The Tokyo Convention of 1963 in Article 1 lays down certain powers of the command pilot which may be relevant both in the case of pilotless aircraft or in the case of debilitation of the human command pilot with a computerized version of a first officer in the flight deck.
by Dr. Ruwantissa Abeyratne in Montreal
“When once you have tasted flight, you will forever walk the earth with your eyes turned upward, for there you have been, and there you will always long to return.” ~ Leonardo da Vinci (1452-1519)
Unbeknownst to many of us, International Pilots’ Day was marked on 26 April as it has been since 2014 when the Turkish Airline Pilots’ Association (TALPA) first recognized April 26 to highlight the inaugural flight of the first Turkish pilot, Mehmet Fesa Evrensev, who had played a significant role in the development of Turkish aviation since the early 1910s. This day has been formally recognized by the world body of pilots – International Federation of Airline Pilots’ Associations (IFALPA) which was formed in 1948 to merge various pilots’ associations into a single unit, and which currently comprises membership of more than 140,000 pilots worldwide. It was IFALPA which, in 2013 initiated thoughts on dedicating a day of the year to the pilot which TALPA followed through.
General Aviation News reports that 260,000 pilots will be needed over the next 10 years to keep the air transport industry afloat and meet the growing demand for air transport: “According to the 2020-2029 CAE Pilot Demand Outlook, retirement and attrition are expected to continue to be a challenge for the civil aviation industry as air travel recovers progressively. This is expected to drive an acute demand for pilots, resulting in an estimated short-term need for approximately 27,000 new professional pilots starting in late 2021.”
In this context, one could ask the question: in an era of exponential progress in artificial intelligence (AI) , and in the face of tis enormous demand for pilots which is a daunting prospect, could the pilot as we know him/her be replaced by a super computer and with a flight deck empty of humans?
In the non-aviation professional there could always be the misconception that the pilot of an aircraft just flies an aircraft from point A to point B following a standardized set of rules that could be done by a super computer, which could be more astute and reactive in aerial navigation than a human. Simplistically, and on a broad scale this is true. However, if this were to be taken as the limit of a pilot’s responsibility and authority, it would be doing a disservice to the noble profession and demote the pilot to the rank of a “glorified” bus driver or taxi driver.
Far from it. The pilot has authority under international treaty to protect the safety of the aircraft as well as persons and property on board.
The Pilot’s Authority
The Tokyo Convention of 1963 in Article 1 lays down certain powers of the command pilot which may be relevant both in the case of pilotless aircraft or in the case of debilitation of the human command pilot with a computerized version of a first officer in the flight deck. It applies in respect of: offences against penal law; and acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board. The Tokyo Convention also applies inter alia in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any State. An aircraft is considered to be in flight from the moment when power is applied for the purpose of takeoff until the moment when the landing run ends.
Article 6 of the Convention is extremely relevant to the element of choice reposed in the pilot on the flight deck. It states that the aircraft commander may, when he has “reasonable grounds” (my quotation marks) to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act contemplated in Article 1, impose upon such person “reasonable measures” including restraint which are necessary: (a) to protect the safety of the aircraft, or of persons or property therein; or (b) to maintain good order and discipline on board; or (c) to enable him to deliver such person to competent authorities or to disembark him in accordance with the provisions of the Convention.
Article 6.2 stipulates that the aircraft commander may require or authorize the assistance of other crew members and may request or authorize, but not require, the assistance of passengers to restrain any person whom he is entitled to restrain. Any crew member or passenger may also take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein.
The powers entrusted to the commander in order to suppress any unlawful act that threatens the safety of the aircraft go as far as requiring the disembarking of any person in the territory of any State in which he lands and delivering him to its competent authorities. The State is under an obligation to allow the disembarkation and to take delivery of the person so apprehended by the aircraft commander , but such custody may only be continued for such time as is reasonably necessary to enable the criminal extradition proceedings (if any) to be instituted. In the meantime, the State of landing should make a preliminary enquiry into the facts and notify the State of registration of the aircraft. The operative question in this context which would challenge artificial intelligence would be, how would it have “reason to believe” that there is a “reasonable likelihood of harm being committed by a person who is unruly and disruptive in the aircraft?
Another challenge is posed by Article 7 of the Tokyo Convention which states that measures of restraint imposed upon a person in accordance with Article 6 shall not be continued beyond any point at which the aircraft lands unless: (a) such point is in the territory of a non-Contracting State and its authorities refuse to permit disembarkation of that person or those measures have been imposed in accordance with Article 6, paragraph 1(c) in order to enable his delivery to competent authorities; (b) the aircraft makes a forced landing and the aircraft commander is unable to deliver that person to competent authorities; or (c) that person agrees to onward carriage under restraint. The aircraft commander is required to, as soon as practicable, and if possible before landing in the territory of a State with a person on board who has been placed under restraint in accordance with the provisions of Article 6, notify the authorities of such State of the fact that a person on board is under restraint and of the reasons for such restraint.
Discretion and Artificial Intelligence
Article 8 of the Convention addresses discretionary powers of the aircraft commander when it says that he/she may, in so far as it is necessary for the purpose of Article 6, disembark in the territory of any State in which the aircraft lands any person who he has reasonable grounds to believe has committed, or is about to commit, on board the aircraft an act contemplated in Article 1, and the aircraft commander is required to report to the authorities of the State in which he disembarks any person pursuant to this Article, the fact of, and the reasons for, such disembarkation.
Furthermore, Article 9 gives the discretion to the aircraft commander to deliver to the competent authorities of any Contracting State in the territory of which the aircraft lands any person who he has reasonable grounds to believe has committed on board the aircraft an act which, in his opinion, is a serious offence according to the penal law of the State of registration of the aircraft. In such circumstances the aircraft commander is required as soon as practicable and if possible before landing in the territory of a Contracting State with a person on board whom the aircraft commander intends to deliver in accordance with the preceding paragraph, notify the authorities of such State of his intention to deliver such person and the reasons therefor.
The aircraft commander is also required to furnish the authorities to whom any suspected offender is delivered in accordance with the provisions of this Article with evidence and information which, under the law of the State of registration of the aircraft, are lawfully in his possession. Neither the aircraft commander, any other member of the crew, any passenger, the owner or operator of the aircraft, nor the person on whose behalf the flight was performed can be held responsible in any proceeding on account of the treatment undergone by the person against whom the actions were taken.
Article 11 of the Convention provides that when a person on board has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or when such an act is about to be committed, Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. In the cases contemplated in the preceding circumstances, the Contracting State in which the aircraft lands is required to permit its passengers and crew to continue their journey as soon as practicable, and shall return the aircraft and its cargo to the persons lawfully entitled to possession.
Given the above, some have argued (plausibly) that the supercomputer could be used as a “super co-pilot”. This is seemingly acceptable except that if the commander in chief of a flight is rendered unable to perform his duties and there is a non-technical emergency on board the aircraft it is difficult to imagine a computer using discretion in a purely human situation. Would AI then be able to subdue unacceptable human conduct, look after the welfare of the persons on board and take control of the aircraft?
Maybe we should concentrate more on how to find the 260,000 pilots needed.
Dr. Abeyratne is former Senior Legal Officer at the International Civil Aviation Organization and is currently an aviation consultant in Montreal. He also teaches aviation law and policy at McGill University. Among his 36 books so far published are : Air Transport in the Digital World, Air Navigation Law, Aviation Security law, and Megatrends and Air Transport. He has also published over 450 journal articles in law journals worldwide during his 40-year career in aviation.
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