The Elusive Drone at the ICAO Assembly

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Owning a drone does not a pilot make ~ Alex Morritt

Once every three years (unless otherwise convened) the international aviation community emerges in all its collectivity to gather at the Assembly of the International Civil Aviation Organization (ICAO).  The 41st of such Assemblies was convened on 27 September this year and will go on discussing matters affecting international civil aviation until it concludes on 7 October

One of the much-discussed items in the past as well as the present (and which will go on in the future) is the remotely piloted aircraft system (RPAS) which has been defined by ICAO as “an unmanned aircraft that is flown from a remote pilot station”. This definition per force and per se is elusive in its epistemic sense in that the fact that the title RPAS connotes that the aircraft  is “piloted” means it requires a pilot whereas the definition requires the plane only to be “flown” from a remote location which could also mean that the aircraft could have some degree of being controlled by human involvement, thus making RPAS different in analogy from say, a driverless car. 

Technically, a drone is a remotely piloted aircraft (RPA) and is just one type of unmanned aircraft.  Drones include elements such as ground control stations, data links and other support equipment. A similar term is an unmanned-aircraft vehicle system (UAVS), remotely piloted aerial vehicle (RPAV), remotely piloted aircraft system (RPAS).  Drones are intrinsically linked to air traffic management and air traffic growth which doubles once every 15 years. This growth can present a conundrum. On one hand, traffic growth is a sign of increased living standards, social mobility and generalized prosperity. On the other hand, air traffic growth can lead to increased safety risks if it is not properly supported by the regulatory framework and infrastructure needed.

The importance of RPAS to aviation is significant in the current context as it is used in multifarious scenarios and practices such as geology and mapping; recreation and health care; archaeology and forestry; forensics and missing person searches; firefighting and rescue.  Additionally, RPAS is used in television production as well as tracking migration and drug trafficking and  human smuggling, along with border control. RPAS also comes in handy in rapidly diversifying commercial uses such as goods transport and the transport of medical supplies and  agro-food, as well as precision driven aerial photography.

Some confusion  arises when this definition is often associated with the fundamental principle enunciated in Article 8 of the Convention on International Civil Aviation (otherwise known as the Chicago Convention) the provisions of which ICAO is bound to adhere to in its work (as ICAO was created by the Convention) which says: “No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization of that State and in accordance with the terms of such authorization. Each contracting State undertakes to ensure that the flight of such aircraft without a pilot in regions open to civil aircraft should be so controlled as to obviate danger to civil aircraft.

The perceived clash between the formal definition of RPAS (which cannot be flown without a pilot (in or outside the flight deck) and the Chicago Convention which envisions an aircraft flown without a pilot has still not been clearly addressed by the legal community.  However, the two concepts are used in symbiosis when RPAS is discussed.  ICAO states, in its Manual on Remotely Piloted Aircraft, that a RPAS is just one type of unmanned aircraft  and that all unmanned aircraft, whether remotely piloted, fully autonomous or combinations thereof, are subject to the provisions of Article 8 of the Chicago Convention . Here, one sees an extension of the principle in the Chicago Convention that applies only to aircraft capable of being flown “without a pilot” to “remotely piloted aircraft” in in the Manual. This indeed is a problem in semantics that deserves further discussion.

At the 41st Session of the ICAO Assembly, the Legal Commission of the Assembly was presented with a working paper which inter alia pointed out that “the increase in RPAS operations presents the challenge of keeping State airspace safe. This has prompted States to develop new standards and update existing ones, to ensure that basic rules of operation are followed in national airspace, both controlled and uncontrolled. However, because this is a work in progress, little to no attention has been given to the possibility of civil liability arising from this type of activity, and the potential remedies for damages caused to persons or property by such aircraft”.

The paper called for an air law instrument that would introduce and implement “an international juridical regime that gives States a legally valid instrument to determine civil liability for injury or damage caused by RPAS operations, in view of the growth of such operations for purposes of recreation, aerial work such as photography and recording, aerial cartography, agriculture and agro-food, goods transport, emergency medical units, and delivery of medicines to remote locations among other commercial activities”.

The ICAO Secretariat acknowledged the relevance of this issue in the Secretariat Study Group on Legal Issues related to Pilotless Aircraft (SSG-LIPA).

To begin with, there is significant background information already provided in ICAO documentation although admittedly, none of it pertains to a liability instrument pertaining to RPAS.  For example,  the ICAO circular on Unmanned Aircraft Systems (UAS) (Cir 328) which  contains explanatory information related to remotely piloted aircraft systems. Annex 6 to the Chicago Convention provides that a remotely piloted aircraft system engaged in international air navigation must not be operated without appropriate authorization from the State from which the take-off of the remotely piloted aircraft (RPA) is made.  Also, an RPA must not be operated across the territory of another State without special authorization issued by each State in which the flight is to operate. This authorization may be in the form of agreements between the States involved.

 An RPA must not be operated over the high seas without prior coordination with the appropriate ATS authority. The authorization and coordination must be obtained prior to take-off if there is reasonable expectation, when planning the operation, that the aircraft may enter the airspace concerned. An RPAS must be operated in accordance with conditions specified by the State of Registry, the State of the Operator, if different, and the State(s) in which the flight is to operate. Flight plans must be submitted in accordance with provisions of the Annex or as otherwise mandated by the State(s) in which the flight is to operate. RPAS must meet the performance and equipment carriage requirements for the specific airspace in which the flight is to operate.

Before disaggregating RPAS into legal principles, there needs to be a discussion on some fundamental issues: RPAS, at least theoretically, can operate in  two scenarios – international civil aviation and domestic aviation (within countries); RPAS (to the best of the writer’s knowledge) is not engaged in either international or domestic commercial air transportation; ICAO’s aims and objectives are exclusively focused on international civil aviation; there is already an international  liability regime for accidents and liability arising thereof where the damage which causes death or injury to passengers on board or when they are in the process of embarkation or disembarkation can  be compensated; in the context of cargo the existing international legal regime says that the carrier is  liable for damage sustained in the event of the destruction, loss of, or damage to cargo, upon condition only that the event which caused the damage took place during carriage by air, unless the carrier can prove that the damage resulted from inherent defect, quality or vice of the cargo; defective packing by a person other than the carrier, its servants or agents; an act of war or armed conflict, or; an act of public authority in connection with entry, exit or transit of the cargo; there is already an international liability regime for damage caused by aircraft to third parties or property on the ground; ICAO has no jurisdiction in  purely domestic operations of RPAS which are the remit of sovereign States and their legislatures.

So, what is left to discuss?