirement that the aircraft be provided with approved instruments and equipment necessary for the safe operation of the aeroplane in the anticipated operating conditions. These include the instruments and equipment necessary to enable the crew to operate the aeroplane within its operating limitations. The underlying principle is that the aircraft is required to have such stability in relation to its flight characteristics, performance, structural strength, and most probable operating conditions (e.g. aeroplane configurations and speed ranges) so as to ensure that demands made on the pilot’s powers of concentration are not excessive when the stage of the flight at which these demands occur and their duration are taken into account.
Certification of airworthiness of an air taxi is a serious business and internal regulations of a country must consider analogous standards already established by member States of the International Civil Aviation Organization.
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“I know it is bad, but we must finish it.
It does not finish. There is no finish to a war.
War is not won by victory.”
Extracted from A Farewell to Arms by Ernest Hemingway
There is a famous Latin maxim Inter arma enim silent leges attributed to Cicero – known by some as the greatest orator who ever lived – which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending conventional warfare in the air to the use of lethal drones (remotely operated flying missiles) as arbitrary killing machines.
The devastating damage caused by drones in war causes the greatest number of civilian fatalities along with destruction of buildings, reducing them to piles of rubble. This type of attack was seen in 2011 where an American drone is reported to have hovered above Pakistan’s Waziristan area one day in March 2011 and unleashed three missiles on a gathering of people, some of whom were armed. Most of the 40 or so killed were civilians. These drones were operated in most instances, far away from the actual zone of attack by trained personnel operating hand held consoles. A strike is called a bugsplat. .
In March 2011, the United Nations Security Council adopted Resolution 1973 which inter alia decided to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians. The Resolution also authorized Member States to take all necessary measures, to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi. This resulted in concerted air attacks by NATO forces on Libya.
The First Question
The first question is: “what redress do innocent victims of war have against egregious air attacks?”
From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities must be respected, protected and treated humanely. They must be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering must be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.
Within these four precepts, international humanitarian law is entrenched as the legal corpus comprised of the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law. The Geneva Conventions consist of four treaties formulated in Geneva, which set the pace in Standards for international law as applicable to humanitarian concerns. The fourth Convention, which relates to the protection of civilians during times of war in the hands of an enemy and under any occupation by a foreign power, provides in Article 3 that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections that should be accorded to certain categories of persons. These persons are described as: non-combatants, who usually are civilians, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Article 3 also requires these persons to be in all circumstances treated humanely, with the following prohibitions: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b)taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines a person protected by the Geneva Conventions as one who, at a given moment and in any manner whatsoever, finds himself, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which he or she is not a national. However, it explicitly excludes nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations with in the State in whose hands they are.
What is : “War?”
The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts as referred to in Article 3 of the fourth 1949 Geneva Convention. Also, humanitarian law does not apply only to victims of wars between international actors. Professor Rainer Hoffman, in his report to the International Law Association’s seventy second conference observed that if present international law admits of an individual’s right against a State for injuries suffered during the course of a war in which that State is involved, it must necessarily follow that it is difficult to maintain that the same right might not prevail against international organizations and non-State actors. He further stated that if such Organizations and non-State actors are subjects of international law and engage in acts which could have been committed, under traditional international law, only by States and thus behave like or as States, then they should, in principle be held accountable in the same way as States.
The Second Question
The Second question addressed in this article is: Can the law, administered by the courts, play an active role in preventing or bringing the carnage caused by drones to a halt?
When the PAN AM disaster over Lockerbie in Scotland which was caused in 1989 was considered by the International Court of Justice, Vice President of the Court – Justice C.G. Weeramantry – delivered his famous judgment where he said inter alia: “A great judge once observed that the laws are not silent amidst the clash of arms. In our age we need also to assert that the laws are not powerless to prevent the clash of arms. The entire law of the United Nations has been built up around the notion of peace and the prevention of conflict. The Court, in an appropriate case, where possible conflict threatens rights that are being litigated before it, is not powerless to issue provisional measures conserving those rights by restraining an escalation of the dispute and the possible resort to force. That would be entirely within its mandate and in total conformity with the Purposes and Principles of the United Nations and international law. Particularly, when situations are tense, with danger signals flashing all around, it seems that this Court should make a positive response with such measures as are within its jurisdiction.
If the conservation of rights which are sub judice comes within the jurisdiction of the Court, as I have no doubt it does, an order restraining damage to those rights through conflict must also lie within that province. If international law is to grow and serve the cause of peace as it is meant to do, the Court cannot avoid the responsibility in an appropriate case.
I would indicate provisional measures proprio motu against both parties preventing such aggravation or extension of the dispute as might result in the use of force by either or both parties. Such measures do not conflict with any decision the Security Council has made under Chapter V11, nor with any obligation arising under Article 25, nor with the principle underlying Article 103. The way towards a peaceful resolution of the dispute may thus be preserved before the parties find themselves on paths from which there may be no return. This action is based on Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court”.
Conclusion
The imposition of sanctions against an aggressor, coupled with military aid to the State attacked has not historically worked. They have only made one party more determined in its actions. An example is Cuba which carried on relentlessly amidst decades of sanctions imposed against it. Short of nuclear devastation, capitulation is rarely achieved in the modern age. On the other hand, diplomatic negotiation based on judicial interpretation and intervention might well work in modern warfare. For this, the entire world should coalesce.
We should give this approach a serious try.
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It’s good to learn from your mistakes. It is better to learn from other peoples’ mistakes…Warren Buffett
The pandemic wrecked havoc on aviation over the past three years and now the end seems in sight. Those starved of satiating their appetite for flying no longer face stringent health barriers and have unleashed their pent up frustrations of claustrophobia with a vengeance, filling up aircraft all over the world. The demand for air transport has bounced back in leaps and bounds, perhaps much more than expected, prompting Thomas Romig, Vice President of safety, security and operations at Airports Council International (ACI) to say: “ as countries lifted measures, the traffic just bounced – almost on a vertical line. It would be flat for a little while and then another vertical leap in demand. Growth like that has obviously been much harder to manage”. The International Air Transport Association (IATA) has said: “ The travel recovery continues to gather momentum. People need to travel. And when governments remove COVID-19 restrictions, they do. Many major international route areas – including within Europe, and the Middle East-North America routes – are already exceeding pre-COVID-19 levels”. The International Civil Aviation Organization (ICAO) in a statement issued in May 2022 said there were ” “ clear signs of a strong global recovery in air traffic, characterized by increasing airline confidence and a range of regional air connectivity and air travel facilitation improvements”.
Air Transport
The volatility of geopolitics, public health and the energy crisis effectively precludes one from reaching any accuracy in forecasting. However, it is not difficult to hazard a conjecture based on plausibility and foresight. The introduction of masks, safety protocols, and service disruptions has left its impact leading to a continuing trend of “permanxiety” – a word coined by Skift in 2017 “to describe how social, political, and climate turmoil is coloring consumer expectations of everything, including travel. Skift went on to say that “travelers endure a barrage of worries about terrorism, security, neo-isolationism, racial tension, Trumpism, technology and its adverse role, the widening economic gap, culture wars, climate change, and other geopolitical and local issues.”
Permanxiety could be seriously aggravated by delays in border crossings in 2023 brought about by inadequate staffing, computer glitches and delays in visa processing. It has been estimated that in the United States alone “The delays will prevent 6.6 million international inbound visitors from coming to the U.S”. Prolonged visa processing times, lack of trained staff have also affected Europe which have exhibited “pathetic turnaround times”.
All these factors have given rise to a trend where pre Covid business travellers and tourists resorted to “bleisure” – a hybrid of business and leisure travel. The hospitality industry joined in on this concept, an example being the Hilton chain which started a competition to identify and provide for the blended business and leisure traveller. It is plausible that this compromise trend will continue through 2023.
Intriguingly, these bottlenecks and implosive trends seemingly do not adversely affect the revenue side of the equation for airlines. Aviation by Inform says: “Moody’s Investor Service is forecasting a positive outlook for the aviation industry in 2023. The organization is projecting operating profits for those airlines it rates to increase by more than 200% in 2023. Its projection is based on the premise that increased travel by large corporations and the rebuilding of long-haul international routes will make the recovery more resilient despite declining gross domestic product (GDP) forecasts and other economic factors could increase the risk of falling passenger demand”.
Airports
There are other encouraging ongoing trends as well. From a technological perspective, airports are increasingly becoming space tech hubs, turning into g spaceports and vertiports. As an example, in Houston, spaceport integration has already begun. The United States Federal Aviation Administration (FAA) has a Spaceport Office which has so far licensed 14 spaceports. Furthermore, continuing trends in airport technology include the foray into using liquid hydrogen as an energy source to help in combatting climate change and global warming; the use of artificial intelligence for facilitation; and the “Digital Twin” which can effectively plan and determine where passengers, gates and planes should be located and directed. The Digital Twin is being used at Schiphol in Amsterdam, San Francisco International and Vancouver Airport.
The Digital Twin is a virtual replica of every aspect of airport operations and performance “to maximise efficiency and increase capacity in a more timely and cost-effective way”, as an article in the magazine Passenger Terminal World reports. Its most effective purpose is to alert airports to anticipated problems on a 24-hour basis and flag operations staff at the airport so that they can obviate the threat and operational difficulty that could ensue. It also points to problem areas that could inconvenience and delay passenger flows, thus avoiding congestion.
Another useful purpose of the Digital Twin is that it can alleviate passenger stress. An example cited is the airport and flight experience it offers before the actual experience, thus enabling passengers who are anxious to be more prepared when undergoing the actual experience. One category that benefits from this platform is the autistic community.
The Digital Twin can also offer insights into the future. For example, if an airport has an aspirational goal of net zero carbon emissions by 2030, it can model the aircraft and on-ground vehicle movements as well as other activities on the airfield. These models can be applied to machine learning that can reflect the most efficient way an airport can be run. Even in the planning process of an airport, the Digital Twin could offer the best iteration as Schiphol has done in the application of building information management software to generate a 3D digital version of physical and functional characteristics of an airport infrastructure
On the economic side, Airport Economic Zones (AEZ) – which, according to Paul Woodley, a senior lawyer, are “ suburban areas where infrastructure, land use and economy are focused on the airport” – are increasingly becoming popular where the community around an airport has the airport as the focal point of economic and financial progress. A major study conducted by Gatwick International Airport and a partner in July 2022 revealed that the airport could generate 8.4 billion British Pounds by 2028 through the development of an AEZ. The same study envisions the creation of 50,000 jobs in the AEZ by 2028.
Another burgeoning concept running into 2023 is the “Freeport” – where customs duties and tax do not apply to goods that stay in the airport and are directly shipped overseas. An example is the East Midlands Freeport in The United Kingdom which encompasses three main sites: the East Midlands Airport and Gateway Industrial Cluster (EMAGIC) in North West Leicestershire, the Ratcliffe-on-Soar Power Station site in Rushcliffe in Nottinghamshire and the East Midlands Intermodal Park (EMIP) in South Derbyshire.
Paul Woodley explains that these areas are strongly supported by robust infrastructure comprising “strong existing road and rail freight infrastructure connecting them to all other parts of the country, including seaport-based freeports. There is significant room for growth across the sites, accelerating regeneration, increasing skills and training opportunities and helping to level-up some of the UK’s most deprived areas. The site development process will be managed by the respective landowners and any future development proposals will be subject to planning approval and public consultation”
The Regulator
States must formulate their own strategy on how best to regulate air transport in an year where the end of the pandemic is in sight. One starting point could be a Resolution adopted by the 41st Session of the ICAO Assembly in the third quarter of 2022. States should strengthen their crisis management capacity, including by establishing a crisis framework and mechanism while ICAO should continue to collaborate with the World Health Organization (WHO) and other public health groups, with other relevant aviation medicine and other relevant specialist medical organizations, with Planning and Implementation Regional Groups (PIRGs) and the Regional Aviation Safety Groups (RASGs). ICAO should, while keeping close contact with its regional offices be on the alert for public health information from them while working with the Air Navigation Commission, with aviation subject matter expert groups including such as the Personnel Training and Licensing Panel, and the Safety Management Panel to enable the sharing of information and resources for purposes of global harmonization relating to the prevention and management of public health emergencies.
ICAO should also develop an Aviation Health Management Plan by ICAO supporting implementation efforts of comprehensive management of health in aviation, by consolidating the various references to medical and health-related Standards and Recommended Practices in the Annexes to the Chicago Convention into a comprehensive repository for the management of health in aviation.
Conclusion
From early 2020 to date, we have had numerous lessons that must be learned if air transport is to continue in a safe and orderly manner in 2023. The first is that there must be harmonization in communication. Timely exchange of information is crucial. The second is that geopolitics should not interfere with civil aviation and respect for global harmony in adherence to the principles of international aviation law. There must not be repetitions of blatantly egregious breaches of established norms of international law.
Two instances in this context stand out: the first where Ryanair Flight 4978 which was operated from Athens to Vilnius on 23 May 2021, while over the airspace of Belarus, was diverted to Minsk National Airport in Belarus on seemingly spurious grounds. The Boeing 737-800 which carried 126 passengers and 6 crew members was just 45 nautical miles south of Vilnius and 90 nautical miles west of Minsk when it was ordered to divert from its course and land; the second where 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. The launches were ominous in that they landed between the Korean Peninsula and Japan.
As a sage once commented, if we do not learn from history, we are doomed to repeat it.
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The United Nations has recognized 7th December of each year as “International Civil Aviation Day” and this year, the International Civil Aviation Organization (ICAO) – which is the specialized United Nations agency on the subject of international civil aviation – has given this day the theme “Advancing Innovation for Global Aviation Development. This theme – which is laudable, given the modern world we live in – is, in and of itself both ambivalent and ambiguous in the use of the word “innovation”. From a hermeneutic point of view, the more progressive approach would be to interpret the word as referring both to scientific and technological innovation as well as creative and innovative thinking on reviewing the Chicago Convention of 1944 which was signed on 7 December 1944 and which entered into force in April 1947. It has been 75 years in application with very few amendments to it. Since it is after the Chicago Convention that International Civil Aviation Day is named, this day should be primarily looked at in the perspective of the effectiveness of the treaty in its service to the international aviation community.
The Chicago Convention established ICAO, ascribing to the Organization its aims and objectives (not a “mandate” as often misquoted). Therefore, ICAO is guided by the principles of the treaty. Although there are no specific provisions in the Chicago Convention that inspire “innovation” there is much room in its overall philosophy to innovate through interpretation of the provisions to suit modern times.
As a treaty , the Chicago Convention is intriguing as well as unique in its terminology and presents many ambiguities which make it somewhat difficult to interpret, opening it to review. The Vienna Convention on the Law of Treaties (the principles of which apply to the Chicago Convention) in Article 31 (1) and (2) states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In this context there are two issues with the Chicago Convention. One is its terminology which sways back and forth on its lack of precision. Words such as “States may” (discretionary) , “States recognize” and “undertake”, “deem” as well as “shall” (peremptory) and “ This Convention shall be applicable only to civil aircraft” (peremptory), “the contracting states recognize” (acknowledge?) do not provide States precise guidance as to what they are obligated to do or not under the Convention.
These various terms which are couched in ambiguity make it difficult to interpret the true intent of the drafters of the treaty from an originalist point of view. The only conclusion one can make is that the founding fathers of the Convention, realizing that air transport could evolve exponentially in the future, left room for interpretation as exigencies demanded. This ambivalence has blurred the clarity required in the Convention. Furthermore, these terms make it even more difficult to place them in the modern context in a meaningful way. One commentator addressed this difficulty by saying “the problem of treaty interpretation…is one of ascertaining the logic inherent in the treaty and pretending that this is what the parties desired. In so far as this logic can be discovered by reference to the terms of the treaty itself, it is impermissible to depart from those terms. In so far as it cannot, it is permissible”.
The problem with the Chicago Convention is that, given its variance in abstruse terminology, the Vienna Convention itself – the beacon that shines a light on treaty law – has added to the obfuscation in laying down general principles that a treaty must be interpreted in good faith in accordance with the “ordinary meaning” to be given to the terms of the treaty in their context and in the light of its object and purpose. “Ordinary” connotes a common, routine, or usual context of a normal order of things and events and it may not clearly provide interpretative guidance. The Chicago Convention and many of its Annexes which are technical in nature contain technical terminology and not ordinary words. In a hermeneutic sense the Chicago Convention and its unique and esoteric regime cannot always be interpreted in ordinary usage. In the aviation industry which is heavily regulated with regional, transnational, and national regulations which are all expected to be under the umbrella of the Chicago Convention, any application of “ordinary meaning” of text must be teleological and related to the object and purpose of the provisions of the treaty.
Another difficulty presented by the Chicago Convention is the lack of accessibility by many States to knowledge of their obligations under the Convention. In particular, States do not have a clear picture of their obligations in terms of ratification of amendments to the Chicago Convention. At the 41st Session of the ICAO Assembly which concluded on 7 October of 2022 The Republic of Korea pointed out “States do not have sufficient information about amendments made to international air law instruments. ICAO needs to continue to make the effort to ensure Contracting States can easily be aware of and understand the amendments. There is no clash between a ratifying Contracting State’s international air law instruments and those of a non-ratifying Contracting State, and therefore, both remain valid. There is coexistence among ratified international air law instruments that remain valid between ratifying Contracting States, non-ratified international air law instruments that remain valid between non-ratifying Contracting States, and nonratified international air law instruments that remain valid between ratifying and non-ratifying Contracting States. Thus, a harmonious international law order continues to remain in place”.
ICAO Assembly, in response adopted a Resolution which inter alia urged all Contracting States (to the Chicago Convention) which so far had not done so to ratify those amendments to the Chicago Convention which were not yet in force, while urging the Secretary General of ICAO to take all practical measures within ICAO’s means in cooperation with States to provide assistance, if requested, to States encountering difficulties in the process of ratification and implementation of the air law instruments, including the organization of and the participation in workshops or seminars to further the process of ratification of the international air law instruments.
Hopefully, International Civil Aviation Day in 2023 would be on the theme of the relevance of the Chicago Convention to international civil aviation in modern times.
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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
Conclusion
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”.
The History
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.
Aeronautical Consequences
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.
Conclusion
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.
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