K
Kathleen Martin
Guest
Background
Widespread use of drones is now in place around mining, remote exploration works and repair, maritime work, geological survey, agricultural land management, urban transport and delivery, aerial photography, media, and more. Recreational take up continues to fuel market growth of drones globally, and their increasing use in areas like law enforcement, search and rescue and emergency relief is evolving very rapidly. The range of applications continues to grow at an astonishing pace and clear evidence of this continuing trend is apparent from significant increases in patent filings, foreshadowing new ideas and further evolution.
The exponential growth in the use and deployment of drones globally and of the technology underpinning their scope and operation dictates that the regulatory framework and associated security and commercial arrangements such as insurance will continue to evolve.
Historically, drone regulation has been focused primarily upon safety considerations but increasing attention will need to be paid to privacy and data protection laws. Globally, there are varying levels of maturity in such legislation ranging from comprehensive, principles-based data protection regimes, such as Europe's General Data Protection Regulation (GDPR), to the patchwork of sectoral and state laws in other jurisdictions.
The development of a consistent regulatory and operational framework for drones must also consider design and product liability issues which in turn are closely connected to the development of drone-specific airworthiness standards, including mandated 'fail-safe' functions.
International regulation
Global action to develop a harmonized approach and international coordination in relation to drones are more than worthy objectives — they are essential given the need to accommodate and integrate the international use of drones. The achievement of these objectives is no easy task as the regulation of ever-increasing drone-related operations and activities is proving to be a challenge for national aviation safety authorities around the world, not just domestically but also in a coordinated global sense. It is a challenge that must be embraced and managed.
It is generally accepted that one of the key challenges facing regulators globally in fully realizing the potential of drones is their successful integration into the non-segregated airspace without reducing existing capacity and while maintaining safety levels currently imposed and minimizing potential dangers to other aircraft, passengers, and other persons and property on the ground.
Organisations such as the International Civil Aviation Organisation (ICAO) and the European Union Aviation Safety Agency (EASA) have vital roles to play in this regard and more broadly. The ICAO Model UAS Regulations Parts 101, 102 and 149, supported by Advisory Circulars, and its publication of Standard and Recommended Practices (SARPs) are potentially of very significant benefit to member states in reducing time and costs associated with the regulation of drones. These Regulations are based upon a review of existing regulations in Member States in a bid to share best practices that can be implemented by countries seeking to improve, or introduce, UAS regulation.
EASA is another transnational organisation attempting to bring some much-needed clarity to unmanned airspace. Established in 2002 with the aim of ensuring safety and environmental protection within the European Union, its goals in relation to UAS include managing the safe introduction of UAS into the airspace (European Plan for Aviation Safety (EPAS) 2020-2024 14.1) as well as the admirable goal of simplifying the regulatory sphere by adopting a single regulatory and certification process among Member States. Such a clear transnational policy will be of assistance in aiding the development of both safety and technology as well as simplifying the process for operators across the EU. There is little doubt that embracing an internationally coordinated implementation strategy will enable the potential benefits of this emerging technology to be more quickly realised while at the same time ensuring society is protected from its harmful risks – at least from a safety perspective.
National regulation
At a national level, especially within federal jurisdictions, the interplay between national, state and local (council, local authority or municipal) laws can make for a complex interaction. For the sake of consistency and certainty, aviation law is generally within the sole remit of the national government (see, for example, the judgment of the High Court of Australia in Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54) and there are strong arguments that, in relation to commercial aviation using recognised aerodromes, it is (for the most part) clear cut where the boundaries of national and local legislation are drawn. In the United States, for example, the Supremacy Clause of the US Constitution (U.S. CONST. art. VI., cl. 2. 118) provides that federal laws are supreme and therefore preempt (override) conflicting state and local regulations. Where the federal government has made clear its intention to be the sole regulator of an area, preemption is relatively straightforward. Difficulties arise where the federal government has not expressly preempted an area particularly where there is crossover with areas traditionally left to the states. Similarly, in Australia, the scope of Commonwealth “aviation” powers do not extend to commercial aspects of aviation, nor, from the recent decision of the High Court in Work Health Authority v Outback Ballooning Pty Ltd (2019) HCA 2 does the body of Commonwealth civil aviation laws exclude the application of state and territory occupational health and safety laws.
Continue reading: https://www.clydeco.com/en/insights/2022/03/global-regulation-of-drones
Widespread use of drones is now in place around mining, remote exploration works and repair, maritime work, geological survey, agricultural land management, urban transport and delivery, aerial photography, media, and more. Recreational take up continues to fuel market growth of drones globally, and their increasing use in areas like law enforcement, search and rescue and emergency relief is evolving very rapidly. The range of applications continues to grow at an astonishing pace and clear evidence of this continuing trend is apparent from significant increases in patent filings, foreshadowing new ideas and further evolution.
The exponential growth in the use and deployment of drones globally and of the technology underpinning their scope and operation dictates that the regulatory framework and associated security and commercial arrangements such as insurance will continue to evolve.
Historically, drone regulation has been focused primarily upon safety considerations but increasing attention will need to be paid to privacy and data protection laws. Globally, there are varying levels of maturity in such legislation ranging from comprehensive, principles-based data protection regimes, such as Europe's General Data Protection Regulation (GDPR), to the patchwork of sectoral and state laws in other jurisdictions.
The development of a consistent regulatory and operational framework for drones must also consider design and product liability issues which in turn are closely connected to the development of drone-specific airworthiness standards, including mandated 'fail-safe' functions.
International regulation
Global action to develop a harmonized approach and international coordination in relation to drones are more than worthy objectives — they are essential given the need to accommodate and integrate the international use of drones. The achievement of these objectives is no easy task as the regulation of ever-increasing drone-related operations and activities is proving to be a challenge for national aviation safety authorities around the world, not just domestically but also in a coordinated global sense. It is a challenge that must be embraced and managed.
It is generally accepted that one of the key challenges facing regulators globally in fully realizing the potential of drones is their successful integration into the non-segregated airspace without reducing existing capacity and while maintaining safety levels currently imposed and minimizing potential dangers to other aircraft, passengers, and other persons and property on the ground.
Organisations such as the International Civil Aviation Organisation (ICAO) and the European Union Aviation Safety Agency (EASA) have vital roles to play in this regard and more broadly. The ICAO Model UAS Regulations Parts 101, 102 and 149, supported by Advisory Circulars, and its publication of Standard and Recommended Practices (SARPs) are potentially of very significant benefit to member states in reducing time and costs associated with the regulation of drones. These Regulations are based upon a review of existing regulations in Member States in a bid to share best practices that can be implemented by countries seeking to improve, or introduce, UAS regulation.
EASA is another transnational organisation attempting to bring some much-needed clarity to unmanned airspace. Established in 2002 with the aim of ensuring safety and environmental protection within the European Union, its goals in relation to UAS include managing the safe introduction of UAS into the airspace (European Plan for Aviation Safety (EPAS) 2020-2024 14.1) as well as the admirable goal of simplifying the regulatory sphere by adopting a single regulatory and certification process among Member States. Such a clear transnational policy will be of assistance in aiding the development of both safety and technology as well as simplifying the process for operators across the EU. There is little doubt that embracing an internationally coordinated implementation strategy will enable the potential benefits of this emerging technology to be more quickly realised while at the same time ensuring society is protected from its harmful risks – at least from a safety perspective.
National regulation
At a national level, especially within federal jurisdictions, the interplay between national, state and local (council, local authority or municipal) laws can make for a complex interaction. For the sake of consistency and certainty, aviation law is generally within the sole remit of the national government (see, for example, the judgment of the High Court of Australia in Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54) and there are strong arguments that, in relation to commercial aviation using recognised aerodromes, it is (for the most part) clear cut where the boundaries of national and local legislation are drawn. In the United States, for example, the Supremacy Clause of the US Constitution (U.S. CONST. art. VI., cl. 2. 118) provides that federal laws are supreme and therefore preempt (override) conflicting state and local regulations. Where the federal government has made clear its intention to be the sole regulator of an area, preemption is relatively straightforward. Difficulties arise where the federal government has not expressly preempted an area particularly where there is crossover with areas traditionally left to the states. Similarly, in Australia, the scope of Commonwealth “aviation” powers do not extend to commercial aspects of aviation, nor, from the recent decision of the High Court in Work Health Authority v Outback Ballooning Pty Ltd (2019) HCA 2 does the body of Commonwealth civil aviation laws exclude the application of state and territory occupational health and safety laws.
Continue reading: https://www.clydeco.com/en/insights/2022/03/global-regulation-of-drones
