State responsibility begins with territoriality which imposes liability for any event occurring in a State’s territory.
by Dr Ruwantissa Abeyratne
Writing from Montreal
How do you live in an age of bewilderment, when the old stories have collapsed, and no new story has yet emerged to replace them?
Yuval Noah Harari, 21 Lessons for the 21st century
Lucy England and Simon Phippard, in their article titled: “It’s the Robot’s Fault! Digital technology in the Aerospace Sector”, appearing in the August 2019 issue of Aerospace – the flagship journal of the Royal Aeronautical Society – ask: “ how does a wholly automated aircraft decide where to carry out a forced landing if the choice is between a school playing field and the gardens of a retirement home?”
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| Future of aviation |
It seems aviation has reached the digital world with a bang and is fast leaving its old story with a whimper – of the confident captain in the flight deck; the glamourous stewardess in the cabin and the humble “chap in overalls” (tending on the ground to the mechanical perfection of the engine and components) ensuring the safety of the passenger.
In the early days of commercial aviation only cabin attendants who were qualified nurses were employed. The early notion (which even now largely prevails) is that those attending passengers in the cabin should be fully conversant in the profession of tending to the passenger in any given circumstance.
This is fast becoming the old story. In the modern context, one has to consider the words of Antoine de Saint-Exupery who said: “to grasp the world of today we are using a language made for the world of yesterday…” Aviation has entered the world of digital technologies, transcending the earlier world of information and communication technologies (ICT), where digital technologies bring with them a whole new vocabulary of data, algorithms and machine learning. Jamie Susskind, in is book Future Politics says: “In the digital lifeworld, technology will permeate our world, inseparable from our daily experience and embedded in physical structures and objects that we never regarded previously as ‘technology’. Our lives will play out in a teeming network of connected people and ‘smart’ things with little meaningful distinction between human and machine, online and offline, virtual and physical…” Susskind says convincingly that three factors will dominate our world: increasingly capable systems; increasingly integrated technology; increasingly quantified society. There is no room for doubt that aviation is in the throes of these three factors.
At the time of writing, the existing controversy of the two Boeing 737 MAX8 aircraft brought to bear the effect of the digital world on aviation. A faulty digital application had overridden human intervention, leaving the “confident” flight crew baffled and helpless in their control of the aircraft, resulting in the loss of lives of several hundreds of passengers.
The United Nations adopted, in 2013, General Assembly Resolution A/RES/68/220 which inter alia reaffirms the central role of Governments, with active contributions from stakeholders from the public and private sectors, civil society and research institutions, in creating and supporting an enabling environment for innovation and entrepreneurship and the advancement of science, technology and engineering, in accordance with national priorities. This noble thought has to evolve with a new story: a story that revives earlier confidence in aviation as the safest mode of transport. The story would be based on four words which would be at the apex of four pillars: standardization; harmonization; responsibility; and accountability. Standardization would speak for compliance; harmonization would stand for global consistency in the compliance and application of standards; responsibility would mean taking control and overall supervision; and accountability would mean the obligation to make reparation to those harmed. All these four pillars seemingly point to the State.
State responsibility begins with territoriality which imposes liability for any event occurring in a State’s territory. There should be a clear legal and regulatory regime that would identify responsibility and accountability of those applying digital technology to air transport. As a follow-up to responsibility and accountability should be the sensitivity of the technology to a clear retrospective understanding in the way it worked when something went wrong with the digital application used. Until these various issued become clearer digital technology should be used as a mathematical and scientific tool that provides extended intelligence to humankind. For example, the State on which devolves the responsibility of certifying an aircraft manufactured in its territory has various compelling responsibilities, dictated by numerous regulatory provisions which govern airworthiness and safety issues. These regulations cannot be relegated to the exclusive domain of technology where in essence technology should supplement human involvement. It is in this context that the State as the regulator should not abdicate its final approval of a new application of digital technology that is offered for commercial purposes. It follows that in the flight deck, no innovative technology should arrogate to itself sole control of the flight and the destiny of those on board.
Traditional responsibilities of one State to another as well as between a State and an individual have to be looked at through the prism of innovative technology as reflected in the to Boeing 737MAX 8 aircraft accidents. Digital technology systems are proliferating rapidly. They are made available by companies through the Cloud. The significance of digital technology to air transport lies in the fact that issues in air transport inevitably attenuate both qualitative and quantitative data. In the realm of accident investigation as well as breaches of aviation security and safety, traditional approaches often cannot be used or modelled and therefore the Big Data and Deep Learning could be of considerable assistance. The human factor in air transport has been seen to optimize the challenge in emergency situations which renders traditional mathematical programming destitute of effect.
At the present time the main focus in air transport should be on the incontrovertible fact that we are living in a networked world of connectivity depending on digital platforms. Air transport cannot be excluded from this inevitable equation. Therefore, an important issue that emerges is the compelling need for management of digital technology by States; air transport enterprises as well as the overall legal aspects of management of air transport in a transformative world.
The author is a consultant in aviation law and policy in Montreal. This article contains some concepts of his latest book: Aviation in a Digital World, which is to be published.
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