Drones – Future of Aviation Law?

Acknowledgement

We would like to express our gratitude to Mateusz Kotliński for the guidance and instruction he provided us throughout our book.

The opinions and conclusions expressed herein are those of the author. They are not intended to and should not be thought to represent official ideas, attitudes, or policies of the International Civil Aviation Organization (ICAO), the ICAO Council, or other bodies of the Organization, or any ICAO Member State(s).

Introduction – Drone as new technology. Drone law

A decade ago, unmanned aircraft (UA) were talked about mainly in the context of their military applications. First, it was just reconnaissance missions. Then, UA were being used in combat scenarios, especially during the wars in Iraq and Afghanistan¹. It seemed that development of unmanned aircraft and technological development on the modern-day battlefield were intertwined. Manned aviation was perfecting aircraft designs and the automation of aircraft systems and subsystems was progressing year after year. Satellite technology enabled the development of navigation systems, as well as better data transfer over long distances. Add to that was the miniaturization of equipment necessary to conduct, for example, remote observations from the air. At the end of the 1990s, American and Israeli armed forces began using UA systems for reconnaissance activities on a large scale. It was just a matter of time before they started using them as combat platforms. After the 9/11 attacks, the US military and intelligence agencies carried out the world’s first attacks using UA armed with laser-guided missiles. That was when the first unmanned aircraft systems designed for combat saw the light of the day. In the following years, the use of unmanned aircraft for so-called selective elimination drew many controversies, including legal ones². Nevertheless, this new technology not only changed the modern-day battlefield, but also military doctrines. Along with these changes, it became difficult to separate technological progress from politics, as new technology allowed for combat operations to be conducted in a way that minimized risk to human life, leading to a lower, politically accepted threshold for the use of force³.

Today, we are seeing numerous civil applications for drones. There are solar-powered drones, which have giant wingspans and can be used as mobile Internet ←9 | 10→access points since they don’t need to land for months4. Medium-sized drones can be used in logistics and transport services, fleet management, electronic media, in the movie and entertainment industries and even in agriculture (in the inventory of crops, forests, animals, etc.). Moreover, drones can support local government units and municipal economies in areas including geodesy and spatial management, crisis management, public safety (urban surveillance, mass events, command systems support, atypical event detection, law enforcement support, search and rescue operations), infrastructure inspection (flood embankments, rivers, monitoring of critical infrastructure), construction inspections and support for logistics work in the construction sector, environmental protection (location and air quality check-ups, illegal landfill detection), ground and surface waters inspections, transport management support, etc. And finally, drones can also be the size of an insect. For example, scientists at Harvard have created miniature RoboBees, which use so-called swarm intelligence to search for victims of natural disasters, pollinate plants, monitor road traffic or enable research to be carried out in environments too hostile for humans.⁵

The general development of unmanned aircraft has been closely related to technological development in many other fields, but the popularization of lithium-ion batteries was a key factor for its widespread expansion. This solution enabled the construction of electrically powered flying devices, which, combined with device miniaturization and satellite navigation positioning, led to the popularization of the new technology. The first unmanned devices used by civilians brought on the development of the very first legal regulations concerning their use. These regulations focused on UA operations conducted within an operator’s visual line of sight, and applied to aircraft weighing less than 25 kg. Denmark was one of the first countries to adopt such regulations in 1986,⁶ when UA were commonly referred to as consumer drones. However, contrary to their name, they were often used for commercial purposes, for example for filming videos or taking photos. Tech companies design and manufacture such devices on a mass scale. The Chinese company DJI turned out to be particularly successful in this segment, taking a 70% share in the global consumer drone market within the span of just a couple of years⁷.

People have been working on more complex UA systems for over a decade. These systems are intended to perform operations beyond an operator’s line of sight and are designed with commercial services in mind, including the transport of goods and the provision of services for the public sector. For example, at the beginning of 2020, trade media informed about UA test flights being carried out in the area of cargo shipping (Japan Airlines8), search and rescue operations for British state services⁹, or stratospheric UA flights (pseudo-satellites)¹⁰.

Numerous reports indicate that drones will gradually replace “traditional” (manned) aviation in such fields as aerial photography, search and rescue operations, transmission network monitoring or precise aerial application activity¹¹. The costs of using unmanned systems are incomparable to those incurred through manned aviation. Various services can be provided both remotely, i.e. with an operator (pilot) remotely controlling a UA, or autonomously in a pre-programmed manner without an operator’s (pilot’s) intervention or with their role simply limited to system supervision. Some believe that unmanned aircraft systems could result in the creation of completely new types of services which would stem from their ability to operate at very low altitudes and in urban areas. They could be used to provide emergency medical services¹² or deliver parcels. Some groups are also working on replacing satellites with solar energy-powered UA operating at very high altitudes (HAPS; High-Altitude Pseudo Satellite), which are capable of carrying out long-term missions without having to land to refuel. Such platforms can be used, for example, to transmit ICT data.

It is estimated that the changes brought about by this new technology will be comparable to those that took place in the service sector after the widespread development of computer technology, the Internet and mobile phones13.

The dynamics of UA technology development are best illustrated by economic data and forecasts. It is estimated that the global value of the civil application sector of the drone market in the years 2017–2026 will amount to nearly USD 73.5 billion, including USD 3.3 billion in Poland¹⁴. However, it is quite difficult to rely on data from estimates and forecasts as these tend to change. For example, according to forecasts prepared at the request of the European Commission in 2016, it was estimated that there would be around 7 million consumer drones and 400,000 specialized drones in use in EU countries by 2050¹⁵. Meanwhile, according to the data provided by the European Commission in 2019¹⁶, the total number of consumer drones around the world will reach approx. 35 million in 2022, 25% of which will be in Europe. At the same time, it is estimated that the number of specialized drones (used in BVLOS operations) will reach 9 million worldwide by 2022.

Concrete data on the number of UA and their users seems a lot more reliable than forecasts. According to conservative estimates from 2016, there were about 1–1.5 million consumer drones and about 10,000 specialized drones in the EU at the time¹⁷. It is worth noting that as new EU regulations requiring the registration of operators of drones with a mass of over 250 g enter into force (in December 2020), these numbers regarding individual EU Member States will change. It will be possible to actually see not just estimates, but rather real-life data on the actual total number of drone operators and their devices.

For example, in the USA at the end of 2018, there were¹⁸:

Consulting firm Gartner estimates that there will be 500,000 drones sold worldwide in 2020. This would signify a 50% jump in sales compared to 201919. And this number is expected to reach 1.3 million in 2023. Experts also predict the construction industry to be the sector with the widest range of UA applications. One of the tasks that drones are being used for in this industry is BIM (Building Information Modeling). It is estimated that the total number of drones sold for monitoring construction work will increase from 141,000 in 2019 to over 510,000 in 2023. Subsequently, it is believed that UA will be purchased more and more often for purposes related to fire protection, public safety (police services), logistics services, or for the purposes of performing damage assessments in liquidation proceedings.

It is safe to say that UA technology has been developing very dynamically in recent years. Therefore, it can be argued on reasonable ground that, based on the number of UA in use and estimates on the industry’s development in the coming years, a new type of aviation activity has been created and requires strong regulatory action.

This publication was borne of research-based intentions – an attempt to show the framework of aviation law and to analyze and distinguish manned aviation regulations and define the scope of their application in unmanned aviation. However, an analysis of these regulations, as well as an observation of the ←13 | 14→technological development of unmanned aerial systems, led to one question – namely, are we on the brink of a new era in aviation law? An era that started because of the development of a new type of flying device? One thing is for certain – we still don’t know how UA should be treated (like next-generation flying devices or regular aircraft?) due to their specific characteristics, various types, range of sizes, methods of use, and means of control (such as through artificial intelligence systems, etc.).

The main research problem is establishing a legal classification for drones. This concept is understood in many different ways. On the one hand, drones are defined as unmanned aircraft. But on the other hand, some say they should be considered robots20. Public law defines UA as aircraft that fall within the scope of aviation law, and only sometimes need new, special regulations that go beyond the framework of traditional aviation law. However, from the point of view of private law, especially civil liability, classifying drones into one or another category is of great importance. This issue is part of a larger discussion on new technologies, including robotics, that has been ongoing for years. The main research thesis is that we are now facing the creation of a new “branch of law” which is the Drone law.

The pace of development of UA technology in recent years rightly gives grounds to say that we are dealing with disruptive technology²¹. The disruptiveness of this technology should be considered in two aspects. First, it creates new possibilities as UA are designed to carry out operations (in most cases) at very low altitudes and in a completely different manner than manned aviation. Second, the development of this technology necessitates its integration with manned aviation – particularly commercial transport, taking into consideration its statistically high levels of safety. This new technology can only be allowed to develop if it can be demonstrated that UA are capable of flying in the same airspace as manned aviation without jeopardizing the safety and efficiency of ←14 | 15→aviation as a whole22. Therefore, from a legal viewpoint, the safety of UA operations is the most fundamental issue in question, and should be looked into by authorities, but from a dual perspective. First of all, UA could engage in accidents and thus jeopardize the safety of people and property on the ground. Second, if a drone collides with a manned airplane, the safety of the passengers and crew members on board might be endangered. This publication addresses the issue of unmanned aircraft operation safety regulations and the issue of manned aviation safety regulations in the context of integrating the two.

It is based on an analysis of the ever-growing number of publications and studies regarding the development of unmanned aviation and its integration with manned aviation, relying mainly on documents published at an institutional level, including those published by public authorities performing a regulatory role. Such studies constitute as the basis for drafting new laws and regulations regarding UA operations.

The authors draw upon the growing number of scientific studies on new UA technologies, as well as on different aspects of its development, including regulatory (legal) considerations. Over the years, a wealth of scientific literature, including numerous post-conference studies, countless presentations, as well studies and reports compiled by various organizations, institutions, and private companies have been made available.

An analysis of the available material, the amount and degree of detail of which increases in proportion to one’s interest in the subject, leads to the following research questions in terms of safety of unmanned aircraft operations and the development of regulations in this field.

First off, what are the consequences of recognizing unmanned aircraft as aircraft? The term “aircraft” is central in aviation law and aviation safety regulations – regulations that, for over a century now, have assumed that there is always a crew on board any aircraft, and which only allow for the introduction of new rules if they ensure a current or higher level of safety. An unmanned aircraft, although it is also an aircraft, will not meet these requirements by design. So, what approach should be adopted regarding UA safety regulations? Should we just modify existing rules on manned aviation and adjust them to unmanned aviation? Or should we create completely new regulations dedicated to new types of operations, loosely based on those found in manned aviation?

These issues are identified and clarified by analyzing safety regulations and documents that preceded adopting official laws. New technologies require new regulations, but their adoption is not an easy process and must be preceded, in most cases, by analyses, reports, studies, and conceptual and analytical documents. Oftentimes, the process itself is quite innovative – making some new ←16 | 17→technologies even more disruptive. However, we should bear in mind that aviation safety regulations are quite conservative. The introduction of any regulations other than existing ones (and their mitigation in particular) has to ensure the continuation of at least the current level of safety, if not better. Moreover, meeting most aviation safety requirements can be clearly assessed, since they are regulated in great detail in specialized documents that are based on good practice and research.