On the verge of an aviation revolution
The Australian June 30, 2017
It is estimated that the number of unmanned aircraft operations will surpass manned aircraft operations in the next 20 years.
Drones represent only the beginning of industry disruption. The world is now on the edge of a technological revolution in aviation. This revolution includes, for example, autonomous or flying cars — with Airbus planning to test a prototype this year with a view to completing short-haul trips by 2021. Pilotless commercial aircraft may not be too far behind.
And in many parts of the world, particularly in landlocked countries, it is possible (if not easy) for drones to cross state borders.
These developments are not contemplated by existing domestic or international laws.
Similar to the role the Chicago Convention played in creating a framework for the regulation of international civil aviation for the first time in 1944, there have been calls for global rules (perhaps in the form of a Chicago-like treaty or, alternatively, guiding principles) to govern the use of drones.
The benefit of guiding principles is that they are non-binding, which makes them more likely to be taken up by states.
They are also useful as a first step to more concrete, effective, action which can then be taken. Guiding principles can, in this way, inform future formal agreements.
The International Civil Aviation Organisation recently announced that it will seek to establish a global traffic management solution for drone operations with solutions that are “globally aligned”.
Of course, the scope of international agreement will eventually need to be much greater.
There appears to be a clear consensus that the Chicago Convention does not provide an appropriate framework for the international regulation of drones.
The convention has, however, in Article 8, been interpreted so as to incorporate drones in the definition of “pilotless aircraft”. This is of limited use.
If a global agreement were to be formulated to govern the regulation of civilian drones at an international level, it could also be drafted in such a form so as to allow implementation into domestic (national) law or to, instead, annex “model” domestic drone law to such an international agreement for adoption by states.
In outline, a global agreement could contemplate matters including airspace sovereignty, safety, operational rules, airspace management, registration requirements, licensing and privacy — again, as the Chicago Convention does for civil aviation generally.
More specifically, the agreement would require drones engaged in international air navigation to bear appropriate nationality and registration marks and establish rules on the allocation of such marks.
As with the Chicago Convention, this will be of paramount importance to ensure airspace sovereignty — a primary concern, as always, of nation states — is not compromised.
The Chicago Convention also sets out certain freedoms of the air to facilitate international air travel. These freedoms will need to be appropriately adapted and proportionate to allow drones to fly across national borders and potentially “point-to-point” within foreign states.
However, while states in the 21st century have largely moved to “open skies”, it seems unlikely to us that drones will enjoy the same degree of flexibility given potential threats to safety and security.
The agreement would ideally establish an international drone registration system; such a system is important to promote responsibility and accountability of drone owners and operators, and would act as a deterrent to reckless and careless behaviour.
An international system would involve the entire drone community and could be established in a similar way to the International Registry of Mobile Assets under the Cape Town Convention. This electronic registry was established to record interests in aircraft and aircraft objects (albeit primarily for financial reasons).
Finally, the agreement would need to take account of privacy considerations. Privacy remains the “last frontier” of drone regulation and is a matter that states are struggling to address.
It appears unlikely, however, that a global agreement will be reached any time soon.
Technology will continue to outstrip regulation for the foreseeable future.