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An Analysis of Unmanned Aircraft Systems Under Air Law

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Drones and Unmanned Aerial Systems

Abstract

This chapter discusses the regulatory regime governing the use of unmanned aircraft systems (UAS). It is found that the operation of UAS under international, European and national law is only marginally regulated. Most international conventions do not take these operations into account while national and European regulators are attempting to fill the gaps. The authors believe that a comprehensive legal framework for the operation of these vehicles must be swiftly drawn up as it provokes questions pertaining to safety, security, market access, privacy and liability.

In Europe, such as in the UK and Germany, there are relatively advanced policies and provision for the regulation of UAS. Other policymakers and legislators, including the International Civil Aviation Organization and the EU Commission, are following suit. There are no signs that international aviation conventions are being amended for this purpose, but it seems to us that this is just a matter of time. It is hoped that an accident in which a UAS is involved will not be the reason for the establishment of rules or an amendment of a treaty as so often has been the case in the history of air law. From that perspective, this publication rightly draws attention to the topicality and also the urgency of these questions.

The authors are most grateful for the helpful comments and suggestions of Rita Sousa Uva, Legal Adviser at the European Aviation Safety Agency.

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Notes

  1. 1.

    The term ‘UAV’ is, however, losing popularity and has been described by some as an ‘obsolete term’ (Steer Davies Gleave 2014, p. ii.).

  2. 2.

    See EASA (2009). See also ICAO (2011).

  3. 3.

    See European Commission (2014b).

  4. 4.

    ‘“International air service” means an air service which passes through the air space over the territory of more than one state’ (Chicago Convention 1944, Article 96(b)).

  5. 5.

    The UK, for example, necessitates VLOS for small unmanned aircraft. ‘The person in charge of a small unmanned aircraft must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions’ (CAP393 2014, Article 166(3)).

  6. 6.

    It may be possible with the advancement of technology that not all forms of UAS may fall under the definition of ‘aircraft’, so caution must be given when categorising these developing vehicles.

  7. 7.

    See Reinhardt (2007), p. 70.

  8. 8.

    Attendance consisted of most European states, as well as the US, Brazil, Cuba and Japan.

  9. 9.

    The extent of a state’s territory, of which it has sovereignty over, is that declared by Article 2. ‘For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’ (Chicago Convention 1944, Article 2).

  10. 10.

    An authoritative definition of ‘state aircraft’ has been provided by EUROCONTROL as follows: ‘Principle 1: For ATM (Air Traffic Management) purposes and with reference to article 3(b) of the Chicago Convention, only aircraft used in military, customs and police services shall qualify as State Aircraft. Accordingly: Aircraft on a military register, or identified as such within a civil register, shall be considered to be used in military service and hence qualify as State Aircraft; Civil registered aircraft used in military, customs and police service shall qualify as State Aircraft; Civil registered aircraft used by a State for other than military, customs and police service shall not qualify as State Aircraft’ (Eurocontrol 2001).

  11. 11.

    However, attention is also given to the registration of the vehicle.

  12. 12.

    See International Red Cross (2014).

  13. 13.

    See, for instance, NATO’s Standardisation Agreements (STANAG) which are designed to facilitate the use of military aircraft and to enhance the safe transportation of cargo. STANAG 4441 encompasses a manual regarding the carriage of military munitions and explosives.

  14. 14.

    See EUROCONTROL (2014).

  15. 15.

    See UK CAA (2014a).

  16. 16.

    See ICAO (2011). See also CC44 Annex 2 and 7.

  17. 17.

    See European Commission (2014b), p. 1.

  18. 18.

    See Masutti (2012), Chap. 2.

  19. 19.

    Although the VCLT has only 41 signatory states, its provisions, including Article 31, are widely regarded as a codification of customary international law (Vienna Convention 1969).

  20. 20.

    See European Commission (2014c).

  21. 21.

    ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions’ (TFEU 2008, Article 100(2)).

  22. 22.

    See Regulation 1070/2009 (2009).

  23. 23.

    See TFEU (2008), Article 100.

  24. 24.

    Jamming can be defined as the act of ‘transmitting a high-power electronic signal that causes the bit error’ (Zielinski et al. 1996, p. 25). See Infosec Institute (2013).

  25. 25.

    Spoofing can be defined as the act of ‘taking over a…system by appearing as an authorised user’ (Zielinski et al. 1996, p. 25). See Aerospace Engineering and Engineering Mechanics (2014).

  26. 26.

    See Finn et al. (2014).

  27. 27.

    ‘Amongst the wide range of potential civil RPAS applications a number may involve collection of personal data and raise ethical, privacy or data protection concerns, in particular in the area of surveillance, monitoring, mapping or video recording’ (European Commission 2014a, p. 7).

  28. 28.

    See Roma (2014), p. 28.

  29. 29.

    This could be in the form of a light-touch approach such as including warnings on UAS packaging and producing easy-to-understand user guides. Alternatively, a harder-touch approach could be adopted such as implementing an effective enforcement body that actively looks for infringements and enforces the rules.

  30. 30.

    See Steer Davies Gleave (2014).

  31. 31.

    ‘Drafting aviation safety legislation and providing technical advice to the European Commission and to the Member States; Inspections and training to ensure uniform implementation of European aviation safety legislation in all Member States; Airworthiness and environmental type-certification of aeronautical products, parts and appliances; Approval of aircraft design organisations world-wide and of production and maintenance organisations outside the EU; Coordination of the European Community SAFA (Safety Assessment of Foreign Aircraft) programme; [and] Coordination of safety programmes, data collection, analysis and research to improve aviation safety’ (EASA 2014d).

  32. 32.

    See EASA (2014a). See also, European Commission (2014a).

  33. 33.

    See EASA (2009).

  34. 34.

    See BBC (2013).

  35. 35.

    See EASA (2014c).

  36. 36.

    See Regulation 889/2002 (2002).

  37. 37.

    Amazon.com is not alone as other companies, such as DHL, have plans to conduct a portion of their delivery service using UAS. See The Verge (2014).

  38. 38.

    ‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’ (Montreal Convention 1999, Article 17).

  39. 39.

    ‘Any person who on board an aircraft in flight: (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act commits an offence (hereinafter referred to as ‘the offence’)’ (Hague Convention 1971, Article 1).

  40. 40.

    ‘1. Any person commits an offence if he unlawfully and intentionally: (b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or (d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or (e) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight’ (Sabotage Convention 1971, Article 1).

  41. 41.

    See Piera and Gill (2014).

  42. 42.

    See Scott (2015).

  43. 43.

    See BAE Systems (2014).

  44. 44.

    See YouTube (2014).

  45. 45.

    The overriding article within the legislation is Article 138, which covers the subject of endangerment and applies to all aviation activity at all times: ‘A person must not recklessly or negligently cause or permit an aircraft to endanger any person or property’ (CAP393 2014, Article 138).

  46. 46.

    ‘Subject to paragraph (4), during take-off or landing, a small unmanned surveillance aircraft must not be flown within 30 metres of any person’ (CAP393 2014, Article 167(3)).

  47. 47.

    ‘Subject to regulations 4–13, no aircraft is to fly over a nuclear installation to which this regulation applies below the height above mean sea level specified in Column 4 of the Second Schedule opposite its name’ (Air Navigation Regulation 2007, Regulation 3(2)).

  48. 48.

    See UK CAA (2009).

  49. 49.

    Justices of the peace are locally sourced volunteers with no required formal legal qualifications, and these usually preside over cases at the magistrates’ court. However, in more complex or sensitive cases, district judges, which are legally qualified, paid and full-time professionals, may hear the case.

  50. 50.

    Most cases held at a magistrates’ court are brought to court by the Crown Prosecution Service (CPS), but due to the content of the case, the UK CAA prosecuted.

  51. 51.

    See BBC (2014).

  52. 52.

    See Institute of Criminology of the University of Ljubljana (2014).

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  1. International Institute of Air and Space Law, Leiden University, Leiden, Netherlands

    Pablo Mendes de Leon & Benjamyn Ian Scott

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  1. Pablo Mendes de Leon
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Correspondence to Pablo Mendes de Leon .

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  1. of Law, Institute of Criminology at the Faculty of Law, Ljubljana, Slovenia

    Aleš Završnik

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Mendes de Leon, P., Scott, B. (2016). An Analysis of Unmanned Aircraft Systems Under Air Law. In: Završnik, A. (eds) Drones and Unmanned Aerial Systems. Springer, Cham. https://doi.org/10.1007/978-3-319-23760-2_9

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