FIU Law Review
Volume 10 Number 2 Article 18
Spring 2015
National Regulation of Private Suborbital Flights: A Fresh View
Rafael Moro-Aguilar Orbspace
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Recommended Citation Rafael Moro-Aguilar, National Regulation of Private Suborbital Flights: A Fresh View, 10 FIU L. Rev. 679 (2015). DOI: https://dx.doi.org/10.25148/lawrev.10.2.18
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For more information, please contact [email protected]. 37333-fiu_10-2 Sheet No. 166 Side A 01/11/2016 08:19:25 * legal regime for all private private all for regime legal *** BSTRACT sui generis A Rafael Moro-Aguilar National Regulation of Regulation National ) 1/4/16 11:24 PM ELETE D OT N O (D Private Suborbital Flights: A Fresh View View Fresh A Flights: Suborbital Private GUILAR GUILAR After providing a general background to the existing U.S. suborbital A different approach was proposed in 2008 by a number of European An An analysis of international law applicable to air and space activities -A M K ORO includes the domestic regulation of private humandomesticprivate the flight. of suborbital includes regulation considered as (mostly) a kind of aviation, by willingness a indicate and to seem events However,law.EUrecent of control thus would fall under the certain EU Member States to regulate this activity by themselves, operations. of phases at initial the during least flight regulation, and a description of the 2008 EU regulatory proposal, the national the in identified developments latest the introduce will paper present regulation of human government spaceflight, review of commercial in spaceplane certification and particular operations (July 2014), the and Spain’s draft bill on Outer Space United Activities (2014), which Kingdom’s Union (EU) officials, whereby private suborbital flights would rather be spaceflight, which for the moment excludes certification of the vehicles and relies instead on the licensing of launches and on the “informed consent” of participants. the * Head of Legal Affairs, Orbspace, Austria, [email protected]. The author wishes to to wishes author The [email protected]. Austria, Orbspace, Affairs, Legal of Head * Symposium, Law Space and Air FIU outstanding an hosting for Acosta Alex Dean to gratitude his express and to the FIU Law Review staff for their editorial assistance with this paper. The author also wishes to insight. and comments his for NASA, at Attorney Senior Mirmina, Steven thank M reveals a lack of regulation specifically addressed to suborbital flight. In the manned private having in interested States rules, international any of absence suborbital flights for “space tourism” and other purposes depart from air their national their of framework the within activity this regulate will territories or space law. The United States has been a pioneer in enacting legislation covering this activity. It did so by means of Launch the Amendments 2004 Act Commercial (CSLAA), Space which modified U.S. domestic space law. The CSLAA introduced a C Y 37333-fiu_10-2 Sheet No. 166 Side A 01/11/2016 08:19:25 A 01/11/2016 166 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 166 Side B 01/11/2016 08:19:25 M K See LUE C Y WISS (OED) (2013), SpaceShipTwo [Vol. 10:679 10:679 [Vol. . All of them are . Xaero ICTIONARY D , http://xcor.com/lynx/; B ), which was successfully NGLISH E , http://masten-space.com/; S3, S ; and Masten’s IXV 2 ( XFORD Most of these ventures will take take will ventures these of Most , http://www.orbspace.com/es/Background- 1 YSTEMS ,O S 3 XCOR AEROSPACE RBSPACE New Shepard PACE S suborbital spaceplane. In addition, Virgin Galactic has has Galactic Virgin addition, In spaceplane. suborbital NTRODUCTION I from Sweden and from Scotland; XCOR Aerospace had plans SOAR ASTEN FIU Law Review Law FIU ) 1/4/16 11:24 PM I. SS2 ELETE Suborbital Definition ,http://www.esa.int/Our_Activities/Launchers/IXV D ; Blue Origin’s OT N Lynx O GENCY A (D rocket in February 2015. PACE DOCX , http://www.virgingalactic.com; .S , http://www.s-3.ch/en/home. , _1.4. UR from Curaçao (in the Caribbean) and from Daejeon (South Korea); and S3 has announced announced has S3 and Korea); (South Daejeon from and Caribbean) the (in Curaçao from Vega E Intermediate eXperimental Vehicle http://www.oxforddictionaries.com/definition/english/suborbital?q=suborbital#. For further further For http://www.oxforddictionaries.com/definition/english/suborbital?q=suborbital#. INAL ALACTIC Lynx _F See G Suborbital projects under current development in the U.S. are Virgin Galactic’s Galactic’s Virgin are U.S. the in development current under projects Suborbital The term “suborbital” has been defined as “relating to or denoting a trajectory that does not not does that trajectory a denoting or to “relating as defined been has “suborbital” term The YSTEMS , http://www.blueorigin.com/; M S As of 2015, a number of private companies had announced their plans launched by the European Space Agency from Kourou, French Guiana, French Kourou,Agencyfrom Space European the by launched a on All these devices are flights unmanned, two first The before. happened have also has flight suborbital Manned usually not crossed any Sounding rockets, or above observations small astronomical make and microgravity in experiments rockets used by scientists atmosphere;the to conduct Ballistic missiles (particularly Inter-Continental ICBMs), used Ballistic by the military to convey warheads onto Missiles, the battlefield; and Certain objects designed technologies, such as systems for atmospheric reentry. One example is for in-flight the experimentation of space Suborbital flight is by no means a technical novelty, and this kind of ORO 2 3 1 ); XCOR Aerospace’s IRGIN RIGIN PACE SS2 1.1. Definition of Suborbital Flight Definition Suborbital of 1.1. to start operating reusable suborbital passengers to the threshold of outer space. vehicles intended to carry paying place in the United elsewhere. fromand fly Europe to intentions States. However, some have also expressed their ( performing tests, with Virgin Galactic and XCOR being the projects two announced in most Europe advanced are ventures. the The suborbital main vehicles of the Booster, REL-Skylon, Bristol Spaceplanes, and Swiss Space Systems (S3). None of the latter companies has moved EADS-Astrium, Dassault, beyond the design stage, except for S3’s expressed the possibility of operating to fly the its intention to launch from Colorado (USA), the Canary Islands (Spain), and Spaceport Malaysia. V trajectory has been used for many decades. Examples of are: devices suborbital already existing O S 680 15 - M international frontiers, and have posed no significant legal problemfar. legal so significant no posed have and frontiers, international available at explanation about suborbital flight, see O Information/Sub-orbital-vs-Orbital.html (these and all other websites mentioned in this paper were last 2015). 15, Jan. verified and accessed complete a full orbit of the earth.” 37333-fiu_10-2 Sheet No. 166 Side B 01/11/2016 08:19:25 B 01/11/2016 166 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 167 Side A 01/11/2016 08:19:25 , (Oct. ., Nov. Updates COM . ECH constitutes constitutes PACE .&T 7 CI 681 681 , S , S However, the the However, 6 (May 23, 2014), http:// In Pictures: XCOR (Dec. 18, 2014), http:// ALACTIC The New Commercial Suborbital ICROGRAVITY G EROSPACE A , M in October 2014 October in IRGIN 4 , V SS2 , XCOR S3 Concludes 1st Phase Drop-Test Flight Campaign Flight Drop-Test Phase 1st Concludes S3 (Oct. 11, 2014), http://www.s-3.ch/en/home/2014/11/10/s3- Other potential commercial uses for manned manned for uses commercial potential Other 5 ) 1/4/16 11:24 PM tic (VG) and XCOR Aerospace. Suborbital Reusable Vehicles: A 10-Year Market Demand Forecast Demand Market 10-Year A Vehicles: Reusable Suborbital ELETE YSTEMS D S rocket planes in the 1960s also followed basically basically followed also 1960s the in planes rocket OT N O PACE S X-15 (D American manned space program, by A. Shepard and V. V. and Shepard A. by program, space manned American WISS DOCX Virgin Galactic Rocket Motor Milestone S National Regulation of Private Suborbital Flights Suborbital Private of Regulation National , _1.4. , S3 , http://www.blueorigin.com/updates/; , INAL Mercury See, e.g. _F See Virgin Galactic’s SpaceShipTwo Crashes in Test Flight: 1 Dead, 1 Injured 1 Dead, 1 Flight: Test in Crashes SpaceShipTwo Galactic’s Virgin See The Tauri Group found that commercial human suborbital flight could become a $1.6 billion billion $1.6 a become could flight suborbital human commercial that found Group Tauri The of source largest second the Group, Tauri The by out carried survey market the to According RIGIN Since this activity is primarily a private undertaking, which is not Although less known to the public, another very promising application At the time of writing, the development of reusable suborbital vehicles O ORO 6 7 4 5 M K LUE several studies, a market exists for private purposes, or human “space tourism.” The spaceflight most recent for of these surveys leisure was jointly conducted by the Tauri Group and the Federal Aviation Administration and 2012. July in Congress U.S. the to presented Grissom in 1961, conducted were by the suborbital flights. passengers transporting of activity the is Whatnew is trajectories. suborbital The numerous basis regular a on trajectories test suborbital following altitudes high extremely to flights commercialwith and purposes. the justify to order in necessary is case business a governments, by sponsored to According industry. suborbital emerging an sustain and investment private tragic accident suffered by VG’s prototype Suborbital_Reusable_Vehicles_Report_2pager.pdf. in North Bay 1, 2014, at 219, 219-27. 219, at 2014, 1, staging.virgingalactic.com/news/item/virgin-galactic-rocket-motor-milestone/; staging.virgingalactic.com/news/item/virgin-galactic-rocket-motor-milestone/; Announces Further Progress on XCOR Lynx Spacecraft 2015] of the 15 - M 31, 2014), http://www.space.com/27618-virgin-galactic-spaceshiptwo-crash-kills-pilot.html. 2014), 31, companies like Virgin Galac suborbital vehicles are: transportation point-to-point astronaut ultra-fast term, longer the and in and sensing; remote pilot training; reconnaissance and cargo. and passengers of is still ongoing. Progress is slowly, but steadily, being achieved by several xcor.com/press/2014/14-12-18_Lynx_development_in_pictures_carry_through_spar.html; a serious setback that threatens to delay further progress years. for a number of B demand after “Space Tourism” is “Basic and Applied Research,” accounting for forecasted demand. about On this particular ten topic, see Rafael percent Moro-Aguilar, of Vehicles: An Opportunity for Scientific and Microgravity Research industry in the next decade, with a worldwide demand of 400 to 500 seats per year, at an average price of price average an at year, per seats 500 to 400 of demand worldwide a with decade, next the in industry $200,000 per seat. Demand at these prices was found to be genuine, sustained, and sufficient to support Group, Tauri The operators. multiple (2012). A summary is available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/ concludes-1st-phase-drop-test-flight-campaign-in-north-bay. of manned suborbital flight is human-tended microgravity experiments and scientific research in general. C Y 37333-fiu_10-2 Sheet No. 167 Side A 01/11/2016 08:19:25 A 01/11/2016 167 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 167 Side B 01/11/2016 08:19:25 M K 10 C Y (Nov. available 243, 243- 243, which which COM . 12 ch. 6 (2009). PACE [Vol. 10:679 10:679 [Vol. , S REATISE does not specify specify not does STRONAUTICA A 11 8 —A T CTA AW L , 92 A PACE ,S Regulating Private Human Suborbital Flight at ARSEN B. L AUL P FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE YALL AND YALL D L OT N O http://www.unoosa.org/pdf/publications/ST_SPACE_51E.pdf. (D RANCIS 9 DOCX _1.4. available at available INAL Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Outer of Use and Exploration the in There States have of been discussions Activities on this the topic at the United Governing Nations Committee on Principles the (XXIX), on Peaceful 3235 Uses Treaty Resolution Space Outer into Launched Objects of Registration on Convention _F See Will Space Tourism Survive Virgin Galactic’s Tragic Spaceship Crash? Tanja Masson-Zwaan & Rafael Moro-Aguilar, Moro-Aguilar, Rafael & Masson-Zwaan Tanja An An analysis of international law applicable to air and space activities However, international space law is ambiguous as to accommodating For the time being, manned suborbital flights for leisure purposes are The accident may result in more governmental oversight of firms that In human suborbital flight, the profile apogee culminates at the “edge of “edge the at culminates apogee profile the flight, suborbital human In ORO 9 10 11 12 8 http://www.unoosa.org/pdf/publications/ST_SPACE_51E.pdf. reveals that there is currently a lack of regulation specifically addressed to flight. suborbital of Outer Space (COPUOS) since 1967, without reaching any agreement up to date. On this F example, for see, issue, particular 1.2. Activity? Space or Air an Flight Suborbital Is establishes reaching earth’s orbit or beyond as a requisite for registration of space, they are widely considered by the general public and the media to be activity. space a suborbital activities. On the one hand, the concept of suborbital flight itself is not defined, and the 1967 Outer Space Treaty (OST) Therefore, it is not clear as to whether air whether suborbital vehicles are aircraft or lawspace objects, especially the ones or space law applies, and with mixed (aircraft and spacecraft) characteristics. applicability their for analyzed be For to have treaties and law space and this aviation reason, both humanflight. to suborbital respect with invariably sold as “space tourism,” and since they aim to touch the edge of 682 seek to launch paying leading team Board customers Safety Transportation National to The while. suborbital a for grounded space. VG itself could be the accident investigation may take up to 12 months to finish problems its the work. addressed VG satisfactorily has it that FAA the convince then must flight. test licenseanother a for granted be can it before 15 - M which which activities are to be provisions considered of space activities. the Moreover, United some Nations suborbital outer vehicles, space most treaties notably seem the to Registration exclude Convention, space” (although not in an earth delimitation exists orbit). in international At law between airspace the and outer space. present time, no official 54, http://dx.doi.org/10.1016/j.actaastro.2012.11.0020. http://dx.doi.org/10.1016/j.actaastro.2012.11.0020. 54, Space, Including the Moon and Other Celestial Bodies, Resolution 2222(XXI), Jan. 27, 1967, at 1975, 14, Jan. 6, 2014), http://www.space.com/27651-space-tourism-virgin-galactic-spaceship-crash.html. 2014), 6, the International and European Level: Tendencies and Suggestions 37333-fiu_10-2 Sheet No. 167 Side B 01/11/2016 08:19:25 B 01/11/2016 167 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 168 Side A 01/11/2016 08:19:25 in , does does ROBLEMS 16 P 14 Passing the Buck the Passing 683 683 URRENT —Volume —Volume 1: Outer AW —C L , 59th IAC (Glasgow, Scotland Scotland (Glasgow, IAC 59th , PACE S (2011). PACE LAW S ICAO’s Legal Authority to Regulate in PACE , (2008); Paul Stephen Dempsey & Dr. Dr. & Dempsey Stephen Paul (2008); S This gap could become an an become could gap This , 86 Neb. L. Rev. 400, 417 (2007); Stephan (2007); 417 400, Rev. L. Neb. 86 , 15 UTER O OMMENTARY ON C ONFERENCE AW OF AW L 193 (Marietta Benkö & Kai-Uwe Schrögl eds., 2005). On On 2005). eds., Schrögl Kai-Uwe & Benkö (Marietta 193 OLOGNE IAASS C C D ) 1/4/16 11:24 PM in 3 , 86 Neb. L. Rev. 439, 439-58 (2007); Michael Chatzipanagiotis, , 18 ELETE EGULATION D http://www.icao.int/icaonet/dcs/7300_cons.pdf [hereinafter Chicago Chicago [hereinafter http://www.icao.int/icaonet/dcs/7300_cons.pdf R Legal Aspects of Space Tourism OT N in order to meet the objectives of Article 44 of the the of 44 Article of objectives the meet to order in Article VI O OLLOQUIUM ON THE ON OLLOQUIUM 17 UTURE ROCEEDINGS (D F P Space Traffic Management: A Vacuum in Need of Law of Need in Vacuum A Management: Traffic Space available at in in IISL C DOCX , 13 National Regulation of Private Suborbital Flights Suborbital Private of Regulation National TH _1.4. 54 Article II.1. INAL Id. Paul Stephen Dempsey & Dr. Michael C. Mineiro, 1944), (Dec. Aviation Civil on Convention (ICAO), Organization Aviation Mineiro, Civil International C. SARPs amend and Michael adopt to ICAO allows Dr. & Convention Chicago the of 37 Article instance, For Dempsey Stephen Paul Michael Gerhard, Gerhard, Michael Cloppenburg, Jürgen _F The problem of applying space law to this activity is that international International air law could then regulate suborbital transportation. The Indeed, some authors have noted that the Chicago Convention On the other hand, generally speaking, there is no explicit condition in Legal Aspects of Space Tourism ERSPECTIVES FOR ORO 16 17 18 13 14 15 P M K ROCEEDINGS Michael C. Mineiro, C. Michael 2008). 15 U.N.T.S. 295, AND suborbital operator, crew, and passengers. space law has the of important liability and status legal the regulating in particular, transportation—in shortcomings as to regulating private human 2015] objects. space 15 - M Convention]. obstacle to the application of international space law to manned suborbital flight. International Civil Aviation Organization (ICAO) has the legal authority to civilian all governing (SARPs) Practices Recommended and Standards adopt aircraft. In theory, such authority could encompass suborbital (and perhaps airspace. traversing flight in vehicles orbital) even to Rogers: International Liability Issues in Private Spaceflight Private in Issues Liability International Rogers: to Hobe, The Impact of Liability Rules on the Development of Private Commercial Human Spaceflight liability issues posed by human suborbital flight, see, for example, Frans von der Dunk, der von Frans example, for see, flight, suborbital human by posed issues liability to address “such [other] matters concerned with the safety, regularity, and efficiency of air navigation.” air of efficiency and regularity, safety, the with concerned matters [other] “such address to Space Treaty 106-09 (Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrögl eds., 2010). 2010). eds., Schrögl Kai-Uwe & Schmidt-Tedd Bernhard Hobe, (Stephan 106-09 Treaty Space Chicago Convention, i.e., aviation.” civil international “ensuring the safe and orderly growth of Aerospace Vehicles terms of reaching orbit as a requirement for application of international space international of application for requirement a as orbit reaching of terms “orbiting.” to not and space,” “outer to refer provisions main OST’s The law. international establish to necessary seem not does orbit reaching particular, In activities. space in involved States of liability and responsibility relating to international civil unforeseen aviation, at the time of the drafting, would eventually arise. Therefore, ICAO was granted the authority to adapt to these challenges not place restrictions atmosphere. on Earth’s of reaches the upper the traverses authority aircraft the because of simply ICAO to regulate civil aircraft The drafters of the Chicago Convention also acknowledged that challenges P C Y 37333-fiu_10-2 Sheet No. 168 Side A 01/11/2016 08:19:25 A 01/11/2016 168 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 168 Side B 01/11/2016 08:19:25 M K 21 C Y PACE , 27 S 5 (Int’l Civil Civil (Int’l 5 [Vol. 10:679 10:679 [Vol. note 16. TATES S supra NITED U The Concept of Sub-orbital Flights see Chicago Convention, 23 The classic definition of “aircraft,” as as “aircraft,” of definition classic The 20 FIU Law Review Law FIU ) 1/4/16 11:24 PM http://www.mcgill.ca/files/iasl/warsaw1929.pdf. Annexes ELETE D Space Tourism, Private Spaceflight and the Law: Key Aspects OT N O available at available (D 22 ATIONAL REGULATION IN THE IN REGULATION ATIONAL N DOCX applies only to carriers using “aircraft,” and only to to only and “aircraft,” using carriers to only applies II. 19 _1.4. INAL Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. Art. Air, by Carriage International to Relating Rules Certain of Unification the for Convention For a useful summary of the Organization, Dunk, der von Frans Aviation Civil International _F But even if air law were to apply, the application of its entire regime, However, international air law presents equal difficulties in dealing with with dealing in difficulties equal presents law air international However, As already noted, in the case of manned suborbital vehicles, the In the absence of any international rules, States interested in conducting in interested States rules, international any of absence the In 146, 146-52 (2011). ORO 19 20 21 22 23 Y ’ OL which has evolved Operators flight. over suborbital several of decades industry as nascent the the for aviation demanding too industry be may matured, (international rules numerous with comply to have would flights suborbital of treaties, SARPs, etc.), which may negatively impact the new industry, and first. at with cope to able be not will it that barriers other and financial create “international “international transportation.” contained in the (non-binding) Annexes 7 and 8 to the Chicago Convention, Chicago the to 8 and 7 Annexes (non-binding) the in contained promoting purely vertical trajectories international and do frontiers, not the intend aviation.” to activity cross hardly any qualifies as “international is “any machine that can derive support in the atmosphere from the reactions reactions the fromatmosphere the in support derive can that machine “any is Such surface.” Earth’s the against air the of reactions the than other air the of that vehicles rocket-powered of kind the encompass easily not does definition are ventures these as insofar Furthermore, flights. suborbital for used be will P 684 this activity. In terms of liability, we should consider that the 1929 Warsaw Convention 15 - M trajectory is essentially vertical, and thus the crossing of any international borders or the overflight of foreign territories can be avoided. As the ICAO Council stated in 2005, “current commercial activities envisage sub-orbital flights departing from and landing at the same place, which may not entail airspaces.” foreign of crossing the 12, 1949, 137 L.N.T.S. 11, L.N.T.S. 137 1949, 12, 1. 2005). 14.3.13, & 16 No. Paper Working Org., Aviation 2.1. National Regulation of Suborbital Flights RegulationSuborbital National of 2.1. private manned suborbital flights framework of will their domestic law. The law could well be regulate driven by national this of level the activity reaching possibly before level, domestic a on interests legislative within the law.international 37333-fiu_10-2 Sheet No. 168 Side B 01/11/2016 08:19:25 B 01/11/2016 168 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 169 Side A 01/11/2016 08:19:25 , 27 , 4 SS1 The 26 YALL AND L One Half Century 685 685 RANCIS regulation was the the was regulation 24 sui generis There were doubts as to the exact exact the to as doubts were There 25 Office of Commercial Space Transportation Regulations 131-32, 493-95 (2009); Timothy Robert Hughes & Esta Esta & Hughes Robert Timothy (2009); 493-95 131-32, ) 1/4/16 11:24 PM L. 1, 1-80 (2005); Joanne Irene Gabrynowicz, REATISE note 15, at 211. to be put into commercial use. This was one of the reasons why why reasons the of one was This use. commercial into put be to ELETE D PACE S supra SS1 —A T OT N AW O L (D , 31 J. . 405, 405-26 (2010). 405-26 405, . regulation combining both legal regimes. EV PACE DOCX R National Regulation of Private Suborbital Flights Suborbital Private of Regulation National ,S Y ’ _1.4. OL Space Travel Law (and Politics): The Evolution of the Commercial Space Launch INAL ARSEN Jürgen Cloppenburg, vehicles. hybrid of kind new this to apply to seemed regimes legal space and air both Initially, John Sloan, Space Policy Analyst, Federal Aviation Administration, remarks to Orbspace (Nov. On the U.S. regulation of private human spaceflight, see, for example, F example, for see, spaceflight, human private of regulation U.S. the On _F , the manufacturer (Scaled Composites) was required to obtain space licenses for the launches, In October 2004, after successful flights of SpaceShipOne (SS1), the This will indeed be the case for flights taking place from a large country country large a from place taking flights for case the be indeed will This The situation might well be different for flights operated from, for The United States has been a pioneer in enacting specific statutory rules statutory specific enacting in pioneer a been has States United The sui generis sui B. L .L.&P ORO 25 26 27 24 SS1 M K ARV AUL first private aerospace vehicle, the regulation of suborbital passenger vehicles passenger suborbital of regulation the vehicle, aerospace private first became a matter of practical relevance. go further up, reaching altitudes where satellites usually orbit the earth; or when they flights to develop ultimately into point-to-point cover suborbital very long distances on earth. In all those cases, international law would be applicable, and the choice of regime must be made: air law, space law, or a new such as the United States. In such cases, the concerned States will be perfectly perfectly be will States concerned the cases, such In States. United the as such capable of regulating the entire activity in the framework of their domestic law. And whether they choose to apply national air law, national space law, them. to up is law hybrid new a or example, certain European countries having smaller territories. Flight paths may or and accidents incidents states, of neighboring airspace may traverse happen across national borders. The situation will also change when flights P 2.2. The CommercialThe Amendments Launch 2.2. Space Act humanflight. private suborbital of activity the covering 2015] 15 - M and Counting: The Evolution of U.S. National Space Law H and Three Long-Term Emerging Issues nature of the activity of transporting humans on suborbital trajectories. suborbital on humans transporting of activity the of nature For and at the same time was required to have license, mission vehicle an launch a needed Experimental tests flight the Airworthiness of Some tests. Certificate gliding the for (EAC) 91 and 21 under parts CFR 14 the under solely conducted be to were times, burning engine short-duration their of because others, while EAC. The EAC did not permit commercialized. be to intended never was 2012). For more insight into the reasoning behind the U.S. 2004 regulation, one can read the preambles see website, FAA the on documents the in found proposal was considered for the suborbital regime to be similar to the already the to similar be to regime suborbital the for considered was proposal end the at However, (FAR-21). regulation aircraft experimental FAA existing the rules were not commercial allow to order in based process simplified a creating solution, preferred on FAR-21; a industry. the develop help and quickly ground the off get to operators space Rosenberg, Amendments Act of 2004 C Y 37333-fiu_10-2 Sheet No. 169 Side A 01/11/2016 08:19:25 A 01/11/2016 169 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 169 Side B 01/11/2016 08:19:25 M K C Y see also [Vol. 10:679 10:679 [Vol. , http://ast.faa.gov/ , 14 C.F.R. § 401.5 see also DMINISTRATION A The FAA/AST is a regulatory regulatory a is FAA/AST The 32 VIATION A These regulations have set out a series series a out set have regulations These 35 EDERAL ,F This is because commercial suborbital suborbital commercial because is This 28 FIU Law Review Law FIU ) 1/4/16 11:24 PM ,http://www.faa.gov/about/office_org/headquarters_offices/ast/ ELETE D OT N O Consequently, a number of federal rules and guidelines guidelines and rules federal of number a Consequently, (D 34 DMINISTRATION Accordingly, the CSLA is now the legal basis to regulate regulate to basis legal the now is CSLA the Accordingly, 14 C.F.R. § 401.5(2015). A 29 33 DOCX note 101, at III (“FAA Licensing for Commercial Space Transportation”); Transportation”); Space Commercial for Licensing (“FAA III at 101, note 17 C.F.R. §§ 401, 415, 431, 435, 440, 450, 460 (2015) (all the regulations applicable applicable regulations the (all (2015) 460 450, 440, 435, 431, 415, 401, §§ C.F.R. 17 30 the U.S. Congress granted authority for the regulation and and regulation the for authority granted Congress U.S. the _1.4. see also see 31 VIATION INAL see also A See infra CSLAA Sec. 2(a) “Amendments—Findings And Purposes.” The 1984 Commercial Space Space Commercial 1984 The Purposes.” And Flight “Amendments—Findings Space 2(a) Commercial Space Launch Amendments Act (CSLAA), Pub. L. No. 108-492 (2004). “Human Sec. Rule CSLAA Final its 2006 December in published FAA the 51 U.S.C. § 50922(c) (2010). particular, In Section 2(b) of the CSLAA provided the following definition of “suborbital rocket”: it means means it rocket”: “suborbital of definition Commercial Space Launch Act, 51 U.S.C. §§ 50901-50923 (2011). following the provided CSLAA the of 2(b) Section flight intentional “the means trajectory” “suborbital CSLAA, the of 2(b) Section to According _F In the CSLAA, Congress mandated the DOT to issue regulations to By means of the 2004 Commercial Space Launch Amendments Act As a result, the U.S. Congress adopted new legislation within the ORO 31 32 33 34 35 28 29 30 EDERAL licensing of private human spaceflight to the Office of Commercial Space Transportation of the Federal Aviation Administration (FAA/AST), within the Department of Transportation (DOT). Launch Act established the DOT as the federal agency responsible industry. vehicle launch commercial for regulating and overseeing the (2015). carry out the Act. amendments. all commercial human “suborbital” spaceflight is (orbital and also suborbital). separately The defined term from “orbital” in the law’s of basic requirements for companies enabling a market intending to develop. This flexible to legal regime will be operate in force at these flights, lrra/about_lrra.htm. have been issued by the FAA/AST. (CSLAA), F 686 framework of the Commercial Space Launch Act (CSLA), which had been originally enacted in 1984 governmental in space order rockets. to cover the launch of all non- 15 - M regulations/. Requirements for Crew and Space Flight Participants,” as required by the CSLAA. 71 Fed. Reg. 241 (Dec. 241 Reg. Fed. 71 CSLAA. the by required as Participants,” Flight Space and Crew for Requirements 15, 2006); operators). suborbital to “a vehicle, rocket-propelled in whole or in part, intended for flight on a suborbital trajectory, and the thrust the and trajectory, suborbital a on flight for intended part, in or whole in rocket-propelled vehicle, “a of which is greater than its lift for the majority of the rocket-powered portion of its ascent.” 51 U.S.C. § (2010); 50902 path of a launch vehicle, re-entry vehicle, or any portion thereof, whose vacuum instantaneous impact point does not leave the surface of the Earth.” 51 U.S.C. § 50902 (2010); agency responsible for the licensing of commercialagency responsible for the licensing launches space vehicles’ and re-entries as well as the operation of private launch and U.S. re-entry the within sites Office of Commercial Space Transportation vehicles have been classified distinctions in physics between the “lift” and “thrust” as needed to accomplish rockets instead their of trajectory. aircraft, based on 37333-fiu_10-2 Sheet No. 169 Side B 01/11/2016 08:19:25 B 01/11/2016 169 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 170 Side A 01/11/2016 08:19:25 A A 41 (Feb. 13, EWS American American N 38 40 687 687 PACE ,S 14 C.F.R. §§ 401, 417, 417, 401, §§ C.F.R. 14 ee also , FAA, http://www.faa.gov/about/office_org/ 14 CFR §§ 435.8, 440. see also see 37 ) 1/4/16 11:24 PM and most likely beyond that date. The reason to 36 ELETE D 39 OT N O (D Private Spaceflight ‘Learning Curve’ Extension Approved DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National Compliancemonitoring Environmentalreview Financial responsibility determinationresponsibility Financial Payload review and determinationand review Payload Safety review and approval approval and review Safety Policy review and approval approval and review Policy Pre-application consultation Pre-application _1.4. • • • • • • • INAL Launch Site Pre-Application Consultation Dan Leone, Comments by the Speaker pro tempore (Mr. Kline), California (Mr. Rohrabacher), Texas (Mr. 51 U.S.C. § 50904. In the case of air-launched concepts such as SS2, the FAA/AST would would FAA/AST the SS2, as such concepts air-launched of case the In 50904. § U.S.C. 51 Id. at § 50904. http://www.faa.gov/about/office_org/headquarters_offices/ FAA, Vehicles, Reentry or Launch 51 U.S.C. § 50905 (2010). § 50905 (6) (C) (3). The provision that prohibits the FAA from issuing further regulations for 8 _F The FAA currently has 180 days to make a license determination. The licensing process itself consists of the followingthe steps: of consists itself process licensing The The licensing process mostly focuses on safety of public and property The CSLAA introduced a legal regime for private spaceflight that for See ORO 42 37 38 39 40 41 42 36 M K Lampson), House Hearings of November 2004 (on the bill H.R. 5382 that became the CSLAA), Space Committee. Science House the of Subcommittee Aeronautics and license from the FAA/AST and compliance with a set of safety requirements and is other also mandatory in order to operate a launch and/or reentry site. companies launching from abroad are ordered to comply with the same safety same the with comply to ordered are abroad from launching companies regulations. liability and operators to try and experiment.and try to operators launched spacecraft suborbital for need the hence flights: the in involved not from the United States to obtain a license from the FAA/AST. extend that term is obvious: gained. been not has commenced still initial expected experience the yet, because suborbital space tourism has not MannedFlights of Suborbital Licensing FAA The 2.3. FAA on instead relies and vehicles, the of certification momentexcludes the licensing and on the “informed consent” of the participants. The idea was to establish a limited regulation at the beginning, in order to allow for the 2015] 2015, of end the until least 15 - M 2012), http://spacenews.com/private-spaceflight-learning-curve-extension-approved/. 2012), license the suborbital element as a launch vehicle, while its mothership would operate under an aircraft certificate. ast/licenses_permits/launch_reentry/#reusable; years after entry into force was extended until 2015 in the FAA Reauthorization Act adopted in February in adopted Act Reauthorization FAA the in 2015 until extended was force into entry after years 2012. headquarters_offices/ast/licenses_permits/launch_site/preapp_consult/; s C Y 37333-fiu_10-2 Sheet No. 170 Side A 01/11/2016 08:19:25 A 01/11/2016 170 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 170 Side B 01/11/2016 08:19:25 M K 43 45 C Y In In 49 The The 50 47 [Vol. 10:679 10:679 [Vol. Licenses can be 48 53 The FAA can also also can FAA The 52 The FAA may modify a license license a modify may FAA The 51 Such a permit will not enable the suborbital Crewmembers (either onboard crew or a a or crew onboard (either Crewmembers 44 54 FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE D OT N O (D DOCX _1.4. In addition, a permit ceases to be valid as soon as a license has has license a as soon as valid be to ceases permit a addition, In at § 50906 (d). at § 50906 (h). at § 50906 (a). at § 50906 (g). at § 50907 (a). at § 50908 (c). at § 50908 (d) (1). at § 50908 (d) (2). at § 50908 (b). at § 50908 (d) (2) (B). at § 50902 (2) and (17); 14 C.F.R. §401.5. 46 INAL Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 51 U.S.C. § 50906. _F Once the license is granted, there is also “compliance monitoring,” The U.S. law makes the crucial distinction between “crew” and “space In addition, the new legislation has introduced an alternative ORO 43 44 45 46 47 48 49 50 51 52 53 54 whereby whereby the FAA makes that certain both the and vehicle the are spaceport licenses. their of terms and regulations the within operating anytime, particularly if new regulations are issued. been granted for that particular design of a reusable suborbital rocket. suborbital reusable designa particular of that for granted been suspended temporarily or revoked permanently if the holder does not comply not does holder the if permanently revoked or temporarily suspended with the conditions of the license, or necessary if the the suspension public or health revocation is and safety and other national interests. particular, the FAA/AST may suspend a license when a previous launch or system support life a when or injury, fatal or serious a in resulted has re-entry on board the space vehicle fails and results in a serious accident. suspension will terminate when the FAA ascertains that the license holder has taken sufficient steps to remedy the cause of the accident, or after FAA/AST the has modified the license. A permit is issued quicker (120 days) and licenses. with fewer requirements than An experimental permit is an authorization issued by the FAA to allow an experimental reusable suborbital rocket to purposes of launch testing new design or concepts, showing compliance with re-enter license solely for training. crew or requirements, flight participant” (“an individual, who is not crew, carried within a launch vehicle or reentry vehicle”). 420 (2015). 420 688 authorization, the so-called facilitating the development of “experimental new types of reusable suborbital vehicles. permit,” with the aim of 15 - M vehicle to carry “any property or human being for compensation or thereby hire,” excluding any commercialization of this particular kind of flights. modify the license to reduce the likelihood of accidents. of likelihood the reduce to license the modify 37333-fiu_10-2 Sheet No. 170 Side B 01/11/2016 08:19:25 B 01/11/2016 170 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 171 Side A 01/11/2016 08:19:25 Pilots in in Pilots 55 689 689 Finally, an operator 59 For instance, there are are there instance, For 57 62 FAA regulations also require that that require also regulations FAA 58 56 ) 1/4/16 11:24 PM ELETE D OT N O (D DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National However, participants are not required to undergo any medical medical any undergo to required not are participants However, _1.4. 61 at § 460.15. at § 460.17. at §§ 460.51 and 460.53. at § 50905 (4) (A); 14 C.F.R. §§ 460.5, 460.7. INAL Id. Id. Id. Id. Id. The FAA however is not to impose any design requirements or changes in the designs of the the of designs the in changes or requirements design any impose to not is however FAA The 14 C.F.R. § 460.11. 51 U.S.C. § 50905 (6) (A), (6) (B). _F 60 The regulations also include training and general security requirements FAA regulations and guidelines have also addressed safety and security and safety addressed also have guidelines and regulations FAA Most Most notably, before employing any new crewmembers, the operator ORO 56 57 58 59 60 61 62 55 M K requirements to provide a controlled cabin environment and an adequate life adequate environmentan cabin and controlled a requirementsprovide to support system inside the vehicle. emergency situations (smoke, fire, loss of cabin pressure, and exit), and they must not be able to jeopardize the emergency safety of the flight crew or the public. for spaceflight participants. Participants must be trained to respond to particular particular must have demonstrated an ability to spaceflight, withstand the as stresses well of as any abort the harmnot will vehicle the that so duties their out carry safely to condition or emergency procedures, in sufficient public. They must possess an FAA pilot certificate medicalcertain certifications. and must also satisfy suborbital vehicles be designed to prevent the possibility of human error. For error. human of possibility the prevent to designed be vehicles suborbital instance, flight crew could lose consciousness if subjected to uncontrolled designed be therefore must vehicles vibration: or noise acceleration, extreme factors. these tolerate can crew the that so operated and requirements on board, and even some specific aspects of airworthiness of the vehicles involved in private human spaceflight. must successfully verify the integrated performance of a vehicle’s hardware hardware a of vehicle’s performance integrated the verify successfully must environmentflight operational an verification in software such any (i.e., and must before include flight-testing) allowing any space flight on participant board. 2015] remote operator on the ground) must have adequate training. 15 - M vehicles until after 2015, except in case of accidents or incidents involving serious risks (“close calls”). After 2015 (or any other later date established without by vehicles the suborbital human legislator), private the of passenger FAA of may protection the propose and regulations operations, worthiness, on space restriction. In doing that, the FAA must take into consideration the evolving standards of safety in industry. spaceflight commercial the 2.4. The “Informed Consent” Regime“InformedConsent” The 2.4. examination prior to flying; rather, the FAA relies on the participant’s self- interest in obtaining medical advice, regulation. until through screening medical a mandate demonstrable need arises to C Y 37333-fiu_10-2 Sheet No. 171 Side A 01/11/2016 08:19:25 A 01/11/2016 171 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 171 Side B 01/11/2016 08:19:25 M K C Y , 33 J. , What Is [Vol. 10:679 10:679 [Vol. , at 11-12. at , Tracey L. Knutson L. Tracey ibid In particular, the FAA FAA the particular, In , at 11. at , 64 ibid see also 67 Passengers must then provide provide then must Passengers 65 In addition, licensed operators must 70 APT Research, Inc., Letter from Mark W. Bury, Assistant Chief Counsel of http://www.faa.gov/search/?q=APT+Research%2C+Inc.% See APT Research, Inc., Similarly, before flying any space flight flight space any flying before Similarly, see also see 63 FIU Law Review Law FIU ) 1/4/16 11:24 PM 20Interpretation.pdf. see also see ELETE D available at OT N O It amounts to a licensing obligation for the operator to to operator the for obligation licensing a to amounts It (D 68 DOCX _1.4. Informed consent must be based on knowledge of hazards and and hazards of knowledge on based be must consent Informed APT Research, Inc., Study on Informed Consent for Spaceflight Participants (Doc. No. No. (Doc. Participants Spaceflight for Consent Informed on Study Inc., Research, APT 69 at § 50905 (4) (B); 14 C.F.R. § 460.9. INAL This “informed consent” will presumably release the operator from from operator the release presumably will consent” “informed This See Id. 14 C.F.R. §460.45 (2006); 14 C.F.R. §§ 460.45(c) and (d); 51 U.S.C. § 50905 (5) (A), (5) (B); 14 C.F.R. §§ 460.45(a) and (b). 14 CFR § 460.45(a)(1). 51 U.S.C. § 50905 (5) (C); 14 C.F.R. § 460.45(f). U.S. Under claims. of waiver a not is consent informed believe, people many what to Contrary _F 66 Because the latter requirement is such an important element of the ORO 68 69 70 63 64 65 66 67 ‘Informed Consent’ for Space-Flight Participants in the Soon-to-Launch Space Tourism Industry? (2007). 105 L. Space 2C+Study+on+Informed+Consent+for+Spaceflight+Participants; also give participants an opportunity to request additional information accidents on and incidents, to orally ask hazards questions to and better risks understand of the the flight, and to receive satisfactory answers to their signed and dated “informed consent” flight. in order to participate in the clearly inform of dangers inherent in the flight “in readily a manner understood that can be by a training.” participant with no specialized education or particular vehicle and similar vehicles. similar and vehicle particular consequences, risks of launch and re-entry, and the safety record of the 690 (or the holder of a launch license or permit) for a suborbital notify the vehicle potential mustcrewmembers that the U.S. federal government has not certified the vehicle as safe. 15 - M liability towards the participants in case of accident during the flight (except of accident during liability towards the participants in case in cases of deliberate wrongful action or gross negligence by the operator); matter.meanssettled no a by however,is this written and signed informed consent will release the operator from liability claims in case of accident is still a matter to be determined by the courts. federal law, it is a license requirement imposed by the CSLAA and the FAA rule, which operators must meet in order to be able to fly any paying participants aboard their vehicles. Whether the participants’ regulations require that the spaceflight participant be informed of each known each of informed be participant spaceflight the that require regulations hazard and risk that may result in serious injury, death, disability or total or partial loss of physical or mental function. APT-CFA-230-0001-02F 2008), regulation, the FAA has issued informed further consent. guidance about what constitutes participants, participants, the licensee or permittee must writing about the inform risks of the the flight crewmembers and notify in them that the government U.S. has federal not certified the vehicle as safe. International Law, Legislation and Regulations AGC-200, to Courtney B. Graham, Associate General Counsel, National Aeronautics headquarters_offices/agc/pol_adjudication/agc200/Interpretations/data/interps/2014/Graham-OGC-NAS and Space %20-%20%282014%29%20Legal% A Administration, http://www.faa.gov/about/office_org/ 37333-fiu_10-2 Sheet No. 171 Side B 01/11/2016 08:19:25 B 01/11/2016 171 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 172 Side A 01/11/2016 08:19:25 263, 263, Space UROPE PACEFLIGHT E S IN IN . 691 691 EGIS L 75 UBORBITAL Michael Gerhard, Gerhard, Michael The Future Regulation of The Future Regulation of 73 S PACE , at 11. at , S L ’ ibid see also UNDED AT -F ,N NION 76 U RIVATELY P 72 APT Research, Inc., 75, 75-82 (2014); (2014); 75-82 75, Y ’ 75, 75-82 (2014). UROPEAN Y OL ’ OSITION ON E P see also see P OL ) 1/4/16 11:24 PM S P THE PACE The clear intent here is to provide the participants 74 ELETE , at 10. at , 71 D PACE ,ESA’ ibid OT ,30 S ,30 N ,30 S ,30 O GENCY (D ATIONAL REGULATION IN THE FRAMEWORK OF FRAMEWORK THE IN REGULATION ATIONAL A N http://esamultimedia.esa.int/docs/gsp/Suborbital_Spaceflight_ESA_Position_Paper_ DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National PACE III. _1.4. .S UR INAL Tanja Masson-Zwaan, Rafael Moro-Aguilar & Aron Lentsch, Lentsch, Aron & California and Colorado (2011) Moro-Aguilar Texas (2010), Lentsch, Mexico New Rafael Aron (2008), & APT Research, Inc., Florida (2007), Virginia Masson-Zwaan, Moro-Aguilar Tanja Rafael Masson-Zwaan, Tanja E 14 C.F.R. §§ 460.45(e) and (f); _F available at The future European legal framework for commercial suborbital Should human suborbital flights in Europe be seen as aviation, or air Several U.S. individual states have enacted additional legislation In 2008, the European Space Agency issued a position paper on “space In the next few years, European countries may be facing the same ORO 72 73 74 75 76 71 M K Suborbital Flight in Europe Europe in Flight Suborbital Tourism—The Authorisation of Suborbital Space Transportation with enough information to allow them to make the voluntary decision risks. these encounter and/or participate to framework should avoid over-regulation, in order not to stifle innovation and innovation stifle to not order in over-regulation, avoid should framework industry. suborbital new emergencethe of the for allow to activities should assure the safety of the flights and regulate the consequences the regulate and flights the of safety the assure should activities of any eventual accidents. At the same time, and existing in U.S. regulation a of private similar human spaceflight, way any future as European the (2008), 14April08.pdf. transportation, and suborbital vehicles considered as aircraft, then their 2015] flying. to prior questions 15 - M intended to ensure exclusion from civil liability for suborbital manufacturers suborbital for liability civil from exclusion ensure to intended territories. fromrespective launching their operators and 3.2. European Union Law Union European 3.2. high- considered be should flight suborbital human that suggesting tourism,” astronautics. than rather aeronautics altitude 3.1. Introduction Introduction 3.1. are projects Several 2004. in make to had government U.S. the that decisions and vehicles suborbital European developing of terms in Europe in underway spaceports. A clear and stable regulatory framework requisite is for an investors essential pre- and operators exist. frameworknot does alike. However, at present such a 263-96 (Frans Von der Dunk ed. 2011). ed. Dunk der Von (Frans 263-96 (2012). C Y 37333-fiu_10-2 Sheet No. 172 Side A 01/11/2016 08:19:25 A 01/11/2016 172 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 172 Side B 01/11/2016 08:19:25 . , M K O C Y In In 81 There There (EC) N 78 , i.e., the [Vol. 10:679 10:679 [Vol. EGULATION ,R Furthermore, the EU NION (2008) (the so-called “Basic U 80 Summaries of EU Legislation EU of Summaries 77 EASA is an independent independent an is EASA note 74, at 76. GENCY 83 A UROPEAN E supra acquis communautaire acquis AFETY OUNCIL ON COMMON RULES IN THE FIELD OF S C EASA has been established “so that that “so established been has EASA 82 VIATION OUNCIL OF THE OF OUNCIL A C 85 FIU Law Review Law FIU ) 1/4/16 11:24 PM Article 28.1 BR: “The Agency shall be a body of the Community. European Civil Aviation Handbook: Part I. Regulations and and Regulations I. Part Handbook: Aviation Civil European ,http://ec.europa.eu/transport/modes/air/internal_market/handbook/ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008: UROPEAN ELETE E D ARLIAMENT AND THE see also see P OT N O (D available at ARLIAMENT AND THE AND ARLIAMENT P UROPEAN DOCX engaged in implementing and monitoring safety and and safety monitoring and implementing in engaged E and in passenger protection and liability. 84 _1.4. 79 UROPEAN COMMISSION UROPEAN INAL , E Preamble No. 12 BR; 12 No. Preamble For a useful overview see overview useful a For E Preamble No. 12 BR. Preamble No. 22 BR. Frasmayo Ulgsaini h il faito see aviation of field the in legislation EU T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, of summary a For on 2002 May 13 of Council the of Regulation and No 1008/2008, Parliament of European the the European of Parliament 889/2002, No and of the Council Regulation of 24 September 2008 OF THE THE OF _F , http://europa.eu/legislation_summaries/transport /air_transport/index_en.htm. http://europa.eu/legislation_summaries/transport , In particular, “[T]his Regulation shall apply to: (a) the design, As As far as aviation in the EU is concerned, an extensive regional legal Most notably, the European Aviation Safety Agency (EASA), which is is which (EASA), Agency Safety Aviation European the notably, Most ORO 81 82 83 84 85 77 78 79 80 UROPA Directives regulates external relations as well as infrastructure, including slot allocation allocation slot including infrastructure, as well as relations external regulates and the provision of ground handling services, safety and security. Regulation,” or “BR”), production, maintenance and operation of aeronautical products, parts and appliances, as well as personnel and organisations involved in the design, EU agency 216/2008 692 compliancerequire the could with operation transferred have States member the since law, (EU) Union European of body EU. the to aviation civil of field the in powers many 15 - M framework has been established to govern civil aviation in Europe. AVIATION AND ESTABLISHING A on common rules for the operation of air services in the Community (Recast), 2008 O.J. (L 293) 3, 20.3, 293) (L O.J. 2008 (Recast), Community the in services air of operation the for rules common on O.J. 2002 accidents, of event the in liability carrier air on 2027/97 No (EC) Regulation Council amending 5. 2, 140) (L of the necessary EU legislation. EU necessary the of environmental protection rules, drafting the for giving advice giving and operators, foreign authorizing components, type-certification of aircraft and certain tasks currently performed at Community or national level should be carried out by a single specialized expert body.” is Communitary air law regulating a vast number of subjects, through a set on binding directly are common that of (laws Regulations as published rules all member States). The EU is especially active in the fields regulation, of economic general, the EU rules conventions. law air international are more stringent than the provisions in charge of civil aviation safety in the in EU, was created in 2002. According the to the applicable “Basic Regulation,” part1_en.htm. 079:0001: 0049:EN:PDF. 079:0001: It shall have legal personality.” legal have shall It E 37333-fiu_10-2 Sheet No. 172 Side B 01/11/2016 08:19:25 B 01/11/2016 172 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 173 Side A 01/11/2016 08:19:25 This This 86 (IAASS), http: Therefore, Therefore, 91 693 693 Space Transportation Space AFETY S http://www.congrex.nl/ PACE S This seminal paper was was paper seminal This 88 It must be stressed that the the that stressed be must It 89 DVANCEMENT OF see also EASA’s Space Tourism Approach A BR on the functions of the Agency. et seq. et note 88, Abstract. (Oct. 28, 2008, 7:00 PM), http://www.flightglobal.com/articles/ ) 1/4/16 11:24 PM supra ELETE D LOBAL SSOCIATION FOR THE G A OT N O (D LIGHT Indeed, according to EASA’s Basic Regulation, all aircraft , F 92 DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. NTERNATIONAL I held in Rome, Italy in October 2008. October in Italy Rome, in held , Abstract. , ., Abstract and 2.2.2 (EASA role and procedures). and role (EASA 2.2.2 and Abstract ., INAL 87 See Id Id. 90 Jean-Bruno Marciacq, Yves Morier, Filippo Tomasello, Dr. Zsuzsanna Erdelyi & Dr. Michael Michael Dr. & Erdelyi Zsuzsanna Dr. Tomasello, Filippo Morier, Yves Marciacq, Jean-Bruno Michael Dr. & Erdelyi Zsuzsanna Dr. Tomasello, Filippo Morier, Yves Marciacq, Jean-Bruno Jean-Bruno Marciacq et al., Article 1.1 BR. See also Articles 17 Accommodating Sub-orbital Flights into the EASA Regulatory System, Towards Regulating Sub-orbital Flights—An Updated EASA Approach, in Approach, EASA Updated Flights—An Sub-orbital Regulating Towards _F The authors of these papers hold that suborbital aeroplanes generating In these papers, the ESA consideration of suborbital flight as an A number of EASA officials presented a paper suggesting a regulatory ORO 88 89 90 91 92 86 87 M K IAASS, approach within EASA for suborbital flights at the 3rd Conference of the their airworthiness, crews and operations fall under the powers of EASA, and EASA, of powers the under fall operations and crews airworthiness, their aircrafts, flights, suborbital civil to relation in role its fulfill must Agency the operations. and used for commercial purposes in intended for Europe purely national flights), must and EASA has be the mandate to certified certify (even those aerodynamic lift during the atmospheric part of the flight must be considered be must flight the of part atmospheric the during lift aerodynamic as aircraft, as per the ICAO definition of aircraft quoted above. 2008/10/28/317902/easas-space-tourism-approach-requires-certification.html. further elaborated in another Astronautical Congress held in Prague in 2010. one, presented at the 61st International 2015] production and maintenance of such products, personnel parts and organisations and involved appliances; in the (b) operation of aircraft.” 15 - M Gerhard, 08a11/presentations/day1_S09/S09_05_Marciacq.pdf; Requires Certification Gerhard, 2010). (Oct. IAC 61st the at Presented Innovations, and Solutions //iaass.space-safety.org/. means means that in the European region, EASA has powers over all aircraft and and operations, air airworthiness, including safety, aviation of regulation the licensing. crew flight Regulate to Aeroplanes” Proposal “Suborbital EASA Certify The and 3.3. views expressed in these papers are personal and not officially those of the Agency. aeronautical activity quoted above is accepted, but the authors EASA’s would involvement see limited to rocket-powered winged airplanes, calling them “Sub-orbital Aeroplanes” (SoA). This approach excludes unwinged, pure rockets, and thus all suborbital ventures using the concept of a vertical launch. C Y 37333-fiu_10-2 Sheet No. 173 Side A 01/11/2016 08:19:25 A 01/11/2016 173 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 173 Side B 01/11/2016 08:19:25 M K C Y UROPEAN 100 98 , E , [Vol. 10:679 10:679 [Vol. As of early 2015, a final final a 2015, early of As 99 97 http://easa.europa.eu/sms/docs/European%20Aviation% As this kind of aircraft is designed for a a for designed is aircraft of kind this As 94 FIU Law Review Law FIU ) 1/4/16 11:24 PM available at ELETE D 96 OT N , at 49, O (D GENCY DOCX A _1.4. , at 3.3 (Legal Implications WhenImplications (Legal 3.3 at Space). , Outer Entering ., at 3.1 and 3.2 (Airworthiness and Certification). Certification requirements for standard . ., at 2.2 (Aviation Law in the European Union). Union). European the in Law (Aviation 2.2 at ., (Introduction). 1 at ., AFETY INAL S In this context, it is interesting to note that the European Commission recognized EASA’s EASA’s recognized Commission European the that note to interesting is it context, this In Id Id Id. Id Id See 1st European Aviation Safety Plan (EASp) Implementation and Review Summit Review Seeand Implementation (EASp) Plan Safety Aviation European 1st In orderto do so, the authors consider that EASA should complement Jean-Bruno Marciacq, European Aviation Safety Agency, remarks made to Orbspace (2010 & & (2010 Orbspace to made remarks Agency, Safety Aviation European Marciacq, Jean-Bruno _F The aim would be to ensure an equivalent level of safety as currently 93 95 It should be noted however that in September 2011, the European Finally, the authors claim that EASA would not have competence for EASA representatives have explained that their investigations on a ORO 97 98 99 100 93 94 95 96 VIATION Commission put EASA’s suborbital activity on hold, due to a new directive from the Commissioner’s Cabinet to investigate a lighter process, similar to the FAA/AST “Launch Licensing” procedure. the (very short) outer space part of sub-orbital flight, which remains under the authority of individual member unless it agrees States; with the States to behalf. their on responsibility this enforce 20Safety%20Plan%20(EASp)%202012-2015%20-v1.0%20FINAL.pdf. Several European stakeholders however have confirmed their demand for full certification: EADS, Booster, S3, and Reaction Engines Ltd.-Skylon. regulatory approach for human suborbital flight started in 2007, following an following 2007, in started flight suborbital human for approach regulatory initiative taken by the industry applicants approached EASA for guidance itself, and for possible certification when of some services its provide to ready is EASA Accordingly, designs. spaceplane their (unnamed) potential in the field of Commission.European the by provided are resources corresponding suborbital flight, if a mandate to that extent and the authority to regulate another kind of vehicle of which it was hard to define whether it something else, namely is Unmanned Aerial Systems an (UAS, sometimes aircraft also referred to or as UAV). The EU vehicles. suborbital for future the in same the do might A 694 them. 15 - M existing rules to capture the specific of features SoA, rather than developing new specifications from scratch. 2012). airplanes in the EASA regulatory system are called CS-23 for small (<5.7t) and CS-25 for large (>5.7t) SoA. for code airworthiness EASAbasic by a account define into to taken be would Both airplanes. decision on this matter by the European Commission is still pending. CommissionEuropean still matterthe is this by on decision special purpose, and a normal certification type requirements certificate for on standard the aeroplanes restricted may basis type be of certificates inappropriate, existing seem the SoA. most realistic avenue for certifying novelty of this domain.this of novelty pertains to existing aeroplanes, as far as possible considering the inherent risks linked to such endeavors at the outer limit of the atmosphere and the 37333-fiu_10-2 Sheet No. 173 Side B 01/11/2016 08:19:25 B 01/11/2016 173 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 174 Side A 01/11/2016 08:19:25 695 695 102 101 ) 1/4/16 11:24 PM ELETE D Certification Versus Licensing for Human Space Flight in Commercial OT N O 63rd International Astronautical Congress 1, 4 (2012), http://www.faa.gov/ (2012), 4 1, Congress Astronautical International 63rd (D in , DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. at IV and V. and IV at ATHS FOR AUTHORIZATION OF PRIVATE SUBORBITAL FLIGHTS SUBORBITAL PRIVATE OF AUTHORIZATION FOR ATHS P INAL George Nield et al., al., et Nield George Id. _F Another consideration is that manned suborbital flight is a new, still not not still new, a is flight suborbital manned that is consideration Another Furthermore, suborbital tourism is only one initial financing means In the U.S., the FAA is prepared to codify any lessons learned during In order to make a decision, one should take into account the fact that As already noted, two paths for authorization of private suborbital Certification of aircraft is most effective in assuring safety of aerial IV. ORO 101 102 M K operators will be able to fly for a number of years before the FAA formulates FAA the before years of number a for fly to able be will operators gained. experience the on based regulations stricter well known activity, and thus it becomes necessary was legislation U.S., the In field. the in regulations comprehensiveimposing to learn more before and parties) (third public the of safety the between compromise a as intended freedom of innovation for the vehicle developers. Accordingly, commercial about/office_org/headquarters_offices/ast/programs/international_affairs/media/Certification_vs_ Licensing_Nield_FAA-IAC-Naples-Oct-2-2012.pdf. 2015] 15 - M Space Transportation Congress. The current licensing regime is set to evolve to include regulations include to evolve to set is regime licensing current The Congress. for occupant safety, on top of the existing ones, which are meant for public safety only. prior critical as seen This is effort regulatory future any into could input and involvement be hastened if there is an accident. Industry found by the industry to develop new suborbital concepts, with the goal in at a mind concepts to to public broad later the other apply same technology stage, such speak to seems technology evolving an of view This spaceflight. commercial as hypersonic follow closely may law the that so approach, step-by-step a of favor in again point-to-point transportation developments. technological progressive the and orbital the first few years of operations, while under the moratorium set up by (as it requires exhaustive testing, paperwork, etc.) that may not be suitable at suitable be not may that etc.) paperwork, testing, exhaustive requires it (as the beginning for the kind of experimental, rocket-powered vehicles that is here. discussion under human suborbital flight will be, at tourism”—looks “space least application—i.e., main its though even and market; in the beginning, a rather small promising,commercialunproven. its still is value 4.1. The “Licensing Versus Certification” Debate Certification” Versus “Licensing The 4.1. flights have been under consideration licensing. and certification both in the U.S. and in Europe: happen that accidents of rate low extremely the by demonstrated as vehicles, in modern aviation. However, is a lengthy and certification costly procedure C Y 37333-fiu_10-2 Sheet No. 174 Side A 01/11/2016 08:19:25 A 01/11/2016 174 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 174 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:679 10:679 [Vol. 105 103 note 74, at 81. supra Big US-Euro Divide on Commercial Spaceflight 106 FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE D OT ,http://www.parabolicarc.com/2011/05/13/big-useuro-divide-commercial- N O RC A (D DOCX 104 _1.4. ARABOLIC ,P INAL Id. Interview by Orbspace with Jean-Bruno Marciacq, Coordinator, Suborbital and Orbital Orbital and Suborbital Coordinator, Marciacq, On this particular issue, see, for example, Jean-Bruno with Orbspace by Interview T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, _F Another aspect to consider is that if the U.S. and Europe adopt divergent divergent adopt Europe and U.S. the if that is consider to aspect Another In addition, having to obtain two authorizations if two sets of regulations of sets two if authorizations two obtain to having addition, In On the other hand, even though the FAA and EASA may start off with morealmostOne that is suborbital account into the take of half to issue In this context, it should be recalled that in the U.S., the same body (the body same the U.S., the in that recalled be should it context, this In ORO 103 104 105 106 different regulatory approaches, eventually the FAA will also fully regulate human suborbital flight (at some point after EASAperiod, transitionary Allthis along rules. ownits certification publish 2015) and theoretically will ensure to order FAAin the with collaborate to ready be to itself declared has regulations. both of harmonisation and coordination maximum approaches approaches to forced be will Atlantic the regulating of sides both on fly to wishing the companies industry, emerging commercial human to operate in very different spaceflight regulatory environments. Vehicles may have to be developed in accordance with passengers two will be treated differently different depending on which country sets they are of regulations; from.flying and spaceflight-regulations/. The 2014 U.K. CAA analyzed report below) (to also be touches upon this issue, by saying in p. 37 that “given that the designs of the spaceplanes that are most likely to launch from the U.K. by 2018 or earlier have been developed in line with the U.S. model [of legislation], any regulation model.” this with compatible be should propose we existence of vertically launched, unwinged concepts, such as those of Masten of those as such concepts, unwinged launched, vertically of existence regulatory any avoid to order In consideration. important an is Origin, Blue or discrimination, EU law should above, also EASA cover does unwinged not vehicles. cover generate As purely lift as noted rocket symmetrical designs bodies, they (since are not they aircraft ICAO definition). according do Therefore, such to vehicles would the not fall under the could, there powers Europe, of in that implies This authority. national corresponding the potentially, be two different sets regulating of the rules same and activity—commercial two human consequence. undesirable an be would different suborbital authorities flight. This vehicle concepts currently being developed and tested are without wings. The wings. without are tested and developed being currently concepts vehicle (FAA’s and EASA’s) apply to companies operating in both U.S. and Europe, and U.S. both in operating companies to apply EASA’s) and (FAA’s will regulations Burdensome may business. to be the suborbital detrimental prices. ticket whichto expense, willadded additional be an be Regulations (2012). EASA Aircraft, 696 to any formal proposal by the FAA. This “learn-as-you-go” approach could nations. other in also model regulation a for as serve 15 - M FAA) regulates aviation and space. In the EU, this is not the case: the 37333-fiu_10-2 Sheet No. 174 Side B 01/11/2016 08:19:25 B 01/11/2016 174 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 175 Side A 01/11/2016 08:19:25 a a 107 109 697 697 . See also the related report http://esamultimedia.esa.int/ 110 1622 (2010). et seq ,http://www.esa.int/Our_Activities/Space_ STRONAUTICA note 74, at 77 77 at 74, note A GENCY A European Regulation for Private Human Spaceflight CTA supra 108 PACE S , 66 A 66 , ) 1/4/16 11:24 PM UROPEAN ELETE D OT N O (D DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. INAL Id. Julie Abou Yehia & Kai-Uwe Schrögl, Schrögl, Kai-Uwe & Yehia Abou Julie E Summary, FAST20XX For a more comprehensive explanation of the background and the results of this survey, see T. _F To solve this problem, EASA could be given a role with regard to A new “Space Transportation Department” within EASA would be in According to the vast majority of responses received, it is better to have to better is it received, responses of majority vast the to According In the context of the EU-financed FAST20XX research project, Authorization Authorization ORO 107 108 109 110 M K It would also develop cooperation with the FAA European in level, it this could ensure field, close relations and with the at national offices civil for the national each under created be may that activities suborbital commercial agency. space or authority aviation Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, charge of the European framework for granting commercial authorization of suborbital private human flights spaceflight at by the European level, ensuring harmonization of standards passengers, and and serving safety as the European of center for the all topics of concerning flights the relevance regulation of these activities and their success carrying in practice. 2015] Member States oversee space activities, while EASA has authority aviation. over regulation and authorization of commercial spaceflight, in order to include EASA’s increase can EU The Agency. the of mandate the in flight suborbital was Agency the since times several happened has this actually and authority, Europe in role similar a having agency an up set to be would goal The created. U.S. the in FAA/AST the by played one the to 15 - M survey called “FAST20XX Questionnaire on Human Suborbital Flight” was of Institute International the and Austria) (Vienna, Orbspace by co-organized Air and Space Law February (University in sent of was Questionnaire Leiden, This matters. these Netherlands), on information in further order to gain 2012 to a number of potentially interested stakeholders all over Europe. A total of 30 responses were follows: manufacturers received. and/or operators of vehicles, national and The European respondents were grouped lobbyists. consultants,and insurers, users, regulators, as of the phase of the flight (i.e., air space or outer space), and regardless of the of regardless and space), outer or space air (i.e., flight the of phase the of in place one single legal regime applying to suborbital activities, regardless in the Context of Space Traffic Management Traffic Space of Context the in Future regulatory framework for suborbital flights in Europe, available at docs/space_engineering/Summary_SoF_oct2012_final.pdf. Engineering_Technology/FAST20XX_Summary. 4.2. Results of the 2012 Survey Conducted in Europe on Suborbital Flight Suborbital Conductedon Survey Europe 2012 in the of Results 4.2. C Y 37333-fiu_10-2 Sheet No. 175 Side A 01/11/2016 08:19:25 A 01/11/2016 175 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 175 Side B 01/11/2016 08:19:25 M K C Y 114 [Vol. 10:679 10:679 [Vol. note 74, at 77. supra 111 FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE D OT N O (D DOCX _1.4. 112 113 INAL Id. Id. Id. T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, _F Virtually all respondents agreed that accidents have the potential to Nevertheless, most respondents favored regulating from the beginning Responses to the question: “Is the ‘informed-consent’ regime adopted A step-by-step regulatory approach, to be reviewed after some years, ORO 111 112 113 114 make make a huge difference on the evolution of the future legal demand regime: this Passenger is however. obvious so not are factors Other significant. very and flight rates might also make a difference, but it is not so clear as influence. in significant the a be not would flights the of Location accidents. of case fair a that hinted respondents some companies, of size and number the for As regulation should allow the presence of players of all sizes in the suborbital operators. largest the favorable)to be only (or addressed be not and field, at the legislative level, while operational and technical details could remain at the level of non-legally binding rules, adapted to different concepts and operations. all the core topics jurisdiction, legal status that of crew and were passengers, launch authorization indicated and of vehicles, rules on operations, licensing of crews and vehicles, registration in the questionnaire: liability, and insurance requirements. An adequate regulatory framework, no matter how light and flexible, should not ignore any of those relevant matters. As noted by EASA in adopted be could authority) the by oversight operator; its the of (responsibilities reply to the Questionnaire, the basic principles 698 type of suborbital vehicle performing the horizontally flight or (i.e., launched whether vertically). taking Also, off as long as relatively small, almost all stakeholders agreed the that initial regulation should market remains This innovation. and progress constraining avoid to order in “light-touch” be the of certification full of requirement the exclude seemingly would approach activity. the of beginning the at vehicles 15 - M in the USA under the 2004 CSLAA also desirable in Europe? Is it possible to have such a regime in Europe?” showed a definite trend in favor of U.S. the “informed consent” approach. Affirmative a added respondents the of One responses itself. EASA included even and respondents, included most particular should be developed gradually, as technology progresses and new knowledge and new needs arise. constrain to A not order in point, this at desirable flexible is operation initial and testing framework for development, innovation. was the option preferred by most stakeholders, in order to go along with the technical evolution and to facilitate the industry to emerge. Safety rules in 37333-fiu_10-2 Sheet No. 175 Side B 01/11/2016 08:19:25 B 01/11/2016 175 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 176 Side A 01/11/2016 08:19:25 Part PACE 117 .S infra infra PACEPLANE SSOC S A Aeronautics vs. AR 699 699 B discussion, L ’ 115 NT See OMMERCIAL C , 12 I note 74. note 74. On this specific aspect, see, supra supra http://www.caa.co.uk/. http://www.caa.co.uk/. OVERNMENT REVIEW OF , IAC-12, D6, 1, 6, x16299 (2012). x16299 6, 1, D6, IAC-12, , available at ., U.K. G ) 1/4/16 11:24 PM UTH A ELETE (2014), (2014), D OT 118 N O VIATION Regulating Suborbital Commercial Spaceflight Aviation got much safer over the years as the flight hours A (D Christophe Chavagnac & Thierry Pichard, Oral Presentation, Presentation, Oral Pichard, Thierry & Chavagnac Christophe 119 PERATIONS O IVIL DOCX C National Regulation of Private Suborbital Flights Suborbital Private of Regulation National 1, 9-12 (2012). _1.4. 116 INAL Id. See also Id. T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, Murray, James T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, _F In contrast, and even though a step-by-step approach seems to be However, those pushing for certification from the very beginning seem Additionally, although generally seen as a good compromise between Concerning the need for a European institution regulating suborbital ORO 115 116 117 118 119 EWSLETTER M K ERTIFICATION AND certification of their suborbital spaceplanes from the start of operations, so that requirements once set will remain unchanged, and design would be (so for approach EASA the that consider they context, that In “frozen.” speak) to authorization of suborbital aeroplanes (SoA) is the most adequate for their concepts. favored by most stakeholders, several industry representatives declared that beginning the from regime regulatory complete a up set to prefer would they may that regime temporary a having of instead certainty, legal of sake the for be changed after a few operators. Those entities (manufacturers and/or operators) are aiming years, at full thus impacting negatively investors and to ignore the fact that rocket-based propulsion systems reliable, and are therefore less apt currently for certification, than less the jet engines used in aviation. modern 5.2. some criticism. Reasons alleged by one consortium representative to consider fromthat approach as a not desirable European were that “this is in practice a de-regulation approach,” and enough that because “the of CSLAA the is loopholes left not in Therefore, robust terms the of rest liability of to the passengers. world is regulation.” suborbital unlikely to follow the U.S. model to safety and regulatory flexibility, the U.S. “informed consent” rule also drew flight, the same industry representatives favor EASA, while recommending that believe also They expertise. their for FAA the with contact close keeping it is preferable to adopt a lessons-learned approach, thereby incorporating sector. aviation the knowledgeby the gained all field suborbital the into L. N C 2015] opinion: general the of representative as considered be may which comment, informedare they that presumption have the and participants the give “Let’s flight.” a boarding by will they encounter assumed risk the 15 - M accumulated. Similarly, more flying time should lower the risks for rocket propulsion and for human spaceflight. But this may take a fair amount of Space-like Safety of Flight: What Really Matters Really What Flight: of Safety Space-like for example, U.K. C Y 37333-fiu_10-2 Sheet No. 176 Side A 01/11/2016 08:19:25 A 01/11/2016 176 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 176 Side B 01/11/2016 08:19:25 , M K C Y [Vol. 10:679 10:679 [Vol. note 74, at 80. supra 120 FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE D 121 OT N note 101, at IV. O Will Space Tourism Survive Virgin Galactic’s Tragic Spaceship Crash? (D supra 122 DOCX ATIONAL REGULATION OF PRIVATE SUBORBITAL FLIGHT SUBORBITAL PRIVATE OF REGULATION ATIONAL _1.4. Nield, (Nov. 6, 2014), http://www.space.com/27651-space-tourism-virgin-galactic-spaceship- INAL See Mike Wall, Wall, Mike T. Masson-Zwaan, R. Moro-Aguilar & A. Lentsch, V. N _F COM However, implementing on a European level the “informed consent” One compromise solution for authorization of suborbital flights in the In the longer term, if it ever becomes a possibility, the goal would be to be would goal the possibility, a becomes ever it term,if longer the In Indeed, recent events seem to indicate a willingness by certain EU One solution for One the solution EU with a States is European particular that those . ORO 120 121 122 PACE require a firm legislative commitment on behalf of the EU. There is currently is There EU. the of behalf on commitment legislative firm a require no European Community legislation that is similar to the 2004 CSLAA and thus could serve as the legislative basis for adopting such an approach on a scale. EU-wide EU is mandating EASA to establish a temporary licensing process, before adopting a full adopted certification one the with comparable approach licensing approach temporary a of adoption at some point in the in the USA would have the benefit of leading future. to a harmonized international The regime, rendering Europe attractive as a flights. suborbital home base for all operators of regime used in the U.S. would be particularly challenging, and it would exists), and there must be a steady business to pay off the additional costs of costs additional mustthe there off and pay exists), to business steady a be certifying the new vehicles. A certification regime works best for vehicles mass-produced.are that have all suborbital vehicles carrying passengers certified as safe, mirroring the manner that civil aircraft is currently interested in certified. having vehicles The certified as safe. industry But in itself order to achieve is that, certification of the designs must be possible (insofar as a mature technology 700 time. In the meantime, some authors remind us, human suborbital flight will continue to be more dangerous than commercial aviation, if only spaceflight because tests are muchflights. numerous) airplane than more expensive (and therefore much less 15 - M S suborbital flight at the moment.the at flight suborbital Member States to regulate this activity by themselves, at least during the operations. of phase initial 5.1. General Considerations Considerations General 5.1. lead, assuming interest in the activity could take the that other countries will states European all coordinate to seek to trying than rather afterwards, follow at the same time, as most of them have very little interest in commercial crash.html. 37333-fiu_10-2 Sheet No. 176 Side B 01/11/2016 08:19:25 B 01/11/2016 176 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 177 Side A 01/11/2016 08:19:25 NITED , U 701 701 National Space Law Database Part 5.3. Only the Dutch Law of 2006 makes a brief (UNOOSA), http://www.oosa.unvienna.org/oosa/en/ infra FFAIRS A ) 1/4/16 11:24 PM discussion ELETE PACE D S See OT N O UTER (D As an alternative, a realistic approach for concerted action O 124 DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. FFICE FOR Therefore, if human suborbital flight is to start being regulated in in regulated being start to is flight suborbital human if Therefore, INAL O The following EU member States have enacted national space legislation: Sweden (Act on on (Act Sweden legislation: space national enacted have States member EU following The Treaty on the Functioning of the European Union art. 189.2, Dec. 13, 2007, C 306 O.J. _F 123 Other issues such as suborbital passengers’ pre-flight health and fitness pre-flight Other issues such as suborbital passengers’ In principle, it would be desirable that some level of uniformity exists National laws are likely to follow the step-by-step approach adopted by adopted approach step-by-step the follow to likely are laws National Certain EU Member States may consider that suborbital vehicles are Those EU Member States that prefer to regulate suborbital flights as ORO 123 124 M K ATIONS mandatory insurance for operators, jurisdiction on board, registration of the on registration board, jurisdiction for operators, insurance mandatory etc. vehicles, personal insurance maytests, passengers’ training, or passengers’ be instead subject to self-regulation or become customary practices in the industry. transportation suborbital among the rules set up in the different European Lisbon countries. Treaty that However, entered into force the in 2009 established that the EU is not to undertake any harmonization of the space States. laws Member and regulations of the the U.S. legislation, and establish an initial authorization scheme based on the licensing of commercial flights, with an aim to ensure general safety of the vehicles and to protect third parties from the potential dangers of human suborbital flights. The concerned legislation covering European the countries main may legal aspects also such enact as passenger liability, Europe on a purely national level, it seems desirable that interested member States adopt some space legislation that covers this activity. They will have regime,lawlicensing space space national national a a elaborate and to both flight. suborbital also addressing specifically which of have enacted national space laws, and none of flight. them addresses suborbital more more akin to spacecraft and should be regulated under their domestic, or national, space laws. Other EU member States, while acknowledging that spaceplanes are more akin to aircraft, arrangements on their own, may particularly if no specific guidance still or policy at establish some national field. this in provided been has level EU-wide spaceflight, will have to make sure that they have space legislation in place States European dozen a half only 2015, early of As flights. such covers that Space Activities, 1982), United Kingdom (Outer Space Act, 1986), Belgium (Law on the Activities of Launching, Flight Operations (Space France or 2006), of Guidance Objects Space of of Registry a Space of Establishment the Objects, and Activities 2005), Space Concerning The Netherlands (Law on Rules Operations Act, 2008), and Austria (Austrian Outer Space Act, 2011). Spain law. space national a is elaborating also in the process of N 2015] 15 - M mention of an eventual inclusion within its scope of commercial human space activities, in 2.2.b). See its for a section useful overview of national space legislations: SpaceLaw/national/state-index.html. C Y 37333-fiu_10-2 Sheet No. 177 Side A 01/11/2016 08:19:25 A 01/11/2016 177 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 177 Side B 01/11/2016 08:19:25 M K C Y http:/ (2011): PACEPLANE S KILLS S [Vol. 10:679 10:679 [Vol. by two local local two by 128 OMMERCIAL The report is titled titled is report The C 125 NNOVATION AND Launch activities are not I 127 EVIEW OF R EPARTMENT FOR OVERNMENT , D note 126, at 4, 12-13. supra ., U.K. G FIU Law Review Law FIU ) 1/4/16 11:24 PM 126 ., UTH UTH ELETE A (2014). The report comes in two versions: CAP1189 (full technical technical (full CAP1189 versions: two in comes report The (2014). D A Plan for Growth OT N O VIATION (D VIATION A Inthe resulting report, the U.K. CAA has included a series PERATIONS A O 129 DOCX IVIL IVIL _1.4. at 5. INAL Id. U.K.C government, U.K. an as act that vehicles winged “reusable, as report CAA U.K. the in defined is “Spaceplane” U.K. C U.K. CAA: http://www.caa.co.uk/. UKSA: https://www.gov.uk/government/organisations/uk- 130 _F The U.K. government had declared before that it wants the U.K. to Consequently, the U.K. CAA received the mandate to inform the British the inform to mandate the received CAA U.K. the Consequently, An An important update on the British position regarding commercial ORO 127 128 129 130 125 126 ERTIFICATION AND become the European center for “space tourism.” “space for center European the become currently carried out in any part of However, the U.K. or several its dependent exciting territories. Scotland, from flights suborbital human private scheduling ventures VG of possibility have been proposed, and the development such of orbital and as suborbital spaceplanes the government and the accommodate future commercial key spaceplane operations from its stakeholders while territory, establishing the appropriate regulatory framework about that would allow how happen. to this the U.K. could companies: Bristol Spaceplanes, and Reaction Engines Ltd.-Skylon. Ltd.-Skylon. Engines Reaction companies:and Spaceplanes, Bristol aircraft while in the atmosphere and as spacecraft while in space.” The report projects. suborbital covers both orbital and space-agency. C publication of a report prepared by the U.K. Civil Aviation Authority (U.K. CAA), assisted by the U.K. Space Agency (UKSA). 702 within the EU might agreements intergovernmental through done be could This States. legislating be seen in cooperation between the legislating States, or and if that is not feasible, at least coordination on the basis of the of frequent consultations (formal and informal) of the governments of such States. Spaceplanes on Kingdom’sReport United 5.2. spaceflight (both orbital and suborbital) arrived in July 2014, with the 15 - M of findings and recommendations for a U.K. regulatory framework, on the NASA, FAA/AST, the to visits through out carried research, own its of basis EASA, several spaceports, and XCOR. spacecraft developers such as VG and “United Kingdom’s operations.” and certification government review of commercial spaceplane report) and CAP1198 (summary and conclusions). The present analysis will refer to the latter only: www.gov.uk/government/uploads/system/uploads/attachment_data/file/31584/2011budget_growth.pdf. The Plan for Growth also recognized the need “to define regulations for novel space vehicles that offer space.” to access cost low /www.caa.co.uk/docs/33/CAP1198_spaceplane_certification_and_operations_summary.pdf. 37333-fiu_10-2 Sheet No. 177 Side B 01/11/2016 08:19:25 B 01/11/2016 177 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 178 Side A 01/11/2016 08:19:25 In 133 703 703 Therefore, it it Therefore, 132 This effectively 135 The U.K. will align align will U.K. The 134 EU member States might might States member EU 137 the U.K. CAA has encouraged encouraged has CAA U.K. the 131 note 126, at 6, 9, 33-34. note 82. Regulation (EC) No 216/2008 of the European note 82, at Art. 4.4, Annex II b.II Annex 4.4, Art. at 82, note supra ) 1/4/16 11:24 PM supra ., 136 supra UTH ELETE D A OT N O (D VIATION A DOCX IVIL National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. . at 32. at . 33. at . . 39. at . INAL Id Id Id Id EASA’s Basic Regulation, Regulation, Basic EASA’s U.K. C EASA’s Basic Regulation, _F The report acknowledges the fact that experimental aircraft are not To enable spaceplane operations to start from the U.K. in the short term, short the in U.K. the from start to operations spaceplane enable To Recognizing Recognizing that the current legislation (both at the EU and the U.K. In fact, EU member States have the possibility to exclude certain aircraft certain exclude to possibility the have States member EU fact, In Indeed, it is the view of the CAA legal experts that spaceplanes meet the meet spaceplanes that experts legal CAA the of view the is it Indeed, However, at this stage of their development, commercial spaceplanes ORO 131 132 133 134 135 136 137 M K decide to apply this legal exclusion to suborbital vehicles, and retain their jurisdiction. national the in regulation “experimental aircraft” under the EASA Basic Regulation. Basic EASA the under aircraft” “experimental regulation of initial suborbital activities on the scheme.similarlicensing a case-by-case utilizing basis of the U.S. model, the report recommends that suborbital spaceplanes are classified as takes them out of core civil aviation safety regulation, and allows the U.K. to U.K. the allows and regulation, safety aviation civil core of out them takes be would exemption This term. short the for level national a at them regulate 2020s. the least at until valid level) does not fully address spaceplanes, the European Commissionframework European regulatory the a develop to forpast the in orbital and suborbital U.K.authorities. the by favored be seemsto spaceplanes spaceplanes. The possibility of certifying ICAO definition of the “aircraft,” and the carriage of paying passengers would be deemed to be public transport (or commercial aviation). from the Basic Regulation, by considering designed them or modified for as research, experimental or “aircraft scientific purposes, and specifically likely to be produced in very limited numbers.” Parliament and of the Council of 20 February 2008 on common rules in the field of establishing civil aviation and a European Aviation 2004/36/EC. Directive and 1592/2002 No (EC) Regulation Safety Agency, and repealing Council Directive 91/670/EEC, 2015] 15 - M the absence of an EU exercising its sovereignty, has made the decision that decision its national law could regarding EASA’s proposal, handle the lack of the regulations in the interim U.K., period. would apply to spaceplanes. As a result, EASA for lead the take ultimately should which is EU, the within authority regulatory seen as the competent matters.aviation all regulations. commercialaviation existing the of all with comply cannot has been determined that the existing body of civil aviation safety regulation safety aviation civil of body existing the that determined been has C Y 37333-fiu_10-2 Sheet No. 178 Side A 01/11/2016 08:19:25 A 01/11/2016 178 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 178 Side B 01/11/2016 08:19:25 M K C Y Initial Initial 143 by giving 144 [Vol. 10:679 10:679 [Vol. Once EU spaceplane spaceplane EU Once 141 140 138 142 note 126, at 7, 9, 34. supra FIU Law Review Law FIU ) 1/4/16 11:24 PM ., UTH ELETE D A OT N O (D VIATION 139 A DOCX IVIL _1.4. . at 35. at . 40. 34, at . 39. at . 46. at . 7. at . INAL Id Id Id Id Id U.K. C lease would spaceplane suborbital a of operator U.S. the arrangement, of type lease wet a In _F Suborbital flights would be possible by informing crew and participants participants and crew informing by possible be would flights Suborbital The report goes on by declaring that the U.K. government must accept The report recommends that “the work to develop a permissive The report however also expresses that, since there will be future EU ORO 138 139 140 141 142 143 144 (the U.S. nomenclature is adopted in the report) of the inherent risks before information this of receipt writing in acknowledge turn in will they flight; the and accept that they will not benefit from the normal safeguards expected of public transport. In other words, the principle U.K. of “informed government consent” to should allow adopt in the the short term spaceplanes. suborbital on cargo and participants the carriage of standards as commercial aviation, and may never be able to. Once this risk is risk this Once to. able be never may and aviation, commercial as standards becomeshighest public the general uninvolved the protecting then accepted, safety priority. This is the same regulatory approach that has been adopted FAA/AST. the by that spaceflight operations carry a higher degree of risk than routine aviation routine than risk of degree higher a carry operations spaceflight that samesafety the achieve currently Commercial cannot activities. spaceplanes regulatory framework must commence immediately,” so that ready the to U.K. allow is the start of operations by 2018 or even earlier. the vehicle together with its flight crew and its maintenance staff to a local operator. The U.S. operator would be responsible for the entire operation, even though the vehicle would be departing from the U.K. U.S. the with compliance in being of merit the has arrangement This U.S. the outside territory other any or constraints. (ITAR) Regulations Arms in Traffic International 704 typically allowed to passengers. However, conduct once these operations aircraft regulation, have suborbital of transportation been of passengers excluded in public experimental from aircraft EU transportation could be allowed by issuing exemptions and attaching special conditions to of Act Aviation Civil (the law air national U.K. under operations spaceplane the ANO). Order, Navigation Air the and 1982 15 - M regulations and certification are mature, it is anticipated that they will replace will they that anticipated is it mature, are certification and regulations framework.U.K.regulatory proposed the regulation in the field, and given the U.K. legal view in or whole a that as framework FAA/AST the spaceplanes adopt not should U.K. are the aircraft, the long term for operations, the but regulation instead of developments commercial of the spaceplane legislation by suborbital the EU. U.K. spaceplane should remain in step with future arrangements, type lease wet under enabled be would operations 37333-fiu_10-2 Sheet No. 178 Side B 01/11/2016 08:19:25 B 01/11/2016 178 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 179 Side A 01/11/2016 08:19:25 and the need 705 705 146 145 , GOV.UK (Mar. 3, 2015), 148 149 note 126, at 43. supra ) 1/4/16 11:24 PM ., UTH ELETE D A OT N O (D VIATION A DOCX see also Industry Backs Government’s Spaceport Plans IVIL National Regulation of Private Suborbital Flights Suborbital Private of Regulation National _1.4. . at 42, 44. 42, at . 47-49. at . . at 8; Additional points would be: supporting development of hybrid hybrid of development supporting be: would points Additional INAL Id Id Id. U.K. C Id _F 147 The report details some of the key elements of the proposed national Finally, one of the most important factors in protecting the uninvolved From a legal perspective, the main problem of the approach The report is extremely informative and interesting. There are two ORO 145 146 147 148 149 M K general public is the choice of a location for a U.K. launch site, or spaceport. spaceport. or site, launch U.K. a for location a of choice the is public general The report provides criteria for the selection of suitable spaceports (in terms of traffic volume,It recommends patterns, population etc.). density, weather that initial operations should take place from an already existing operational location. coastal a aerodrome,on preferably temporary regulatory U.K., the in airworthiness framework,spaceplane for system management including the adoption of a safety https://www.gov.uk/government/news/industry-backs-governments-spaceport-plans. 2015] due recognition to FAA/AST safety standards and procedures. and CAA standards U.K. employing also while operating procedures, 15 - M assessment for each spaceplane type at each launch location; validating the FAA/AST process around flight crew licensing, and investing facilities in training for spaceflight requirements crew for crew in members; operations. spaceflight all competentfor authority the and U.K.; appointing a developing single the regulator or medical rocket engines in the U.K.; undertaking a full environmental impact certification under Annex II of the Basic Regulation. They are intended to carry passengers in regularly scheduled flights on a commercial, for-profit basis; their flights resemble too much a kind of commercial aviation, as the potential problems in the proposed plan however. From a practical point of view, the date that is set for commencement of suborbital operations in the U.K.—the year 2018—seems too optimistic now, after the accident suffered by VG in the U.S. VG was surely one of the operators—perhaps the main operator—that were expected to start flying their vehicles frombasis term.short Britain the in on a wet-lease recommended by the U.K. CAA may exclusion lie of spaceplanes from in the EASA the Basic Regulation, proposed and thus from procedure for application of EU air law. One could question whether suborbital vehicles that are officially considered commercial as transportation of aircraft passengers can and become exempt are from EASA used for purposes of for conducting spaceplane operations (launches and re-entries) in segregated in re-entries) and (launches operations spaceplane conducting for areas of airspace, as U.K. national world. airspace is one of the busiest in the C Y 37333-fiu_10-2 Sheet No. 179 Side A 01/11/2016 08:19:25 A 01/11/2016 179 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 179 Side B 01/11/2016 08:19:25 M K C Y The The 150 , BOOSTER [Vol. 10:679 10:679 [Vol. Additionally, plans existed existed plans Additionally, 151 The Spanish Ministry of Public Public of Ministry Spanish The 154 Consequently, a law waspassed in 2009, 152 FIU Law Review Law FIU ) 1/4/16 11:24 PM Message from our Founder Dr. James Jason Murray ELETE D OT N O (D DOCX , http://www.boosterindustries.eu/consortium/booster-space-industries/. http://www.boosterindustries.eu/consortium/booster-space-industries/. , , S3, http://www.s-3.ch/en/home/2013/12/12/swiss-space-systems-s3-develops-its- _1.4. James Jason Murray, Murray, Jason James http://www.boe.es/diario_boe/txt.php?id=BOE-A-2009-13566, at art. 26.2 and Additional Swiss Space Systems S3 Develops Its Activities in Spain and Strengthens Its Networks of INAL See 153 See http://www.aeroportlleida.cat/index.php?id=22&L=2. as capacity his in text the to access had author The available. publicly yet not is bill draft The _F NDUSTRIES I The Preamble declares that the aim of this law is twofold: regulation and regulation twofold: is law this of aim the that declares Preamble The In the case of Spain, no local vehicles are currently under development, under currently are vehicles local no Spain, of case the In Spain is another nation that could see suborbital ventures departing from departing ventures suborbital see could that nation another is Spain From a legislative perspective, the most significant development is the ORO 150 151 152 153 154 PACE activities-in-spain-and-strengthens-its-network-of-spanish-partners. European consortium Booster Space Industries also launch from an had undisclosed location in Spain. the intention to at the regional Parliament, granting the local at activities related space other and tourism Catalan space develop and promote government authority to airports. Works and Transportation is responsible for this initiative. The draft includes includes draft The initiative. this for responsible is Transportation and Works a domestic regulation of private manned suborbital flights, which basically follows the model put in place by the CSLAA. U.S. Officials of the Spanish and advice gain to order in FAA U.S. the with contact in been have Ministry U.S.counterparts. their with collaborate promotion of private space activities. The latter activities expressly include “the utilization of suborbital trajectories.” The definition of “launching” in the law also explicitly includes “launching on a suborbital trajectory.” a member of a group of experts advising the Spanish Ministry on the drafting of the law. the of drafting the on Ministry Spanish the advising experts of group a of member a Spanish Partners tourists visiting each year. each visiting tourists announced has S3, company Swiss the operator, international one least at but that it will conduct suborbital launches from the Canary Islands. 706 report itself admits. However, provided that the proposed exemption is not just a matter of legal reality. a become interpretation, could it then States, but member concerned the of it making is also subject to the decision DraftOuterBillActivitiesSpain’s on Space 5.3. its territory in the next few years. Spain offers potential suborbital operators a favorable climate and a welcoming social and governmental environment, in terms of the top countries in the world as well as being one numbers of of 15 - M existence of a draft bill regulating private space activities, which is discussion under in Spain since early 2014. S Provision No. 8. No. Provision by the Catalan government regarding the partial conversion of spaceport. suborbital a to airport the Lleida 37333-fiu_10-2 Sheet No. 179 Side B 01/11/2016 08:19:25 B 01/11/2016 179 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 180 Side A 01/11/2016 08:19:25 707 707 , http://www.fomento.gob.es/mfom/lang_castellano/ of the Ministry of Public Works and and Works Public of Ministry the of 155 OMENTO ) 1/4/16 11:24 PM , F ELETE D IVIL C OT 156 N O (D VIACIÓN DOCX note 67. National Regulation of Private Suborbital Flights Suborbital Private of Regulation National A _1.4. INAL See consent informed that interpretation the adopted has bill Spanish the law, federal U.S. Unlike _F See supra 2) An “informed consent” regime is also established in the draft, According to the draft, an authorization is granted after the applicant has applicant the after granted is authorization an draft, the to According The proposed law also includes provisions for the case of a suborbital The two regulatory approaches of the projected Spanish commercial 1) A launch-like licensing scheme would be established, with the ORO 155 156 M K against the Spanish government. The operator will be released of liability in wrongful deliberate or negligence gross of cases in except accident, an of case operator. the by action recovery of the space object or suborbital vehicle. The authorization may be suspended or revoked in case of national non-compliance and international space with law. A scheme its of supervision of terms operators or with and their activities is also set up in the law, as well as a system of sanctions, which are proportional to the infractions that may operators. be committed by the whereby all the participants (the U.S. nomenclature is also adopted here) in a commercial spaceflight must be previously informed of the inherent risks of this activity and then must provide their consent in writing to fly under such conditions. As a consequence, the participants assume their own risks and may not file any claim, in court or out of court, against the operator or licensing process) for launching, operating and recovering space objects and objects space operatingrecovering and launching, for process) licensing operate commercially to companies enable will authorizations Such vehicles. Spanish on landing and from departing vehicles suborbital reusable manned territory. An authorization is also required for operating spaceport. a i.e., site, recovery a launching and provided all the necessary documentation and, in particular, has shown that and defense national and policy public violate not does activity proposed the insurance liability civil and financial, environmental, safety, of series a meets make to months six has Ministry The law. the in up set are that requirements enforce also will authorization The activity. space proposed the on decision a the necessary restrictions in the airspace for the phases of launch and Transportation in charge of granting “authorizations” (similar to the U.S. direcciones_generales/aviacion_civil/direccion_general_de_aviacion_civil/. releases not only the government but also the operator from liability claims by the participants or their families. 2015] Finally, “suborbital flight” itself is also defined in the law as “those flights that do not enter into earth’s orbit but have as their primary goal to perform an activity in an area which is bordering what can be space.” considered as outer CSLAA: U.S. the in adopted sameones the are regulation suborbital Spanish Civil Aviation Authority 15 - M C Y 37333-fiu_10-2 Sheet No. 180 Side A 01/11/2016 08:19:25 A 01/11/2016 180 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 180 Side B 01/11/2016 08:19:25 M K C Y (Jan. COM . PACE [Vol. 10:679 10:679 [Vol. , S , FIU Law Review Law FIU ) 1/4/16 11:24 PM ELETE 157 D Virgin Galactic Strikes Deal with Swedish Government Swedish with Deal Strikes Galactic Virgin OT N O (D DOCX _1.4. INAL Peter B. de Selding, _F A number of other suborbital projects have been announced around the 26, January on signed was Understanding of Memorandum a all, of First Finally, a system of (capped) third party liability for operators (both Both the U.K. government proposed interim regime and the Spanish The Spanish draft space bill also contemplates the possibility of The only launch activities currently carried out in Swedish territory are ORO 157 operator VG, concerning the latter’s manned suborbital flights taking off and off taking flights suborbital manned latter’s the concerning VG, operator spaceport. this in landing participants.” This is noteworthy, as neither of those terms and distinctions exist in the UN outer space treaties, or in international space law in general. If adopted in the future by the national laws of other law. countries international customary as of well, rules the become eventually may distinctions two Countries Other 5.4. world. In several cases, the announcements were accompanied by news of developments.legislative associated 2007, between the governmental entity Spaceport Sweden and suborbital establishing a “fast-track” experimental permit regime similar introduced by the CSLAA to in the U.S. However, the text of the law does not the one elaborate on this option. implementation regulation that will be prepared by It the Ministry in the next leaves its years. few full development for a future law. the under established also is suborbital) and orbital draft space bill adopt the two crucial distinctions made by the U.S. CSLAA: (although “suborbital,” and “orbital” between difference the hand, one the on the majority of rules and procedures are common for both types of flight); and on the other hand, the distinction between “crew” and “flight 708 flight conducted by means of two vehicles that are initially attached: one of them (incapable of reaching outer space) used as a platform for launching, and the other one capable of operating reaching in and outer space. The first vehicle will be considered as a conventional aircraft and the second one as a space object. Each one will be governed separately by its legal own applicable regime. However, the characterization consequently, the inclusion of of the mission the in the scope whole of the law, derives mission mission.componentthe space of the of destination fromfinal the and, 15 - M launches of unmanned suborbital sounding rockets in the Esrange spaceport close to Kiruna, in the far north of the country, and they are explicitly 28, 2007), http://www.space.com/3395-virgin-galactic-strikes-deal-swedish-government.html. See also spaceflight human commercial establish to initiative pioneering a describing website Sweden’s Spaceport http://www.spaceportsweden.com/. at available space, to gateway Europe’s become and Kiruna in 37333-fiu_10-2 Sheet No. 180 Side B 01/11/2016 08:19:25 B 01/11/2016 180 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 181 Side A 01/11/2016 08:19:25 , 13 13 in Third party party Third 709 709 In 2013, the the 2013, In 159 158 162 2010. Virgin, Swedish Spaceport Sign Deal for Suborbital This seems to imply that the Belgian Belgian the that imply to seems This ONGRESS 164 C ) 1/4/16 11:24 PM note 159. ELETE 161 supra (July 10, 2008), http://seradata.com/SSI/2008/07/spaceport_sweden/; http://seradata.com/SSI/2008/07/spaceport_sweden/; 2008), 10, (July Spaceport Sweden Could Class SpaceShipTwo as Sounding Rocket D OT note 151. N However, as of 2015, there were no news of the the of news no were there 2015, of as However, O After that amendment, the Belgian law only considers considers only law Belgian the amendment, that After (D 160 STRONAUTICAL supra (Feb. 5, 2007), http://www.space.com/spacenews/archive07/virginsweden_ 2007), 5, (Feb. 163 A DOCX NTELLIGENCE EWS I National Regulation of Private Suborbital Flights Suborbital Private of Regulation National N _1.4. Rob Coppinger, Coppinger, Rob Peter de Selding & Tariq Malik, Malik, Tariq & Selding de Peter Murray, PACE S See INAL See See PACE Mattias Abrahamsson, Koninklijk besluit houdende uitvoering van sommige bepalingen van de wet van 17 september see 2013, December 1 of Law the by amended as Law, Belgian the of text consolidated For Swedish Act on Space Activities, sec. 1.3, 1982. _F , S It is also interesting to note that Spaceport Sweden, in charge of the Belgium is another EU member State that had to examine recently the In this context, it is interesting to remark that the MoU called for the NTERNATIONAL ORO 160 161 162 163 164 158 159 .I M K ST ERADATA liability for any damages caused by sounding rocket flights would be handled be would flights rocket sounding by caused damages any for liability by the Swedish general legal framework, but in reality small. the Launches risks are only very take place in an density, area and of thus extremely are low population not considered aviation. a However, hazard should to manned suborbital third flights parties, start including taking Sweden, place in then the issue of well. as solved be to would passengers, have towards operator second-party liability, i.e., liability from the 0205.html. development of any such regime. such any developmentof launch site located in Kiruna, urged EASA and FAA to come to a common policy for handling the new vehicles. Otherwise, suborbital space tourism flights in Europe could become delayed decades opinion, into the future. the In their requirement of recognition of suborbital vehicles, and thus the certification “third country approval” of could its open to order in needs Sweden Spaceport that something jeopardize vehicles, foreign the mutual VG’sto facility vehicles. space objects (and therefore subject to its provisions), those that are destined are that those provisions), its to subject therefore (and objects space to earth’s orbit or beyond. 2005 met betrekking tot de activiteiten op het gebied van het lanceren, het bedienen van de vlucht of het geleiden van ruimtevoorwerpen [Law on the Activities of Launching, Flight Operations or Guidance of Space Objects of Sept. 17, 2005] Moniteur Belge [M.B.] [Official Gazette of Belgium], Nov. 4, 1182. 2008, 2015] excluded from the scope of the Swedish Outer Space Act. 15 - M Flights 61 Mattias Abrahamsson, Oral Presentation, Operating Commercial Space Tourism Vehicles from Sweden— from Vehicles Tourism Space Commercial Operating Presentation, Oral Abrahamsson, Mattias Regulatory Challenges, Address at the 61st. International Astronautical Congress (Oct. 1, 2010), issue of human suborbital flight, as Booster Space one Industries, prospective has its European headquarters in operator, Brussels. S Swedish government to establish a favorable regulatory regime modeled on that of the FAA. Belgian government decided to exclude suborbital flights from its national space legislation. C Y 37333-fiu_10-2 Sheet No. 181 Side A 01/11/2016 08:19:25 A 01/11/2016 181 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 181 Side B 01/11/2016 08:19:25 M K See C Y supra Eva Van Van Eva see [Vol. 10:679 10:679 [Vol. (June 30, 2014), http:// 2014), 30, (June Explanatory memorandum memorandum Explanatory No project of an an of project No See 169 COR , X 165 , to be operated under a wet Lynx Aviation Independent Consulting BV Signed a (Aug. 25, 2012), http://www.aicbv.com/news/13- 2012), 25, (Aug. (Sept. 19, 2011), XCOR, http://xcor.com/press/2011/11-09-19_ FIU Law Review Law FIU ) 1/4/16 11:24 PM http://spaceportmalaysia.com/v2/. ELETE D OT , South Korean Space Center Selects Xcor’s Lynx for Suborbital Operations, Suborbital for Lynx Xcor’s Selects Center Space Korean South , N O Xcor Aerospace and Space Expedition Curaçao Sign Eight-Figure Wet Lease (D see generally see DOCX 168 _1.4. Aviation Independent Consulting, Consulting, Independent Aviation Bryan Campen Bryan However, it appears that the plans have halted as no updates have See INAL See Space Experience Curaçao Announces Wet Lease of Xcor's Lynx Suborbital Spacecraft 167 , German Journal of Air and Space Law, ZLW 62. Jg. 4/2013, http://www.researchgate.net/ See In the meantime, XCOR Aerospace acquired SXC (including all operational subsidiaries) in in subsidiaries) operational all (including SXC acquired Aerospace XCOR meantime, the In In this context, it must be noted that the Dutch 2007 “Space Activities Act” mentioned mentioned Act” Activities “Space 2007 Dutch the that noted be must it context, this In _F Given the lack of EU policy and of EASA regulation, the FAA model Mixing US and Dutch Approaches: Towards Curaçao’s Legislation on Private Commercial There are also some projects of spaceports in the Asian region, such as At the same time, news appeared that the government of the Dutch In October 2010, an agreement was announced between U.S. suborbital suborbital U.S. between announced was agreement an 2010, October In Xcor Aerospace Acquires Space Expedition Corporation (Dec. 17, 2009), http://www.xcor.com/news/south-korean-space-center-selects-xcors-lynx-for- 2009), 17, (Dec. 166 ORO 168 169 165 166 167 COR www.xcor.com/news/xcor-aerospace-acquires-space-expedition-corporation/. Daejeon (South Korea) and Spaceport Malaysia. of regulation had been chosen. A draft law was approval expected by to the be Curaçao ready government by for April 2013, and the first licenses were expected to be delivered in December 2013, so that flights could start 2014. in Antilles–where Antilles–where Curaçao is located–was drafting its law. own national space X 2014; the resulting company, XCOR Space Expeditions, will be the worldwide sales entity of XCOR. of entity sales worldwide the be will Expeditions, Space XCOR company, resulting the 2014; http://xcor.com/press/2014/14-06-30_xcor_acquires_space_expedition_corporation.html; in note 123 applies only to the European part of excluding the the Kingdom of overseas the territories Netherlands, thereby of expressly Aruba and the Dutch Antilles. ( Objects, available atavailable Objects, https://www.belspo.be/belspo/space/doc/beLaw/Loi_en.pdf. Law of 17 September 2005 on the Activities of Launching, Flight Operations or Guidance of Space 710 government considers an suborbital flight aeronautical activity, as subject to law. air Space company Dutch the and Aerospace XCOR operator and manufacturer experience the public the (SXC),to Corporation offer Expedition to intending of human space travel from Passengers would Curaçao, fly on-board XCOR’s an island in agreementlease between reached two the entities. the Caribbean Sea. 15 - M http://www.spacexc.com/en/media/news/space-law-contract-signed-by-curacao-airport-holdi/; F. von der von F. http://www.spacexc.com/en/media/news/space-law-contract-signed-by-curacao-airport-holdi/; Dunk, Spaceflight publication/228125798_Mixing_US_and_Dutch_Approaches_Towards_Curaaos_Legislation_on_ Private_Commercial_Spaceflight. (Oct. 5, 2010), XCOR, http://xcor.com/press/2010/10-10-05_Space_Experience_Curacao_announces_ wet_lease_of_lynx.html; Contract for Lynx Suborbital Spacecraft XCOR_and_SXC_sign_eight_figure_wet_lease_for_lynx.html. Consultancy Contract with Curacao Airport Holding aviation-independent-consulting-bv-signed-a-consultancy-contract-with-curacao-airport-holding-cah; 2012), 21, (Aug. Holding Airport Curaçao by Signed Contract Law Space Corporation, Expedition Space Pelt, suborbital-operations/; accompanying the Dutch Law, paragraph 3.8.). In addition, in 2010 the island of Curaçao obtained the theNetherlands. within the country of independent Kingdom of status been reported. been 37333-fiu_10-2 Sheet No. 181 Side B 01/11/2016 08:19:25 B 01/11/2016 181 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 182 Side A 01/11/2016 08:19:25 711 711 (Mar. 22, 2010), http:// 2010), 22, (Mar. EVIEW R PACE S HE , T ONCLUSIONS C ) 1/4/16 11:24 PM VI. ELETE D OT Celebrate Suborbital N O (D DOCX National Regulation of Private Suborbital Flights Suborbital Private of Regulation National 170 _1.4. INAL S. Alan Stern, Stern, Alan S. _F As demonstrated by the accident suffered by VG in 2014, safety is— With regard to Europe there is, for the time being, no EU law governing governing law EU no being, time the for is, there Europe to regard With On the other hand, adopting in European countries and elsewhere a In the future, and insofar as private human suborbital flights can be As long as there are no international rules on manned suborbital flight, ORO 170 M K decade, then an increasing number of people will participate in this activity, and suborbital flight will definitely consolidate as a aerospace strong branch of sector. human of the type new “A The reality: a become then will Science, words for Administrator of Alan predicted have could few something is It Stern, eyes. our before rising is spaceflight former NASA Associate 20 or even 10 years spaceflight.” ago, yet it was right under our noses: suborbital launch-like licensing process similar to the one established the of state current the given in solution, appropriate most the be to seems 2004 the U.S. in emerging industry. Adopting such a legal regime would have the benefit of providing all those countries with flights. suborbital homefor a base themas rendering attractive a level playing field with the U.S., together with an adequate public the regulation—the convince to fails biggest industry the challenge If industry. faced flight suborbital emerging by the that it is safe enough, suborbital tourism catering to a very small number of willaffluent and high-risk-taking people. But remain as a niche activity if manned suborbital flight proves to be sufficiently safe within the next national law will regulate this activity. In view of the current lack of specific specific of lack current the of view In activity. this regulate willlaw national national legislation in any country, except for interested the in USA, nations this that activity are should humanflight. enact suborbital domestic laws regulating private suborbital flights. Therefore, member States are free in principle to regulate those flights, either as aviation or as a space activity. In the former case, the EU aviation rules would competence also in the become field of applicable, safety as regulation, from on EU’s vehicles powers, member to decide States suborbital exclude except well in the as case that EASA’s EU Regulation. Basic the to II Annex of basis the expected to have trans-boundary effects, international law will apply to them. them. to apply will law international effects, trans-boundary have to expected However, as of today their classification as either aviation or space activity remainsunclear. www.thespacereview.com/article/1589/1. 2015] accompanying domestic legislation countries. those of either in announced for human spaceflight has been 15 - M C Y 37333-fiu_10-2 Sheet No. 182 Side A 01/11/2016 08:19:25 A 01/11/2016 182 Side Sheet No. 37333-fiu_10-2