Private Law Aspects of Suborbital Flights: Second- and Third-party Liability and Insurance

Two companies carried private citizens to the edge of space in July 2021. Although suborbital flights have so far taken place within one jurisdiction—they start and end in the same state, do not pass through foreign airspace, or meet both criteria—they will become international when transportation between two points in different states via outer space becomes a reality. International law is ambiguous about the regulation of suborbital flights; neither international air law nor international space law explicitly apply. It is also unclear which organization or institution should be mandated with the international regulation of suborbital flights. The legal uncertainties must be solved to ensure a safe environment and a healthy industry. The characterization of suborbital flights as either aviation or spaceflight has important consequences, such as whether it concerns aspects of public law (e.g., safety) or private law (e.g., second- and third- party liability and insurance). This Article focuses on the latter—the private law issues of second- and third-party liability insurance against such liability in the fields of both air and space law, illustrating the differences between the two and underlining the need for a solution. When taking place within one jurisdiction, suborbital flights operating within a state’s territory are properly subject to state regulation through national law, as this would purely be a national activity falling within a state’s sovereign jurisdiction. Thus, states could decide to consider this activity as either aviation or spaceflight and apply air or space law accordingly. This may, however, lead to fragmentation and legal uncertainty. When flights become international by crossing borders on Earth, international agreement about what law should govern suborbital flights becomes critical and should be developed in close cooperation between the International Civil Aviation Organization (ICAO) and the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). A new sui generis regime will likely borrow from both air and space law and insurance practices. Until such a regime under international law is adopted, national law will govern these issues. The only available model is U.S. law, which seems suitable for the short- to medium-term until an international regime emerges and the industry matures. This Article will analyze current regimes and formulate recommendations for the way forward. Pursuant to that analysis, this Article concludes that a new international agreement on the operation of suborbital flights is required. For the time being, national law, harmonized to the maximum extent, should provide a solution. The Article further aims to identify relevant points for the establishment of national legislation and, in the longer term, an international agreement. Whether or not this will take the form of a legally binding instrument remains to be seen, although the latter seems more realistic in the current geopolitical context

Private Law Aspects of Suborbital Flights: Second- and Third-party Liability and Insurance

Two companies carried private citizens to the edge of space in July 2021. Although suborbital flights have so far taken place within one jurisdiction—they start and end in the same state, do not pass through foreign airspace, or meet both criteria—they will become international when transportation between two points in different states via outer space becomes a reality. International law is ambiguous about the regulation of suborbital flights; neither international air law nor international space law explicitly apply. It is also unclear which organization or institution should be mandated with the international regulation of suborbital flights. The legal uncertainties must be solved to ensure a safe environment and a healthy industry. The characterization of suborbital flights as either aviation or spaceflight has important consequences, such as whether it concerns aspects of public law (e.g., safety) or private law (e.g., second- and third- party liability and insurance). This Article focuses on the latter—the private law issues of second- and third-party liability insurance against such liability in the fields of both air and space law, illustrating the differences between the two and underlining the need for a solution. When taking place within one jurisdiction, suborbital flights operating within a state’s territory are properly subject to state regulation through national law, as this would purely be a national activity falling within a state’s sovereign jurisdiction. Thus, states could decide to consider this activity as either aviation or spaceflight and apply air or space law accordingly. This may, however, lead to fragmentation and legal uncertainty. When flights become international by crossing borders on Earth, international agreement about what law should govern suborbital flights becomes critical and should be developed in close cooperation between the International Civil Aviation Organization (ICAO) and the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). A new sui generis regime will likely borrow from both air and space law and insurance practices. Until such a regime under international law is adopted, national law will govern these issues. The only available model is U.S. law, which seems suitable for the short- to medium-term until an international regime emerges and the industry matures. This Article will analyze current regimes and formulate recommendations for the way forward. Pursuant to that analysis, this Article concludes that a new international agreement on the operation of suborbital flights is required. For the time being, national law, harmonized to the maximum extent, should provide a solution. The Article further aims to identify relevant points for the establishment of national legislation and, in the longer term, an international agreement. Whether or not this will take the form of a legally binding instrument remains to be seen, although the latter seems more realistic in the current geopolitical context

Between Heaven and Earth: The Legal Challenges of Human Space Travel

Since the first space object was launched into orbit in 1957, humankind has been engaged in a constant effort to realize ever more ambitious plans for space travel. Probably the single most important element in this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space on a commercial basis. Within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy. The prospects for both suborbital and orbital private human access to space give rise to some interesting and difficult legal questions. It also opens up an exciting opportunity to develop an adequate system of legal regulation to deal with these activities. The existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity represents a major challenge and must be addressed as soon as possible, to provide for appropriate standards and further encourage (not discourage) such activities. This article will examine some of the more pressing legal issues associated with the regulation of space transportation of passengers on a commercial basis, seen in the light of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind’. An appropriate balance must be found between the commercial and technological opportunities that will arise and the principles upon which the development of international space law have thus far been based

Introduction to Space Law

The expansion of space and communication activities requires an adaptation of the present international and national legal framework. The book gives an overview of legal norms applicable to space activities.revise

Between heaven and earth : the legal challenges of human space travel

Since the first space object was launched into orbit in 1957, humankind has been engaged in a constant effort to realise ever more ambitious plans for space travel. Probably the single most important element in this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space on a commercial basis. Within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy. The prospects for both suborbital and orbital private human access to space give rise to some interesting and difficult legal questions. It also opens up an exciting opportunity to develop an adequate system of legal regulation to deal with these activities. The existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity represents a major challenge and must be addressed as soon as possible, to provide for appropriate standards and further encourage (not discourage) such activities. This article will examine some of the more pressing legal issues associated with the regulation of space transportation of passengers on a commercial basis, seen in the light of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use of outer space [...] shall be carried out for the benefit and in the interests of all countries [...] and shall be the province of all mankind’. An appropriate balance must be found between the commercial and technological opportunities that will arise and the principles upon which the development of international space law have thus far been based

Between Heaven and Earth: The Legal Challenges of Human Space Travel

Since the first space object was launched into orbit in 1957, humankind has been engaged in a constant effort to realize ever more ambitious plans for space travel. Probably the single most important element in this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space on a commercial basis. Within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy. The prospects for both suborbital and orbital private human access to space give rise to some interesting and difficult legal questions. It also opens up an exciting opportunity to develop an adequate system of legal regulation to deal with these activities. The existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity represents a major challenge and must be addressed as soon as possible, to provide for appropriate standards and further encourage (not discourage) such activities. This article will examine some of the more pressing legal issues associated with the regulation of space transportation of passengers on a commercial basis, seen in the light of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind’. An appropriate balance must be found between the commercial and technological opportunities that will arise and the principles upon which the development of international space law have thus far been based

Regulating Private Human Suborbital flight at the International and European Level: Tendencies and Suggestions

In the context of the FAST20XX project (Future High-Altitude High-Speed Transport) that started in 2009 under the 7th Framework Programme of the European Union (EU), the authors reexamined the legal status of private human suborbital flight, and researched whether it might be regulated as aviation or as spaceflight. International space law is ambiguous as to accommodating suborbital activities. While some provisions of the UN outer space treaties would seem to exclude them, generally there is not any explicit condition in terms of reaching orbit as a requirement for application. International air law presents equal difficulties in dealing with this activity. The classic definition of “aircraft” as contained in the Annexes to the Chicago Convention does not really encompass the kind of rocket-powered vehicles that are envisaged here. As a result, it is unclear whether the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Civil Aviation Organization (ICAO), or both could be involved in an eventual international regulation of suborbital flight. In the absence of a uniform international regime, each state has the sovereign right to regulate human suborbital flights operating within its airspace. So far, two practical solutions have been realised or proposed, and will be analyzed. On the one hand, the USA granted power for regulation and licensing over private human suborbital flight to the Office of Commercial Space Transportation of the Federal Aviation Administration (FAA/AST). Subsequent regulations by the FAA have set out a series of requirements for companies that want to operate these flights, enabling a market to develop. On the other side of the Atlantic, both the European Space Agency (ESA) and a group of representatives of the European Aviation Safety Agency (EASA) of the European Union (EU) seem to rather regard this activity as aviation, potentially subject to the regulation and certification competences of EASA, although recent developments may indicate a changed view. Due to these differences, it is uncertain when this activity will be considered aviation and when it will be considered as spaceflight. However, the characterization as either of these has important consequences for the industry and for a stable regulatory landscape. In the longer term, from an international and a European perspective, the best solution for regulation may be to create a sui generis legal regime specifically addressing the particular nature of suborbital flight. Suborbital transportation is neither aviation nor spaceflight; it is rather something in between. A new legal regime would be able to combine notions of both air and space law, in order to overcome and resolve the current deficiencies of each discipline

Regulating Private Human Suborbital Flight at the International and European Level: Tendencies and Suggestions

In the context of the FAST20XX project (Future High-Altitude High-Speed Transport) that started in 2009 under the 7th Framework Programme of the European Union (EU), the authors reexamined the legal status of private human suborbital flight, and researched whether it might be regulated as aviation or as spaceflight. International space law is ambiguous as to accommodating suborbital activities. While some provisions of the UN outer space treaties would seem to exclude them, generally there is not any explicit condition in terms of reaching orbit as a requirement for application. International air law presents equal difficulties in dealing with this activity. The classic definition of “aircraft” as contained in the Annexes to the Chicago Convention does not really encompass the kind of rocket-powered vehicles that are envisaged here. As a result, it is unclear whether the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Civil Aviation Organization (ICAO), or both could be involved in an eventual international regulation of suborbital flight. In the absence of a uniform international regime, each state has the sovereign right to regulate human suborbital flights operating within its airspace. So far, two practical solutions have been realised or proposed, and will be analyzed. On the one hand, the USA granted power for regulation and licensing over private human suborbital flight to the Office of Commercial Space Transportation of the Federal Aviation Administration (FAA/AST). Subsequent regulations by the FAA have set out a series of requirements for companies that want to operate these flights, enabling a market to develop. On the other side of the Atlantic, both the European Space Agency (ESA) and a group of representatives of the European Aviation Safety Agency (EASA) of the European Union (EU) seem to rather regard this activity as aviation, potentially subject to the regulation and certification competences of EASA, although recent developments may indicate a changed view. Due to these differences, it is uncertain when this activity will be considered aviation and when it will be considered as spaceflight. However, the characterization as either of these has important consequences for the industry and for a stable regulatory landscape. In the longer term, from an international and a European perspective, the best solution for regulation may be to create a sui generis legal regime specifically addressing the particular nature of suborbital flight. Suborbital transportation is neither aviation nor spaceflight; it is rather something in between. A new legal regime would be able to combine notions of both air and space law, in order to overcome and resolve the current deficiencies of each discipline

The Lunar Legal Landscape: Challenges and Opportunities

This article provides an overview of the current legal landscape for lunar missions and summarizes various initiatives and developments at both the national and international level that complement the existing regulatory framework in this field. The authors tie all these elements together in an effort to give an outlook on the prospects for a sustainable lunar legal landscape in a realistic format and timeline