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Masutti, Anna --- "The Regulation of Unmanned Air System Use in Common Airspace" [2012] JlLawInfoSci 13; (2012) 21(2) Journal of Law, Information and Science 212

The Regulation of Unmanned Air System Use in Common Airspace


1 Introduction

While in the military domain unmanned aerial systems (UASs) are already widely used under specific conditions and in segregated airspaces, UASs for civil use are still in an early stage of development. However, recent studies have shown that UASs applications for civil use have been developed and their deployment, especially for security purposes, is considered more and more a necessity.

The Single European Sky (SES) will be implemented by the Single European Sky ATM Research (SESAR) project, which is the European air traffic control infrastructure modernisation programme. SESAR aims to develop a new generation air traffic management system capable of ensuring the safety and fluidity of the European air transport over the next 20 years.

SESAR brings a new dimension to European air traffic management (ATM), which has a wide effect on all airspace users including UASs. The SESAR Concept of Operations (CONOPS) for 2020 fully recognises UASs as potential users of the common airspace. It expects increasing numbers of UASs, starting with military missions and extending to many types of civilian tasks, with machines ranging from very light to heavy. The basic assumption is that, when an UAS enters non-segregated airspace, the provision of an Air Traffic Service (ATS) to the UAS must be transparent to air traffic control (ATC) and other airspace users.

However, the full potential of UASs cannot be realised until they can fly in non-segregated areas and appropriate legislation and regulatory measures are developed. The necessity to quickly have a full set of common European rules on UAS airworthiness and integration within non-segregated airspace has become a matter of urgency and an unavoidable task. The lack of this regulatory framework prevents the industry from building pertinent business plans and from launching the developments required to answer civil customer’s needs.

The present contribution to the debate raised by the European Space Policy Institute (ESPI) on UASs examines the existing legislation at international level and at the European level applicable to UASs, the basic principles that should be taken into consideration for designing a regulatory framework permitting UASs to fly in common airspace and the contribution given by international organisations, the International Civil Aviation Organization (ICAO), and the European Organisation for Civil Aviation Equipment (EUROCAE), to this project.

The key role of the European Aviation Safety Agency (EASA) is outlined with regard to certification of UASs (aircraft and ground stations) and pilot licensing, without omitting to consider a regime of responsibility and accountability to identify the liable party in case of damage to persons or property caused by a UAS accident.

The European legislation has divided UASs into two major groups, which are each regulated by different authorities:

• UASs with a maximum take-off mass of more than 150 kg.

• UASs with a maximum take-off mass of less than 150 kg, commonly designated as light UASs.

Naturally, reference is made to UASs with a maximum take-off mass of more than 150 kg, which will be regulated by EASA, while the regulation of UASs with a maximum take-off mass of less than 150 kg is left to the civil aviation authority of each Member State.

2 The Reference Legal Framework

The present legal framework has a limited number of references. The most important one is certainly the 1944 Chicago Convention,[1] which introduces Article 8, an actual over-fly prohibition for unmanned air vehicles without specific authorisation.[2] Indeed, this Article states that:

No aircraft capable of being flown without a pilot shall be flown over the territory of a contracting State without special authorisation by that State and in accordance with the terms of such authorisation. 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.

Accordingly, it clearly appears that consent for contracting States over-flying is only granted when various conditions are satisfied, such as authorisation from the over-flown State, the respect of the over-flight terms, the engagement of the over-flown State to take all necessary measures to ensure that the over-flight in the airspace that is open to civil aircraft does not affect their safety.

Therefore, the pre-conditions to authorise the over-flight of UASs are various and involve the adoption of complex initiatives aimed at guaranteeing the safety of related operations, as prescribed by the Chicago Convention.

Consequently, international regulations require the submission of the relating authorisations demonstrating that the UAS complies with the airworthiness rules as stated, for example, by Articles 20 and 29 of the Convention as well as with the ICAO technical annexes issued for putting into effect such rules.[3] The previously mentioned articles require, for example, the possession of an airworthiness certificate, an ordinary license for the crew, boarding documents, etc, as well as the acknowledgment of their validity by the contracting States.

For ordinary aircraft, this process has been followed since the adoption of the international regulation, and has received a strong impetus thanks to the recent intervention of the European Union. However, for unmanned air systems, no such technical rules have been drawn up to date.

This deficiency has been discussed on various occasions both at the international and EU level, which has forced the relevant authorities to attempt to overcome this situation.

3 Application to UASs of Principles and Airworthiness Rules Introduced by European Regulations

The absence of a legal framework able to offer solutions to the various legal problems created by the use of the aircraft in question and the interest shown for their use for civil purposes, has initiated a process involving many international authorities at the EU and international level thanks to the initiative of EASA, which was formed by Regulation 1592/2002, as amended by Regulation 216/2008 and Regulation 1108/2009.[4] These regulations, while stating the obligations for the aircraft[5] to comply with the essential airworthiness requisites established in the relevant annexes, do not extend this obligation to UASs.

The absence of a specific mention of UASs could suggest that they are excluded from the new airworthiness rules. Indeed the definition of aircraft and product contained in Article 3 of Regulation 1592/2002 appears insufficient to include UASs.[6] However, a correct interpretation of these rules leads one to consider that UASs are subject to EU rules and to the harmonisation action of EASA for manned aircraft.

Support for a broader interpretation can be found in annex II of the Regulation mentioned above, issued for the application of Article 4. This article, while stating the obligation for aircraft and related products to comply with the technical rules of the Regulation, leaves to a specific annex the identification of the exempted categories and, among them, lists ‘(i) unmanned air vehicles having an operating mass below 150 kg’ which could lead to the conclusion that those weighting 150 kg or more must comply with the essential airworthiness rules that the EU Agency will have to establish.

The necessity to pursue the elaboration of the essential requirements for UAVs has also been recognised by the European Economic and Social Committee, who recently intervened on the matter of air safety. This committee has reiterated the need for EASA to define ‘the necessary protocols before considering the hypothesis to authorise UAV flights out of the reserved airspace’.[7]

In order to ease this process, and authorise the use of UASs in general airspace, the European body has reiterated that these aircraft are subject to the existing set of rules for conventional aircraft, confirming the interpretation noted above. Article 11.2 of the document under examination states, in fact, that ‘all rules relating to conventional aircrafts must also be considered compulsory for the UAV’.

This conclusion, ie the application to UASs of the same technical norms applicable to conventional aircraft, and the necessity (if it is to work) of issuing the protocols required by Regulation (CE) 1592/2002, have required the EU authorities to identify some criteria which should be useful to make some consideration to understand the future legal framework.

4 UAS Certification

The initial actions of the bodies charged to study the essential airworthiness requirements of UASs have clearly said that the technical and operating features of this particular category of aircraft make the certification of the sole aircraft insufficient to guarantee the safety of its flight operations.

This position has been supported, for example, by the Joint Aviation Authorities (JAA) in a study made in conjunction with Eurocontrol, anticipating an opinion later expressed by EASA.[8] This conclusion has been based on the principle that the flight of an unmanned air vehicle is operated by complex equipment from a control station and a link system between the station and the aircraft.

On this basis, and in order to guarantee the flight operation’s safety, it has been deemed that the certification must refer to the entire equipment used for such purpose.

The equipment comprises the control station[9] and any other necessary element to realise flight operations, like the communication link[10] and the ‘launch and recovery element’.[11] The equipment may allow the use of more than one vehicle, various control stations and ‘launch and recovery elements’.

Such a configuration of UASs raises many delicate questions that must be examined in order to identify the essential requirements that are necessary in order to guarantee a flight’s safety. Particular attention should be paid to the possible communication between the number of control stations and the number of flying aircraft. When the configuration of the system foresees one or more stations controlling the same aircraft, no problem should arise, as the airworthiness certificate stating the conformity of the vehicle with the safety regulations could be issued foreseeing the use of a range of control stations for one aircraft.

It becomes more complex, however, in the case of one station controlling more than one aircraft of different models. In such case, it should be decided whether to issue the control station with two or more airworthiness certificates (according to the number of guided aircrafts) or a single certificate specifically created for control stations having this particular feature.

In addition to these considerations, which up to now have not been resolved, it has been decided to follow an approach similar to that adopted for conventional aircraft as far as the pilot in command is concerned, ie the need for such persons to be in possession of the same licences accepted at the European level.

The tendency that has emerged at the EU level to proceed towards a certification ‘of the system’, which is not limited to a sole aircraft, appears justified in light of the intrinsic working mechanisms of UASs.

The complexity of the system and the necessity to reach a shared solution on the criteria and principles to be adopted in order to draw up a technical ruling system for the use of unmanned air vehicles, has persuaded EU authorities to involve other competent bodies in this sector.

EUROCAE has been requested to produce a study on airworthiness certification and the operative authorisation of UASs.[12] This working group, after having underlined that the lack of a clear legal framework on this matter is limiting the use of unmanned air vehicles in Europe, has prepared a program to produce a proposal for a set of technical rules governing all UASs.

Such a proposal, suggested above, shall be applied not only to the aircraft, but also to the personnel who are employed in the control stations (despite not being on board the aircraft), and to the structure organised by the operator for this purpose, to the airports and to the air traffic controllers.

Finally, an important working group has been set up by ICAO,[13] under pressure from member States and in particular from EU countries which have forced the international organisation to define its role in the creation of a set of rules for this sector in order to guarantee harmonisation of terminology, principles and strategies for the future regulation of the sector itself. Consequently, it has been suggested that there also needs to be a review of the ICAO Annexes to introduce ‘Standards and Recommended Practises’ for this kind of aircraft.

Within ICAO, the Air Navigation Commission[14] has examined the results of the above-mentioned working group on UAVs, stressing the importance of guidelines to give proper answers to the many questions that have been raised. In particular, it has been proposed to change the terminology of Unmanned Air Vehicles to Unmanned Aerial System and more recently, in Circular 328 of October 2010, to change the name of 'Remotely Piloted Aircraft System (RPAS) as, in reality, they are not unmanned vehicles but remotely piloted aircraft.

The necessity to guarantee the safety of the system requires the certification of the entire apparatus. However, this consideration raises many legal questions that need appropriate answers.

5 The Criteria to Identify the Essential Airworthiness Requisites for UASs: The Objective to Avoid Excessive Burden

The option to produce certification of the entire system could lead to a complex legal framework which is not appropriate to reach the goal, at both the EU and international level, of adopting a coherent set of rules for the development of this economic sector.

In order to avoid such an outcome, it has been pointed out since the first production of documents at the EU level[15] that the requirements necessary for the certification of UASs, and the relevant technical principles for assuring the safety of these flights should be, as much as possible, similar to those existing for conventional aircraft, thereby avoiding the introduction of more obligations and excessive burden.

For this purpose, some fundamental principles and disciplinary approaches have been outlined for the concrete implementation of the technical rules in this sector.

EASA, while producing the criteria to be followed for the description of the essential requirements, has first of all deemed it appropriate to specify that UASs will be affected by this regulation[16] and those that will be subject to rules established by their single national authorities only.

This last category comprises unmanned air vehicles with a maximum take-off mass below 150 kg, those designed for scientific or research purposes, or produced in limited numbers and, finally, UASs used for military, customs or police activities. However, national authorities should take into consideration, as far as possible, the principles and regulations suggested by EASA when regulating these activities.[17]

Beyond this distinction, importance has been given to the objective of avoiding the introduction into the certification requirements of elements that are considerably different from those required of conventional aircraft whose regulation can be applicable to UAVs, although amended in consideration of the particular nature of these aircraft.

To this end, it has been necessary to stress the importance of the impartiality (or fairness) principle and consequently to utilise as far as possible the existing legal framework for conventional aircraft excluding a tailored regulation for UASs only.

Therefore, UASs will have to comply with the airworthiness rules in force for conventional aircrafts and acknowledged by ATC service providers, avoiding, as far as possible, the application of different rules (transparency). The same importance has been attributed to the equivalence principle (equivalent risk, equivalent operation) that refers to the necessity of maintaining a safety standard at least equivalent to the one required for conventional aircraft.[18]

Finally, on various occasions it has been necessary to stress the importance of establishing rules on responsibility (responsibility/accountability), again subject to the same rules applicable to conventional aircraft. On the contrary, it is recommended that specific rules be adopted regarding the transfer of command and, consequently, the distribution of responsibilities among the operators, when the command operations are distributed among various control stations.[19]

6 Legal Problems Deriving from the Use of UASs in Common Air Space: The Identification of the Civil Liability Regime for Damages to Third Parties and for the Liable Party

From an examination of the recent initiatives adopted by the EU in order to consent to the use of unmanned air vehicles in non-segregated areas (and to overcome the prohibition established by Article 8 of the Chicago Convention), it appears the EU wishes to create a reference regulating framework to guarantee the safe use of UASs, without imposing onerous measures that would prevent their use.

Consequently, the efforts of the relevant authorities are mainly dedicated to designing the specific legal framework, while modest attention has been given to the further legal implications resulting from the use of such aircraft.

A theme of great importance concerns the regulation of civil liability resulting from the use of UASs. The liability for damage to persons or property that can occur as a result of an incident involving a UAS requires the resolution of various questions such as the applicable law, the identification of the liable party, etc. To this end, it should be decided whether the rules contained in the Rome Convention[20] could be considered applicable in such cases.

Naturally, this Convention does not contain any reference to UASs, but in some cases its rules have been considered applicable to all kinds of vehicles, including spacecraft, provided they are ‘usable for transport’. Whenever an extensive interpretation of the notion of an aircraft occurs (already adopted in the 1944 Chicago Convention and in Regulation 1592/2002), the set of rules contained in the Rome Convention can be considered applicable.

For example, the Italian legislature has recently come to the same conclusion. The reformed Air Navigation Code does not exclude the application of the rules in question to UASs.

These regulations, based on the aircraft operator’s strict liability,[21] allow for them to benefit from the system of debt limitation, for each incident, and to reduce the amount calculated in proportion to the weight of the aircraft that has caused the damage.[22]

The application to UASs of the same discipline on civil liability for damages caused to third parties raises another question related to the identification of the liable parties.

The traditionally adopted framework implies the distribution of the liability between the pilot in command of the aircraft and his or her operator. In the first case, liability normally lies with the pilot in command as the head of the expedition[23] as he or she is personally responsible for the observance of such obligations. In contrast, the liability for any other obligations, contractual or extra contractual, is attributed to the operator and in such cases the international regulation, mentioned above, puts the liability for damage to third parties or damage from collision on to the operator.

Therefore, it is vitally important, considering the complexity of UASs, to make a clear distinction between the pilot in command of the vehicle and the operator, ie between the person appointed as the crew chief and sole director of manoeuvres and navigation and the person that sets up an organisation for obtaining financial benefit.

As anticipated in the previous paragraphs, the relevant EU bodies have clearly suggested considering the entire UAS (aircraft, control stations, etc) while creating a set of rules for this kind of system. As a consequence of this concept, the UAS operator must be likewise recognised as the pilot in command.

In such a scenario, the liability for damages caused by the fall of a UAS to the ground should be attributed to the operator, ie to the person or entity that, on the basis of Article 2 of the Rome Convention[24] sets up the system, assures its functioning and provides the publication of their/its position to avoid the presumption that the owner of the aircraft is also the operator.

The figure of the pilot can be identified as the subject to whom is entrusted the command of one or more aircraft owned or at the disposal of the operator.[25]

7 Other International Regulations Applicable to UASs

The principle already accepted at the EU and international level, which applied to UASs the international rules adopted for conventional aircraft, especially those relating to safety, encourages the application of the same international set of rules like the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,[26] and the more recent Cape Town Convention.[27] Both Conventions are not applicable to military, customs or police aircraft.

The second above mentioned Convention aims at creating a specific international guarantee, fully applicable to all member States, concerning assets that normally, for business purposes, move from one State to another, like aircrafts, spacecraft, whose regulation is contained in special protocols, necessary to adapt it to specific needs. In our case, on the occasion of the approval of the Convention, an aeronautical protocol has been signed and the regulations created for conventional aircraft are also considered applicable to UASs.[28]

8 Initiatives Taken by the EU and some Non-EU Countries

In response to the increasing demand to use UASs for many civil applications, some countries have taken initiatives permitting the deployment of UASs under certain conditions. In some cases the first step has been to update the existing ATC regulations; in other cases a separate set of rules has been designed. Europe is very active in this field and is making progress, notwithstanding the extreme prudence of ICAO.

The most relevant experiences of a few countries are briefly described below: Canada has established a working group to amend existing Canadian aviation regulations to incorporate UAS operations into Canadian airspace with minimal changes. At present in the United States a civil UAS operator may have access to the National Airspace System (NAS) if they have a special airworthiness certificate. The Federal Aviation Administration (FAA) is making efforts to enable small UASs to operate in certain portions of the NAS.

In Australia, the Civil Aviation Safety Regulations consolidate rules governing all unmanned aeronautical activities into one body of legislation. Guidelines are published for manufacturers and controllers.

At the European level, we have the following initiatives and projects: EASA published the Advanced Notice of Proposed Amendment (A-NPA) in 2005, followed by its Comment Response Document (CRD) on 6 December 2007. The main findings are now explained in sufficient detail in a ‘policy document’ published in 2009 and discussed with stakeholders, including EUROCAE WG-73. The objectives of this ‘policy’ are to facilitate UAS applications and to ensure a level of safety/environmental protection at least equivalent to comparable manned aircraft. JARUS, European National Authorities under the leadership of the Netherlands and EASA are developing operational and technical regulations for UASs. EUROCAE WG 73 is developing a requirements framework that would enable unmanned aircraft to operate within the constraints of the existing Air Traffic Management (ATM) environment in airspace without segregation from other airspace users. INOUI Project (Innovative Operational UAS Integration) funded by the 6th Framework Programme of the European Commission, focuses on the integration of Unmanned Aerial Systems (UAS) in non-restricted airspace in the context of SES.

9 Conclusions

The market for UAS civil use is emerging and offers a wide range of applications, including security services. The existing regulatory framework is limited and permits UASs to operate in segregated airspace only. To unlock this market it is necessary to design a new regulatory framework allowing UASs to operate in the common airspace. The basic principles for airworthiness, certification and licensing have already been identified. Today’s technology is sufficient advanced to allow UASs to offer the same safety standards as manned aircraft.

The path to design the new regulatory framework is long and we should start now to establish the necessary initiatives. ICAO, with its Circular 328 of October 2010, has expressed the intention to proceed towards the insertion of UASs in the common airspace. The EU took the lead in this process, setting up the High Level Group announced during the UAS International Conference of 1 July 2010 in Brussels. This group is working on the introduction of important new technical and legal regulations for the use of UASs in common airspace.

[*] Professor of Air Law – University of Bologna. This paper was presented at the European Space Policy Institute seminar on 4 November 2010.

[1] 1944 Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (‘Chicago Convention’).

[2] We should remember that the Chicago Convention is applicable, as stated by Article 3, only to civilian aircraft and it is not applicable to aircraft used for State flights, military flights, customs and police flights. For such aircraft, excluded from the international ruling system, over-fly or landing in other States is consented only under previous special authorisation and conditions. (See Article 3(c)).

[3] Article 20 (Nationality mark) of the Chicago Convention forces all aircraft to show nationality and registration marks. Article 29 lists the documents that all aircraft of the contracting States must carry on board.

[4] Regulation (EC) No 216/2008 of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC [2008] OJ L 79; Regulation (EC) No 1592/2002 and Directive 2004/36/EC have been amended by Regulation (EC) No 1108/2009 of 21 October 2009. As a consequence of the formation of the EASA, the ICAO Annex 8, containing airworthiness rules for aircraft, has received a more harmonic and exhaustive application in EU countries and has also consented to draw up the guidelines for the future technical-legal regulation for the use of UAVs. See S Sciacchitano, ‘La nascita dell’European Aviation Safety Agency (EASA)’ (July-September) News Letter, Bologna University.

[5] The Regulation is applicable to aircraft, including products, parts and pertinences installed that have been designed or produced by an organisation for which the Agency or a member State assure the safety control, or have been registered in a member State or even registered in a third country, provided that they are managed by operators for which a member State assures the surveillance of the operations.

[6] These considerations have also been anticipated by the EASA which, describing the policy for UAV systems certification (Airworthiness and Environmental Protection) has observed that ‘The proposed policy is applicable to UAV systems with a maximum take off mass of 150 kg or more; which are not excluded by article 1(2) or Article 4(2) and Annex II of EC Regulation 1592/2002’.

[7] Opinion expressed by the European Economic and Social Committee on safety matter, 2006/C, 309/11, in GUUE of 16 December 2006, C.309/51.

[8] Eg see on this point, JAA/Eurocontrol Initiative on UAVs, Task Force Final Report – A Concept for European Regulation for Civil Unmanned Air Vehicles, 11 May 2004; European Aviation Safety Agency, Advance – Notion of proposed amendment (NPA) No. 16/2005 – Policy for Unmanned Aerial Vehicle (UAV) certification.

[9] EASA defines the control station (CS) as ‘A facility or device(s) from which a UAV is controlled for all phases of flight. There may be more than one control station as part of a UAV system.’ See European Aviation Safety Agency, above n 8.

[10] The Communication Link has been defined, on the contrary, as, ‘The means to transfer command and control information between the elements of a UAV System, or between the system and any external location. (Eg, transfer of command and response data between control stations and vehicles and between the UAV System and Air Traffic Control)’. Ibid.

[11] EASA states a ‘UAV Launch and recovery element’ is a ‘facility or device(s) from which a UAV is controlled during launch and/or recovery. There may be more than one launch and recovery element as part of a UAV System’. Ibid.

[12] European Organization for Civil Aviation Equipment WG-73, Unmanned Aerial Vehicle – Working Paper, 25 October 2006.

[13] ICAO Exploratory Meeting on Unmanned Aerial Vehicles, Montreal, 23-24 May 2006, ICAO-UAV WP/2.

[14] Air Navigation Commission, Results of unmanned aerial vehicle (UAV) questionnaire – Progress report on unmanned aerial vehicle work and proposal for establishment of a study group, AN-WP/8221, 17 April 2007.

[15] European Aviation Safety Agency, above n 8.

[16] Ibid.

[17] A working group at JAA had already suggested this route. See JAA/Eurocontrol, above n 8.

[18] The matter of the rules regulating the use of UASs in non-segregated areas was also discussed within ICAO and it appears in a working document which recalls the above-mentioned principles worked out by the EU bodies.

[19] In particular, the distribution of tasks should be clearly defined between the operator that guarantees the operations of the system and the pilot in command entrusted to drive the flight operations.

[20] Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, opened for signature 7 October 1952, 310 UNTS 182 (entered into force 4 February 1958) (‘Rome Convention’).

[21] In determining the operator’s liability the subjective state of the party (fraud or serious fault) is left out. Therefore, it is an objective liability based on the risk of a lawful activity. The regulation relating to the liability for damages to third parties on the surface is applicable any time an aircraft fall procures, even for force majeure reasons, damages to persons or property. In these cases the operator is liable on the basis of a strict liability regime (which, anyway, is tempered by some exclusions listed in the same Convention).

[22] Article 11 of the Rome Convention states:

1. Subject to the provisions of Article 12, the liability for damage giving a right to compensation under Article 1, for each aircraft and incident, in respect of all persons liable under this Convention, shall not exceed: (a) 500 000 francs for aircraft weighing 1000 kilogramme or less; (b) 500 000 francs plus 400 francs per kilogramme over 1000 kilogramme for aircraft weighing more than 1000 but not exceeding 6000 kilogramme; (c) 2 500 000 francs plus 250 francs per kilogramme over 6000 kilogramme for aircraft weighing more than 6000 but not exceeding 20 000 kilogramme; (d) 6 000 000 francs plus 150 francs per kilogramme over 20 000 kilogramme for aircraft weighing more than 20 000 but not exceeding 50 000 kilogramme; (e) 10 500 000 francs plus 100 francs per kilogramme over 50 000 kilogramme for aircraft weighing more than 50 000 kilogramme.

2. The liability in respect of loss of life or personal injury shall not exceed 500 000 francs per person killed or injured (...).

The limited value of the amounts indicated and the use of golden franc as a reference currency — replaced in almost all uniform regulations by the Special Withdrawal Rights (SWR) — have forced the revision of the Convention. ICAO is working toward the modernisation of the Rome Convention. Eg see B Izzi, Prospettive di riforma della disciplina internazionale sulla responsabilità per i danni a terzi sulla superficie, in Diritto dei trasporti 2004, 400-401.

[23] So provides Article 878 of the Italian Air Navigation Code.

[24] In this regard it is appropriate to point out that the notion of operator contained in the Rome Convention is partially different from that consolidated in the Italian air navigation Code. The notion of operator in the Rome Convention is connected to the criteria referring to the navigation activity. In fact the Convention attributes the liability to the operator, ie the person who was making use of the aircraft at the time the damage was caused: ‘operator shall mean the person who was making use of the aircraft at the time the damage was caused’ (Article 2.2). The Convention makes a distinction between use and navigation control with the consequence, for example, that in case of abusive use of the aircraft, without the authorisation of the person entitled, the temporary user or abusive user will be the liable party to whom a joint liability of the operator is added, but only for a guarantee purpose. Such difference falls in the case of leasing where, like the Italian regulation, the liability falls on the person who maintains the navigation control (the lessor).

[25] In this respect the document produced by EASA (Advance – Notice of proposed amendment (NPA) No 16/2005 – Policy for Unmanned Aerial Vehicle (UAV) certification, 25, cit.) has defined the UAV commander as ‘A suitably qualified person responsible for the safe and environmentally compatible operation of a UAV System during a particular flight and who has the authority to direct a flight under her/his command’.

[26] Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973).

[27] Convention on International Interests in Mobile Equipment, opened for signature 16 November 2001.

[28] Eg see, Il protocollo aeronautico annesso alla convenzione relativa alle garanzie internazionali su beni mobili strumentali (Città del Capo, 16 Novembre 2001) L Tullio (ed), Padova, 2005.

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