In February 2008 I attended an international conference on ATM liability and I was asked by IFATCA to write a story on the event, to be published in The Controller magazine. For reasons known only to the Editor of the magazine (perhaps to save space for numerous photographs of himself posing in the pages of The Controller) the story was never published. So here it is.

                                             Towards a unified field theory of liability

Lawyers are like wake turbulence. Don’t underestimate them; they can easily turn things upside down. Now imagine a big conference room full of their kind. Would you like to be in there?

Welcome to the 2nd Workshop on Responsibility and Liability in the ATM Domain, organized by the Legal Service of Eurocontrol and held for two almost sunny days in February 2008 at the organization's headquarters in Brussels. Respectable jurists and experts presented to nearly two hundred participants from forty countries the latest trends on the subject, including ANSP insurance, legal aspects and state responsibility of cross-border provision of ANS, jurisdiction in case of an accident and liability for UAVs and military operations.

Defining jurisdiction and liability in international aviation often resembles the search for a unified field theory. Lacking such a theory, the universe will not fall apart. But if you remove the complex net of different legal systems, domestic law and international agreements regulating aviation, the result will be chaos. Unless of course something else takes its place. Could harmonisation be the missing link? Representatives of states, ANSPs, insurance companies and law firms, legislators, regulatory experts and academics attending the Workshop think so.

The organizers had a great idea. They divided the participants into six different groups for a brainstorming session. The goal was to discuss and vote the three most important issues that should be addressed by changing the relevant legal framework. Each group was in a different room, so it was amazing to see afterwards that all six had discussed the same issues and identified the same ones as most important. Having so many lawyers brought together pays off, sometimes.

The most significant of the three was harmonisation of ANS provision rules and procedures. The Single European Sky, Functional Airspace Blocks and cross-border provision of Air Navigation Services streamline air traffic but also raise a multitude of legal problems for those involved. To begin with, there are discrepancies between ICAO, Eurocontrol and European Union rules on ATM and ANS, concerning safety regulation and oversight, delegation of ATS and contingency. Add to these the differences between the national rules of each state and it's easy to understand why the uniformity of opinion among the participants was no coincidence.

The way the organizers put it in their press release: "A fully harmonised regulatory regime for European air navigation service providers and regulators is vital for safe, adequate and cost-effective provision of air traffic management." The plenary session also stressed the urgent need for pan-European common operational rules, including common operations manuals and procedures.

A hypothetical accident of an aircraft with a multinational crew, with passengers from a dozen countries, under the control of an ACC within the FAB of four countries is the reason why the second most important issue voted by the six groups was the need for legal certainty re civil liability. Many years have passed since the first mid-air collision of airliners in 1922 over France. Still, in the absence of an international convention on FABs or liability rules for cross-border service provision in the Single European Sky, liability is regulated by national laws. But it is time, some argued, to transcend national boarders, even more so due to the increasing focus on the ANSP involvement in an accident.

A possible solution could be allocating liabilities according to a system of bilateral and multilateral agreements between states and contractual arrangements between airlines and ANSPs, along with a common insurance coverage for ANSPs. Until then, "to ensure that the level of cover is both appropriate and cost-effective, ANSPs should quantify risk, use risk management systems, benchmark against other ANSPs and assess liability exposure."

State sovereignty affects many aspects of aviation and remains the cornerstone of the Chicago Convention. For participants at the Workshop, sovereignty was important enough to be the third of the most significant issues to be addressed. However desirable the need for a more "flexible" use of sovereignty in ATM may be, making it more functional than territorial, a prominent Air Law professor recently pointed out that "Chicago Convention states will bear ultimate responsibility for the safety of international civil aviation, whatever arrangements they may make for the pooling of resources on for instance rule making and enforcement, or the transfer of tasks with respect to the provision of air navigation services, whether or not in the context of establishing Functional Airspace Blocks."

On a more ATCO-related issue, the brainstorming sessions at the Workshop did produce some ideas, like the proposal for an international convention on the criminal liability of controllers. There was also the suggestion to examine ATCO negligence in an accident not on the basis of the national criminal law of each state, but instead within a common European criminal law framework. The argument was that, with the implementation of the Community Air Traffic Controller license, training and qualifications of ATCOs are harmonized, but their possible criminal liability is decided each time by a different court, depending on the EU member state were they happen to work. In theory, it is possible for the same negligent behaviour to be judged illegal in one EU state, and legal in another.

IFATCA President Marc Baumgartner was among the speakers at the Workshop and he stressed that more need to be done in a systemic approach to move away from blaming the individual and towards establishing a Just Culture in ATM. He urged Eurocontrol and member states to act urgently to prevent ATCOs from being prosecuted and pointed out that nothing has really moved since the 1st Workshop took place in 2006. He suggested the creation of a taskforce to refine the results of the breakout sessions and push towards implementing them, following a political decision, and stressed the importance of showing people, and judges in particular, how ATC works. The plenary session of the Workshop approved a recommendation, according to which "Eurocontrol puts renewed emphasis on a Europe-wide drive towards meaningful dialogue between safety experts and state prosecutors to establish Just Culture".

An ATCO participating in the Workshop would probably think that criminal liability is not a priority for the legal experts of ANSPs and Regulators and that they are far more concerned with civil liability instead. However, IFATCA and controllers should be present at such international and regional gatherings, to express their views and try to influence decision makers. That said, it is also essential to act on a state level.

A possible course of action could be for each ATCO Association to take the initiative against criminalisation locally, in its respective country. IFATCA could look into the prospect of preparing a common methodology of action, in such a way, so as to ensure proper coordination and uniformity of goals between the different Associations, recognising at the same time the need to adapt to each country's special conditions.

The involvement of the media will be necessary in the process of informing the public, the judiciary and legislators about what it means to be an air traffic controller and why mistakes in ATC should not be viewed as criminal acts. In this case, a communication strategy by IFATCA will be required in local, regional and even international level.

So will we finally succeed in establishing a unified field theory of civil and criminal liability in aviation? We will never know unless we try. Perhaps we can make a breakthrough where Einstein failed.