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Are we ready for ‘disaster drones’? Legal Questions and Challenges
Camilla R Barker FRSA
On the wall above my desk is a map of the world. I often sit back against my chair and stare at it. As a kid, I was fascinated by maps. I had a light up globe next to my bed and at night I would spin it around slowly learning the names and capitals of countries, tracing major rivers with my fingertips and wondering how long it would take to walk from place to place. Even today, there are times that I still do that with the map above my desk. But where as a kid I would look at a map and see squiggly lines, blocks of color and big patches of blue, now, as an adult, I see borders, States, and the high seas. It’s the borders that captivate me the most. If you think about it, they don’t just represent territorial limits. They represent struggle and sacrifice of the human population; they are scars on the earth’s surface.
In my academic life, as a graduate researcher working on international law and humanitarian assistance issues, borders also represent challenge. One of the broad aims of my research is to help aid organizations and governments that are trying to get essential goods and services to individuals struggling to survive as a result of circumstances out of their control (armed conflict and natural disaster being the main culprits). Borders have a tendency to get in the way of their lifesaving work.
In most cases, affected States are receptive to international aid. But increasingly, aid organizations and coordination bodies, like the UN Office of the Coordination of Humanitarian Affairs (OCHA), are having to engage in complex negotiations to get access across borders. Aid convoys could travel thousands upon thousands of miles by road only to be blocked at the border crossing closest to the disaster-struck region. Most of the time, aid is blocked because the necessary legal agreements are not in place: customs agreements, immigrant worker status evidence, declarations of quality of goods, insurance documents, etc. Aid being blocked is a huge problem. In the best cases, the delay means that the convoys take a few extra days to get to their beneficiaries. In the worst cases, millions of dollars’ worth of aid sits and rots in warehouses on the wrong side of the border, leaving those in need facing starvation, medical trauma, homelessness and death.
Owing to the nature of our work, humanitarians are very receptive to ideas and innovations that help in overcoming this constant challenge. At its core, our work is guided by principles that do not involve competition. We just want aid to get to those who need it; we don’t fight with each other about who gets credit. When tech companies introduce to us their latest innovations that could help overcome difficult issues, we get very excited. One of the latest innovations to be introduced is the drone.
Drones have, thus far, been given a bad rap in the press. And there’s little wonder. Drones, also known as UAVs (unmanned aerial vehicles), have played a major role in thousands of unnecessary civilian deaths in armed conflict. Of course, it is those behind the controls that should be taking the blame for this, but in reality it is the collection of metal and motors, the drone, that is, as the face of the activity, shouldering the weight of the criticism. Much less explored and publicized as a result of this are the potential humanitarian uses for drones.
Despite the increase in the promotion of drones as humanitarian tools in the past couple of years, the use of drones in humanitarianism is not as recent a practice as one might think. In fact, the use of drones as humanitarian surveillance devices goes back two decades. The United States deployed the Gnat 750 drone in Bosnia in 1994 to provide aerial surveillance for NATO convoys and numerous are the examples of drones being used to map disasters, especially for search and rescue mission purposes. The role of the drone in the humanitarian crisis that ensued after the 2010 Haiti earthquake is considerable; without it, aid organizations would have experienced severe problems in understanding where communities were and how to access them. In addition, the use of drones has been prevalent in regional responses to crisis, such as the European Union (EU) peacekeeping missions. The EU has furnished the UN Stabilization Mission in the Democratic Republic of Congo (MONUC) with four drones from Belgium, and it has enabled the EU mission to the UN Mission in the Central African Republic and Chad (MINURCAT) (EUFOR) to use drones for surveillance. And their roles are not limited to surveillance and mapping; according to the drone manufacturers themselves, drones capable of transporting heavy equipment to ground troops or aid workers (already tested by the US military in Afghanistan) will soon be put into operation.
Drones offer a number of benefits. Indeed, without significant benefits, it is very unlikely that such prominent humanitarian actors would have used drones for their operations. One benefit of particular importance is that drones are able to do the work that would typically put aid workers, even very experienced ones, in severe danger. This is especially true in armed conflict. Drones can fly across most terrains quickly and efficiently, even in the presence of combatants, and they can send information such as the location of potential hazards and stranded populations back to command centers in a matter of seconds. No human mapping team could do that as safely and efficiently.
There exist, however, a number of problems with the use of drones. Many of these problems are of a legal nature, either posing a conflict between legal norms or falling into an area of activity that the law does not extensively (or indeed adequately) regulate. These problems are various and numerous, but the top three (in my opinion), involve State consent, national security and data privacy.
01. State Consent
State consent remains one of the most challenging aspects of international humanitarian work. As mentioned above, in most circumstances States are willing to allow humanitarian actors on their territories. But there are a number of circumstances where States are less willing to allow outside actors in, and in those cases the States are at liberty to withhold their consent. If humanitarians persist without the consent of the affected State, they are put at risk of direct criminalization and any State that works with these actors risks facing legal action itself for interfering in the internal affairs of another State.
It is unclear whether drones can help us in this regard. In practice, it seems much less intrusive to send a small drone into another State than it does to send a cargo truck and a team of aid workers, so perhaps the use of drones would make an affected State more willing to allow humanitarian activities on its territories. But in the event that a State still withholds that consent, legally there may be little difference between a drone and a cargo truck.
02. National Security
If a State is involved in an armed conflict, its national security systems will be operating at a much more intense level than they would in peacetime. This means that any foreign activity is monitored for potential security risks, irrespective of the intentions of the persons engaged in that activity. Drones are treated with suspicion for a number of obvious reasons and in the interests of national security, a State’s military could take possession of the drones or shoot them down. Perhaps of more concern is the risk that drones could be captured and used by terrorists, either directly or as inspiration for their own drones (terrorists could, for example, paint their drones the same colors as humanitarian drones to disguise them). Unfortunately, not enough attention has yet been paid to the national security issues regarding drone use.
03. Data Privacy
As mentioned above, one of the major functions of drones exists in data collection and communication. There are two circumstances that pose particular threats in this area: the usual use of drones and the event that the drone falls into the wrong hands. Firstly, when used as planned, i.e. for neutral and independent humanitarian missions, drones can capture enormous data sets ranging from geographic maps to population distributions. Whether intentional or not, drones may also capture information about military activities, including locations of key military facilities and troops. This is dangerous data to possess and may result in criminalization of drone operators and their sponsors. Of even greater concern again is if the drone falls into the wrong hands. Terrorists rarely have funds for complex data collection missions, but possession of a drone could enable such activities, which in turn puts military personnel and civilians at further risk.
It is clear that despite the enthusiasm evidenced for the increased use of drones in humanitarian work and the resultant increase in technological development and operational policy, lawyers involved in these activities have a particular set of questions that, thus far, have gone largely unanswered. These problems exist when humanitarian missions seek to address suffering as a result of armed conflict and natural disaster, but the problems seem more acute in the former. Unless these concerns are addressed, it is going to be very difficult for lawyers to advise aid organizations about their use of drones, a difficulty that could lead to severe impacts on the efficiency and quality of aid delivery on the ground. That is not to say that the relevant research is not being conducted. Indeed, the academic centers focusing on drone policy and operation are producing impressive research as I write this. But at this time it seems we simply do not have enough scholarship, particularly on the legal aspects of drone use in humanitarian missions, to enable international lawyers to give effective advice to the aid organizations and assisting governments. Given the challenges the humanitarian community face every day in responding to the world’s most difficult situations, it seems that this research is needed now more than ever. Without it, we are plainly not ready to use these potentially very efficient humanitarian tools.
Harry Weisburger, ‘Heli-Expo 2011: Unmanned K-Max Deploying to Afghanistan This Summer’ (March 2010) http://www.ainonline.com
Kristin Bergatora Sandvik and Kjersti Lohne, ‘The promise and perils of ‘disaster drones’’ (July 2013) http://www.odihpn.org/humanitarian-exchange-magazine/issue-58/the-promise-and-perils-of-disaster-drones
Patrick Meier, ‘Humanitarian UAV/Drones in Conflict Zones: Fears, Concerns and Opportunities’ (November 2014) http://irevolution.net/2014/11/03/humanitarian-uavs-conflict-zones/
UN Office of the Coordination of Humanitarian Affairs, ‘Unmanned Aerial Vehicles in Humanitarian Response’ (June 2014) https://docs.unocha.org/sites/dms/Documents/Unmanned%20Aerial%20Vehicles
Camilla Barker is a doctoral candidate at the Faculty of Law, University of Oxford and is supervised by Catherine Redgwell, Chichele Professor of Public International Law and Fellow at All Souls College. She holds law degrees from Harvard Law School (LL.M., Fulbright Scholar) and the University of London (LL.B. (Hons)). Camilla’s doctoral research involves humanitarian assistance under international law, particularly the extent to which the development of obligations with respect to assistance in natural disasters can and should be informed by relevant obligations in international humanitarian law. She writes about these and related topics for online media outlets, including the Huffington Post and The Conversation, and is working with organizations including the United Nations on legal issues pertaining to humanitarianism. Camilla is also currently engaged in funded governmental policy research to improve targeted humanitarian access for besieged populations in armed conflicts. In the summer of 2014, Camilla was a Scholar in Residence at NYU School of Law.
Camilla’s contact details and published work can be found at: http://www.law.ox.ac.uk/people/profile.php?who=camilla.barker