The Governance of Unmanned Aircraft Systems (UAS): Aviation Law, Human Rights, and the Free Movement of Data in the EU
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The Governance of Unmanned Aircraft Systems (UAS): Aviation Law, Human Rights, and the Free Movement of Data in the EU Ugo Pagallo1 · Eleonora Bassi2 Received: 27 April 2020 / Accepted: 29 August 2020 © The Author(s) 2020
Abstract The paper deals with the governance of Unmanned Aircraft Systems (UAS) in European law. Three different kinds of balance have been struck between multiple regulatory systems, in accordance with the sector of the governance of UAS which is taken into account. The first model regards the field of civil aviation law and its European Union (EU)’s regulation: the model looks like a traditional mix of top-down regulation and soft law. The second model concerns the EU general data protection law, the GDPR, which has set up a co-regulatory framework summed up with the principle of accountability also, but not only, in the field of drones. The third model of governance has been adopted by the EU through methods of legal experimentation and coordination mechanisms for UAS. The overall aim of the paper is to elucidate the ways in which such three models interact, insisting on differences and similarities with other technologies (e.g. self-driving cars), and further legal systems (e.g. the US). Keywords Aviation law · Co-regulation · Coordination mechanism · Data protection · Governance · Legal regulation · Middle-out approach · Soft law · Unmanned aircraft system (UAS)
* Ugo Pagallo [email protected] Eleonora Bassi [email protected] 1
Law School, University of Turin, Lungo Dora, Siena 100‑10153, Turin, Italy
2
Politecnico of Turin, Nexa Center for Internet & Society, Via Pier Carlo Boggio 65a‑10138, Turin, Italy
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U. Pagallo, E. Bassi
1 Introduction Over the past 15 years, scholars have increasingly focused on the normative challenges of Unmanned Aircraft Vehicles (UAV), and Systems (UAS), also popularly known as drones. First, the attention was drawn to the military use of this technology since the mid 2000s, that is, during the first years of the second Gulf War in Iraq (and in Pakistan). Whilst, in his 2010 Report to the UN General Assembly, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, urged the then Secretary-General Ban Ki-moon to convene a group of experts in order to address “the fundamental question of whether lethal force should ever be permitted to be fully automated,” another UN Special Rapporteur, Philip Alston, declared that same year that “a missile fired from a drone is no different from any other commonly used weapon… The critical legal question is the same for each weapon: whether its specific use complies with IHL,” i.e. current international humanitarian law (in Pagallo 2013, at 4 and 59). A decade later, this kind of debate is still wide open. The use of drones, however, can also affect the civil (as opposed to the state and the military) sector. This is the field under scrutiny in this paper. Scholars have examined matters of safety and security, drones market growth, public trust or dist
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