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ABSTRACT
This article introduces three modes of regulatory experimentation – derogation, devolution and open-texture – for regulators to respond to the challenges brought by disruptive innovation such as non-military unmanned aircraft systems (UAS). This article argues that where there is an urgency of requiring a regulatory response to a new societal challenge, and there is serious empirical uncertainty about expected technological or regulatory events and/or their consequences, experimental regulations can be a fitting approach in dealing with the new challenge – as with UAS. As the risk of failure is an intrinsic aspect of innovation, the most significant function of regulatory experimentation is to yield useful information rather than verify the validity of an innovation. Nevertheless, the setting of experimental regulation should take into account both epistemic requirements and legal values. The principles of certainty, equality and proportionality express the legal values that guide decision-making towards legitimate experimental regulation. The experimental approach demonstrated in this article also provides a model of ‘future-proof’ regulation. This is applied to UAS particularly by zones as experimenting by derogation and perhaps also by devolution and open texture.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. Different types of aircraft include aeroplanes (fixed wing), airships (lighter than air) and helicopters (rotary wing).
2. The Netherlands: Regeling op afstand bestuurde luchtvaartuigen; Germany: Gemeinsame Grundsätze des Bundes und der Länder für die Erteilung der Erlaubnis zum Aufstieg von unbemannten Luftfahrtsystemen gemäß § 16 Absatz 1 Nummer 7 Luftverkehrs-Ordnung; France: Relatif à la conception des aéronefs civils qui circulent sans personne à bord, aux conditions de leur emploi et aux capacités requises des personnes qui les utilisent; Relatif à l’utilisation de l’espace aérien par les aéronefs qui circulent sans personne à bord; US: FAA (2016). Operation and certification of small unmanned aircraft systems. China: 轻小型无人机运行规定 [Provisions on the Administration of the Operation of Small Unmanned Aircraft System].
3. This article prefers to use the term ‘non-military’ instead of ‘civil’, because the former covers not only civil uses but also some types of state uses. According to Art. 3.1 (b) of the Convention on International Civil Aviation (Chicago Convention), ‘[a]ircraft used in military, customs and police services shall be deemed to be state aircraft’. Hence, ‘non-military uses’ of UAS embrace law enforcement uses as well as professional and recreational uses.
4. Complexity or sensitivity, such as of numbers and categories of exposed citizens, types of buildings or natural surrounding, and of (more or less vital) socio-economic or socio-technological activity, will often, but not always, involve a large experimental geography.
5. Member States regulate military and state operations as well as civil UAS with an operating mass of no more than 150 kg and model aircraft.
6. For instance, UAViators, which is a humanitarian UAV network, has published its Humanitarian UAV Code of Conduct & Guidelines. Retrieved from http://uaviators.org/docs; see also, UVS International. Retrieved from https://uvs-international.org/.
7. For a detailed research on privacy and data protection in civil RPAS, see Finn et al. (Citation2014).
8. The tort of negligence, for instance, imposes a duty to all parties on the causal chain to exercise a reasonable level of prudence in order to minimize any foreseeable harm.
9. For instance, under the EU law, the current insurance framework under the Regulation EC/785/2004 on minimum insurance requirements for air carriers and aircraft operators applies to UAS. Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators, Art. 2(g).
10. The top-down approach can be found, for instance, in the EU drone regulation-making by the European Commission and the EASA: it starts from the highest conceptual level and an overall structure, and then works down to details.
11. In this figure, Stirling categorizes four forms of incertitude: risk, uncertainty, ignorance and ambiguity.
12. Besluit van de Minister van Economische Zaken van 16 oktober 2009, nr. WJZ/9182801, houdende de instelling van een Taskforce Intelligente Netten.
13. According to Article 16, paragraph 3 of the Dutch Electricity Act, only the designated network operators are allowed to carry out grid operations.
14. Such as hierarchy-based, competition-based, community-based and architecture-based regulatory approaches (see Murray and Scott Citation2002, 502).
15. Such as first-, second- and/or third-party regulation (see Levi-Faur Citation2011, 8).
16. Such as ex ante or ex post public versus private law norms (see Smith Citation2016, 571–587). Regarding the modes of permissions with(out) reservations or facilitation, see Heldeweg (Citation2015).
17. For the distinction between epistemic and legal values (the former are on achieving proper experimental results, the latter on securing values such as precaution, certainty, proportionality and equality), see Heldeweg (Citation2016).
18. While the temporary experiment may involve temporary legislation, it may also follow upon legal acts based upon a provision to experiment within a permanent legislative framework. The above example of Dutch Decentralized Sustainable Electricity Generation is of this type.
19. This substantive general standard is not so much expressed by the general prohibition (or command) that lies behind the permit (or dispensation), as this is merely a ‘rule of closure’, to enable permitting (exempting); behind that rule, but rather through the policy purpose upon which there is discretion to tailor permission on a case-to-case basis.
20. Which may be that the permanent regulatory strategy will be one of permitting, but equally it could be that upon evaluation one abstract and general rule is introduced (for all).
21. Federalism is a less likely frame, as it does not agree well with the concept of using states within the federation as living labs for federal-level decisions about future regulatory approach – which implies that the power as such is a federal power.
22. Which may (then) be to continue devolution in the former (‘end in itself’) meaning of the word.
23. The element of evaluation should be clear from the outset to regard this as true experimentalism. Non-regulation, which could be seen to allow the maximum of experimenting space, would be hard to understand as such by lack of a normative frame for comparison, if only by setting a date to perform comparison and evaluation – well-argued ‘eloquent silence’ would be the least necessary arrangement to speak of experimentation (see Heldeweg Citation2015).
24. Only detailing a desired or undesired result/outcome or interest to be served – possibly as meta-regulation, to inspire or trigger private rule-making – although this would by experimentalist only if accompanied with a sunset-clause (setting an ‘end date’, upon which to evaluate) (see Coglianese and Mendelson Citation2010).
25.
The Right [to Challenge] will hand the initiative to communities and the bodies that represent them who have innovative ideas about how services could be shaped to better meet local needs, or could be run more cost effectively. It will ensure these ideas get a fair hearing and give them the time they need to organise themselves and develop their ideas to be able to bid to run the service.
26. The meta-regulatory framework may be of a public law nature, to be followed by private law regulation, e.g. standardization and certification (see Coglianese and Mendelson Citation2010).
27. Taken from a Dutch national government report (of July 2016): Kamerbrief Werken aan toekomstbestendige wetgeving en een toekomstbestendig wetgevingsproces. https://www.rijksoverheid.nl/documenten/kamerstukken/2016/07/06/kamerbrief-werken-aan-toekomstbestendige-wetgeving-en-een-toekomstbestendig-wetgevingsproces. Also see: Opinion of the European Economic and Social Committee on Future Proof Regulation (Exploratory opinion). 2016/C 487/07. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2016.487.01.0051.01.ENG&toc=OJ:C:2016:487: TOC and summarizing: http://www.eesc.europa.eu/?i=portal.en.int-opinions.39287.
28. That is, Best Available Techniques – comparable to setting standards at ALARA levels: As Low As Reasonably Achievable.
29. All of these three may lead to (more flexible) sub-legislative/self-regulatory arrangements, such as policy guidelines, covenants and contracts – effectively as meta-regulation.
30. Note that open texture by delegation or decentralization may involve the power to derogate – not only to regulate ab initio or to regulate more specifically – whereby both regulatory modes, ‘by derogation’ and ‘by open texture’, are overlapping. This applies especially, but not only, when the higher or centralized standard is a rule of closure; having no other ‘raison d’être’ than to facilitate lower/decentralized tailored regulation.
31. Theoretically, it may make sense to say that, alike other modes of future-proof regulation, one could also experiment with experimental regulation; but practically speaking that has little added value.
32. Even beyond the stochastic certainty of risk, where the chance of a certain outcome of events at a certain time and place is calculable.
33. An opposite frivolity is to consider any kind of regulation as an experimental affair that may or may not be successful, thus taking regulatees as guinea pigs in a grand societal living lab; to say nothing of framing this as a variation of Foucauldian governmentality, in which humans are to adjust to government policy aims.
34. The two aspects of legal certainty – accessibility and predictability – have been acknowledged by Belgian and German constitutional courts as well as the European Court of Justice and the European Court of Human Rights (see Popelier Citation2008, 54–55).
35. Regeling op afstand bestuurde luchtvaartuigen.
36. Wet luchtvaart.
37. Article 1.1 ATA defines aircraft as (in authors’ translation): ‘A vehicle that may be retained in the atmosphere as a result of forces, exercised upon the vehicle by the air, other than forces of the air against the earth’s surface.’ Definitions of aircraft subtypes, such as ‘airplanes’, ‘helicopters’, ‘RPA’ and ‘RPAS’ are listed in the ATA-based Crown decrees.
38. Besluit bewijzen van bevoegdheid voor de luchtvaart.
39. Besluit luchtvaartuigen.
40. Besluit vluchtuitvoering.
41. Besluit luchtverkeer.
42. Besluit burgerluchthavens.
43. Art. 15b R-RPA exempts RPA from the obligation of Art. 5.7 ATA to have a captain on board of the aircraft; the obligation to appoint a captain for each flight, in Art. 5.6 ATSA, remains in place.
44. Non-professional, recreational use of UAS does not fall within this scope, as Art. 1 R-RPA excludes these (an RPA: ‘A remotely piloted aircraft, unmanned, not being a model aircraft.’). These model aircrafts fall within the scope of the ministerial regulation on model aircraft: Regeling modelvliegen.
45. With RPA-licensed pilots, registered UAs with a CoA, flying only at daytime, within 500 m from the pilot (i.e. only as (E)VLOS operation – i.e. within (Extended) Visual Line of Sight – see: Article 1 jo 3, para. 6, sub b. of the Crown decree on pilot licensing). With no flights above human crowns, continuous building, civil engineering works, industrial and harbour zones, including railways and major road; a requirement following from limitations in the remote pilot license (Art. 2 R-RPA) or a special RPA CoA (Art. 7 and Annex 3 R-RPA).
46. See Arts. 14-15 R-RPA. Also see the relevant Explanatory Memorandum (also in Dutch). https://zoek.officielebekendmakingen.nl/stcrt-2015-12034.html.
47. Without regulated, experimental arrangements, as regards temporariness, local placing, evaluation and experimental purpose. As regards overlap see supra note 30.
48. Only VFR flights (following Visual Flight Rules; at daylight, within (Extended) Line of Sight) are allowed. Also see the Explanatory Memorandum to R-RPA (Art. 13-15).
49. This broadly formulated assumption is based upon informal talks with stakeholders in the course of the Responsible Design of Drones and Drone Services project (Du and Heldeweg Citation2017).
50. Besluit testlocatie drones. The proposal was published on 26 September 2017 and the consultation closed on 24 October 2017.
51. Bundesgesetz über die Luftfahrt (LFG).
52. Verordnung des UVEK über Luftfahrzeuge besondere Kategorien (VLK).
53. Nota bene, we believe this to be a case of devolution, not of federalism: it is the federal government that decides that some legal policies can best be left to the cantons, given that aviation law is a matter of federal power; it does not follow from the constitution itself, as inalienable powers of the cantons.
54. While it is possible to be quite formal about the distinction between ‘normal’ and ‘experimental devolution’, particularly as regards protecting citizens’ rights and related principles (e.g. equality and proportion) and as regards epistemic requirements of proper experimentation, of course there may be ‘shades of grey’ on a spectrum between both, and there is scope for policy learning also outside if ‘experimental devolution’ stricto sensu.
55. Experimentation by devolution may be about technology advancement, but in this view, are less particularly relevant when it comes to uncertainties about the appraisal of novel technology applications.
56. As in the Missing Link Conference in October 2017 (Regulating the Development of Unmanned Systems). https://www.dronesconference2017.eu/ (Accessed on 14 November 2017). Whether the same comments came up in the internet consultation on the EASA proposed amendment on the Introduction of a regulatory framework for the operation of drones is not yet known.
57. For an example of experimentation by devolution at EU level, in the area of renewable energy, within the renewable energy directive, see Heldeweg (Citation2016).
58. Even broader formulations would speak merely of avoidance/mitigation of harm or damage caused to others by such development and/or use.
59. This is not to rule out open texture as a normal provision, but a stable setting, away from high and unexpected dynamics and with considerable (ability of) foresight, particularly among regulatees, would be preferred.