World UAS Survey

• Author: Timothy M. Ravich
• Profession: Lawyer
• Pages: 335-384

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C11

World UAS Survey

The military dimensions of drones grab most of the headlines internationally as the

innovation of autonomous and automated weapons raise new and unprecedented

issues of international law and the law of armed conflict. However, the emergence of civil

and commercial drone operations on an international scale offers an equally compelling

story line. e global interest in drones in private and public spaces across a wide range

of activities is enormous, from agriculture to search and rescue to sports videography to

environmental conservation to antipoaching to pizza and beer delivery. is chapter sur-

veys the variety of emerging drone laws around the world.

I. International Operations and Foreign-Owned

Aircraft: 14 C.F.R. Part107

e International Civil Aviation Organization (ICAO) has recognized that unmanned

aircraft systems (UAS) are aircraft, and as such, existing standards and recommended

practices (SARPs) that apply to aircraft apply to UAS.1 ICAO currently is reviewing the

existing SARPs to determine what modifications, if any, need to be made to accommo-

date UAS; in fact, ICAO recently amended the standard contained in Paragraph 3.1.9 of

Annex 2 (“Rules of the Air”).2  is st anda rd re quir es th at “a r emote ly pil oted a ircr aft shal l

be o perat ed in such a man ner a s to mi nim ize h aza rds to pers ons, p roper ty or othe r air craf t

and in acc ordanc e with the cond itions speci fied in A ppendi x 4.”3 at appendix sets forth

detailed conditions ICAO member states require of civil UAS operations to comply with

the Annex 2, Paragraph 3.1.9 standard.4

1 Operation and Cer tification of Smal l Unmanned Aircra ft Systems, 81 Fed. Reg. 42 ,064, 42,077 ( June 28, 2016) (to be

codified at 14 C.F.R. pt . 107).

2 Id.

3 Id.

4 Id.

COMMERCIAL DRONE LAW

336

Given the recent amendment to 3.1.9 of Annex 2 , the Federal Aviation Administration

(FAA) has crafted new civil drones rules—14 C.F.R Part 107 (see Chapter 9, supra)— to

minimize hazards to persons, property, or other aircraft operating within the United

States.5 Given the ongoing evaluation of the SARPs by ICAO, U.S. civil drone rules limit

the applicability of Part 107 to small UAS operations that are conducted entirely within

the United States.6 e FAA envisions that oper ations in international and foreign airspace

will be dealt with i n a future FAA rulemaking a s ICAO conti nues to re vise and more fully

develop its framework for UAS operations to better reflect t he diversity of UAS operations

and types of UAS and to distinguish the appropriate levels of regulation in light of those

differences.7

Meanwhile, in the United States, UAS may operate with U.S. Department of

Transportation authorization, under the authority of Section 333 of Public Law 112-95,

in a less restrictive ma nner than current ICAO SARPs require.8 Persons who wish to con-

duct operations outside of the United States can do so, provided they seek and obtain the

proper authorization from the requisite foreign civil aviation authority.9

In addition, based on the ICAO framework and the current review that ICAO is con-

ducting, the FAA proposed to limit the ru le to operations of U.S.- registered UAS.10 Under

49 U.S.C. § 44103 and 14 C.F.R. § 47.3, an a ircraft can be registered in the United States

only if it is not registered under the laws of a foreign country a nd meet s one of the follow-

ing ownership criteria (see Chapter 8 supra):11

t e aircraft is owned by a citizen of the United States.

t e aircraft is owned by a permanent resident of the United States.

t e aircraft is ow ned by a corporation that is not a citizen of the United States but is

organized and doing busines s under U.S. federal or state law and the aircraft is base d

and primarily used in the United States.

5 Id. Under Presidenti al Proclamation 5928, the territor ial sea of the United States, and c onsequently its territorial

airspace, e xtends to 12 nautical mile s from the baselines of the Unite d States determined in acc ordance with interna-

tional law. Id. u s, UAS operations that o ccur within 12 nautic al miles from the b aselines of the United St ates will be

consi dered a s opera tions oc curri ng wit hin the United St ates c onsist ent with the appl icabil ity of Pa rt 107. Id. e FAA

has noted that t his approach is consistent wit h Part 91. Id. While, as Transpor t Canada pointed out, § 91.1(a) refers

to waters withi n 3 nautical miles of the U.S. coa st, the applicability of Part 91 is not li mited to the 3- nautical- mile

area. Id. Specifically, § 91.1(b) clarifies that certain part 91 regulations also apply to aircraft operations taking place

between 3 and 12 n autical miles from the coa st of the United States. Id. us, the 12- nautical-mile metric used in

this rule i s consistent with the FAA’s agency pra ctice (as codified i n § 91.1[b]) and reflec ts the directive of Pre sidential

Proclamation . Id.

6 Id. at 42,078.

7 Id.

8 Id. at 42,078. I n addition to granting authori zation through Section 333 exempt ions, the FAA may authorize UAS

operations under S ections 334 and 336 of Pub. L. 112-95, as well as t hrough Experimenta l Airworthin ess Certification

of UAS and OPA (FAA Order 8130.34). Id.

9 Id.

10 Id.

11 Id.

Chapter11: World UAS Survey

337

t e aircraft is owned by the U.S. government or a state or local governmental

entity.

In proposing this requirement, the FAA noted that existing U.S. international

trade obligations, including the North American Free Trade Agreement (NAFTA),

cover certain kinds of operations known as specialty air services.12 Specialty air ser-

vices are generally defined as any specialized commercial operation using an aircraft

whose primary purpose is not the transportation of goods or passengers, including

but not limited to aerial mapping, aerial surveying, aerial photography, forest fire

management, firefighting, aerial advertising, glider towing , parachute jumping, a eria l

construction, heli- logging, aerial sightseeing, flight training, aerial inspection and

surveillance, and aerial spraying services.13 e FAA invited comments on whether

foreign- registered small unmanned aircraft should be permitted to operate under

Part 107 or whether they should be recognized as specialty air services under interna-

tional trade obligations.14

Article 8 of the Chicago Convention specifies that no unmanned aircraft “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.”15

Article 8 also calls on states “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.”16 In accordance with this obligation, the provisions of Part 107 set forth

the necessary authorizations for operations conducted by U.S. citizens only within

the United States.17 For those seeking to operate outside the United States, special

authorization from the foreign civil aviation authority w ill be required.18 us, remote

pilots wishing to conduct operations over another country’s airspace should review

that country’s statutes, regulations, and guidance for clarification about how to oper-

ate in its airspace.19

Until such time as agreements are reached with other countries, the FAA has deter-

mined that operations will be restricted to the land areas, internal waters, and territorial

sea of the United States.20 U.S. flight information regions that are more than 12 nautical

miles from the coast of the United States do not satisfy t hese criteria, and as such, Part 107

will not apply to operations in those areas.21

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.