Nowadays, the civil activities carried out through the use of drones are rapidly increasing and such expansion involves a growing number of services, which range from agriculture to door-to-door deliveries, or even commercial long-range freight transport. Therefore, the scenario of international flights is becoming more realistic.
Nevertheless, it should be noted that under international law, no unmanned aircraft system (UAS) shall be flown over the territory of another Contracting State without authorisation of the overflown State and such authorisation shall also guarantee the safety of civil (manned) aviation.[1]
As a matter of fact, therein, the International Civil Aviation Organization (ICAO) observed that ‘integrating remotely-piloted UAS into non-segregated airspace and at aerodromes can likely be achieved in the medium-term’;[2] however, the premise behind the wished for common regulatory framework – and the means by which Contracting States will be able to grant special authorisations – is that UAS shall meet some minimum requirements in order to operate safely alongside manned aircraft.
In the absence of a shared common framework regulation regarding international flight authorisations, however, States are still sceptical about international remotely piloted operations. Consequently, even if specific authorisation for single operations may be granted, trans-border operations, during which borders would be crossed in flight, are substantially precluded at the current time.
In this regard, some steps have been taken by the European Union to offer viable solutions to the point at issue. In particular, Regulation No 1139/2018 on aviation safety, repealing Regulation 216/2008,[3] extends the competence of the EU to regulate all UAS regardless of their Maximum Take-Off Mass (MTOM). The new Basic Regulation also includes those systems where regulation was, according to Regulation No 216/2008, left to the national authorities.
Significantly enough, Regulation No 1139/2018 focuses also on the possibility of having third-country UAS operators performing activities in the EU. Therefore, international flights carried out by third-country operators within the EU territory are allowed, provided that the foreign UAS operator complies with the new Basic Regulation’s rules. The competent authority for the extra-EU operator shall be that competent authority of the Member State where the foreign operator intends to operate. In other words, non-EU operators in the ‘open’ category will be allowed to fly into, within or outside the EU, like EU operators, without administrative procedures, providing that they comply with common rules. It is likely that the involved unmanned aircraft would not cross borders while it is flying because it could be easily transported, for example, in a car or in a van. Operators in the ‘specific’ category must present a declaration or obtain a certificate as per EU operators.[4] In no case, for these two categories, does the European Aviation Safety Agency (EASA) mention the ‘specific authorisation’ as per Article 8 of the Chicago Convention, since the ICAO Standards and Recommended Practices (SARPs) apply only to the ‘certified’ category. In fact, small UASs in the ‘open’ and ‘specific’ category are not relevant for International Flight Rules (IFR) air navigation on the global scale because of their structural limitations. This possibility is already recognised by the ICAO Remotely Piloted Aircraft System (RPAS) Manual.[5]
Once the European Commission (EC) implements or adopts acts establishing common rules for the certified category, in which the airworthiness certificate, licence of the remote pilot and certification of the operator’s organisation would be required,[6] the ‘mutual recognition’ of certificates and approvals and the principle of ‘free circulation’ in the internal market would apply also to that most demanding category of UAS operations. Outside the EU, for IFR civil international flights, Article 8 of the Chicago Convention, which requires a ‘special authorisation’ from all the States which the operator plans to overfly, applies.
In conclusion, the regulatory framework to allow cross-border operations inside the EU and international flights on a global scale is taking shape in a comprehensive way, but a few tiles of the mosaic are still missing, which may make the ‘special authorisation’ difficult to obtain.
Notes
[*] Senior partner of LS Lexjus Sinacta Law Firm (Italy) and tenured Professor of Air Law and European Transport Law at the University of Bologna.
[1] Article 8 of International Civil Aviation Organization (ICAO), Convention on International Civil Aviation (also known as the Chicago Convention), signed on 7 December 1944, www.icao.int/publications/Documents/7300_9ed.pdf.
[2] Ibid, p 3.
[3] Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC [2008] OJ L79/1.
[4] See Article 56, Regulation No 1139/2018.
[5] ICAO, Manual on Remotely Piloted Aircraft Systems (RPAS), Doc 10019 AN/507, 1st edition, Montreal, 2015.
[6] See Articles 57 and 58, Regulation No 1139/2018.