Houston Brussels… we have a problem?
In the previous article, it was explained that the U-Space blueprint outlines a vision of integrated manned and unmanned aviation with the U-Space providing interfaces between the two. Air traffic management typically comprises three distinct activities: air traffic control, air traffic flow management, and aeronautical information services. The U-Space will more or less address all three of them relying on very high degree of automation and digital service.
A service platform? Software is key
The vision of the U-Space seems to suggest that it will be designed as a services platform complemented by operational procedures. As it will heavily rely on software, the existing regulatory framework for certification and safety assurances of software operating in ATM will likely have to be updated to reflect the highly automated operation of U-Space and the safe and secure development of interfaces between the two.
The U-Space will likely depend on adaptive software which has the ability to change its behaviour during runtime in response to changes in the operational environment, the configuration of the system, availability of resources etc. This gives rise to a number of questions of certification criteria, reliable operation and liability for defects. The resilience of the U-Space software will have to be ensured against the dynamic operation, interaction and interdependency of multiple components produced by different manufacturers. As a result, the emerging new risks will likely need to be governed by a more purposeful allocation of liability reflecting the morphing nature of the legal classification of ‘defects’ in product liability law.
Connectivity, data and cybersecurity
To meet its safety goals, the U-Space will heavily rely on reliable, real-time situational awareness and timely access to and sharing of safety-critical data. This may necessitate clear rules for access, sharing and reuse of safety-critical data, a sui generis data protection regime for non-personal safety-critical data. Additionally, producers and manufacturers will likely demand access to non-safety-critical performance data in order to optimise and improve their own software. It remains to be seen to what extent and on what conditions access to such data will be granted and how their legal status will be determined.
Furthermore, these data and any transmission thereof will need to be protected against tampering by implementation of security measures in line with the Directive on security of network and information systems (NIS Directive), the proposal for new Basic Regulation on common rules in the field of civil aviation, and EASA’s upcoming proposal for a future regulatory framework for cybersecurity in aviation including a single “horizontal” cyber-security rule which covers common requirements to all fields and specific requirements for each field supported by industry standards.
State aircraft? Sure!
U-Space is an all-encompassing vision that does not discriminate between drone users. The blueprint provides that the U-Space will be open to all types of drone users, including any type of state aircraft (incl. military) and public entities with prioritisation for special missions.
This seems to be in line with the foreseen possibility for Member States to apply certain provisions of the proposal for new Basic Regulation to activities and services performed by state aircraft, such as customs, police, search and rescue, firefighting, coastguard or similar activities or services, as well as to ATM/ANS provided by the military. The opt-in is modular and Member States may use it for one or more activities and domains of aviation regulation.
Sound resolutions to many of the issues discussed above related to, eg, cybersecurity, will be critical to the acceptability of the U-Space by any Member State. Furthermore, the very distinction between civil and state aircraft could be problematic as the definition of ‘state aircraft’ (or better, the lack thereof) under the Chicago Convention, the ‘magna carta’ of public international air law, relies on the criterion of functionality of the aircraft, ie, the context in which it is ‘used’, to distinguish between the two. Needless to say, this distinction will not always be straightforward and the legal obligations and liabilities are vastly different.
“This is ground control to major Tom…”
A lot of outstanding questions remain as to whether the U-Space platform will be open to drone software developers to create interfaces with it, how access to the U-Space services will be regulated, the role of national civil aviation authorities and EASA, access of third country operators to the U-Space. In other words, while the drone may know “which way to go”, we still have a long way to go floatin’ round the tin can full of legal surprises…
This article was first published in CiTiP Blog and is reprinted here with the author's full permission.
