Airspace law expert Dr Gbenga Oduntan calls for a new treaty to clarify the use of drones following the recent deployment of troops and fighter jets by China in response to an unauthorised drone flight.
Dr Oduntan says: ‘China like all modern fully functioning states would be very correct to place absolute attention and significance to flights of any nature over its territory whether by aircraft or drones owned by states or private companies. The problem of drone flights is also suffered by the United Kingdom where unidentified drones are flown in London and Liverpool despite Civil Aviation Authority (CAA) laws. Unlike the regime of the territorial sea the law of the air does not recognise a right of innocent passage over state territory.
‘The truth is that there are crucial security implications relating to all powered vehicles that can traverse in on or over national territory hence the universal principle is that all such vehicles must be registered, identifiable at all times and used only under strict national regulations. This is so particularly where other states may have extraterritorial jurisdiction over the automated vehicle as a result of the factual or presumed exercise of control. The vista for such security challenges expand everyday with thousands of payloads being uploaded into the environment of outer space and in the airspace with the increasing use of drones and other unmanned vehicles. Similarly submersible vehicles and underwater pipes and installations regularly call for identification and determination of nationality and control.
‘Even over the territorial sea there is no innocent passage for aircraft. The reasons for this are clear enough. A state is particularly vulnerable from the air. The entire essence of sovereignty and the security of flight over state territory may be eradicated in one seemingly innocuous but illegal flight over state territory.
‘Thus, the correct emphasis as pointed out by air and space lawyers is that airspace sovereignty is delimited in respect of the space above national territories and not in respect of the air which may at any given time be filling this space. Even the Romans could have met even the case of air navigation by permitting the aviator to cross a private air column, when it was not used by the land owner himself and provided such a crossing did not cause injury or damage to persons or to property. Both Roman and ancient Anglo Saxon law thus developed the principle that whosoever owns the soil owns all above it into infinity -cujus es solum ejus est usque ad coelum (whose is the soil, his is also that which is above it).
‘Under international law there is a duty of the flag state to register aircraft (whether civil or state owned), and this is so even in relation to pilotless aircraft and other pilotless flight craft such as rockets and earth satellites. Drones are effectively classified under Article 8 of the Chicago Convention (1944) which states that: “No aircraft capable of being flown without a pilot shall be flown without a pilot 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 ensure 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”.
‘The problem of increased drone activity and indeed the danger that they posed to all civilised states and peoples must be confronted quite quickly in the form of a new treaty to remove all lingering doubts and ambiguities as to their use both in national and international territory as well as in foreign states. The push for such a treaty will however have to come from the developing states as current ambiguities appear to work in favour of the developed technological powers that are keen to continue enjoying the dominance it allows in surveillance and military terms over foreign states. In essence the legality of drone flights is a common problem to all states and it makes sense to stick to the logic of Roman law which is that that which concerns all must be determined by all.’
Dr Oduntan, a Senior Lecturer in International Commercial Law at Kent Law School, is the author of Sovereignty and Jurisdiction in Airspace and Outer Space: Legal Criteria for Spatial Delimitation.
Along with expertise in air and space law, Dr Oduntan’s research specialisms include arbitration and land/maritime boundary and territorial disputes. Read more about his research interests and publications on his staff profile page.