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Newsletter June 2013: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

 

SOME LEGAL MATTERS ABOUT UNMANNED AIRCRAF SYSTEMS (UAS) – CHICAGO CONVENTION

Introduction
Specific rights and obligations have been agreed by the contracting States in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically. These rights and obligations will, in principle, apply equally to both manned and unmanned civil aircraft. Where new measures must be developed for UAS operation, or existing requirements met using alternative means, they will be identified herein and addressed according to the Chicago Convention.

Specific articles and their applicability to UAS.

Article 3bis
a) The contracting States recognize that every State, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority… it may also give such aircraft any other instructions to put an end to such violations.
b) Every civil aircraft comply with an order given in conformity with paragraph b) of this Article…

Contracting States are entitled, in certain circumstances, to require civil aircraft flying above their territory to land at designated aerodromes, per Article 3 bis b) and c). Therefore the pilot of the RPA will have to be able to comply with instructions provided by the State, including through electronic of visual means, and have the ability to divert to the specified airport at the State’s request. The requirement to respond to instructions based on such visual means may place significant requirements on certification of RPAS detection systems for international flight operations

Article 8 – Pilotless aircraft
No aircraft capable of being flown without a pilot shall 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. Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.

Article 8 details conditions for operating a “pilotless” aircraft over the territory of a contracting State. To understand the implications of this Article and its inclusion from the Paris Convention of 1919 (Article 15) into the Chicago Convention of 1944, the intent of the drafters must be considered. Remote-control and uncontrolled aircraft were in existence at the time, operated by both civil and military entities. “(A)ircraft flown without a pilot” therefore refers to the situation where there is no pilot on board the aircraft. As a consequence, any RPA is a “pilotless” aircraft, consistent with the intent of the drafters of Article 8.

Second, emphasis was placed on the significance of the provision that aircraft flown without a pilot “shall be so controlled as to obviate danger to civil aircraft”, indicating that the drafters recognized that “pilotless aircraft” must have a measure of control being applied to them in relation to a so-called “due regard” obligation similar to that of State aircraft. In order for a UAS to operate in proximity to other civil aircraft, a remote pilot is therefore essential.

More recently, the Eleventh Air Navigation Conference (Montréal, 22 September to 3 October 2003) endorsed the global ATM operational concept which contains the following text: “(a)n unmanned aerial vehicle is a pilotless aircraft, in the sense of Article 8 of the Convention on International Civil Aviation, which is a flown without a pilot-in-command on-board and is either remotely and fully controlled from another place (ground, another aircraft, space) or programmed and fully autonomous.”

Standards to facilitate application and processing of the mandated requests for authorization will be contained in an Appendix to Annexe 2 – Rules of the Air. In all cases, the safety of other civil aircraft will have to be considered. It is envisaged that once the broad range of SARPs are adopted for each of the Annexes affected, contracting States will be able to facilitate and foster international operations of RPA to a similar extent as that being enjoyed by manned aviation.

Article 12 – Rules of the Air
Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable.

The rules of the air apply to all aircraft, manned or unmanned. Furthermore, they oblige contracting States to maintain national regulations uniform with ICAO Standards, to the greatest possible extent, and to prosecute all persons violating them. This is the basis for international harmonization and interoperability, which is as essential for unmanned as manned operations to be conducted safety.

In accordance with Article 12 and Annex 2, the pilot-in-command is responsible for the operation of the aircraft in compliance with the rules of the air. This also extends to having final authority as to disposition of the aircraft while in command. This is true whether the pilot is on board the aircraft or located remotely.

RPA operations may involve the pilot and associated responsibilities being handed over while the aircraft is in flight. The remote pilots may be co-located or situated thousands of kilometres apart, e.g. for an oceanic flight of a long range RPA, handover of piloting responsibilities to a remote pilot situated in Asia from a remote pilot situated in North America or between an en-route remote pilot and a local (terminal) remote pilot. Handover may also occur as a result of routine shift work of the remote pilot and a local (terminal) remote pilot. Handover may also occur as a result of routine shift work of the remote pilots. Changes will be required to address the handover of such responsibilities between different remote pilots. Adding to the complexity of this scenario is the possibility that the remote pilots and their stations may be located in different States.

Article 15 – Airport and similar charges
Every airport in a contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68, be open under uniform conditions to the aircraft of all other contracting States…

This provision applies equally to UA. Contracting States remain free to permit civil UA operations only to/from designated aerodromes, providing that no discrimination is introduced with respect to national or foreign registration of the aircraft.

Article 29 – Documents carried in aircraft
Every aircraft of a contracting State, engaged in international navigation, shall carry the following documents in conformity with the conditions prescribed in this Convention:
a) Its certificate of registration;
b) Its certificate of airworthiness;
c) The appropriate licenses for each member of the crew;
d) Its journey log book;
e) If it is equipped with radio apparatus, the aircraft radio station license;
f) If it carries passengers, a list of their names and places of embarkation and destination; and
g) If it carries cargo, a manifest and detailed declarations of the cargo.

Regarding article 29, every aircraft of a contracting State engaged in international navigation shall carry the specified documents on board the aircraft. For an RPA, carrying paper originals of these documents may be neither practical nor appropriate. Use of electronic versions of these documents may be considered. The requirement for certain documents to be carried on board the aircraft will be reviewed to determine if alternative means can be developed for RPA.

Article 31 – Certificates of airworthiness
Every aircraft engaged in international navigation shall be provided with a certificate of airworthiness issued or rendered valid by the State in which it is registered.

Article 31 applies equally to unmanned aircraft engaged in international navigation; however there may be differences in how airworthiness will be determined. These differences are explored in chapter 6. Until such time as SARPs for Certificates of Airworthiness are adopted in Annex 8 – Airworthiness of Aircraft, a gap will exist in how States issue these certificates.

Article 31 – Licenses of personnel
a) The pilot of every aircraft and the other members of the operating crew of every aircraft engages in international navigation shall be provided with certificates of competency and licenses issued or rendered valid by the state in which the aircraft is registered.

Remote pilots and other members of the remote crew are not subject to Article 32 which was drafted specifically for those individuals who conduct their duties while on board aircraft. Despite this, remote pilots and other members of the remote crew must be properly trained, qualified and hold an appropriate licence or a certificate of competence to ensure the integrity and safety of the civil aviation system. Until such time as SARPs for remote pilot licenses and certificates are adopted in Annexe 1 – Personnel Licensing, a gap will exist in how States issue, render valid of recognize such licenses and certificates.

Article 33 – Recognition of certificates and licenses
Certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.

Article 33 is the basis for mutual recognition of certificates and licences, however, it should be noted that significant differences will exist in how UAS certificates will be considered. As with manned aircraft, the UA must possess a Certificate of Airworthiness. The other elements comprising the system which allows the RPA to operate (remote pilot station, C2, etc. ) will also have to be addressed.

Assembly Resolution A36-13, Appendix G , Certificates of airworthiness, certificates of competency and licenses of flight crews (clause 2) resolves that States shall recognize the validity of certificates and licenses issued by other states when international standards for certain categories of aircraft or classes of airmen have not (yet) been developed. While ICAO is developing SARPs for RPAS, States are encouraged to develop national regulations that will facilitate mutual recognition of certificates for unmanned aircraft, thereby providing the means to authorize flight over their territories, including landings and take-offs by new types and categories of aircraft. An updated to Assembly Resolution A36-13 may be necessary to include mutual recognition of licenses of remote pilots and other members of the remote crew.

 

We will be at le Bourget Airshow from June 17th thru June 23rd 2013. Come and visit our stand in Hall 2b F 37.

 

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website: www.fliegerlaw.com, telephone: +32 3 238 77 66

 

Copyright A. Flieger
This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.