Aviation Law and Drones

Unmanned Aircraft and the Future of Aviation

David Hodgkinson, Rebecca Johnston

• Editore: Routledge
• Anno: 2018
• ISBN:
  9781351332316
• Edizione: 1
• Argomento: Derecho
• Categoria: Derecho civil

The aviation industry is being transformed by the use of unmanned aerial vehicles, or drones – commercially, militarily, scientifically and recreationally. National regulations have generally failed to keep pace with the expansion of the fast-growing drone industry.

Aviation Law and Drones: Unmanned Aircraft and the Future of Aviation traces the development of aviation laws and regulations, explains how aviation is regulated at an international and national level, considers the interrelationship between rapidly advancing technology and legislative attempts to keep pace, and reviews existing domestic and international drone laws and issues (including safety, security, privacy and airspace issues). Against this background, the book uniquely proposes a rationale for, and key provisions of, guiding principles for the regulation of drones internationally – provisions of which could also be implemented domestically. Finally, the book examines the changing shape of our increasingly busy skies – technology beyond drones and the regulation of that technology. The world is on the edge of major disruption in aviation – drones are just the beginning.

Given the almost universal interest in drones, this book will be of interest to readers worldwide, from the academic sector and beyond.

1 Drones, innovation and the challenge for law makers

1.1 The drone revolution

1.1.1 Definition

‘Drone’ is one of the many names for an unmanned aircraft. Various origins of the word have been suggested. It could have emerged as a term descriptive of the ‘dull and dry’ reconnaissance work performed early in its history.¹ It has also been traced to the target drone ‘Fairey Queen’, the success of which led to the creation of the ‘Queen Bee’ drones. This could then have led to the use of ‘drone’ as the male counterpart of the queen bee.² What is known is that the word drone was used in a 1936 report by Lieutenant Commander Delmer Fahrney of the US Navy who was in charge of a radio-controlled unmanned aircraft project.³ As is evident from the origin of the term itself, drones have been associated with the military in the popular imagination,⁴ and carry a negative connotation because they have been used to kill remotely.⁵ However, these associations are slowly changing as drones are increasingly used in a civilian setting.⁶

While ‘drone’ is in popular usage, drones were previously called ‘pilotless aircraft’.⁷ This is the term used in Article 8 of the Chicago Convention of International Civil Aviation 1944.⁸ In the 1960s, the term ‘Remotely Piloted Vehicle’ (RPV) was used,⁹ replaced by ‘Unmanned Aerial Vehicles’ (UAV) in the 1980s.¹⁰ Other terms that have been used are ‘Unmanned Aircraft Systems’ (UAS), ‘Unmanned Aircraft’ (UA), ‘Remotely Piloted Aviation Systems’ (RPAS), ‘Unmanned Drones’, and ‘Autonomous Drones’.¹¹

There are subtle distinctions in these definitions. A UAV can be defined as an unmanned reusable vehicle, and as such would exclude missiles and aerial targets.¹² Theilmann’s definition of a UAV contains further description in that the vehicle is also ‘capable of being operated remotely or with onboard software, capable of carrying a payload that is not essential to its flight’.¹³ UAVs have also been defined so as to exclude ‘gliders, balloons, [and] tethered objects’.¹⁴ Jha, however, provides a much broader definition of a UAV when he writes that a UAV is ‘essentially … an aircraft without a human pilot’.¹⁵ The term UAV is not well known amongst the general public.¹⁶ It is more often used in media reports and legal commentaries.¹⁷ However, it has not been adopted by the European Union, the International Civil Aviation Organisation (ICAO) and most states.¹⁸

UAS is widely used by international organisations such as ICAO and the European Aviation Safety Agency (EASA).¹⁹ It is a ‘whole of system’ term that includes components such as the control station from where the aircraft is flown. It is defined by ICAO as:

[a]n aircraft and its associated elements which are operated with no pilot on board.²⁰

‘UA’ refers to the aircraft within the UAS system and is defined by ICAO as:

[a]ny aircraft intended to be flown without a pilot on board … [it] can be remotely and fully controlled from another place (ground, another aircraft, space) or pre-programmed to conduct its flight without intervention.²¹ (emphasis added)

For ICAO, RPAS is a subcategory of UAS – this subcategory relating only to unmanned aircraft which are piloted from a remote pilot station.²² ICAO defines RPAS as:

[a] remotely piloted aircraft, its associated remote pilot station(s), the required command and control links and any other components as specified in the type design.²³

Notwithstanding ICAO’s standard definitions, it notes that:

UA are commonly referred to as drones. However, many large RPA are also called drones making the term all encompassing for unmanned aircraft in common vernacular.²⁴

‘Drone’ is used throughout this book as it is recognised more widely and by the general public.

1.1.2 History

The history of drones is ancient.²⁵ In China, kites carrying explosives were used by a warlord to assault the walled city of his enemies.²⁶ In 425 BC, Archytas, an ancient Greek philosopher reputedly built and designed a steam propelled ‘pigeon’ which apparently flew 200 metres before running out of steam.²⁷ In 400 BC, a vertical flight device, the ‘Chinese top’, was invented in China, which consisted of feathers at the end of a stick.²⁸ The stick was spun between the hands to generate enough lift before it could be released into free flight’.²⁹ The Egyptian Saqqara bird, a bird-shaped artefact, with its 150 millimetre length and 180 millimetre wingspan is dated to 200 BC.³⁰ It may have been able to glide; its wings were angled at that of modern aircraft, and this indicates that the ancient Egyptians may have understood some of the processes of aerodynamics.³¹

In 1818, ‘a French solider designed an aerial balloon that would use a time delay to float over enemies and launch rockets down on top of them’.³² In 1849, Austrians launched 200 pilotless balloons to bomb Venice during their siege of the city.³³ Although the balloon raid was not entirely successful (some balloons were blown back by the wind over Austria),³⁴ Venice surrendered after five weeks.³⁵ Balloons were also used in the siege of Paris in the 1870s.³⁶

In 1863, two years after the start of the American Civil War, a New York-based inventor, Charles Perley, invented the ‘Perley Aerial Bomber’, a hot-air balloon that carried explosives and was connected to a timing device.³⁷ However, this device proved to be very inaccurate and dangerous.³⁸ Nevertheless, Confederacy and Union forces were already using unmanned balloons for bombing and reconnaissance.³⁹

In 1887, British meteorologist Douglas Archibald attached a camera to a kite to take aerial pictures.⁴⁰ And in 1898, kites with cameras were used by the United States for reconnaissance in the Spanish-American War.⁴¹ Beyond military use, unpowered gliders or rubber band-powered flying devices preceded manned flight.⁴² Examples include, the Cayley Model Helicopter (1796), and the Cayley Model Glider (1804) both built by Sir George Cayley,⁴³ and the Penaud Planophore (1871), designed by Alphonse Penaud.⁴⁴

In 1893, Lawrence Hargrave, an Australian, invented the Hargrave box kite.⁴⁵ In 1894, he was able to fly the kite 4.9 metres above the ground by linking some of his box kites together.⁴⁶ Other examples of early precursors to drones include Samuel Franklin Cody’s unmanned powered kite in 1907, and John Stringfellow’s success in flying a steam powered glider designed by William Samuel Henson in 1848.⁴⁷

Drones in the military

Although this book is primarily concerned with the use of drones in a civilian context, the military has most significantly engaged in drone development.⁴⁸ As a result, we include a short analysis of drone use by the military.

The origin of the modern drone can be traced to the First World War in which drones were created as target practice for the British army.⁴⁹ The prototype of these target drones was named the ‘Ruston Proctor Aerial Target’ and is credited to Sir Archibald Low who worked for the Royal Flying Corps.⁵⁰ The other early precursor to modern drones was the Hewitt Sperry Automatic Airplane, an aerial torpedo from 1917,⁵¹ made by Elmer Sperry and Peter Hewitt.⁵² The Hewitt Sperry Automatic Airplane could fly at speeds up to 80 kilometres per hour and carry a bomb weighing at 135 kilograms.⁵³ The plane was particularly remarkable because it represented a technological progression; it incorporated a gyrostabiliser – a breakthrough in flight as it prevented aircraft from rolling.⁵⁴ In 1918, Charles Franklin Kettering at Delco (such company later renamed General Motors), successfully flew a ‘more sophisticated unmanned aircraft’, an aerial torpedo...