The inherent problem in the context of drones is seemingly predicated upon the absence of a harmonized global “rule book” that standardizes the aeronautical aspects related thereto.
by Dr. Ruwantissa Abeyratne
writing from Montreal
There is no doubt that unregulated drones cause a serious threat to the safety of other aircraft. The Guardian has reported that “the rate of near misses between civil aircraft and drones in the UK has tripled since 2015. The UK Airprox Board (UKAB), which monitors all near misses involving commercial aircraft, said there were 92 between aircraft and drones in 2017. That was more than three times the number in 2015: 29. In 2016, there were 71 and the data is clearly tracking the growth in drone use”.
The Federal Aviation Administration (FAA) of the United States has admonished drone operators against disrupting and threatening fire fighting aircraft, issuing a severe warning to drone operators to avoid unauthorized flights near wildfires or face civil penalties totaling more than $20,000. The Flight Safety Foundation records the FAA as having warned drone operators: “if you fly your drone anywhere near a wildfire, you could get someone killed,” stating further that unauthorized drone flights not only constitute a collision hazard for fire fighting aircraft but also can distract pilots of firefighting aircraft.
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.
From an international perspective, drones are subject to the discretion of the State flown over, as Article 8 of the Chicago Convention (the multilateral treaty addressing international civil aviation) says that no aircraft capable of being flown without a pilot can be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization. Furthermore, under the treaty, each contracting State undertakes to ensure that the flight of such aircraft without a pilot in regions open to civil aircraft will be so controlled as to obviate danger to civil aircraft. It must be noted that remotely controlled and uncontrolled (autonomous) aircraft were already in existence at the time of the First World War, operated by both civil and military entities. “Aircraft flown without a pilot” therefore seemingly refers to the situation where there is no pilot on board the aircraft.
Prior authorization and coordination are required where it can be reasonably expected in the planning phase that the RPA will enter into the airspace of another State. For example, situations where conditions would require the remote pilot to fly alternate routes, avoiding hazardous meteorological conditions, restricted areas or where the alternate aerodrome in case of emergency is situated in another State. On the other hand, an unforeseen emergency would not require prior planning and prior special authorization, since it could not have been reasonably expected.
The above brings to bear a fundamental question: at the present time, is there a clear demarcation between remote human control of an RPAS and an automated computer centre? It is quite obvious that the International Civil Aviation organization (ICAO) in its Manual on Remotely Piloted Aircraft refers to human control when it says: “remote pilots must be able to perform their duties at an adequate level of alertness. To ensure this, RPAS operators whose organizations include operation shifts and crew scheduling schemes should establish policies and procedures for flight and duty time, operation shift schedules and crew rest periods based on scientific principles”.
This point is further unfolded on the issue of remote pilot licences. The Manual goes on to say that a person should not act either as remote pilot in command (PIC) or as a remote co-pilot of an RPA unless that person is the holder of a remote pilot licence, containing the ratings suitable for the purpose of executing the operation. Also, a person should not act as an RPA observer unless that person has undergone a competency-based training on visual observer duties concerning RPA operations. The focus on a “person’ is further elaborated in the provision that says that remote pilot licence requirements and the requirements for the RPA observer competencies should consider the integration of human performance issues within a competency-based training and assessment approach. Finally, all stakeholders (instructors, assessors, course developers, training providers, inspectors, etc.) involved in the training and assessment process should be provided with guidance on how to develop, implement and manage or oversee competency-based training and assessments that integrate human performance elements. Human performance training should not stand out as a separate subject.
Further provisions in the Manual leave no room for doubt that exclusive automation though digitalization is ruled out. For example the Manual states that remote pilots that are required to communicate with air traffic services (ATS) must demonstrate the ability to speak and understand the language used for ATS communications to the level specified in the language proficiency requirements in Annex 1 to the Chicago Convention (Personnel Licensing) and have proof of language proficiency and that proof of language proficiency in either English or the language used for communications involved in the remotely piloted flight should be endorsed on the remote pilot licence.
At the recently concluded session of the 40th Assembly of ICAO, there was a clarion call by the International Coordinating Council of Aerospace Industries Associations (ICCAIA) and Civil Air Navigation Services Organisation (CANSO) for clarity in regulation and in particular, the compelling need to regulate Artificial Intelligence (AI) and humans involved in RPAS. The two Organizations went on to say: “beyond certification and qualification standards, updates of other standards are also needed, to allow for novel ways of working. With the implementation of AI, the interaction between human and machine is evolving. Systems are now able to make accurate recommendations and decisions, even in complex situations, and to adapt to changes in the environment. These increased capabilities of systems should be accounted for in ICAO’ Standards and Recommended Practices (SARPs), to allow the use of AI at its full potential, for the benefit of safety, capacity and efficiency in operations. To this end, the ICAO Council should initiate a review of the existing SARPs and initiate updates and amendments of the SARPs to allow for the use of new AI technologies, where relevant”.
The inherent problem in the context of drones is seemingly predicated upon the absence of a harmonized global “rule book” that standardizes the aeronautical aspects related thereto. ICAO has a useful manual on the subject, but it does not extend beyond being mere guidance material.
The author is Senior Associate, Aviation Law and Policy at Aviation Strategies International, and a visiting professor on aviation law at McGill University. He worked as Senior Legal Officer at the International Civil Aviation Organization before his retirement from the international civil service.
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