ANALYZING INTERNATIONAL AND INDIAN LAW REGULATING DRONES

This article was written by Divya Anand, a student of Symbiosis Law School, Pune

LITERATURE REVIEW

Drones are the ultimate disruptive technology, and while the consumer market has been quick to adopt this technology, legal and regulatory systems around the world are responding to it. The literature available on it’s specifics is growing as well. This paper gives an analysis of the legal effects and application of international law and the Indian law regulating the use of drones and the literature provided has been used for analyzing the same.

Rebecca Johnston in her book Aviation Law and Drones[1] examines established domestic and international drone regulations, as well as major issues that arise as a result of them. The legal and policy challenges of drone laws are growing as their use expands and diversifies. These complexities are also analyzed. It also includes critique from industry thought leaders, which provides useful insights into the drone industry. From the dawn of flight, this book traces the evolution of aviation regulations and laws. It follows the development of international air carrier liability, safety, and security conventions.

Ruth Levush in his article Regulation of Drones: Comparative Analysis[2] explains how international aviation is regulated – that is, through treaties and other related legislation agreed upon by states, he then analyzes the relationship between international and national legislation, as well as the instruments used by states to implement international treaties at the national level.

Prashant Prakhar in his article Future of Drones in India: Draft Rules[3] 2020 analyses the interplay between evolving technology and legislative efforts to keep up with that technology. The article provides a brief history of drones in the context of aviation and investigates the various challenges and issues for policymakers in regulating drones and it analyses the current laws regulation drones applicable in India along with their limitations.

GAPS IN RESEARCH

Despite the many and varied constitutional and governmental initiatives there’s no actual monitoring of these guidelines or a recent report on how well have these policies or initiatives performed in the advancement and the progress of Legislations regarding the regulations of drones.

A major limitation of my literature review is the lack of full comprehensiveness. Since literature in the relevant subject area is proliferating, more work is required to understand possible consequences of drone usage for example – fatal accidents due to accidents, eventual potential risk trade-offs, and modification of new regulation

REGULATIONS OF DRONES

Treaties have always been crucial to the international regulation of aviation. Drones are not mentioned specifically in such treaties. Even so, a broad interpretation of the term “aircraft” embraced by ICAO from an interpretation of the Chicago Convention puts drones within the scope of applicable international treaties.

Chicago Convention And International Civil Aviation Organisation

The Chicago Convention’s Article 8 governs “pilotless aircraft.”[4] According to Article 8, in order for an unmanned aircraft to fly over a member party to the Chicago Convention, authorisation from that state is necessary. Furthermore, when piloting over civil airspace, contracting states must ensure that unmanned aircraft do not jeopardize civilian aircraft. The definition of UAVs (or drones) as “pilotless aircraft” was confirmed at the 11th Air Navigation Conference in Montreal in 2003.[5] Because drones are a type of ‘aircraft,’ many of the Chicago Convention’s Articles may extend to them; such Articles govern ‘aircrafts.’ Article 36[6], for example, may apply to drones by permitting signatory parties to ‘prohibit or legislate the use of photographic equipment in aircraft throughout its territory.’ Drones, as a type of aircraft, must also adhere to the “rules of the air” (Article 12). Articles 3, 15, 31, 29, 32, and 33 may also be applicable to drones.[7] Drones are also subject to regulation by the International Civil Aviation Organization (ICAO), which is tasked with ensuring the “safety, regularity, and efficiency of air navigation” (Article 37). In 2011, the International Civil Aviation Organization (ICAO) issued Circular 328-AN/190, which outlined its framework for integrating drones into the same international regulatory framework. In addition, in 2015, the organization published the ‘Manual on Remotely Piloted Aircraft Systems’ aims to provide guidelines on operational and technical concerns for commercial drones.[8] The International Civil Aviation Organization (ICAO) is also constructing Standards and Recommended Practices (SARPs) for drones; existing SARPs apply to a large extent.

Limitations of international regulations

Articles of the Chicago Convention, which may extend to drones were clearly written with manned aircraft in mind. As a result, implementing those articles to unmanned aerial vehicles may make compliance inefficient or improper. Article 29, for instance, necessitates that all aircraft carry paper original versions of records such as a registration certificate and a certificate of airworthiness on board.[9] For many types of drones, this is somewhat practically impossible. The international treaties that extend to drones are limited in its ability to regulate drones efficiently. Although the Warsaw Convention most probably extends to drones because it applies to aircraft, Article 17 of the convention is unlikely to apply to drones at this stage of technology advancement because it pertains to death or injury of people on board or in the process of embarking or disembarking. Likewise, the Hague Convention prohibits offenses related to hijacking committed by passengers on board an aircraft.  As a result, it cannot regulate drones because, at the moment, the mostly drones do not transport people. Although the Montreal Convention is relevant to drones because it is directed at actions against aircraft, it is most likely ineffective at the moment to monitor and control civilian drones because it is only limited to the international level. The Tokyo Convention is unlikely to contribute because it is intended to criminalize on-board actions.[10]

Domestic regulations

Many domestic states have considered formulating their own rules and regulation in the lack of direct guidelines from international organizations. Many countries have decided to to exclude small drones weighing less than a certain amount from the standard rules that apply to aircraft. Nations have also opted to distinguish between commercial and recreational drones when enacting laws. Drones used for recreational purposes are generally less regulated.[11] Various jurisdictions have implemented a maximum flying altitude beyond which drones would demand permission to fly in order to ensure safety. Many states forbid drones from flying over densely populated areas, areas of national security concern, and areas within a wide radius of airports. Some jurisdictions intend to monitor and control drones to the same safety standards as manned aircraft.

D. REGULATIONS OF DRONES – INDIA

The subsequent requirement for use of Unmanned Aircraft Systems (“UAS” / “Drones”) now for COVID-19-related rescue operations has contributed in government realizing that India’s existing laws for civil operations of Drones had several gaps. As a result, on June 2, 2020, the Indian Ministry of Civil Aviation (“MoCA”) issued the revised Unmanned Aircraft System Rules, 2020 (“Draft UAS Rules”). The Central Government has the authority to issue such rules under Sections 4, 5, and 8 (2) of Aircrafts Act of 1934.

Applicability

Unlike the earlier Guidelines, which were only applicable within India’s borders, the Draft UAS Rules apply to all UAS registered in India, even if they are operating outside of India’s borders. Furthermore, its regulations would apply to anyone wishing to own or possess a UAS in India, as well as anyone wishing to import, manufacture, trade, lease, operate, transfer, or maintain one.[12]

General rules for applicable for drones in India

• Apart from for those in the Nano section, all drones must be registered, obtain a UIN (Unique Identification Number), and obtain special permission from Ministry of Home Affairs (MHA) before they can operate
• While flying, drone operators must retain a visual line of sight. Commercial drone operations necessitate a separate permit.
• Drones are not permitted to fly in “No Fly Zones,” which include airports and military installations. All unmanned aerial vehicles (UAVs) must follow the rules for restricted, controlled airspaces and any danger zones as interpreted by the Aeronautical Information Publication as issued by the DGCA or the Ministry of Civil Aviation.
• Operators of UAVs flying more than 200 feet above ground level must also obtain a DGCA Unmanned Aircraft Operator Permit (UAOP). This permit places the operator under intense scrutiny.
• Foreigners are currently not permitted to operate drones in India. For commercial purposes, they must lease the uav to an Indian entity, which will then assist them in obtaining a UIN and UAOP from the DGCA.

Legal Liability

The legal responsibility for UAVs is assigned to their operators under the DGCA Guidelines. The expectation is that the controller will make sure that the vehicle is operational and working properly. This, however, is not always the case. Although people should preferably be able to determine whether or not their drone is operational, this is an expectation, which can’t be effectively met in all cases. In the case of an accident caused by a malfunctioning vehicle, it would be unjust to hold the user responsible and pursue legal action against them. In other matters involving vehicular accidents, a third-party liability system is used to limit either party’s liability. The DGCA circular does not address third-party liability issues. A whole other factor of legal liability is the rules governing drone trespass on private property. However, as aviation technology advanced, society became aware of the fact there was a limit to the extent of private property, both above and below ground. However, no legislation exists that definitively determines its extent above ground.[13]

Penalties under Indian law-

Existing Guidelines prescribed broad criminal penalties without delving into the specific nature of violations that may occur while conducting Drone-related business in India. It also relied on provisions of the India Penal Code, 1860, as well as relevant sections of the Aircraft Act 1934 / the Aircraft Rules 1937, to take the necessary action. As a result, there is ambiguity regarding such contraventions that may fall under the scope of the aforementioned legislation. To avoid such ambiguities in enforcement, the Draft UAS Rules go on to specify a separate schedule for penal provisions that may relate to specific contraventions where no penalty is provided for such breach in the Aircraft Act, 1934. The above-mentioned schedule to the Draft UAS Rules segregates the nature of offenses into the two categories listed below, based on the penalties imposed.

Offenses punishable by a term of imprisonment of not more than two years or a fine of not more than one lakh rupees, or both; and Offenses punishable by a term of imprisonment of not more than six months or a fine of not more than fifty thousand rupees, or both

Furthermore, given the accident-prone complexity of drone operations, the Draft UAS Rules state that it shall be a valid defense to any hearing under the Draft UAS Rules if the violation is proven to have been caused by accident, weather stress, or other unavoidable cause.

Limitations

Standard Operating Protocol for Incidents –

While there are no guidelines in place, there has been no protocol developed by government for incident handling in the event of an accident. One such   incident occurred in 2015 in Bhopal, where UAVs carrying Hanuman idols operated over the city for an extended period of time without eliciting a response from the police. The incident not only posed a safety risk, but it could also have triggered religious tensions. Madhya Pradesh Police still asserts that they are in the planning phase of independently developing Standard Operating Procedures (SOP) to deal with incidents like this. What is concerning is the lack of direction and implementation on the part of regulators in responding to such situations. Even now, there is a concerning lack of discussion between regulatory agencies and enforcement agencies in designing SOPs for dealing with UAV-related situations in a manner that provides the safety of the skies without impeding the use of these vehicles.

So far, the Indian government has made no initiative to answer concerns about drone privacy invasion. The DGCA’s Draft Guidelines include a single quote on the significance of privacy; it is vague and ambiguous and appears inadequate in addressing such an important issue. The United States, for example, asserted the complexity of the situation when former President Barack Obama issued a policy statement directing various American government agencies to investigate ways to protect privacy whilst also enabling drones to operate freely.[14] The Australian Parliament, for its part, has contemplated the matter and has made the case for the application of advanced laws to the situation. As another common-law country, Australia’s model could be effectively adapted for India.[15]

Furthermore, the guidelines do not include a mechanism to ensure the safety and reliability of drones at low altitudes, nor do they include provisions to ensure that two drones do not interfere with each other’s operations. As the quantity of drones in Indian skies grows rapidly, this gap would become alarmingly obvious in the coming years and will need to be addressed quickly

CONCLUSION

Drones present regulators and the industry with both an obstacle and an opportunity. Significant progress has been made, but many questions about technology, regulation, and commercialization remain unanswered. Graduated incorporation in non-segregated airspace, with adequate constraints, is most likely today’s solution. Industry would recommend careful consideration of the issues raised and the ICAO’s work to date. Risk mitigation must be prioritized, with an emphasis on incremental change and full validity in safety performance. While national approaches will inevitably differ in this early stage, it is anticipated that harmonization efforts will ultimately lead to constructive uniformity within ICAO.

The concept of ‘law lag’ is used to identify the relationship between technology and regulations. Regulators are always a few stages behind technological developments and are constantly struggling to ‘keep up.’ The most important issue to address is the full integration of unmanned aircraft with commercial aircrafts in civil airspace. To accomplish this, we need an unmanned aircraft air traffic management (ATM) system to supplement the current manned aviation ATM system. This notion will be recognized as Unmanned Aircraft Systems Traffic Management (UTM), and many companies, including Google, Amazon, and Facebook, are currently developing it.

It cannot be overstated how important it is to have a more refined legal framework with appropriate recommendations, including tracking issues such as liability in the event of mid-air collisions. India must also develop a policy framework to address regulatory and legal issues.

[1] Rebecca Johnston et al, ‘Aviation Law and Drones-Unmanned Aircraft and the Future of Aviation’ (2018)

[2] Ruth Levush, ‘Regulation of Drones: Comparative Analysis ‘(2016)

[3] Prashant Prakhar et al, ‘Future of drones in India’, (2020)

[4] Convention on International Civil Aviation (Chicago Convention), 7 December 1944, 15 UNTS 295 (4 April 1947) art 8.

[5] Ron Bartsch, James Coyne and Katherine Gray, Drones in Society: Exploring the Strange New World of Unmanned Aircraft (Routledge, 2017) 53.

[6] Convention on International Civil Aviation (Chicago Convention), 7 December 1944, 15 UNTS 295 (1947) art 36.

[7] Kristian Bernauw, ‘Drones: The Emerging Era of Unmanned Civil Aviation’ (2016)

[8] International Civil Aviation Authority, Manual on Remotely Piloted Aircraft Systems (RPAS): ICAO Doc 10019 (2015).

[9] International Civil Aviation Organisation ‘Circular 328 AN/190: Unmanned Aircraft Systems (UAS)

[10] Sofia Michaelides-Mateou and Chrystel Erotokritou, ‘Flying into the Future with

UAVs: The Jetstream 31 Flight’ (2014)

[11] Ron Bartsch, James Coyne and Katherine Gray, Drones in Society: Exploring the Strange New World of Unmanned Aircraft (Routledge, 2017)

[12] Carnegie India, Civilian Drones and India’s Regulatory Response, March 2017

[13] Brian F. Havel and John Q. Mulligan, ‘Unmanned Aircraft Systems: A Challenge to Global Regulators’ (2015)

[14] International Civil Aviation Organisation, Doc 9854 AN/458: Global Air Traffic Management Operational Concept (2005).

[15] Konstantin Kakaes et al, Drones and Aerial Observation: New Technologies for Property Rights, Human Rights, and Global Development (New America, 2015)