One of the most consequential barriers facing drone operators isn’t the BVLOS rule, the FAA’s certification backlog or a lack of airspace coordination. For many operators planning overwater routes, it’s a legal boundary most don’t know exists until it kills an operation entirely. At XPONENTIAL 2026, two former FAA attorneys delivered a frank, solutions-based breakdown of why operating unmanned aircraft over the high seas remains legally unresolved, what international framework governs that airspace and how the industry can build a lawful path forward without waiting another decade for ICAO to act.
An Invisible Boundary With Very Real Consequences
Courtney Freeman, now counsel at Adams & Reese LLP and until recently managing the FAA’s operations law team in the Regulations Division, framed the problem as a legal jurisdiction shift that happens at 12 nautical miles offshore, one that very few drone operators know about until it’s too late.
“We are here to talk about an invisible boundary that many drone operators don’t think about until it blocks an operation on a technicality,” Freeman said. “For conventional aircraft, the framework is familiar and fairly easy to comply with. But for unmanned aircraft, the same framework can become an invisible legal wall, even though the technology and the domestic regulator are otherwise moving in the right direction.”
Francisco Castillo, Senior Corporate Counsel at Amazon Prime Air and a former FAA colleague of Freeman’s who led the legal certification effort for Prime Air’s operations, grounded it in operator reality. A route can start and end in the same U.S. city. It can serve U.S. customers from U.S. infrastructure. But if the most efficient path briefly crosses non-territorial airspace, such as inter-island Hawaii routes, cargo to Puerto Rico or the U.S. Virgin Islands operations, the legal analysis changes entirely. “Commercially it may feel domestic,” Castillo said. “Legally, that airspace segment is going to matter quite a bit.”
The use cases at stake are not trivial. They involve medical resupply to remote communities, post-storm logistics in disaster zones, ship-to-shore support, offshore energy operations and advanced air mobility (AAM) routes across island chains. The legal issue presents a real barrier to services that are operationally ready today.
Why ICAO’s Framework Wasn’t Built for This
Beyond 12 nautical miles, no single state holds sovereignty over the airspace. The rules shift from domestic FAA authority to the framework of the Chicago Convention and ICAO’s Annex 2. For crewed aviation, this is a routine and well-understood system. For UAS, it is not.
Freeman walked through the core international legal issue. Article 12 of the Chicago Convention requires that operations over the high seas follow rules established under the Convention itself, which pushes operators into Annex 2. Article 31 requires that every aircraft engaged in international navigation hold a certificate of airworthiness issued by its state of registry. Article 32 governs personnel licenses. Article 33 governs recognition of certificates across states. Article 20 covers nationality and registration marks. Collectively, these provisions carry assumptions about pilots, certificates, physical documents and two-way voice communications that unmanned aircraft simply do not fit.
The result, Freeman said, is that in ICAO and the FAA’s view, “the current ICAO framework is impractical or unavailable for states to lawfully authorize operations over the high seas for most, if not all, civil UAS concepts.” The FAA, even with its new Section 927 waiver authority under the FAA Reauthorization Act, cannot waive the United States’ obligations under the Chicago Convention. “The FAA may be able to waive parts of its own regulations in the right case,” Castillo said, “but it won’t be able to waive the United States’ convention obligations.”
What ICAO Is (Slowly) Doing About It
There is movement, but just not enough of it, fast enough to fix this. At ICAO’s 42nd Assembly in September 2025, the technical commission reviewed high-seas UAS papers submitted by multiple states, including the United States and acknowledged that the current framework presents genuine challenges. The commission expressed support for an interim, outcome-based framework, ideally in place by the end of 2026. Freeman noted that informal signals suggest movement may be imminent.
But audience members with direct ICAO experience pushed back on that timeline. A delegate who has represented the U.S. FAA in ICAO’s ARPAS panel for eight years warned that the study group process could stretch to 2027 or 2028 before states receive formal guidance, and 2029 or 2030 before anything becomes operational. Another attendee from General Atomics pointed out that his company flew remotely piloted aircraft over the high seas routinely until the FAA raised a policy concern in the early 2020s, and that the legal interpretation ICAO and the FAA have been relying on may itself be contestable.
That last point surfaced a genuine legal debate. Under the Chicago Convention, “international navigation” is defined as flight over the territory of more than one state. A flight that departs U.S. airspace, crosses the high seas and returns to U.S. airspace without ever overflying a foreign state’s territory may not trigger the Convention’s full requirements, only Annex 2’s rules of the air. Freeman acknowledged the argument is colorable and said ICAO and FAA international law attorneys have taken a different view, but agreed the industry should keep pressing it and presenting well-supported use cases.
The Three-Step Path to a Lawful Bridge
Freeman and Castillo came with a sequence to move forward.
Step one: ICAO adopts an interim legal vehicle, explicitly temporary, convention-compliant and designed to collect operational data that answers four questions: what document will a state issue, what minimum safety showing supports it, what operating conditions attach and how will data flow back to ICAO to inform a permanent framework. Without that, no domestic action is durable.
Step two: the FAA uses Section 927, the new waiver authority Congress created in the FAA Reauthorization Act, to operationalize that ICAO maneuver space for U.S. operators. Section 927 allows the FAA to waive applicable Title 14 requirements, including the airworthiness certificate and airmen certificate requirements, without triggering full notice-and-comment rulemaking. It is a powerful tool, but only once ICAO creates the legal space for it to work within the convention framework.
Step three, and the one Castillo was most emphatic about: industry has to earn it. The first approval record will set precedent for the entire industry. It cannot be built on optimism or broad legal theories. Operators need to bound a specific corridor, define a real operation and build a safety case around what is actually ready (think: C2 link performance, detect-and-avoid technology, maritime weather assumptions, loss-of-link contingencies and collision risk with non-cooperative traffic). “A narrow and truthful request is going to be much stronger than a broad request that collapses under any type of technical questioning,” Castillo said.
Part 108’s airworthiness acceptance framework, even though it does not apply to high seas operations directly, may also be useful. If the FAA has already reviewed an aircraft and its operational manuals under that framework, a high seas authorization package can build on that existing evidence record and focus only on the delta between domestic and overwater operations.
What’s Already Happening
Two near-term developments drew particular attention. The Louisiana e-IPP overwater use case, currently in development, seems positioned to give regulators a real-world, data-generating corridor that can directly inform a durable framework. A Texas coastal test program exploring operations around offshore oil platforms within 12 nautical miles is also building the empirical record that the FAA Administrator and Deputy Administrator may need to move without waiting for the full ICAO process to resolve.
“The FAA is more likely to move when they can see a narrow first use case coupled with a mature safety case and a path to data that will improve the permit framework,” Freeman said. The goal, both speakers closed by emphasizing, is not a workaround. It is a lawful architecture, one that is built carefully enough the first time that it scales. “If we get this right,” Castillo said, “this is not just a better approval process. It’s reliable access for communities and operations that are hard to serve today.”