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Home , Space Industry Act 2018, Space law

Alexandre ISRAEL (014010644D)

Reconsidering the Legal and Institutional Challenges: A New Approach to Suborbital Flights

LL.M. in Space, and Media

University of Luxembourg

Faculty of Law, Economics and Finance

Thesis Supervisor: Prof. Dr. Mahulena HOFMANN

August 2019 Acknowledgements

To my Grandfathers…

I address my sincere gratitude to Prof. Dr. Mahulena HOFMANN for her continuous support throughout these past two years. Thanks to Prof. HOFMANN, I have immediately felt passionate about when I first heard about it back in 2017. She never stopped believing in my related projects since then.

The high quality of the Master in Space, Communication and Media Law has been a real springboard for many of us who are now able to move forward and to address future challenges. To Prof. Dr. Mark COLE, I would also like to express my profound acknowledgment.

I am also very grateful to all my colleagues of the Space Department at Dassault Aviation and more particularly to my tutors Marie-Christine BERNELIN and Marc VALES who have welcomed me in their team to help fostering their space activities from a legal standpoint. As engineers, their supervision has considerably helped me to better understand the technical and scientific aspects of the domain.

Finally, this Thesis is of course the result of the unconditional love and support of my family, my parents, my sister. I am learning every day at their side and their transmission of the values of work, respect and perseverance has been determinant in the accomplishment of this work.

Alexandre ISRAEL

2 Abstract

This Thesis aims to propose a different approach to the of suborbital flights than the ones usually provided in specialized and dedicated literature. Going beyond the mere and traditional debate between Air and Space Law, it develops a critical understanding to this problematic and relies on both an activity-based and technology-free approach in order to advance new arguments as to which legal regimes should govern these new types of activities. An in depth analysis of relevant existing legal regimes, both at the national and international levels as well as up to date views and commentaries regarding the institutional aspects surrounding this topic lead to tailor-made solutions that put aside the exclusive and automatic application of either Air or Space Law. The solutions given intend to answer the legal uncertainties that necessarily come into play in a realistic and pragmatic fashion in order for the industry to flourish, while not depriving the passengers’ safety and the sovereign interests of the States over their national airspace.

3 INTRODUCTION ...... 7 PART I – SUBORBITAL FLIGHTS AND THEIR RELATION TO NATIONAL SPACE ...... 9 Chapter 1. Towards Comprehensive and Dedicated Legal Regimes ...... 9 Section 1. The United States of America ...... 9

Section 2. The United Kingdom ...... 13

Chapter 2. Towards General Space Laws in Europe and the Harmonising Issue .. 16 Section 1. General Space Laws: The Unsuitable Answer to Suborbital Flights ...... 16

Section 2. The Difficulty of a European Harmonised Answer ...... 26

PART II – BEYOND THE HYBRID NATURE OF SUBORBITAL VEHICLES: AN ACTIVITY-BASED APPROACH ...... 32 Chapter 1. Different Legal Regimes Based on the Nature of the Activity ...... 32 Section 1. Suborbital Flights in the Middle of a “Never Ending Dispute” ...... 33

Section 2. Navigating through the Legal Regimes ...... 37

A. The Imperative Guarantee to the States’ ...... 38 B. Avoiding Conflicts with Law Provisions ...... 40 Space Law: A State-Oriented Approach… ...... 41 a) The of Passenger: A Lacking Notion in International Space Law 41 b) The Incompatibility of Space Law with Passengers’ Claims ...... 42 … That Unfairly Calls their International Responsibility and Liability ...... 44 C. The Evolving Nature of ...... 45 A Certification Basis to Guarantee the Overall Safety ...... 45 Redefining the Notion of Aircraft? ...... 47

4

A. The Ambiguity of the ...... 50 B. The Status of the Carrier Aircraft ...... 53

A. A Partial Affiliation to Aviation Law? ...... 55 is not a Transport Activity ...... 56 A National Insight: The French Provisions on Sensational Flights ...... 56 a) The Legal Regime ...... 57 b) Its Application in Practice ...... 58 B. Space Law: An Insightful Regime? ...... 59 Beyond the Ambiguity of Space Law regarding Leisure Activities ...... 59 The ’ Assurance Regime ...... 61 Chapter 2. Sharing the Sky: Towards a Safe Integration of Suborbital Flights ..... 62 Section 1. : A Problematic Reality ...... 62 Section 2. Air Traffic Management: From Coordination to Integration ...... 64

PART III – SUBORBITAL FLIGHTS: FURTHER PERSPECTIVES ...... 69 Chapter 1. The American Informed Consent: An Expanding Regulatory Model .. 69 Section 1. A Notion often Wrongly Interpreted ...... 69

Section 2. The Informed Consent: An Unfair Term under European Law? ...... 74 Chapter 2. The Institutional Framework for Suborbital Activities ...... 77 Section 1. ICAO: Up to Date View and Commentary ...... 77 Section 2. EASA: The Expertise at the Service of the Industry ...... 79 CONCLUSION ...... 82 BIBLIOGRAPHY ...... 85

5 List of Abbreviations

ATC Air Traffic Control

ATM Air Traffic Management

CNES Centre National d’Études Spatiales

CS Certification Specification (EASA)

CST Commercial Space Transportation

DGAC Direction Générale de l’Aviation Civile

EASA Aviation Safety Agency

ELV Expendable

ESA

FAA Federal Aviation Administration

FAA-AST Federal Aviation Administration Office of Commercial Space Transportation

FIR Flight Information Region

ICAO International Civil Aviation Organization

OST Outer Space

RLV Reusable Launch Vehicle

SES Single European Sky

SFP Participant

STM Space Traffic Management

TC Type Certificate (EASA)

COPUOS Committee on the Peaceful Uses of Outer Space

VCLT Vienna Convention on the Law of

6 INTRODUCTION

The emergence of commercial private companies into the space domain revives a “”1 that was at the origin led by a handful of sovereign superpowers. This change of paradigm where outer space becomes more accessible and gets more and more commercialized is concerning many areas, including the suborbital field. These commercial incentives revitalize the interest people have for outer space and the emergence of suborbital flights can be seen as a technological exploit awaiting a regulatory answer.

A suborbital flight can be defined as a “flight up to a very high altitude which does not involve sending the vehicle into orbit”2 and presents the particularity to include in its trajectory “both air space and outer space”.3 Specifically, the operational altitude for suborbital vehicles is located in an “area of encounter”4 between these two spaces, situated at 100 kilometres above the sea level, as defined by the late Theodore von Kármán.

The whole complexity of the suborbital topic lies in these characteristics since the two aforementioned spaces intrinsically diverge both on the technical and legal sides.

From a technical perspective, the airspace is characterized by the presence of the Earth’s atmosphere where crafts generating lift can be aerodynamically sustained into it whereas outer space is an infinite expanse of very low density and pressure between celestial bodies and where atmosphere is lacking. On top of that, the devices engaged in suborbital activities may involve varied technologies and features ( engine, wings, airborne, aerodynamic sustainment…).

From a legal angle on the other hand, the first is defined by the complete sovereignty of the underlying State over its national airspace5 whereas the latter, including the and other celestial bodies, is a res communis area characterized by the freedom of exploration and use by all States6 which is one of the best-established and recognized principle of International Space Law.

Due to these features, suborbital flights cannot be defined as “typical outer space activities”7 but rather truly lie at the edge of Air and Space Law where elements of States’ sovereignty necessarily come into play.

1 TRAPPIER Éric, Séminaire Perspectives Spatiales. Cercle National des Armées, April 2, 2019. 2 ICAO Council – 175th Session, Concept of Sub-Orbital Flights, Working Paper C-WP/12436, May 5, 2005, p. 2. 3 BALLESTE Roy, Worlds Apart: The Legal Challenges of Suborbital Flights in Outer Space. Journal of and Politics, Vol. 49, 2017, p. 1035. 4 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation. In: VON DER DUNK Frans G., National Space in Europe: Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation. Studies in Space Law, Volume 6, Martinus Nijhoff Publishers, 2011, p. 265. 5 Convention on International Civil Aviation, Done at Chicago on 7 December 1944 (Chicago Convention), Art.1. 6 The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use and Outer Space, including the Moon and Other Celestial Bodies (), Article I. 7 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 265.

7 The arising issue is therefore to find a proper legal regime that takes into account these particularities and that is protective in relation to the other interests at hand.

This matter is highly relevant at the time of writing because some vehicles carrying passengers are almost ready to fly. It is therefore an important priority to define which regulatory path should be chosen, just as it is essential to let the nascent industry and the safety of the people intercalate into such legal regime.

In that sense, standards and technical definitions shall be evolutive enough to satisfy both the industry and the passengers’ expectations while not hampering the future technological developments. Consequently, the issue is also intrinsically linked to the future and raises economic considerations linked to the durability of a dawning market and social ones attached to the utmost requirement to protect the passengers’ safety.

A legal regime shall therefore take into account the sovereignty of the States over their national airspace, ensure the legal certainty that the industry is demanding and of course protect the passengers as regard to the flight safety as well as to their right to bring actions before the in case of accident. A clear incentive of the present work will be therefore to discuss viable solutions that take into account these crucial elements, with a particular attention on the European Union.

In that sense, the Thesis first makes a state of play and departs from the analysis that general and unharmonized space legal frameworks in Europe are facing specific regulatory answers on commercial that have already been provided by the United States and the United Kingdom (PART I). It then emancipates from the space law regime that may be “ambiguous as to accommodate suborbital activities”8 and consider the term suborbital as a generic concept encompassing a whole range of different activities to which different legal regimes shall apply, while ensuring their safe accommodation into a more and more congested airspace (PART II). It finally considers further perspectives, both legally vis-à-vis the confrontation of potentially diverging legal understandings, and institutionally with regard to the mandates international organizations should take (PART III).

8 MASSON-ZWAAN Tanja, MORO-AGUILAR Rafael, Regulating Private Human Suborbital Flight at the International and European Level: Tendencies and Suggestions. Acta Astronautica, 2013, p. 244.

8 PART I – SUBORBITAL FLIGHTS AND THEIR RELATION TO NATIONAL SPACE LAWS

In a view to develop their national space programs and to stimulate entrepreneurial initiatives while being compliant with their obligations deriving from International Space Law, States have enacted their own space . As such, there is no “specific obligation”9 coming from the Treaties for States to adopt a legislative framework on space activities but due to the increased participation of non-State actors “in the exploration and use of outer space”,10 there is indeed an increased need for States to legislate.

With regard to suborbital flights particularly, as a relatively new field for commercial activities, only two States have intervened at the legislative level at the moment. The United States and the United Kingdom have indeed offered to their suborbital markets dedicated pieces of legislation that will be analysed first (Chapter 1). Facing them, general space laws are in force in Europe upon which conclusions shall be drawn as regard to their potential applicability to this new field of activity, before discussing about their approximation (Chapter 2).

Chapter 1. Towards Comprehensive and Dedicated Legal Regimes

This Chapter will present the specific regulatory frameworks of two countries, namely, the United States (Section 1) and the United Kingdom (Section 2) which have decided to move forward in the commercial spaceflight domain.

Section 1. The United States of America

The United States have positioned themselves into a regulatory dynamic (Paragraph 1) that is unquestionably space-oriented (Paragraph 2).

Retrospective on the Regulatory Dynamic on Commercial Spaceflights

The United States have rapidly positioned themselves as the leading country in the suborbital domain. The industrial dynamic has been progressively coupled to a regulatory one aimed at fostering the entrepreneurial initiatives emerging throughout the whole country.

9 ZANNONI Diego, Conflict and Conciliation of National Space Laws. McGill University, Institute of Air and Space Law, Annals of Air and Space Law, Vol. XXXVIII, 2013, p. 346. 10 MARBOE Irmgard, National Space Law. In: VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law. Research Handbooks in International Law, Edward Elgar Publishing, 2017, p. 127.

9 In 1984 already, the Commercial Act had been enacted to “stimulate”11 the private industry and “to encourage commercial space launches”12 which were at that time limited to the licensing of unmanned Expendable Launch Vehicles (ELV) operators and to the exploitation of launch sites.13 The competence was given to the Department of Transport (DoT) through its branch Federal Aviation Administration Office of Commercial Space Transportation (FAA-AST) to issue individual launch licenses.14

Under an amendment of 1998, its mandate has been extended to the licensing of Reusable Launch Vehicles (RLV) operators,15 or in other words to issue “reentry license”.16 The regulatory path chosen is therefore oriented towards the licensing of operations, in opposite to a certification regime.17 Under a license, “the operator bears the full responsibility of its operations”18 whereas in cases where a certificate is emitted, “the certificating authority takes […] part [in] the responsibility”.19

The 2004 Commercial Space Launch Amendments Act (CSLAA) constitutes a major step in promoting “the emerging commercial human space flight industry”.20 The Amendment introduced experimental permits which are “alternatives to the licenses”.21 The former are less demanding than the latter and therefore are only applicable for research and development purposes, for “showing compliance” with targeted licensing requirements, or for crew training before being granted such license.22

More importantly, the 2004 CSLAA introduced a reciprocal waiver of liability claims “vis-à- vis contractual parties other than the US Government”.23 Under this Amendment, this cross- waiver “did not [already] extend to spaceflight participants”.24 Apart from this provision, the spaceflight participants’ status was therefore quite unclear as they were not addressed by the Act in a comprehensive manner.25 Rather, the US legislator chose to introduce the so called

11 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 683. 12 WOUTERS Jan, DE MAN Philip, HANSEN Rik, Commercial Uses of Space and Space Tourism, Legal and Policy Aspects. Leuven Centre for Global Governance Studies. Edward Elgar Publishing, 2017, p. 124. 13 MINEIRO Michael C., An Intersection of Air and Space Law: Licensing and Regulating Suborbital Commercial Human Space Flight Operations. Air and Space Law, Vol. 22, No. 4, 2010, p. 1. 14 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 683. 15 MINEIRO Michael C., An Intersection of Air and Space Law: Licensing and Regulating Suborbital Commercial Human Space Flight Operations. Air and Space Law, Vol. 22, No. 4, 2010, p. 1. 16 MINEIRO Michael C., U.S Federal Licensing and Regulation of Commercial Human Space Flight. In: MINEIRO Michael C., Commercial Human Space Flight in the United States: Federal Licensing and Liability. Nahum Gelber Law Library, 2008, Chap. 2, p. 6. 17 VON DER DUNK Frans G., Space Tourism, and the Law: Key Aspects. , Vol. 27, Issue 3, 2011, p. 152. 18 MARCIACQ Jean-Bruno, Establishing a Regulatory Framework for the Development and Operation of Sub- orbital and Orbital Aircraft in the EU: The Role of the EASA. In: WOUTERS Jan et al., op. cit., p. 235. 19 Ibid. 20 Commercial Space Launch Amendments Act, 2004. 21 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 690. 22 Ibid. 23 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 690. 24 Ibid. 25 Ibid., p. 691.

10 informed consent clause as replacing the need to certify the suborbital vehicle.26 A dedicated Section in Part III infra will explain its meaning in greater details.

As a consequence, the 2004 Amending Act also introduced a “temporary ban on [the FAA- AST] safety regulation and certification of the vehicle”27 aimed at enabling the industry to mature without being stifled due to regulatory burdens. The US was indeed clear on the fact that too-demanding would hamper the technological development.28 However, whereas this learning period was supposed to be in force until December 2012, it has been extended a first time until October 1, 2015, and a second time until October 1, 2023.

This continuous elongation mirrors the fact that the industry has been delayed in its capacity to commercialize flights to future spaceflight participants (SFP) so the US legislator gives the companies more leeway. It also depicts the American understanding with regard to particular regulations considered as “unnecessary”29. As mentioned by Vice President Pence in a discourse held at the 2019 Conference, the country is “streamlining and deregulating space”.30

A final amendment finally occurred four years ago by way of the 2015 Space Act,31 codified in Title 51 of the United States Code. Under this amendment, SFPs are now formally party to the cross-waiver of liability claims mentioned above, as we will see in Part III infra.

The Unambiguous Space Law Approach

The American approach is a catch-all one where manned suborbital flights are linked to those of launching of space objects. The US Code is straightforward in that respect as it defines launch as the act of “[placing] or [trying] to place a launch vehicle or reentry vehicle and any payload or human being from Earth in a suborbital trajectory;32 in Earth orbit in outer space; or otherwise in outer space”.33

Throughout these legislative interventions, the United States has therefore developed a fully comprehensive legal environment to regulate the launch and return of vehicles, including the

26 Ibid. 27 Ibid., p. 687. 28 Ibid., p. 688. 29 2019 Satellite Conference: Remarks by Vice President Pence on May, 6, 2019, Walter E. Washington Convention Center Washington, D.C., p. 5. 30 Ibid. 31 Commercial Space Launch Competitiveness Act, 2015. 32 United States Code, Title 51, §50902(23): Suborbital trajectory: “The intentional flight path of a launch vehicle, reentry vehicle, or any portion thereof, whose vacuum instantaneous impact does not leave the surface of the Earth”. 33 United States Code, Title 51, §50902(7).

11 suborbital ones. The country is indeed clear upon the fact that suborbital activities are “spaceflights”34 subject to the “launch legislation”.35

The primary goal to protect uninvolved third-parties as well as the government from liability claims is also clearly stated.36 Concerning the latter, it is in line with the licensing path chosen by the Government which “has not certified the […] vehicle as safe for carrying crew or spaceflight participants”.37 In other words, since the Government does not bear responsibility – that it would normally share in case of certification – SFPs shall therefore not bring claims for something the Government did not intervene into.38

On the other hand, the Government may decide to issue additional regulations “governing the design […] of a launch vehicle to protect the health and safety of crew, government astronauts, and spaceflight participants”.39 These (optional) additional requirements which directly relate to the state of the object involved in the mission are quite unusual in the space practice40 but are nonetheless very welcomed as a way to foster the overall safety, in particular the one of those directly involved in the flight.

The US Government is also constantly improving its legislative space framework. For instance, the Space Frontier Act41 has been introduced in Senate on March 27, 2019 with the aim to “reduce regulatory burdens and streamline processes related to commercial space activities […]”.42 In particular, the Bill proposes that when an operator is conducting “launch […] and reentry services at multiple sites”,43 only one license or permit shall be issued.44 The goal here is clearly to alleviate even more the operator’s administrative burden through a single application mechanism.

The next Section shall now focus on the United Kingdom as the second country to have implemented a dedicated regulatory framework for commercial spaceflight activities.

34 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 683. 35 Ibid. 36 United States Code, Title 51, §50914. Under this Paragraph, operators must compensate third-parties for damage caused to them and shall obtain a liability insurance or demonstrate their financial responsibility to cover their claims. The amount of coverage is determined through the “calculation of the Maximum Probable Loss potentially resulting from an accident of the space object”. See: VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 684. 37 United States Code, Title 51, §50905(b)(5)(B). 38 United States Code of Federal Regulations, Title 14, §460.49. 39 United States Code, Title 51, §50905(c)(1). 40 CLERC Philippe, Space Law in The European Context, National Architecture, Legislation and Policy in France. Essential Air and Space Law, Vol. 20, Eleven International Publishing, 2018, p. 187. 41 Bill S. 919, Introduced in Senate in March 27, 2019. 116th US Congress (2019-2020) 42 Ibid. Purpose of the Bill. 43 Bill S. 919, Section 102, Use of Existing Authorities. 44 Ibid.

12 Section 2. The United Kingdom

This Section will address the incentives that led the United Kingdom to enact its dedicated Space Bill (Paragraph 1) before analysing its key aspects (Paragraph 2).

Historical Background

In a Governmental Review of 2014,45 the British Government identified that it lacked an autonomous access to space, thus hampering the substantial growth of British space undertakings. The creation of a non-indigenous was identified as a way to address this matter and the focus on commercial spaceflights carried out from the British soil clearly paved the way towards further developments.46

The Report particularly draws our attention on the expected markets that might surface if the country would engage in such way. Among them was the suborbital industry.47 It further reveals the need of a specific regulatory regime that necessarily has to be national since no “worldwide consensus”48 exists on the suborbital topic. It further states in that sense that if an answer were to arise at the international level, suborbital operations would have already started in the country.49

Importantly, the Review already envisaged the application of an informed consent similar to the one in force in the United States50 but insisted on the importance not to “absolve the operator of liability claims brought by flight crew or participants or their families”51 in case of “spaceplane accident or serious incident”.52 It admits however that applying the US regulatory model “could leave the UK out of step with any developing EU legislation – which the UK would then have to adopt”53 (since the Report had been written at a time where Brexit was not yet on the table). More particularly, the idea that equate to aircrafts is constantly emerging throughout the whole Report.

Because of these features, the Government recommended not to follow the FAA-AST framework in its entirety.54 At the same time, since it considered the aviation regime too demanding for a nascent suborbital industry, it envisaged to apply Annex II to the (now

45 United Kingdom Civil Aviation Authority, UK Government Review of Commercial Spaceplane Certification and Operations: Technical Report, July 2014. 46 Ibid., p. 14. 47 Ibid., p. 35. 48 Ibid., p. 60. 49 Ibid., p. 59. 50 Ibid., p. 69. 51 Ibid., p. 70. 52 Ibid. 53 Ibid., p. 102. 54 Ibid.

13 repealed) Regulation 216/2008,55 enabling Member States to depart from the European Union Aviation Safety Agency (EASA) safety standards and to apply a national regime to aircrafts qualified as “experimental”.56

This strategy finally lead to the Act57 which received Royal Assent on March 15, 2018. Its key aspects will be studied in the following Paragraph.

The Space Industry Act: Key Aspects

The 2018 Space Industry Act is dedicated to all commercial spaceflight operations58 (not only suborbital) carried out exclusively from within the United Kingdom.59 Therefore, the Outer Space Act of 1986 remains applicable to space activities carried out overseas.

A space activity is defined as the “launching or procuring the launch or the return to Earth of a space object or of an aircraft carrying a space object; operating a space object; or any activity in outer space”.60

Distinct from this definition is the one of sub-orbital activity which relates to the “launching, procuring the launch of, operating or procuring the return to Earth of a […] rocket or other craft that is capable of operating above the stratosphere, a balloon that is capable of reaching the stratosphere carrying crew or passengers, or an aircraft carrying such a craft”. Apart from the carrier aircraft, all these devices are qualified as according to Section 2(6) of the Act.

While distinguished at first glance, both space activity and sub-orbital activity are referred to in this Act as spaceflight activities. What this means is that – while being different – the Space Industry Act creates common rules and procedures – such as licensing requirements – for the two, under the common denominator of spaceflight activities for which the Secretary of State is the “default regulator”.61

However, competent authorities differ in regard to the type of activity carried out. For those qualified as space activities under this Act as well as for the licensing of “capable of vertical launch”62 (), the UK Space Agency – acting on behalf of the Secretary of State – is competent. For sub-orbital activities and the licensing of spaceports “capable of

55 Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC. 56 Ibid., Annex II. 57 Space Industry Act, 2018. 58 Ibid., Sections 1(1)(a), (b) and (c). 59 Ibid., Section 1(1). 60 Ibid., Sections 1(4)(a), (b) and (c). 61 UKSA, Presentation given by HUGHES Louise before the UN COPUOS Legal Sub-Committee: The , p. 12. Available at: http://www.unoosa.org/documents/pdf/copuos/lsc/2018/tech-01.pdf. 62 Ibid.

14 horizontal launch”,63 the UK Civil Aviation Authority is competent after having been appointed by the Secretary of State, in accordance with Section 16(1) of the Act. This enables the nascent commercial spaceflight industry to make the most out of the Civil Aviation Authority regulatory expertise.64

Similarly as the US legislation, the British Act imposes a license requirement to carry out spaceflight activities or to operate a spaceport.65 The latter is aimed at guaranteeing the national security of the country, the consistency with its international obligations and the national interests.66 Importantly, according to Section 12(1)(c), a licensee may be authorized to carry out “one or more particular spaceflight activities”. This pragmatic understanding enables the operators not to be too much overwhelmed in applying for multiple licenses. Administrative burdens are thus lowered.

Emphasis is also put on public safety,67 particularly the one of the uninvolved persons which is a “primary concern”68 for the Act. Concerning these third-parties, “the applicant must have taken all reasonable steps to ensure that [the] risks are as low as reasonably practicable”69 and the Act specifies that the level of risks must be “acceptable”.70 In light of the nascent state of the industry, this clause is quite deprived of any meaning at the time of writing but subsequent and more flexible regulations are expected to accompany the Bill to further elaborate that.71 Third-parties are however granted a great level of protection in case of action before Courts since a strict liability regime releases them from the need to prove the fault of the operator.72

Concerning the involved parties in a spaceflight activity, Section 17 of the Act lays down the so called informed consent which poses a twofold condition for an operator to embark passengers. The latter shall be of adequate age and mental capacity73 and shall signify their consent “to accept the risks involved”.74 This signification is made by signing a consent form75 but “procedural requirements” may be further defined in subsequent regulations.76 Indeed, the Act only asks the passengers to sign the consent form but does not impose on them to produce a written statement in regard to their acceptation of those risks. The type of information to be given by the operator may also be defined through additional regulations.77

63 Ibid. 64 Ibid. 65 Space Industry Act, Sections 3(1)(a) and (b). 66 Ibid., Sections 8(2)(a), (b) and (c). 67 Ibid., Section 2(1). 68 MASSON-ZWAAN Tanja, HOFMANN Mahulena, Introduction to Space Law, Fourth Edition. Wolters Kluwer, 2019, p. 90. 69 Space Industry Act, Section 9(4)(a). 70 Ibid., Section 9(4)(b). 71 Ibid., Section 9(5). 72 Ibid., Section 34. 73 Ibid., Section 17(1)(b). 74 Ibid., Section 17(1)(a). 75 Ibid., Section 17(2). 76 Ibid., Section 17(3)(c). 77 Ibid., Section 17(3)(a) and (b).

15 Very importantly, – and similarly as the United States – the regulator may impose conditions before granting a license.78 Those conditions – which are annexed to the Bill – may relate to “safety requirements regarding the design […] of spacecraft, carrier aircraft and payloads”79 but also to their “assembling”.

In conclusion, the United States and the United Kingdom have enacted their own comprehensive Acts on commercial manned spaceflights with the stated goal to foster entrepreneurial incentives as well as to attract investors within their respective territories. The former, being legislatively active since 1984 has paved the way to the latter and the two are on their way to become major players in the suborbital domain. Opposite them, general and sometimes non-comprehensive space laws have spread across the European Union. We will try in the following Chapter to draw conclusions on their capacity to adapt to this new particular field of activity.

Chapter 2. Towards General Space Laws in Europe and the Harmonising Issue

This Chapter is aimed at identifying whether existing national space laws in the European Union – plus Norway – may consider suborbital flights (Section 1). In addition, it will analyse whether a legislative intervention from the European Union could settle identified gaps (Section 2).

Section 1. General Space Laws: The Unsuitable Answer to Suborbital Flights

Apart from the United Kingdom which is about to leave the European Union, there is no European space law currently in force specifically dedicated to suborbital activities. If one were to consider them as a space activity, it would imply the application of general space legislations to govern them.

Consequently, we will try to address if, de lege lata, these general space Acts can at least consider suborbital vehicles and activities within their scope. When relevant, due attention will be given to the replies given by States to the UN COPUOS Legal Sub-Committee’s Questionnaire on Possible Legal Issues with Regard to Aerospace Objects (hereinafter referred to as the Questionnaire).80

We will first of all analyse the laws that might consider suborbital activities (Paragraph 1) before focusing on those that cannot (Paragraph 2) and those that pragmatically take into account the surrounding airspace (Paragraph 3). We will then discuss about the expected

78 Ibid., Section 13. 79 Ibid., Schedule 1 – Particular conditions that may be included in licenses. 80 Committee On the Peaceful Uses of Outer Space – Legal Sub-Committee, Questionnaire on Possible Legal Issues with Regard to Aerospace Objects: Replies from Member States, February 15, 1996. UN Doc. A/AC.105/635.

16 Spanish Bill on commercial spaceflights (Paragraph 4) and we will finally conclude with an up to date view on the French Law (Paragraph 5).

Laws that Might Consider Suborbital Activities

Space activities in Austria81 are defined broadly82 as “the launch, operation or control of a space object, as well as the operation of a launch facility”.83 A space object is defined as “an object launched or intended to be launched into outer space, including its components”.84 Whereas the return of the space object is not envisaged under this law, Austria is one of the few countries that includes the operation of a launch facility in its definition of space activity and is therefore not limited to activities carried out in outer space strictly speaking. As such, this may cover the exploitation of a space port if suborbital flights were considered as a space activity under Austrian law.

In Denmark, space activities are defined in Part 2 of the Outer Space Act85 as the “launching [of] space objects into outer space; [the] operation, control and return of space objects to Earth; as well as other essential activities in this connection”. A space object is further defined as “any object, including its component parts, which has been launched into outer space, or which is planned to be launched into outer space, and any device which has been used, or is planned to be used, to launch an object into outer space”.86

The Danish space law is one of the most recent Text having been enacted in Europe and as such, is quite comprehensive with regard the definition of space activity. In relation to suborbital flights, interestingly enough is that both the launch and return are covered by the definition which is in line with the current technological developments to repatriate space objects back to our Planet.

Very interesting is the spatialist approach of the law which defines outer space as the “space above the altitude of 100km above sea level”.87 This is highly relevant for the operation of suborbital vehicles that will fall under the scope of this law – and its licensing procedure – only if they reach that altitude. As will be discussed in detail in Part II infra, this approach may very well lead to a lot of issues. However, in a note addressed by the Danish State to the United Nations Office for Outer Space Affairs (UNOOSA), the Government recognised that “there is no internationally agreed definition of ‘outer space’ [and that] no rule of conventional or

81 Austrian Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry, 28 December 2011 (Austrian Outer Space Act). 82 VON DER DUNK Frans G., Another Additional to National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011. International Astronautical Congress, Naples, Italy, Paper No. IAC- 12,E7,5,15,x12809, 2012, p. 3. 83 Austrian Outer Space Act, §2(1) 84 Ibid., §2(2) 85 Danish Outer Space Act (Act n°409 of 11 May 2016). 86 Ibid., Part 2(2) 87 Ibid., Part 2(4)

17 customary international law defines where air space ends and outer space begins”.88 It further adds that this “clearly defined point”89 is only meant “to clarify”90 which activities fall within the realm of the law and thus to “provide certainty to [the] industry”.91

Laws that Cannot Apply to Suborbital Activities

Norway is the first country in the world to have passed a legislation on space activities, even two weeks before its ratification of the Outer Space Treaty (OST). The Act on Launching Objects from Norwegian Territory into Outer Space92 is extremely concise and does not define neither space activities nor space objects. Their return is of course not envisaged at all. The Law is in fact strictly limited to the act of launching objects into outer space for which a Governmental permission is required and does not concern the in outer space activity resulting from it.93 Therefore, “all other space activities than launching are not covered”.94

In a very concise fashion, the Dutch Space Activities Act95 qualifies as space activities “the launch, the flight operation and the guidance of space objects in outer space”. It also envisages a spatialist approach to the notion of space object being defined as “any object launched or destined to be launched into outer space”. The law is silent on the return phase. In an attempt to shed light on the definition of space activities, scholars have looked at the meaning of “flight operation” and “guidance” and came to the conclusion that both terms would rather refer to activities carried out from the ground and aimed at securing the safety of the mission. Hence, flight operations qualify as “all operations of the space object during the flight phase, meaning the phase between launch and the final position of the space object in orbit”96 whereas guidance of space objects corresponds to the activities “to control the space object, such as manoeuvring, watching out for and tending the fuel levels”97. These activities thus do not refer to onboard operations. Consequently, it is very doubtful that suborbital flights fall under the scope of the Dutch Law as it is written today.

88 Note addressed by the Ministry of Higher Education and Science to the UN OOSA, June 14, 2018. 89 Ibid. 90 Ibid. 91 Ibid. 92 Act on Launching Objects from Norwegian Territory into Outer Space, No. 38, June 13, 1969. 93 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation. In: VON DER DUNK Frans G., National Space Legislation in Europe: Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation. Studies in Space Law, Volume 6, Martinus Nijhoff Publishers, 2011, p. 284. 94 VON DER DUNK Frans G., NIKOLAISEN Atle, Vikings First in National Space Law: Other Europeans To Follow, The Continuing Story of National Implementation of International Responsibility and Liability. In Proceedings of the Forty-Fourth Colloquium on the Law of Outer Space, 2002, p. 115. 95 Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (Space Activities Act), June 13, 2006. 96 FROEHLICH Annette, SEFFINGA Vincent, National Space Legislation: A Comparative and Evaluative Analysis. Studies in Space Policy, Volume 15, The European Space Policy Institute, Springer, 2018, p. 67. 97 Ibid.

18 Regarding the Questionnaire, the Netherlands gave some interesting answers. First of all, it defends a spatialist understanding in respect to the status of aerospace objects98 and adds that “any object that is capable of travelling in outer space should be subject to […] Space Law.”99 It nonetheless states that aerospace objects are not subject to the Registration Convention.100

It also provided a definition aimed at distinguishing aerospace objects from aircrafts, , rockets and space shuttles.101 Thus, an aerospace object would be “a human-made object that can proceed to any altitude and that is subject to human control at any altitude as regard its altitude, direction and speed”. According to this definition, a suborbital vehicle would in principle qualify as such but the Dutch Government – in reference to the US – clarified that since the Shuttle lacked “autonomous manoeuvrability” in the airspace, it could not qualify as an aerospace object. Since suborbital vehicles also lack manoeuvrability in the airspace, they would also not qualify as aerospace objects according to the Dutch understanding.

Finally, the Dutch Government is of the opinion that there exists no right of innocent passage for take-off and landing phases of aerospace objects due to “the absence of […] practice and, hence, [of] rule of Customary International Law”. It however declares that it would consider desirable to enact “special rules for the flight of [such] objects”, including right of innocent passage and air traffic control procedures.102

Finally, the Belgian Law on the Activities of Launching, Flight Operation or Guidance of Space Objects103 does not define as such what a space activity is but is more focused – in addition to the launch – on the “flight operation” and “guidance” of space objects. The latter relate to “the delivery in orbit, the flying conditions, the navigation or the evolution of the space object in outer space, such as the selection, the control or the correction of its orbit or its trajectory”.104

The Act seems therefore more focused on the launch and operation of space objects intended to remain into outer space. This assumption is further confirmed by the definition of space

98 UN COPUOS – Legal Sub-Committee, Questionnaire on Possible Legal Issues with Regard to Aerospace Objects, op. cit., Add. 8 (February 17, 2003), Answer to Question 4: “Are aerospace objects while in airspace considered as aircraft, and while in outer space as spacecraft, with all the legal consequences that follow therefrom, or does either air law or space law prevail during the flight of an aerospace craft, depending on the destination of such a flight?”. 99 Ibid., Answer to Question 1: “Can an aerospace object be defined as an object which is capable both of travelling through outer space and of using its aerodynamic to remain in airspace for a certain period of time?”. 100 Ibid., Answer to Question 9: “Are the rules concerning the registration of objects launched into outer space applicable to aerospace objects?”. 101 Ibid., Answer to Question 1. 102 Ibid., Answer to Question 5: “Are the take-off and landing phases specially distinguished in the regime for an aerospace object as involving a different degree of regulation from entry into airspace from outer space orbit and subsequent return to that orbit?”. 103 Law of 17 September 2005 on the Activities of Launching, Flight Operation or Guidance of Space Objects. 104 Ibid., Article 3(5).

19 objects which are those “launched or intended to be launched on an orbital trajectory around the Earth or to a destination beyond the earth orbit”.105

So, only those objects destined to be placed on Earth’s orbit or beyond are treated as space objects in Belgium. Importantly however, this definition also includes the launch vehicle106 as well as the constitutive elements of both the space object and its launch vehicle.107 The definition therefore fully complies with the concept of space object as envisaged by the Registration Convention.108

Consequently, unless they are used as launch vehicles for small satellites – and therefore might comply to the Act’s definition of space object under the French Théorie de l’Accessoire – suborbital vehicles are explicitly excluded from the scope of this Law.

Laws that Take into Account the Presence in the Airspace

Despite a different wording, Section 4 of the Finnish Act on Space Activities109 retains almost the same criterion as Denmark to define space activities. Are covered by the Act the “launching [of] a space object into outer space, [its] operation and other control […] in outer space, as well as measures to return [it] and its return to the Earth”.110 The Act also defines space object as “any object launched or intended to be launched into outer space, including the component parts of such an object, and any device used or intended to be used for launching an object into outer space, including the component parts of such a device”.111

In replying to the Questionnaire, Finland also expressed a spatialist vision to the question whether different legal regimes should apply depending on the localisation of an aerospace object112 but did not left aside the eventuality to move towards a “purpose-based” approach where either Air or Space Law would apply depending on the purpose of the flight. In any case it proposed an interesting definition to the term aerospace vehicle that may possibly cover suborbital vehicles: “an object capable both of travelling through outer space and of using its aerodynamic properties to travel/while travelling through airspace”.113 Importantly, Finland

105 Ibid., Article 3(1)(a) 106 Ibid., Article 3(1)(b) 107 Ibid., Article 3(1)(c) 108 The 1975 Convention on Registration of Objects Launched into Outer Space, Article I(b). 109 Act on Space Activities, No. 63/2018, January 23, 2018. 110 Ibid., Section 4(1). 111 Ibid., Section 4(2). 112 UN COPUOS – Legal Sub-Committee, Questionnaire on Possible Legal Issues with Regard to Aerospace Objects, op. cit., Add. 11 (January 26, 2005), Answer to Question 2: “Does the regime applicable to the flight of aerospace objects differ according to whether it is located in airspace or outer space?”. 113 Ibid., Answer to Question 1.

20 distinguishes aerospace vehicles from space objects114 and states that “the rules concerning registration of [the latter] cannot be applied as such to [the former]”.115

Concerning suborbital flights particularly, a Government proposal to the Parliament for the approval and implementation of the Registration Convention116 states that “objects launched into outer space remaining in orbit around the Earth is not a condition for space activity” and precise that international debates are happening “on matters including whether sounding rockets and suborbital flights constitute space activity”. This does not reflect a position as such but it highlights the fact that Finland may possibly be open to integrate suborbital activities within the scope of its space law, particularly should the international community would provide an answer in this regard.

Interesting is also the Section 1 of the Act on Space Activities which provides that “a space object flying in the airspace of Finland is subject to applicable provisions on civil aviation”. In other words, whether a launch or reentry activity of a space object is carried out in accordance with space law, safety rules of aviation law are nonetheless applicable to avoid any accident with the air traffic. This is a very pragmatic approach aimed at the safe integration of space activities within a shared airspace. One may also see behind this provision the reality of space operations that tend to be more and more integrated with other activities taking place in the vicinity. Interestingly, in its reply to the Questionnaire asking whether “the norms of national and international Air Law [apply] to an aerospace object of one State [located] in the airspace of another […]”, Finland even went a step further in replying by the affirmative.117

The German Satellite Data Security Act118 applies “to the operation of high-grade Earth remote sensing systems”119 as well as “to the handling of data generated by [such] system […] until the moment of their dissemination”.120 Neither space activity nor space object are defined and the Act is in fact limited to data generated by satellites.

Germany is not yet equipped with a comprehensive Act but a draft Bill is under discussion.121 A look at the German Aviation Code122 is however interesting as its Section 1(2) provides that

114 Ibid., Answer to Question 7: “Are there with respect to the passage of aerospace objects during take- off and/or re-entry into the Earth’s atmosphere and does international exist with respect to such passage?”. 115 Ibid., Answer to Question 9. 116 Government proposal to Parliament for the approval and implementation of the Convention on Registration of Objects Launched into Outer Space and for the Act on Space Activities and the Act on the Amendment of Section 2 of the Lost and Found Objects Act, 2017. 117 UN COPUOS – Legal Sub-Committee, Questionnaire on Possible Legal Issues with Regard to Aerospace Objects, op. cit., Add. 11, Answer to Question 6: “Are the norms of national and international air law applicable to an aerospace object of one State while it is in the airspace of another State?”. 118 Act to give Protection against the Security Risk to the Federal Republic of Germany by the Dissemination of High-Grade Earth RemoteSensing Data (Satellite Data Security Act – SatDSiG) of November 23, 2017. 119 Ibid., Section 1(1)(1). 120 Ibid., Section 1(1)(2). 121 https://spacewatch.global/2019/05/germany-to-draft-new-space-laws-and-regulations-to-spur-lagging-new- space-sector/. 122 LuftVerkehrsGesetz (German Aviation Act).

21 “spacecrafts, rockets and related flying objects are considered to be aircraft while in the airspace” and must obtain an admission to traffic.123 Thus, the German Aviation Code goes a step further than the Finnish Act on Space Activities since the former equally qualifies spacecrafts and aircrafts – while in the airspace – while the latter only makes space objects subject to aviation provisions.

Space activities in Sweden124 are primarily defined as “activities carried on entirely in outer space”. Because suborbital flights do not take place entirely in outer space, the Act seems at first glance inapplicable to them.125 However, are also comprised in the definition “the launching of objects into outer space and all measures to manoeuvre or in any other way affect [those objects] […]”.

The law is silent on whether “manoeuvre” and “affect” shall be understood as covering the return of the object back to Earth but this seems unlikely as those two terms are in many respects similar to those contemplated in the Dutch Space Activities Act (“flight operation” and “guidance”) which refer rather to ground operations carried out in relation to a space activity. Additionally, the return of the object back to Earth is not intended.

Importantly, the last sentence of Section 1 explicitly excludes from the scope of this space law the launch of sounding rockets. Since sounding rockets are suborbital objects, one may ask whether this provision excludes also other type of suborbital crafts. We cannot find useful interpreting tools in the Act directly, particularly since no definition of space object is provided but it seems that Sweden decided to exclude the launch of sounding rockets from the scope of the law simply because this activity takes place in a remote area at the very north of the country. Consequently, the launch of sounding rockets is deemed to be not harmful for third people on the ground or flying in the airspace.126 Moreover, the Act only excludes from its scope the launch of the sounding rocket, “not the suborbital flights per se”.127

It is difficult to draw conclusions from these provisions but a look at the Swedish Aviation Ordinance128 is helping as it explicitly states that rockets “are not classifiable as aircraft” but since they “are designed for movement in the air”, the Swedish Transport Agency “may issue regulations about [them]”.129 This is in a way similar to the Finnish provisions.

123 HOBE Stephan, NEUMANN Julia, Regulation of Space Activities in Germany. In: JAKHU Ram S., National Regulation of Space Activities. Space Regulations Library, Volume 5, Springer, 2010, p. 130. 124 Act on Space Activities, No. 1982:963 of 18 November 1982. 125 SCHMIDT-TEDD B., Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty. In: VON DER DUNK Frans G., National Space Legislation in Europe, op. cit., p 285. 126 Ibid. 127 HOBE Stephan, SCHMIDT-TEDD Bernhard, SCHROGL Kai-Uwe, STUBBE Peter, Cologne Commentary on Space Law, Volume III. Carl Heymanns Verlag, 2015, p. 507. 128 Aviation Ordinance, No. 2010:770, 2010. 129 Ibid., Section 10.

22 An Expected Dedicated Bill: The Case of Spain

For the time being, Spain is only equipped with a Royal on Registration130 which defines space object as including “component parts of a space object as well as the launch vehicle and parts thereof”.131

Spain is however interested in hosting space tourism suborbital activities on its soil and is currently developing its own Bill on Outer Space Activities. Introduced before the Parliament in 2014,132 the draft is currently pending but we should note that a law has already been passed by the Autonomous Community of Catalonia in July 22, 2009 Concerning Airports, Heliports and other Airport Infrastructures.133 The latter is aimed – amongst other things – at promoting and developing space tourism activities in Catalonia and “regulates […] airport infrastructures that are not classified of being of general interest”.134 The National Government of Spain remains however the competent authority to regulate “air and space navigation”.135

At the National level, the draft Bill currently under discussion is clearly oriented towards the American regulatory model136 and is aimed at creating a legal framework for private space activities.

It is important to highlight the limitation put on the scope of this draft legislation which defines suborbital flights as the “flights that do not enter into Earth’s orbit but have their primary goal to perform an activity in an area which is bordering what can be considered as outer space”.137 Because of that “primary goal” provision, it seems that the draft Bill implicitly excludes point- to-point transportation from its scope since this particular suborbital activity cannot argue that its primary purpose is to reach outer space. In that latter case, the transit performed at very high altitudes is only aimed at travelling faster. We will discuss this argument in detail in Part II infra.

This Bill is clearly oriented towards suborbital activities since the “utilization of suborbital trajectories” is included within the definition of “space activity” as well as the launch “on a suborbital trajectory” is laid down in the definition of “launching”.138

The Spanish draft Bill is also based on a twofold procedure: licensing of the operator by the Spanish Civil Aviation Authority for the launch, operation, and return, as well as for the

130 Royal Decree 278/1995 of February 24, 1995 Creating the Spanish National Register of Space Objects. 131 Ibid., Article 4. 132 MORO-AGUILAR Rafael, National Regulation of Private Suborbital Flights: A Fresh View. FIU Law Review, Vol. 10, No. 2, Art. 18, 2015, p. 706. 133 Law 14/2009 of 22 July 2009 concerning Airports, Heliports and other Airport Infrastructures. 134 HARILLO GOMEZ-PASTRANA Rafael, Legal Issues in Commercial Spaceflight Projects in Spain. Sixty- Second International Astronautical Congress. Paper No. IAC-11.E7.2.6, 2011, p. 6. 135 Ibid. 136 MORO-AGUILAR Rafael, National Regulation of Private Suborbital Flights: A Fresh View, op. cit., p. 706. 137 Ibid., p. 707. 138 Ibid., p. 706.

23 spaceport management139 and a preoccupying informed consent which completely waives the liability claims of passengers against the Spanish Government and the suborbital operator, “except in cases of gross or deliberate wrongful action”140 of the latter. The US space law model is thus clearly followed by the Spanish legislature. Whether this approach may potentially cause problems under European Law will be addressed in Part III infra.

Importantly, the draft finally foresees the vehicles’ status in case of airborne launch systems. The carrier aircraft will be qualified as an aircraft and the suborbital vehicle will be qualified as a space object without relying on the moment of detachment between the two. Both will be independently governed by their own legal regime throughout the whole operation.141

The Case of France: An Up to Date View

According to French law, a space operation means “any activity consisting in launching or attempting to launch an object into outer space, or of ensuring the commanding of a space object during its journey in outer space, including the Moon and other celestial bodies, and, if necessary, during its return to Earth”. A definition of space object is however not provided.

Passed in 2008, the French Space Operations Act (FSOA)142 is a rather comprehensive legislation very well fitted for contemporary space operations, particularly as it covers the return of space objects back to the Earth.

In relation to suborbital flights however, there is not so much that comes out of this law but it should be noted that the sentence “or of ensuring the commanding of a space object during its journey in outer space […]” makes reference to orbiting space objects143 “to be put in outer space”.144 The use of the term “journey” is quite clear in that respect as it relates more to a long duration spent in outer space rather than a transit through it. The French original “séjour” is even more stringent and is definitely related to some sort of permanence in outer space.

The “FSOA does not cover as such the regime of Human Beings in Space, in particular the commercial passengers”.145 Only a third-party liability regime is provided under Article 13 of the Act which is aimed at protecting uninvolved parties on the ground or flying in the airspace.146 The reason why manned spaceflights are not directly addressed by the Act is straightforward. Apart from the International Space Station (ISS) which is already governed by

139 Ibid., p. 707. 140 Ibid. 141 Ibid., p. 708. 142 French Space Operations Act No. 2008-518 of 3rd June 2008. 143 CLERC Philippe, op. cit., p. 133. 144 FSOA, Article 1(4) and (5). 145 CLERC Philippe, op. cit., p. 183. 146 Ibid.

24 its own dedicated Intergovernmental Agreement (IGA),147 France did not intend to be part of any other manned space program.148

In addition, commercial space launch services were also only focused on “placing unmanned spacecrafts in orbit”149 such as satellites and as such, the Act made sure to contain a cross- waiver of liability claims150 – a “widespread practice in the space sector”151 – in order to foster industrial incentives152 and to maintain an “independent and sustainable access to space”.153 While not causing trouble when applied to unmanned missions, this regime is deemed incompatible with the highest value afforded to natural persons – “being nonprofessionals or consumers”154 – by French Law notably.155

Additionally, because France is a functionalist State,156 the FSOA may be applicable to suborbital vehicles depending on the activity carried out. For instance, if the vehicle has for purpose to place a satellite in Low Earth Orbit (LEO).157 As such, the applicability of the FSOA is conditioned by a functionalist criteria, meaning that not every type of suborbital activity may fall within its scope.

To settle the gap, four years ago, a so called Task Force Suborbital Aircraft (SoA) has been appointed under the auspices of the State-Industry Coordination Committee for Space (COSPACE)158 with the objective to “clarify”159 amongst other things, which legal regime shall apply to this promising field. Composed of Government’s officials, the French Space Agency (CNES), the French Directorate General of Civil Aviation (DGAC), Industrials and Academia, the Group is working on an ongoing basis in order to promote a French position on suborbital flights and vehicles.

In conclusion, current national space laws in Europe definitely lack an element of certainty vis- à-vis their potential application to suborbital activities. In contrast to the legislative actions undertaken both in the United States and the United Kingdom, European Member States are deprived of a comprehensive answer on this topic at the moment. The conclusions that have been drawn in that respect show that suborbital activities are too specific to enable general space laws to regulate them. Regarding Spain, the work has been introduced before the Parliament

147 Agreement Among The Government of Canada, Governments of Member States of the European Space Agency, The Government of Japan, the Government of The Russian Federation, and The Government of The United States of America Concerning Cooperation on The Civil International Space Station, Signed at Washington on January 29, 1998 and Entered into Force on March 27, 2001. 148 CLERC Philippe, op. cit., p. 183. 149 Ibid., p. 184. 150 FSOA, Articles 19 and 20. 151 CLERC Philippe, op. cit., p. 217. 152 Ibid. 153 Ibid., p. 185. 154 Ibid., p. 184. 155 Ibid. 156 Ibid., p. 185. 157 Ibid., p. 186. 158 Comité de Concertation État-Industrie pour l’Espace. 159 CLERC Philippe, op. cit., p. 189.

25 more than four years ago but no progress has been done so far.160 To settle this gap, we should now envisage whether a legislative action at the European supranational level could be envisaged.

Section 2. The Difficulty of a European Harmonised Answer

As seen, it is difficult to envisage the inclusion of suborbital flights within the scope of the existing general national space laws. The existence of a consensus on the matter cannot even be envisaged at this stage. In order to try to settle this gap, we will first of all apprehend the meaning of the European Union’s space competence (Paragraph 1) before answering whether a harmonized answer could possibly be given at the supranational level (Paragraph 2).

The European Space Clause

Article 189 of the Treaty on the Functioning of the European Union (TFEU) – laid down in Title XIX on “Research and Technological Development and Space” – is written as follows:

Article 189

1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.

2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.

3. The Union shall establish any appropriate relations with the European Space Agency.

4. This Article shall be without prejudice to the other provisions of this Title.

160 MORO-AGUILAR Rafael, exchange of e-mails in June 17, 2019.

26 Article 189 TFEU is the so-called Lisbon Treaty’s “space clause”161 which formalizes the European Union’s competence in space.

In contrast to the European Space Agency (ESA) which is formally active in space since the mid-1970’s, the European Union’s policy did not have its proper legal basis to act within this field.162 As such, this is through a quite innovative approach that the EU used to informally address matters involving space capacities. Probably the most famous example is the Galileo Programme being based on the EU Trans-European Networks’ shared competence.163 The EU’s space involvement was therefore justified through (other) formally existing competences.164

While this space clause has to be seen as a great achievement in relation to the EU’s Space Strategy,165 the impact it may have – notably on the legislative side – may very well be limited, particularly in light of both the principles of subsidiarity166 and proportionality.167

According to Article 4 TFEU, the areas of research, technological development and space pertain to the area of shared competences between the EU and its Member States. Typically, a shared competence means that both the Union and its Member States “may legislate and adopt legally binding acts in [these] area[s]”168 and the latter “shall exercise their competence to the extent that the [former] has not exercised [hers]”.169 In other words, Member States cannot legislate individually if the competence to do so has been transferred to the EU and it is only in cases where the EU “has decided to cease exercising its competence”,170 that the Member States shall exercise theirs again.171

However, in those three areas, Article 4(3) TFEU says that Member States are not prevented to exercise their competence even if the Union has already started to intervene. In other words, Member States have not abandoned their competence in the domains of research, technological development and space to the profit of the Union and it seems that the latter is in fact confined

161 BÉCLARD Julien, The Lisbon Treaty and the Evolution of European Space Governance. Actuelles de l’IFRI, The Europe and Space Series, No. 12, 2013, p. 2. 162 Ibid., p. 1. 163 SCHMIDT-TEDD B., Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty. In: VON DER DUNK Frans G., National Space Legislation in Europe, op. cit., p 299. 164 Ibid., p. 300. 165 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Space Strategy for Europe, COM(2016) 705 final, 2016. 166 Treaty on the European Union (TEU), Article 5(3): “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”. 167 Ibid., Article 5(4): “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. 168 Treaty on the Functioning of the European Union (TFEU), Article 2(2). 169 Ibid. 170 Ibid. 171 Ibid.

27 to a level of supporting competence,172 if not even parallel173 to the action of its Member States which retain “sovereign discretion […] to implement their own national policies and legislations”.174

Particularly in the area of space, this assumption is further supported by Article 189 itself that explicitly excludes “any harmonisation of the laws and regulations of the Member States”,175 thus making even clearer that space is somewhat an “atypical”176 topic under the Treaty. In that sense, looking back at Article 189(1) further supports this assumption.177 The latter is only aimed at promoting, through a European space policy, the “scientific and technical progress, [the] industrial competitiveness and the implementation of [the Union’s] policies”.

Consequently, space is definitely “an atypical sub-category of […] shared competence”178 and other “regular”179 shared competences such as environment which use as a tool to achieve the Union’s policy are not sanctioned by a “non-harmonization clause”.180

As a consequence, the European Union undoubtedly has the competence to promote a Space Policy181 and a Space Programme182 which are however deprived of harmonizing legal effects. Because of this non-harmonisation clause, Member States codify their own – and possibly diverging – rules so as to ensure their compliance with their obligations stemming from International Space Law such as the authorization and continuous supervision of their non- governmental entities’ activities in accordance with Article VI OST.

Therefore, for everything falling under the scope of Article 189, Member States are free to move forward either individually or through an intergovernmental cooperating body such as the ESA, or even with third States.183 The consequence being that licensing conditions, information to provide upon registration, insurance policies and so on and so forth are deprived of any kind of approximation, in a field where comprehension and predictability of the law is key to ensure the safe management of the operations.

Consequently, the fragmentation in the regulatory frameworks across the European Union may not enable the Member States to move forward in the same direction and to propose a strong and unified position against competitive superpowers. Obviously, each State in the World

172 Ibid., Article 2(5): “In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas”. 173 SCHMIDT-TEDD B., op. cit., p. 301. 174 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 257. 175 TFEU, Article 189(2). 176 SCHMIDT-TEDD B., op. cit., p. 301. 177 Ibid., p. 304. 178 Ibid., p. 301. 179 Ibid., p. 306. 180 Ibid. 181 TFEU, Article 189(1). 182 Ibid., Article 189(2). 183 SCHMIDT-TEDD B., op. cit., p. 306.

28 enacts its space law according to its targeted space policy184 and this may be even truer in the European Union which is a “non-sovereign entity whose Members do not have the same priorities […]”.185 For instance, the Luxembourg’s Law on Space Resources186 is the only Act in Europe to set up a framework for this kind of activity whereas the French SOA is of a more traditional nature and reflects notably the French industrial capacity as the launcher of the Ariane rockets. The international obligations of the States are therefore translated at the national level but are driven by their own space priorities and industrial capacities.

A Less Restrictive Interpretation that does not Solve the Matter

As seen in Section 1 of this Chapter, the Member States’ regulatory frameworks for space activities are not fitted to suborbital activities. In addition, the European Union seems deprived of all its powers to approximate their national space laws to create a dedicated European legislation on this topic.

Still, some authors have chosen a less restrictive interpretation to Article 189 TFEU and believe that harmonization may not be so easily put aside, at least as long as Member States acting at their national level through their own legislative procedures, have not intervened in the field yet.187

According to this line of thought, a legislative intervention from the EU would be conditioned “to the extent in which Member States have already elaborated relevant domestic law on a [specific] issue of space activities”.188 As long as Member States would not have intervened in a specific field, the Union would be free to go to address for example licensing, liability, or insurance maters at the supranational level.189

Following this line of interpretation, one could argue that (commercial) manned private spaceflights are so different from unmanned spaceflights that Member States – apart from the United Kingdom – do not have a proper national space law dedicated specifically to this new kind of activity.190 But as the UK is about to withdraw from the Union, there will remain no Member State having its own legislation exclusively and substantially devoted to this topic, therefore allowing the EU to act in this field through a Directive or a Regulation, before any other Member State – such as Spain – does so. This of course would also depend on how we interpret the extent to which national space laws are applicable to private commercial manned suborbital flights. For example, as studied in Section 1 of this Chapter, the French SOA is

184 Ibid., p. 305. 185 DE MONTLUC Bertrand, What is the State of Play in European Governance Space Policy? Space Policy, Vol. 28, 2012, p. 74. 186 Loi du 20 Juillet 2017 sur l’Exploration et l’Utilisation des Ressources de l’Espace. 187 VON DER DUNK Frans G., ESA-EU Relations : The True Meaning of the Treaty of Lisbon in the Context of Regional Cooperation in Outer Space in Europe, 2014. 188 Ibid., p. 12. 189 Ibid. 190 Ibid.

29 applicable to space objects returning back to Earth, but the extent to which it may apply to suborbital vehicles is still uncertain. On the other hand, if Spain were about to enact its dedicated space law, this would equates to a legislative intervention from a Member State in that particular field, thus immediately precluding any EU intervention.

Following this interpretation, whenever the European Union would be authorized to enter the harmonizing field, many provisions could have an incidence on suborbital activities. The content of either a harmonizing EU Directive or Regulation on this topic might be manifold in that respect. The EU could either very well be satisfied with having its Member States’ licensing conditions for suborbital activities completely harmonized across the Union but still kept at the national level (first possibility) or go further by taking the lead on the licensing process, at the supranational level (second possibility).

This second possibility seems quite in line with the new EU Proposal for a Regulation Establishing the Space Programme of the Union and the European Union Agency for the Space Programme191 which reads in its Recital 7 that “the Commission should promote, alongside the Member States […] responsible behaviour in space and outer space and explore the possibility for accession to the relevant UN Conventions”.

We do not know yet the form such EU compliance with the United Nations’ Space Treaties could possibly look like but in line with the second possibility mentioned just above, one may imagine for example a compliance with Article VI of the Outer Space Treaty. In such case, a EU intervention would first of all define harmoniously what a suborbital activity is and would harmonize the licensing requirements for such activity across the EU. The continuous supervision of suborbital activities, as per the same Article VI could be handled by the European Union Agency for the Space Programme. The latter could also address the conditions relative to the maintenance of a spaceport, draw up harmonized safety and security standards and could create environmental practices. Insurance policies (what to ensure, for which amount…) could also be set up.

However, despite this ambitious – but very contestable – interpretation, it seems that even if Article 189 would authorize some sort of harmonization among Member States, such “top- down”192 intervention by the EU would not be the best approach since compliance by the Member States with the United Nations’ Space Treaties would probably be interfered with.193

For instance, Article VI of the Outer Space Treaty states that “when activities are carried on in outer space […] by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”. Concretely, this means that “even activities delegated to

191 Proposal for a Regulation Establishing the Space Programme of the Union and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, COM(2018) 447 Final, 2018. 192 SCHMIDT-TEDD B., op. cit., p. 312. 193 Ibid.

30 international organizations remain under the (co-)responsibility of the respective States”194 as Article VI primarily designates States as bearing international responsibility for their national space activities duly authorized and continuously supervised by themselves.195

Because “there are no space activities dissociated from a single State responsibility”,196 Article VI is thus explicit upon the fact that responsibility for national space activities is “non- transferable”,197 or at least entails the co-responsibility of the Union and its Member States.198 Therefore, it is doubtful that the Union would enter the suborbital field through the licensing of operations since Member States would remain responsible for the actions of the latter.199

Consequently, the harmonization prohibition laid down in Article 189 TFEU “is in line with the non-transferable State responsibility under Article VI of the Outer Space Treaty”200 as States seek to “secure compliance”201 by the organization with the Treaty.

It seems therefore that a legislative harmonizing action by the Union under Article 189 remains “theoretical”,202 if not even impossible, as Member States might be disturbed in fulfilling their international obligations. The improbability of this legislative action is further supported by the simple fact that the Union is not an outer space specialist. Past interventions in the field were all intrinsically linked to the logic of the single market with the objective of “overcoming deficiencies and barriers of the internal market”.203 In other words, the space side of the EU’s intervention is to be seen as a mean to achieve another policy and this is why we may not expect the EU to take the lead on licensing matters, neither at the supranational level (second possibility) nor through a harmonizing legal text (first possibility). Consequently, it seems that from a legal perspective, the EU’s outer space landscape will remain divided.204

To conclude, contemplating suborbital activities under the eye of Space Law – particularly in the European Union’s context – does not solve the issues at stake and even worse, may create some in addition. In the same vein, interpreting the letter of Article 189 TFEU is nothing easy and as such, different views are expressed on the topic. What can be consensually agreed however is that this limited space clause difficultly allows the EU to overcome national divergences in a field where cooperation is key. In order to emancipate from this regulatory deadlock, we will now envisage a different approach to regulate suborbital flights based on the type of activity carried out.

194 Ibid., p. 308. 195 Ibid., p. 313. 196 Ibid., p. 314. 197 Ibid., p. 309. 198 Ibid., p. 308. 199 Ibid., p. 309. 200 Ibid., p. 322. 201 HOBE Stephan, SCHMIDT-TEDD Bernhard, SCHROGL Kai-Uwe, GOH Gérardine Meishan, Cologne Commentary on Space Law, Volume 1. Carl Heymanns Verlag, 2009, p. 122. 202 VON DER DUNK Frans G., Article VI of the Outer Space Treaty ‘in the European Context’. Proceedings of the International Institute of Space Law, 2008, p. 550. 203 SCHMIDT-TEDD B., op. cit., p. 314. 204 VON DER DUNK Frans G., Article VI of the Outer Space Treaty ‘in the European Context’, op. cit., p. 550.

31 PART II – BEYOND THE HYBRID NATURE OF SUBORBITAL VEHICLES: AN ACTIVITY-BASED APPROACH

As observed in Part I, regulating suborbital flights’ operations under Space Law is a challenging task. States lack coordination among their national legal frameworks, which reflects their intention to regulate their own activities and priorities. Whereas “the exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […]”,205 it is undeniable that this area is becoming more and more challenged by competition issues where reaching a consensus is nothing easy.

Particularly, Space Law raises a considerable amount of legal issues when applied to suborbital flights. Dedicated legislations both in the United States and the United Kingdom have been passed while their existence is not even envisaged in the majority of other . This situation creates gaps, inconsistencies, varied solutions (if any), and will undoubtedly lead to problems in case where suborbital vehicles will cross national in the course of the same flight.

For these reasons, we believe that it is necessary to investigate further which legal regime should really govern suborbital flights according to a functional approach (Chapter 1). The extension of the rules on Air Traffic Management (ATM) will then be promoted in order to ensure the safe integration of suborbital vehicles’ activities within an already existing but extended system (Chapter 2).

Chapter 1. Different Legal Regimes Based on the Nature of the Activity

Back in the days, the launch of in outer space, despite the US’ frustration, did not lead to international protests because every nation was (implicitly)206 clear upon the fact that it constituted a space activity, carried out in the sovereignty free area of outer space.207

As mentioned earlier, suborbital vehicles are crossing two different spaces while performing their tasks. As a consequence, such feature is raising up again the delimitation debate because the legal regimes governing air space and outer space “contrast sharply”.208 As mentioned, while the Chicago Convention declares the “complete and exclusive sovereignty [of every State] over the airspace above its territory”,209 the Outer Space Treaty provides that outer space

205 Outer Space Treaty, Article I. 206 FREELAND Steven, Fly Me To The Moon: How Will International Law Cope With Commercial Space Tourism? Melbourne Journal of International Law, Vol. 11, Issue 1, 2010, p. 99. 207 GOEDHART Robert F.A., The Never Ending dispute: Delimitation of Air Space and Outer Space. Éditions Frontières, 1996. 208 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles. Journal of Space Law, Vol. 31, No. 1, 2005, p. 170. 209 Chicago Convention, Article 1.

32 is “free for exploration and use by all States”210 and “is not subject to national appropriation”211 by any means. The delimitation issue is in fact the consequence of these two distinguished international legal regimes212 and as such, this “boundary problem”213 is unsurprisingly brought back to light under the auspices of the spatialist theory.

However, the gap introduced by the lack of a legally defined between airspace and outer space has never raised concrete disputes among States.214 We will try to argue that the emergence of the suborbital industry may not necessarily change that situation.

The present work does not have the ambition, or at least the objective, to redraw sixty years of a long heated debate before the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) between spatialism and functionalism partisans nor it has the aim to answer whether there is a “present need”215 to trace a border. Rather, we will advocate that – despite the fact that suborbital vehicles operate in two different spaces – drawing a legal delimitation between the two is not necessarily a need in regard of this kind of activity.

We will first of all plead for the application of the functionalist doctrine in relation to suborbital activities (Section 1), before getting focused on the different legal regimes that come out of it (Section 2).

Section 1. Suborbital Flights in the Middle of a “Never Ending Dispute”

Spatialism and Functionalism are two schools of thought that intrinsically diverge. Whilst the arguments of the former will be refuted (Paragraph 1), the latter will be presented as a satisfactory doctrine in relation to suborbital flights (Paragraph 2).

Spatialism: The Unpragmatic Approach

The spatialist approach “favours the establishment of a demarcation line between air and outer space”216 and is strictly focused on the place where the activity is carried out to determine the law applicable to the activity.

The first issue attached to this doctrine is that Air Law has never provided a definition of the term airspace, at least of what it comprises and encompasses. Thus, we are not able to firmly

210 Outer Space Treaty, Article I. 211 Ibid., Article II. 212 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 170. 213 CHENG Bin, Studies in International Space Law. Clarendon Press, 1997, p. 425. 214 GOEDHART Robert F.A, op. cit., p. 6. 215 ODUNTAN Gbenga, The Never Ending Dispute: Legal Theories on the Spatial Demarcation Boundary Plane between Airspace and Outer Space, Hertfordshire Law Journal 1(2), 2003, p. 66. 216 GOROVE Katherine M., Delimitation of Outer Space and the Aerospace Object – Where is the Law? Journal of Space Law, Vol. 28, No. 11, 2000, p. 16.

33 affirm where does it end and consequently where outer space begins.217 The Australian’s recognition in 1998 of a border at 100 kilometres above the sea level218 is certainly not an insignificant step forward and surely represents a “national ”219 but this rule is actually not “crystallized”220 into Customary International Law as both State practice221 and opinio juris222 are lacking at the moment. It seems indeed doubtful that a single and unilateral answer to this issue can be equated to a so called practice of the States giving birth to a custom rule.223 Similarly, because of the “inconsistency”224 between the different States’ practices, “there is no general custom and hence no general customary rule”.225 The fact that some States even firmly reject the idea of setting up a border is indicative upon the fact that this delimitation is definitely not “accepted as law”,226 thus leaving aside any chance of an opinio juris on the matter. Because this “double requirement”227 – which is to be seen as “one of the best-established principles of International Law”228 – is not met, a legally defined border is not to be yet achieved.

It is true that a clear and legally defined border would simplify many aspects,229 the most obvious being the reach of a State’s sovereignty over its airspace. However, because of the “imprecise characteristics of the atmosphere”230 and while the 100 kilometers von Kármán’s line is often taken as the reference, there is no clear point where the Earth’s atmosphere ceases precisely.231

Regarding suborbital vehicles in particular, this would inevitably entail the application of two intrinsically different legal regimes – and their respective rules – to the same device, within the exact same flight. Aviation Law would apply to the lower phases of the flight whereas Space Law would be applicable to the upper phases of the flight. A considerable amount of legal issues related to the (double) registration of the vehicle, the responsibility and liability of either the

217 DIEDERIKS-VERSCHOOR I.H.Ph., KOPAL V., An Introduction to Space Law, Third Edition. Kluwer Law International, 2008, p. 15. 218 Australian Space Activities Act, No. 123, 1998. 219 SUNDAHL Mark J., Legal Status of Spacecraft. In: JAKHU Ram S., DEMPSEY Paul Stephen, Routledge Handbook of Space Law, op. cit., p. 54. 220 DUMBERRY Patrick, The Formation and Identification of Rules of Customary International Law in International Investment Law. Cambridge Studies in International and , Cambridge University Press, 2016, p. 31. 221 of the International of , Article 38(1)(b). 222 Ibid. To form a rule of Customary International Law, a State practice must also be “accepted as law”, meaning that States “adopt a consistent practice out of a belief or a conviction of their legal obligation to do so”. See: DUMBERRY Patrick, op. cit., p. 294. 223 DUMBERRY Patrick, op. cit., p. 131. 224 Committee on Formation of Customary (General) International Law of the International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law: Final Report of the Committee. Conference, 2000, p. 22. 225 Ibid. 226 Statute of the International Court of Justice, Article 38(1)(b). 227 DUMBERRY Patrick, op. cit., p. 31. 228 Ibid. 229 DIEDERIKS-VERSCHOOR I.H.Ph., KOPAL V., An Introduction to Space Law, op. cit., p. 16. 230 BALLESTE Roy, Worlds Apart: The Legal Challenges of Suborbital Flights in Outer Space. Journal of International Law and Politics, Vol. 49, 2017, p. 1047. 231 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 49: “The atmosphere is a relatively thin layer of gas surrounding the Earth, kept in place by the Earth’s gravitational field, whose density decreases with height”.

34 airline or the State before the passengers, as well as insurance matters, or even the status of the vehicle itself would arise and would eventually amount to the exact opposite of the legal certainty sought by the spatialists.

Along the same lines, it seems inconceivable to qualify the nature of the craft as either an aircraft or a spacecraft depending of its operational altitude. From a purely technical point of view, orbiting around a celestial body is not only a matter of altitude, but is also – and is in fact primarily – a “matter of velocity”.232 In other words, the fastest the object is orbiting, the lowest its altitude will be. Thus, it would be quite imprecise to rely solely on the altitude considering that it is primarily the speed that determines whether or not the device will orbit.

Therefore, the “localization”233 of the object cannot be the relevant criteria to determine the law since it leaves aside the reality of the activity. For instance, a vehicle operating at 700 kilometres above the sea level can be qualified as suborbital if it does not satisfy a full Earth’s orbit.234 Performing at least one revolution “around an attracting centre of mass”235 is indeed the relevant criteria to be qualified as orbital. Uncommonly speaking, we may say that everything that is not travelling on an orbital trajectory is suborbital, whatever its altitude.236

Consequently, the spatialist doctrine and its associated demarcation line are not very well-fitted to answer the suborbital problematic. Its opposite cousin, the functionalist doctrine, should therefore be envisaged.

Functionalism: The Satisfactory Solution

The functionalist theory, on the other hand, “is less concerned with physical factors”237 and promotes the activity carried out by an object as the basis for the determination of the applicable legal regime.238 In other words, functionalists look “at the functions of a particular operation”,239 non-regarding of where it actually takes place. Therefore, one may ask which type of mission is carried out by the object involved (aircraft versus spacecraft)240 and either Air Law or Space Law will consequently apply on the basis of that criteria.241

232 SGOBBA Tommaso, KEZIRIAN Michael, Commercial : What Regulation? Journal of Space Safety Engineering, Vol. 3, No. 1, 2016, p. 5. 233 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 172. 234 SGOBBA Tommaso, KEZIRIAN Michael, Commercial Human Spaceflight: What Regulation? Journal of Space Safety Engineering, Vol. 3, No. 1, 2016, p. 5. 235 Encyclopaedia Britannica, definition of Orbit: https://www.britannica.com/science/orbit-astronomy. 236 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 265. 237 LYALL Francis, LARSEN Paul B., Space Law: A Treatise. Routledge, 2009, p. 169. 238 DIEDERIKS-VERSCHOOR I.H.Ph., KOPAL V., An Introduction to Space Law, op. cit., p. 85. 239 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 87. 240 HOBE Stephan, Legal Aspects of Space Tourism. Nebraska Law Review, Vol. 86, Issue 2, Art. 6, 2007. 241 SUNDAHL Mark J., op. cit., p. 55.

35 A right starting point in approaching suborbital activities under the functionalist doctrine is to look at the definitions provided by the International Association for Advancement of Space Safety (IAASS):

- “Suborbital flight: A flight up to an altitude at which the vehicle does not reach orbital velocity”,242 therefore re-entering the Earth’s atmosphere “before achieving orbit around the Earth”,243 or in other words, without achieving “orbital insertion”.244

- “Suborbital vehicle: Any vehicle conducting suborbital flights per the definition above; this includes Reusable Launch Vehicles (RLV) and Suborbital Aircraft (SoA)”.245

This approach is very interesting as it is foreign to any boundary problem and gets rid of a political and “never ending dispute”246 which interferes with the work of the UN COPUOS for sixty years now.

Finally, functionalism – in complete opposite to spatialism – entails the application of a single legal regime to the same flight. It brings a considerable amount of legal certainty as passengers can expect to be governed exactly the same regardless of the position of the vehicle.

In conclusion, functionalism will be the governing principle throughout this work and its application will be ruled by a technology neutral approach. In other words, we believe that the legal qualification shall rely only on the type of activity carried out, non-regarding the technical features that may diverge between different vehicles.

Whether the vehicle is taking-off horizontally or vertically, whether it is launched from the ground or from a carrier aircraft, whether it is rocket-propelled or supported by the Earth’s atmosphere during its ascending phase, whether it glides within the Earth’s atmosphere when coming back or not, and whether it is winged or not, the same regime shall apply to different vehicles’ designs performing the same activity.

242 IAASS, Safety Design and Operation of suborbital vehicles guidelines, October 7, 2015. 243 DEMPSEY Paul S., MANOLI Maria, Suborbital Flights and The Delimitation of Air Space Vis-À-Vis Outer Space: Functionalism, Spatialism and State Sovereignty. A Submission to the United Nations Office of Outer Space Affairs by The Space Safety Law & Regulation Committee of the International Association for the Advancement of Space Safety, 2017, p. 18 244 Ibid. 245 Ibid. 246 GOEDHART Robert F.A, op. cit., p. 6.

36 Section 2. Navigating through the Legal Regimes

A considerable amount of literature has already been dedicated to suborbital flights. While opinions obviously diverge on the topic, a regrettable assimilation of every type of suborbital activities under the same roof always surfaces.

Instead, we believe that the notion of suborbital flight is a generic and catch-all term that covers a whole range of different activities. From the broad category of “private commercial manned spaceflight”247 – encompassing both Space Tourism and Point-to-Point Transportation from one place of the globe to another – to scientific space missions carried out onboard these vehicles.

Put differently, the term suborbital encompasses a wide panel of different activities to which a functional approach suggests the application of one dedicated legal regime per type of activity carried out. Thus, the purpose of the flight shall be the basis to qualify the nature of the activity and therefore the applicable legal regime.

While the vehicles may be similar, transporting passengers from one to another (Paragraph 1) is not the same activity than carrying scientific experimentations onboard such vehicle (Paragraph 2), which is not the same activity than performing a parabolic flight for leisure purpose (Paragraph 3). In brief, to a particular activity shall correspond its own appropriate legal regime.

As a reminder, the approach undertaken will be neutral vis-à-vis the technology employed and will not have an influence on the determination of the legal regime. Only the purpose of the flight will be taken into account as the relevant criteria.

Point-To-Point Transportation: The Realm of Air Law

This particular type of suborbital activity is probably the most ambitious and challenging as it has the ambition to revolutionize the commercial air transportation that we know today. The goal is to transport passengers from one point on the globe to another in less than one hour through a transit in outer space enabling to reach very high velocities thanks to the almost total absence of terrestrial atmosphere.

It is important to note that the unformal notion of space tourism will not be mentioned at this point since the latter focuses on a person’s “motivation”248 to participate in a flight. In contrast,

247 VON DER DUNK Frans G., Beyond What ? Beyond Earth Orbit?…! The Applicability of the Registration Convention to Private Commercial Manned Sub-. California Western International Law Journal, Vol. 43, No. 2, 2013, p. 270. 248 VON DER DUNK Frans G., Space Tourism, Private Spaceflight and the Law: Key Aspects, op. cit., p. 147.

37 Aviation Law is unconcerned by that criteria.249 In a commercial flight, everyone has indeed the status of passenger and is treated the same.250

Also, attention will be given only to international flights, where the departure and arrival points are located in two different jurisdictions, thus involving – depending on where the landing State is located – the overflight of potentially several foreign airspaces,251 before landing abroad.

Legally speaking, this scenario implies to consider outer space only as a mean to achieve ultra- fast transportation of passengers from one point of the globe to another. In other words, the aim of the flight in certainly not to reach outer space but to achieve safely an “Earth-to-Earth”252 travel. Consequently, the space-part of the trajectory is accessory and is “more […] a helpful incident than a main target or a crucial element of the flight”253 whereas the presence in the airspace is really substantial to the flight and is not limited to crossing the different layers of the Earth’s atmosphere during the ascending phase but also and primarily concerns both the overflight of foreign airspaces and the landing abroad.

For these reasons, our functionalist viewpoint orients us towards the application of Aviation Law to regulate this activity dedicated to the international transportation of passengers. Consequently, the vehicle involved will be qualified as aircraft, in accordance with the definition provided in Annex 7 to the Chicago Convention. The latter qualifies as aircraft “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface”.

We will first of all focus on the interest of this approach from a State’s sovereignty perspective (A), before envisaging the legal protection it provides to passengers (B). Finally, we will envisage how the evolving nature of Aviation Law may be suitable to integrate suborbital flights under its realm (C).

A. The Imperative Guarantee to the States’ Sovereignty

Every type of suborbital vehicle – either launched from the ground, from a sea launch platform, or from an airborne launch system – is reaching outer space in a vertical fashion, as soon as the rocket-propelled engine is turned-on. Thus, the ascending phase should not lead to the crossing of foreign airspaces.

249 Ibid. 250 Ibid. 251 This situation is qualified by the Chicago Convention as an “International Air Service” and corresponds to “an air service which passes through the airspace over the territory of more than one state”. An “Air Service” is defined by the same Article as a “scheduled air service performed by aircraft for the public transport of passengers, mail or cargo”. 252 DEMPSEY Paul S. et al., Suborbital Flights and The Delimitation of Air Space Vis-À-Vis Outer Space, op. cit., p. 11. 253 VON DER DUNK Frans G., The Integrated Approach – Regulating Private Human Spaceflight as a Space Activity, Aircraft Operation, and High-Risk Adventure Tourism. Acta Astronautica, Vol. 92, 2013, p. 200.

38 Therefore, what really raises most of the concerns is not so much the ascending phase but rather the whole returning phase since these vehicles may cross different sovereign airspaces in a very low timeframe,254 before landing in a foreign jurisdiction. For instance, when the 80-ton-heavy Russian’s space shuttle BURAN came back to Earth on November 15, 1988, it overflew several North-African and European countries in the course of its re-entry path before landing in Baikonur, at high Mach numbers.255

Without getting back to the delimitation question between air and outer space, a point-to-point transportation vehicle will, similarly as the BURAN, overfly national and sovereign territories at a low altitude when coming back and will unquestionably enter at some point within their controlled airspace.

Because airspace sovereignty is “one of the cardinal principles of State theory”,256 where the “exclusive, supreme and inalienable legal authority”257 of the latter “to exercise [its legislative, and ] powers within [its] area of governance”258 is indisputably recognized among States, we can imagine how dramatic would be the issue of a vehicle crossing the sovereign airspace of a State that does not legally recognize – and thus, has not allowed – this activity. An obvious worst case scenario would be the destruction of the craft by the overflown State’s Air Forces due to an alleged airspace violation. In that sense, it has to be noted that unauthorized overflight of foreign territories is indeed recognized by the International Court of Justice as an infringement of the principle of respect for territorial sovereignty.259

Inversely, unharmonized controls between States that do recognize the existence of point-to- point transportation activities may very well lead to a duplication and overlapping260 air traffic controls, thus involving unwelcomed additional burdens for all the people involved in the flight safety.261

Due to these features, this category of suborbital activity would be therefore best regulated by International Aviation Law, which recognizes that “every State has complete and exclusive sovereignty over the airspace above its territory”262 and which is at the same time completely familiar with the two above-mentioned problematics (overflying foreign territories and landing abroad).

254 BENKÖ Marietta, PLESCHER Engelbert, Space Law, Reconsidering the Definition/Delimitation Question and the Passage of Spacecraft through Foreign Airspace. Essential Air and Space Law, Eleven International Publishing, 2013, p. 4. 255 Ibid., pp. 19-20. 256 KAISER Stefan A., Sovereignty in the Air: From National Security to the Single European Sky. Annals of Air and Space Law, Vol. 35, No. 1, 2010, p. 154. 257 Ibid. 258 Ibid. 259 International Court of Justice, Nicaragua v. United States of America. Judgement of 27 June 1986. 260 International Academy of Astronautics (IAA), Cosmic Study on Space Traffic Management, 2006, p. 50. 261 Ibid. 262 Chicago Convention, Article 1.

39 At stake is of course the safety and security of the flights. If States come to an agreement on the basis of Aviation Law with the grant of traffic rights through bilateral263 or multilateral264 Air Transport Agreements,265 destruction of vessels due to a lack of consensus on the topic will be avoided, as well as collisions due to a lack of communication between the aircraft and the Air Traffic Control (ATC) on the ground.266 There are indeed no right of innocent passage per se nor a supposedly “Freedom of the Air”267 in Public International Aviation Law. The Chicago Convention is indeed clear upon the fact that “no scheduled international air service may be operated over or into the territory of a contracting [sovereign] State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization”.268 Only agreements reached between States can solve this issue and because authorisations to be overflown are a matter perfectly known in Aviation Law, this supports its application to point-to-point activities.

From a technical perspective, it should also be noted that suborbital vehicles are very un- manoeuvrable. Deviation from the intended landing point is therefore not conceivable in contrast to aircrafts which can change direction whenever asked by the air traffic controller. The “predictability of the ballistic trajectory”269 is therefore of utmost importance. As we will see in Chapter 2 infra, this goes along with a developing European Air Traffic Management System which, if made applicable to suborbital flights, will allow for such greater predictability.

For the time being however, we will take the argument the other way around and try to demonstrate the incompatibility of Space law in governing this transport activity.

B. Avoiding Conflicts with Outer Space Law Provisions

Passengers embarking onboard a point-to-point suborbital vehicle, similarly as within a civil aircraft, are certainly not seeking thrills and risks. While travelling more rapidly, what they want above all is safety and security, as well having their rights recognized and enforced in case where an ill-fated accident happens.

With a view to develop this means of transport on a daily routine with several flights scheduled per day, it is of utmost importance to protect passengers and to guarantee them enforcement rights against the carrier. These two objectives are however not appropriately dealt with by Space Law (1). In relation to point-to-point flights, this regime will also unfairly calls for the States’ international responsibility and liability (2).

263 KAISER Stefan A., Sovereignty in the Air, op. cit., p. 164. 264 Ibid. 265 SALAZAR Juan Carlos, VAN FENEMA Peter, International Air Transport Agreements. In: DEMPSEY Paul Stephen, JAKHU Ram S., Routledge Handbook of Public Aviation Law. Routledge, 2017, pp. 252-294. 266 KAISER Stefan A., Sovereignty in the Air, op. cit., p. 168. 267 MENDES DE LEON Pablo, Introduction to Air Law (Tenth Edition). Wolters Kluwer, 2017, p. 59. 268 Chicago Convention, Article 6. 269 MARCIACQ Jean-Bruno, MORIER Yves, TOMASELLO Filippo, ERDÉLYI Zsuzsanna, GERHARD Michael, Towards Regulating Sub-Orbital Flights: An Updated EASA Approach. Sixty-first International Astronautical Congress, Prague, CZ, Paper No. IAC-10-D2.9.5, 2010, p. 15.

40 Space Law: A State-Oriented Approach…

Because individuals are not the primary concern of Space Law (a), their right to bring a claim in case of accident is far from being guaranteed (b).

a) The Status of Passenger: A Lacking Notion in International Space Law

International Space Law is completely unaware of the notion of passenger and is in fact primarily concerned with the safety of third persons on the ground or flying onboard aircrafts.270 In outer space, only the presence of astronauts271 and personnel of a spacecraft272 is indeed recognized by the space Treaties.

In fact, the legal regime of outer space was at the origin linked to activities of an exceptional character, carried out by so called “envoys of mankind”273 in a non-sovereign area, “free for exploration and use by all States […]”.274

A slight exception – so to speak – may be found in the International Space Station (ISS) Crew Criteria Document275 which lays down some rules for spaceflight participants276 embarking onboard the Station. However, those rules principally concern the participants’ selection process,277 the prerogatives attached to their status278 and the training programme prior to their journey.279

Whether private passengers travelling from one terrestrial place to another correspond to either the definition of or personnel of a spacecraft is doubtful especially since the status of envoys of mankind – to which astronauts are attached according to Article V of the OST – relates more to a “diplomatic envoy”,280 composed by professionals responsible for the safety of the spacecraft and accredited by their respective governments to conduct their activities for the benefit and in the interest of all countries.281

270 Liability Convention, Article II: “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”. 271 Outer Space Treaty, Article V. 272 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968, Article 1. 273 Outer Space Treaty, Article V. 274 Ibid., Article I(2). 275 Principles Regarding Processes and Criteria for Selection, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers. 276 Ibid., Article III: “Spaceflight participants are individuals (e.g. commercial, scientific and other programs; crewmembers of non-partner space agencies, engineers, scientists, teachers, journalists, filmmakers or tourists) sponsored by one or more partner(s). Normally, this is a temporary assignment that is covered under a short-term ”. 277 Ibid., Article IV. 278 Ibid., Article V. 279 Ibid., Article VI. 280 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 1, op. cit., p. 98. 281 Ibid.

41 Still, due to the nature of the which is “prompted by sentiments of humanity”,282 if this Text were to apply following the accident of a point-to-point vehicle, one may expect to see everyone rescued, and not only the crew members.283 But this is only in theory.

To avoid any lack of clarity and to guarantee legal certainty, the regime of International Space Law should be avoided in that respect. Particularly, because the status of passengers is not clearly defined under this regime, their right to bring a liability claim seems quite compromised.

b) The Incompatibility of Space Law with Passengers’ Claims

“The scope of the [Liability] Convention is to regulate international State to State liability by introducing a mechanism for compensating victims through their own State which presents claims on their behalf [to the launching State]”.284 In other words, claims by individuals directly under the Liability Convention are excluded and only States can claim for damages before their peers.285

Consequently, Article VIII(1) of the Convention provides that “a State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage”. Thus, Article VII(a) of the Convention explicitly rejects direct claims by nationals of the launching State as they are supposed to introduce an action before the national courts of that State.

In case where the accident is caused by a launching State to the nationals of a foreign State, the solution is similar286 as long as they were “participating in the operation of [a] space object from the time of its launching or at any stage thereafter until is descent […]”.287 Because the point-to-point vehicle would be considered as a space object if Space Law were to apply, a passenger “participating in [its] operation” would therefore not be covered by the Convention.

Therefore, these two categories of individuals would have to invoke the national law of the launching State to have their claim settled. However, the level and scope of protection granted at the national level in that respect may very well be different from one State to another.288 Finally, in case where the accident is caused by a launching State to foreign nationals being in their home country – for example in case of falling space debris – because of the “State-oriented approach”289 of the Liability Convention, it will be up to the State to which belongs these

282 Rescue Agreement, Preamble. 283 FREELAND Steven, Fly Me To The Moon […], op. cit., p. 104. 284 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 2, op. cit., p. 152. 285 SIKORSKA Paulina E., The Mission (Im)Possible: Towards a Comprehensive Legal Framework Regulating Safety Issues of Point to Point Suborbital Flights. Jurisprudencija, Vol. 21, No. 4, 2014, p. 1071. 286 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 2, op. cit., p. 152. 287 Liability Convention, Article VII(b). 288 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 2, op. cit., p. 153. 289 FREELAND Steven, Fly Me To The Moon […], op. cit., p. 106.

42 victims to introduce a claim through diplomatic channels. This of course, is a matter of “political will”290 of the State to engage in such battle. This situation is obviously completely detrimental to the protection of the victims and in case where the suing State is granted damages, it is not even sure that those will be allocated to the individual victims afterward.

In addition, the Liability Convention only provides a fault liability regime for damages caused in outer space291 whereas “for damages caused […] on the surface of the Earth or to an aircraft in flight”,292 the liability is absolute. In the light of the expected growth of manned suborbital flights and the potentiality of damages caused to them directly in outer space, it would be completely inexplicable to protect the victims differently based on the sole criteria of where the accident happened.

Ultimately, the launching State – and not the carrier – would be liable before another State – and not before a passenger or his or her family – for the damage that occurred, without the latter being able to claim anything against the carrier under the Liability Convention.293 Only the launching State which has been held liable would then be able to introduce a recovery action against the carrier, if provided by its national space legislation.294

To conclude, under the Liability Convention, the carrier would not be the one primarily liable. Even if it has to reimburse the State under a Government’s recourse action for indemnity, the damages would not be addressed to the passengers and their families. The question whether the indemnified State would then compensate them with the money recovered is far from being certain. An alternative would be for the passengers to bring an action for damages arising out of a contract between them and the carrier before their national courts but the level of protection may very well depend from one jurisdiction to another. Contrary to Aviation Law and its Montreal Convention,295 there is indeed no level of harmonization on that matter in Space Law. A company operating vehicles aimed at transporting civilians on a daily basis cannot simply be exempted from its liability, nor the passengers be subject to different levels of protection depending on the jurisdiction where they introduced their actions.

Applying Aviation Law to point-to-point transportation of passengers is also aimed at avoiding the launching State fourfold qualification under the Liability Convention.296 In a scenario where a craft manufactured by a French company (France), operated by a British carrier (United Kingdom) and departing from New York (United States), three States would potentially be liable under Space Law. The Liability Convention – taking into account the expected high frequency of flights – thus leads to complications in recovery actions as it creates additional

290 Ibid., p. 107. 291 Liability Convention, Article III. 292 Ibid., Article II. 293 SIKORSKA Paulina E., The Mission (Im)Possible, op. cit., p. 1071. 294 SMITH Lesley Jane, Taking a Stance: Managing Liability for Commercial Space Activities. In: WOUTERS Jan et al., op. cit., p. 36. 295 Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on May 28, 1999, ICAO Doc. No. 4698. 296 Launch, Procure, Territory, Facility.

43 layers in the liability chain. Such situation may very well lead to diplomatic tensions between the three launching States – particularly in light of Article V(2) of the Liability Convention297 – to the detriment of the individual victims.

Space Law is therefore unpractical and even incompatible with point-to-point civil transportation. This regime also brings its share of unfeasibility.

… That Unfairly Calls their International Responsibility and Liability

The corollary of this State-oriented approach envisaged by the Outer Space Treaty (Article VI and VII) and the Liability Convention, if applied to this type of activity and in addition to the lack of protection they provide to passengers and their families, will also unfairly call the State’s international responsibility and liability in case of accident.

Article VI of the Outer Space Treaty calls for the international responsibility of States for their national activities carried out in outer space while Article VII, further developed by the Liability Convention, introduces the international liability of a launching State for a damage298 caused by its space object “on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.299

As already seen, with the ratification of these two Texts, States have formally accepted such conditions at a time where space activities were exclusively carried out by sovereign powers and were still of an exceptional nature. However, the increased participation of non-State actors in outer space goes along with an increased pace in space operations, obliging States to enact their own space legislations to answer to these challenges.

Space activities and civil aviation are distinguishable in many aspects, particularly on both the safety and predictability sides where the latter benefits from more than a hundred years of expertise in regulating commercial air flights. Despite the stated goal to get as close as possible from the civil aviation safety standards, it seems out of the question to put a Sword of Damocles above the head of a State for each and every suborbital flight that will be taking-off; particularly in light of the objective to become a mass transportation industry.300 By analogue means, the eventuality of States being eager to pay damages for each and every air flight currently happening is doubtful; the daily flow is just too high for that.

297 Liability Convention, Article V(2): “A launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching”. 298 Ibid., Article I(a): “The term “damage” means loss of life, or other impairment of health; or loss of or damage to of States or of persons, natural or juridical, or property of international intergovernmental organizations”. 299 Outer Space Treaty, Article VII. 300 SIKORSKA Paulina E., The Mission (Im)Possible, op. cit., p. 1071.

44 Thus, this would be contrary to the nature of Space Law to govern activities dedicated to the transport of a high flow of passengers just as it would be contrary to the nature of Aviation Law to oblige States to assume the liability of the air carriers.

Rather, a strong and very well designed civil aviation regime which is primarily dedicated to the safety of the persons is already in place and seems ready to host within its realm this new generation of flights.

C. The Evolving Nature of Aviation Law

In addition to the strong guarantees it provides to States’ sovereignty and to passengers’ protection, the aviation regime offers a high level of safety to the aircrafts involved, particularly in the European Union (1). An update of technical definitions may however be envisaged to avoid a regulatory gap (2).

A Certification Basis to Guarantee the Overall Safety

Under , civil aviation is part of the shared competence Transport, which enables “the Union and the Member States [to] legislate and adopt legally binding acts in that area”.301

The legal basis for the European Union to intervene in the field of air transport is Article 100(2) TFEU which says that “the European Parliament and the Council […] may lay down appropriate provisions for sea and air transport”. The so called Basic Regulation 2018/1139302 is the main harmonizing tool in that respect.

Contrary to space, EU Aviation Law is therefore almost completely harmonized. In this particular field especially, the extent to which the latter is exercising its competence is far reaching and is part of the so called EU Acquis Communautaire. If the EU were to legislate on the topic of suborbital point-to-point transportation, the latter would become integrated into an almost fully harmonized system of law, characterised by a very high degree of safety and efficiency.

Particularly when it comes to the safety of the aircraft involved, the European Union Aviation Safety Agency (EASA) is competent “to establish and maintain a high uniform level of civil

301 TFEU, Article 2(2). 302 Regulation 2018/1139 of the European Parliament and of the Council of 4 July 2018 on Common Rules in the Field of Civil Aviation and Establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.

45 aviation safety in the Union”.303 To achieve this mandate, the EASA is granted “regulatory powers”304 to certify the aircrafts.

As such, the Agency is competent to issue Certification Specifications (CS)305 which are technical standards deriving “from long-standing aviation experience”306 and which are aimed to comply with the Basic Regulation requirements.307

Alongside, the Agency is the sole competent to issue Type Certificates (TC)308 aimed at attesting “that the design of a product complies with its individual certification basis”.309 This step corresponds to the certification of the aircraft design. The issuance of a TC is the result of strict technical investigations carried out by the Agency.310 When the TC is emitted and when an individual aircraft conforms to the design approved by the Agency, a Certificate of Airworthiness is issued at the national level.311 This is under this twofold requirement that an individual aircraft can fly.

The advantage of this aviation approach over the space one is that the aircraft safety is fully guaranteed when the certification process is achieved. The outer space law licensing regime in contrast focuses on the license granted to the operator and the space operation but “does not affect directly spacecrafts and manufactures”.312 The vehicle is not in itself the main concern of the space licensing process since it is primarily designed to ensure the safety of the uninvolved third parties, on the ground and in the airspace.

The sake of this approach also lies in the fact that it is believed that the EASA could develop a proper certification regime fitted to suborbital vehicles. This depicts the fact that aviation organizations do not fear the evolutions of a challenging domain where technological progresses must be integrated into an already existing regime. We will see in more detail in Part III infra how the EASA would and should act in this respect.

Of course, the implication of the Air Law regime and its competent Institutions is conditioned by the fact that the crafts involved are qualified as aircraft. As we will see below, most of the suborbital vehicles do comply with that definition but probably the most evolutionary approach would be to redefine the concepts to make sure that every craft involved in international civil point-to-point transportation in the future will fall under the same Air Law regime.

303 Ibid., Article 1(1). 304 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., p. 329. 305 Regulation 2018/1139, Article 76(3). 306 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 274. 307 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., pp. 329-330. 308 MARCIACQ Jean-Bruno, MORIER Yves, TOMASELLO Filippo, ERDÉLYI Zsuzsanna, GERHARD Michael, Accommodating Sub-Orbital Flights Into the EASA Regulatory System. In: PELTON Joseph N., JAKHU Ram S., Space Safety Regulations and Standards, pp. 187-212. Elsevier, 2010, p. 191. 309 Ibid. 310 Ibid., p. 193. 311 MARCIACQ Jean-Bruno, MORIER Yves, TOMASELLO Filippo, ERDÉLYI Zsuzsanna, GERHARD Michael, Towards Regulating Sub-Orbital Flights: An Updated EASA Approach. Sixty-first International Astronautical Congress, Prague, CZ, Paper No. IAC-10-D2.9.5, 2010, p. 6. 312 CLERC Philippe, op. cit., p. 187.

46 Redefining the Notion of Aircraft?

As mentioned, Aviation Law applies when an aircraft comes into play. In that sense, we recall Annex 7 to the Chicago Convention which defines the latter as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface”. One may understandably raise the point that since suborbital vehicles are rocket-propelled in their ascending phase, they do not “derive support in the atmosphere from the reactions of the air”. This would however leave aside an important feature of the descending phase where, as a matter of fact, these vehicles glide within the Earth’s atmosphere. Literally speaking, Annex 7 is only focused on their capacity to be aerodynamically sustained in the Earth’s atmosphere and not on their actual use of that feature.313 The use of the word “can” is straightforward in that respect.314 Consequently, “suborbital aeroplanes generating aerodynamic lift during the atmospheric part of their flight are considered to be aircraft”315 and “the fact that for some time, after ignition of the rocket engines, the vehicle does not derive support from the reaction of the air, does not exclude the vehicle from being considered [as such]”.316

For the time being, and from what we are aware of, all suborbital vehicles currently under development present that feature and therefore correspond to the definition of aircraft. In their ascending phase, they are supported by rocket-power and use thrust “to fly in higher altitudes”.317 They behave as a rocket to escape from the deepest layers of the Earth’s atmosphere. When coming back, they are using lift in the air. As such, there would not be “major obstacles”318 to incorporate them within the definition of aircraft since the latter do not become rockets simply because of their mode of propulsion.319

Taking into account our technology neutral approach, an issue may arise however when the technology will allow for fully rocket-propelled vehicles that both take-off and land vertically, which do not glide within the atmosphere when coming back, and are not deriving support from the air. Would they become space objects simply because they do not correspond anymore to the technical notion of aircraft?

We support the idea that the “simplest”320 way to apprehend that situation would be for the ICAO to redefine alongside the notion of aircraft a more encompassing concept of aerospace vehicle321 where suborbital vehicles that do not derive support from the Earth’s atmosphere but

313 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 269. 314 VON DER DUNK Frans G., Beyond What ? Beyond Earth Orbit?…!, op. cit., p. 272. 315 MARCIACQ Jean-Bruno et al., Towards Regulating Sub-Orbital Flights: An Updated EASA Approach, op. cit., p. 1. 316 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 269. 317 Ibid. 318 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 185. 319 MARCIACQ Jean-Bruno, exchange of e-mails in July 25, 2019. 320 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 62. 321 Ibid.

47 are aimed at transporting passengers would be included.322 This would allow for a broader reach of the ICAO’s competences over such objects as well as an EASA’s extended mandate to certify them. In order not to jeopardize the applicability of the notion of aircraft to those vehicles that really derive support from the air reactions, the new definition of aerospace vehicle would have to be indeed implemented alongside the former.

This new definition would be focused only on the capacity of a vehicle to navigate within two different and distinct spaces, without relying anymore on technical issues such as the ability of a vehicle to glide within the Earth’s atmosphere. The “purposes or effects of [a] vehicle, instead of [its] aerodynamic and physical properties”323 become therefore the relevant criteria and enable the technology to evolve in a safe regulatory environment without being stifled by aging definitions. Scholars have proposed very interesting definitions in that respect and one in particular should be highlighted: “Any machine that takes passengers, cargo, or both from one point on the Earth to another without making an orbit of the Earth”.324 This definition gets completely rid of technical characteristics and only focus on the purpose of the mission. From a functionalist theory, we may thus even shift to an effective325 one which recognizes that when the “purpose or effect [of the vehicle] is that of an aircraft, it should conform to the regime of Air Law”.326

The goal of that approach is to apply the same rules of air safety and air navigation to vehicles carrying the very same activity,327 despite their conceptual differences. We believe it would be a nonsense to apply a different legal regime to vehicles which purpose is to accomplish the exact same mission simply because of different technical features. As already discussed at the beginning of this Section, the activity must really be the determining factor in the determination of the law applicable and not the technology employed.

Annex 7 to the Chicago Convention is already not limited to civil transport aeroplanes328 as those manufactured by Airbus or Boeing. Are deemed to be aircraft gliders, balloons, helicopters, ornithopters, rotorcraft and gyroplanes. At the EASA level, those “are [already] subject to EASA common rules for airworthiness”.329 As we can see, there is no need to be winged to fall into the aviation regime but just to be sustained in the atmosphere “from the

322 DEMPSEY Paul S., MANOLI Maria, Suborbital Flights and The Delimitation of Air Space Vis-À-Vis Outer Space, op. cit., p. 35. 323 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 186 324 Ibid. 325 Ibid., p. 177. 326 CHRISTOL Carl Q., Legal Aspects of Aerospace Planes. In MENDES DE LEON Pablo, CHENG Chia-Jui, The Highways of Air and Outer Space Over Asia. Nijhoff Publishers, 1991, p. 87. 327 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 62. 328 Annex 7 to the Chicago Convention, definition of Aeroplane: “A power-driven heavier-than-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight”. 329 MARCIACQ Jean-Bruno et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 191.

48 reactions of the air”.330 For those vehicles that cannot and which are neither purely aircrafts nor purely space objects, the proposed definition of aerospace vehicle could settle this gap.331

In that sense, redefining the concepts as the technology evolves is part of both the ICAO and EASA work.332 In 1967,333 the concept of aircraft – created by the ICAO itself334 – has been redefined “to exclude all air cushion type vehicles”.335

To illustrate this, the German Aviation Act states that rockets and spacecrafts are deemed aircrafts while in the airspace336 while the Canadian Aeronautics Act goes even a step further by including “rockets” in its definition of “aircraft”.337 Finally, the late US Air Commerce Act of 1926 used to define an aircraft as “any contrivance now known or hereafter invented, used or designed for navigation or flight in the air”.338

In conclusion, the functional approach – or its sibling the effective one – imposes embracing definitions especially since the Chicago Convention is neither focused on “how the vehicle traverses the air”339 nor on a “specific type of vehicle”340 but rather on States’ sovereignty and overall safety.341 In other words, that Treaty “was not meant to be frozen in time”.342

Public safety and predictability of both the passengers and the industry are at stake in choosing the right legal regime to govern point-to-point transportation activities. Giving mandate to aviation is a way to secure a strong answer on this topic. Especially since this particular type of flights will be crossing multiple airspaces and will land abroad, the interests are high in having harmonized standards and legislations across the globe.343

We will now envisage scientific suborbital space missions as well as the delivery into orbit of satellites through the use of suborbital vehicles behaving as launching platforms. For this second type of suborbital activity, we will promote the application of Space Law.

330 Annex 7 to the Chicago Convention, definition of Aircraft. 331 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 60. 332 MASSON-ZWAAN Tanja, MORO-AGUILAR Rafael, Regulating Private Human Suborbital Flight at the International and European Level: Tendencies and Suggestions. Acta Astronautica, 2013, p. 247. 333 ICAO Council – 175th Session, Concept of Sub-Orbital Flights, op. cit., p.2 334 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 62. 335 ICAO Council – 175th Session, Concept of Sub-Orbital Flights, Working Paper C-WP/12436, op. cit., p. 5. 336 German Aviation Act, Section 1. 337 Aeronautics Act, R.S.C., 1985, c. A-2. 338 Air Commerce Act, 1926, Sec. 9(c). 339 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 187. 340 MASSON-ZWAAN Tanja, MORO-AGUILAR Rafael, op. cit., p. 248. 341 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 187. 342 MASSON-ZWAAN Tanja, MORO-AGUILAR Rafael, op. cit., p. 248. 343 SGOBBA Tommaso, KEZIRIAN Michael, Commercial Human Spaceflight: What Regulation?, op. cit., p. 6.

49 Suborbital Space Missions

Even though it is believed that the launch frequency of reusable suborbital vehicles will be higher than the one of Expandable Launch Vehicles (ELV), this particular type of activity keeps to a certain extent its exceptional nature per the purpose it serves. Scientific suborbital missions will be carried out for the most part in the interest of all mankind while deliveries of satellites into orbit are undisputedly considered as space activities. Regulating these operations under Space Law seems therefore a coherent solution.

In that sense, the term space object is often referred to as “any object that is launched or attempted to be launched into outer space”.344 This spatialist definition needs however to be complemented by our functional vision where the purpose of a suborbital vehicle qualified as a space object will be “to conduct outer space activities”,345 or in other words, an “Earth-Space mission”346 before getting back to our Planet.

The different applications for suborbital vehicles conducting a space activity are manifold. It may serve a suborbital purpose: scientific microgravity experiments, in-flight experimentation, targeted remote sensing, Earth’s atmosphere observation and astronauts training; or an orbital purpose where the vehicle, while remaining in sub-orbit, will serve as a launching platform for small and nanosatellites into Low Earth Orbit (LEO).

The functional approach undeniably suggests the application of Space Law to these types of activities which are of a purely space nature. Two difficulties may however arise in that respect. The first is related to the scope of the Registration Convention (A) whilst the second refers to the status of the carrier aircraft under International Space Law (B). We will try to provide elements to answer these challenges.

A. The Ambiguity of the Registration Convention

The purpose of registration is to secure a “legal link”347 between the State of registry and the object so the State can exert its jurisdiction and control over it.348 However, it is commonly agreed that the Registration Convention, by way of its Article II(1), is made “explicitly […] inapplicable to any type of object”349 launched below Earth orbit. The latter provides indeed that – only – space objects “launched into earth orbit or beyond”,350 shall be registered by the launching State, thus clearly excluding suborbital vehicles from the scope of

344 HOBE Stephan, Legal Aspects of Space Tourism, op. cit., p. 444. 345 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 58. 346 DEMPSEY Paul S., MANOLI Maria, Suborbital Flights and The Delimitation of Air Space Vis-À-Vis Outer Space, op. cit., p. 11. 347 KOPAL Vladimir, The 1975 Convention on Registration of Objects Launched into Outer Space in View of the Growth of Commercial Space Activities. Air and Space Law in the 21st Century, 2001, p. 375. 348 Ibid. 349 VISSEPÓ Varlin J., Legal Aspects of Reusable Launch Vehicles, op. cit., p. 188. 350 Registration Convention, Article II: “When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain”.

50 this Convention.351 It is thus widely acknowledged that there is “no obligation to register”352 suborbital objects and the Convention is primarily dedicated to keeping track of objects remaining “on a certain orbital position”.353

While this makes quite a lot of sense for the Registration Convention to focus only on orbiting space objects which may remain in outer space for a long time, from a legal perspective however, this situation is really problematic, particularly in light of the prospected increase of suborbital activities. Being unregistered means that no State can eventually exert both its jurisdiction354 and control355 over the space object in accordance with Article VIII of the Outer Space Treaty. Concretely, we would fall into a position where we cannot determine the law applicable to the vehicle, for instance in relation to Rights (IPR)356 in case where data are produced onboard.

The question is therefore to address whether the Registration Convention is really not applicable to activities carried out in sub-orbit. According to Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT),357 “a Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose”.

Therefore, from an ordinary meaning viewpoint, the expression “beyond Earth orbit” could not say something else than “farther”358 or alternatively “further”,359 “farther away”,360 or “further away”.361 But “beyond what?”362 one may ask. Is the Registration Convention really referring to a geographic point or an altitude in outer space? Or does it embrace a more pragmatic view focused on an operational rationale?

It is true that the ordinary meaning of beyond has a “geographic connotation”363 but as already discussed, an orbit is not primarily defined by its altitude. The ordinary meaning to give to the expression “into Earth orbit or beyond” is therefore shook up by technical and operational considerations – put differently, by the reality of what an orbit really is. An orbit is primarily a

351 VON DER DUNK Frans G., Space Tourism, Private Spaceflight and the Law: Key Aspects, op. cit., p. 151. The Author says that this exclusion “was conducive to both ICAO and EASA starting discussion of the applicability of their respective competences to suborbital flights”. 352 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 2, op. cit., p. 252. 353 MARCIACQ Jean-Bruno et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 205. 354 HOBE Stephan et al., Cologne Commentary on Space Law, Volume 1, op. cit., p. 157: “Jurisdiction means the legislation and enforcement of laws and rules in relation to persons and objects”. 355 Ibid.,: “Control means the exclusive right and the actual possibility to supervise the activities of a space object and, if applicable, the personnel thereof”. 356 Ibid., p. 159. 357 Vienna Convention on the Law of Treaties, Concluded at Vienna on 23 May 1969. 358 VON DER DUNK Frans G., Beyond What ? Beyond Earth Orbit?…!, op. cit., p. 281. 359 Ibid., p. 284. 360 Ibid. 361 Ibid. 362 Ibid., p. 269. 363 Ibid., p. 281.

51 “trajectory”364 which is achieved through a defined velocity. In that sense, the meaning of “beyond Earth orbit” would not say something else than farther than – and certainly not above – an operational – and certainly not geographical – altitude, or more accurately, trajectory.

It would be quite unsatisfactory to argue that the Registration Convention – with all due respect to Article 31 of the VCLT – refers to a precise geographic localization particularly as there is not a single Earth orbit.365 The expression Earth orbit is rather an “operational”366 concept, an “area”367 conceptualized by reference to the Earth. Being into Earth orbit would therefore means nothing else than a satellization of an object into any trajectories comprised in this area where it is effectively possible to orbit – read, to accomplish at least one revolution – around the Earth. Therefore, the Convention makes reference only to objects which are able to insert into orbital trajectories, due to an appropriate velocity. Because suborbital vehicles do not have the sufficient power and thrust to do so, they remain sub-orbital, or more accurately non- orbital368 and therefore, are not subject to registration under the Registration Convention.

This applies “regardless of [the] altitudes reached”.369 For instance, sounding rockets can fly at altitudes of about 1500km370 above the sea level but never get inserted into orbital trajectories and therefore are not subject to registration. On the opposite, deep space probes which are way beyond operational Earth’s orbits are subject to registration despite being non-orbital.

In conclusion, as it is written – and despite our attempt to explain the exact meaning of its scope – we believe that the Registration Convention is not applicable to these new types of vehicles which do not insert themselves into orbital trajectories. It is believed that Article II(1) of the Convention has been written like that particularly because such type of activities were not really envisaged at the time of drafting.371

In order for the suborbital vehicles not to be left aside while performing space activities, an amendment to the Registration Convention is of utmost need. During the Twelfth COPUOS Legal Sub Committee Session on the draft Registration Convention, held on April 16, 1973, the Canadian Representative noted the importance of a “review clause”372 as “the Canadian considered that, in preparing an international agreement in a highly-technical and rapidly developing field, it would be very foolish not to make provision for review in the light of subsequent technological developments”.373 Suborbital flights is today one of those technological developments and they must be considered in that respect.

364 Ibid. 365 The most widely used around the Earth being the Low-Earth Orbit (LEO), the Medium-Earth Orbit (MEO) and the (GEO). 366 VON DER DUNK Frans G., Beyond What ? Beyond Earth Orbit?…!, op. cit., p. 281. 367 Ibid., p. 325. 368 Ibid., p. 323. 369 Ibid. 370 Ibid., p. 286. 371 VON DER DUNK Frans G., Beyond What ? Beyond Earth Orbit?…!, op. cit., See pp. 293-295. 372 UN COPUOS, Legal Sub-Committee, Twelfth Session on the Draft Convention on Registration of Objects Launched Into Outer Space, New York, April 16, 1973. UN Doc A/AC.105/C.2/SR.203, p. 3. 373 Ibid.

52 We can therefore only recommend the UN COPUOS to look back at this issue, just as it would very necessary for the Committee to envisage the legal status of aircrafts carrying suborbital vehicles in their ascending phase.

B. The Status of the Carrier Aircraft

According to Article I of the Registration Convention, “the term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof”. Article I of the Liability Convention is worded exactly the same way.

This definition has been quite unambiguous in relation to ELVs sending payloads into orbit. Traditional rockets qualified as launch vehicles have indeed always been considered themselves as space objects. This principle is based on the already mentioned French Théorie de l’Accessoire where a vehicle having the objective to send a payload into orbit will be qualified, by destination, as a launch vehicle of a space object and will become itself a space object.

However, a major point of conflict arises when applying this definition to motherships that carry suborbital vehicles in the first steps of their ascending phase. The question here is to address whether the carrier aircraft is to be qualified as a launch vehicle of a (suborbital) space object, and therefore as a space object itself or whether it should remain an aircraft in accordance with the definition embodied in Annex 7 to the Chicago Convention.

The conflict lies therefore between two completely opposite devices and definitions and it is difficult to determine which one is lex specialis vis-à-vis the other374 – and even if lex specialis should there be. We cannot even speak about a Treaty conflict375 since only the Registration and the Liability Conventions share that status. The Chicago Convention surely is a Treaty but its Annexes are not formally part of it and therefore do not share this Treaty status.376

Here again, the ordinary meaning to be given to this provision in accordance with the VCLT would clearly indicates that the aircraft qualifies as a space object. The conflict is undeniable and this interpretation cannot be satisfactory because as a matter of fact, the carrier aircraft definitely is an aircraft and shall remain qualified as such.

The mothership certainly is an intervenient in the course of a space activity but from a practical and functional perspective it is not that object which is accomplishing the space mission. It is only an accessory to it. It remains in the lowest layers of the Earth’s atmosphere, releases the

374 KLABBERS Jan, Beyond the Vienna Convention: Conflicting Treaty Provisions. In: CANNIZZARO Enzo, The Law of Treaties Beyond the Vienna Convention. Oxford University Press, 2011, p. 204. 375 Ibid. 376 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., p. 24.

53 suborbital vehicle and gets back to the same ground base where it took-off and which constitutes its unique destination.377

Besides, the aircraft in itself does correspond neither to the spatialist378 nor to the functionalist379 definitions of space object presented at the beginning of this Paragraph.

Scholars have discussed about a hybrid regime where Aviation Law would apply to the whole “combined”380 device until the very moment of separation of the two objects.381 Following the release of the suborbital vehicle, Air Law would remain applicable to the mothership whereas Space Law would become applicable to the detached suborbital vehicle, until its return to the ground base.

If one is able to overstep the double registration issue this may entails, this interpretation is quite satisfactory with regard to suborbital space missions. The situation would become problematic regarding suborbital activities embarking passengers – for instance space tourism flights – where the “legal position”382 of these passengers would “depend on fortuitous circumstances”.383 If an accident happens before the separation of the two crafts, a far-reaching protection would apply to them. On the opposite, the unprotective regime of Space Law would leave them by the wayside if the ill-fated event occurs right after the detachment.384 Determining the victims’ status upon the moment when the accident happened is indeed quite unfair and clearly goes contrary to the legal certainty sought.

Obviously, these considerations will have to be taken into account when States will regulate on this topic. The Spanish interpretation studied in Part I supra seems to be the best option in that respect. As a reminder, according to the future Spanish Law, the mothership would be qualified as an aircraft and the suborbital vehicle as a spacecraft in complete independence from the one to the other during the whole mission. The aircraft is thus extracted from the regime of Space Law which seems to be the best solution.

We have seen that Space Law would be an appropriate regime due to the intended purpose of this particular type of suborbital activity. Difficulties remain however at hand and consensus on the two mentioned issues is an urgent need.

But of course, suborbital space activities do not have the monopoly over complicated legal questionings and space tourism activities also call for some investigations.

377 SIK JUNG Joon, The origin of injustice in Air and Space Law: De Facto Property Rights by Virtue of the “First Come, First Served” Rule. Mindthegap Publishing, 2015, p. 125. 378 “Any object that is launched or attempted to be launched into outer space”. 379 “The purpose of a suborbital vehicle qualified as a space object will be to conduct outer space activities”. 380 FREELAND Steven, Up, Up and … Back: The Emergence of Space Tourism and Its Impact on the International Law of Outer Space. Chicago Journal of International Law, Vol. 6, No. 1, Art. 4, 2005, p. 9. 381 Ibid. 382 MAHBOUBEH MOUSAVI SAMEH Seyedeh, Suborbital Flights: Selected Legal Issues. Institute of Air and Space Law, Faculty of Law, McGill University, 2013, p. 36. 383 Ibid. 384 Ibid.

54 Space Tourism and the Law: An Unidentified Flying Object?

Space tourism can generally be defined as “any commercial activity offering customers direct or indirect experience with space travel”.385 It is a pure leisure activity where space tourists are consequently defined as “people travelling in, to, or from a spacecraft, or space vehicle, or destination in space [and] who have no operational responsibilities or employment relationship with the owner of the vehicle or the space object”.386 Such experience may in a wide sense cover those “[touring] or [travelling] into, to, or through space or to a celestial body for pleasure and/or recreation”387 but for the purpose of our study, we will focus only on suborbital flights such as those intended to be offered by Virgin Galactic (SpaceShipTwo) or Blue Origin (New Shepard).

This activity truly lies at the edge of Air and Space Law and determining its governing regime is nothing easy. Contrary to the two activities already discussed in Paragraph 1 and Paragraph 2 respectively, the latter is more intercalated into “unresolved legal questions”388 as it is more difficult to link it to what already exists. In that sense, the application of the Air Law regime may only be partial (A) whilst Outer Space Law may serve in its outlines (B).

Importantly, we will not advocate for the application of the EU provisions on Tourism since they are part of the Union’s Support Competence389 under which the latter does not have the capacity to legislate.390 The Union is indeed only allowed to “complement the action of the Member States in [this] sector”391 and its action remains very general.392 Without doubt, it is not under this legal basis that the EU could create binding safety rules.

A. A Partial Affiliation to Aviation Law?

Transporting passengers from one place to another is not the objective of these venturesome flights (1) but national specific aviation laws may be useful elements in trying to find a proper legal regime to govern them (2).

385 HOBE Stephan, CLOPPENBURG Jürgen, Towards a New Aerospace Convention? Selected Legal Issues of “Space Tourism”. Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space, 2004, p. 377. 386 HERTZFELD Henry R., YUNG Liana X., OSBORNE Daniel V., A Guide to Space Law Terms. Space Policy Institute (SPI), Georges Washington University and Secure World Foundation (SWF), 2012, p. 128. 387 O’BRIEN Z.N., Liability for Injury, Loss or Damage to the Space Tourist. Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space, 2005, p. 386. 388 MASSON-ZWAAN Tanja, HOFMANN Mahulena, Introduction to Space Law, op. cit., p. 79. 389 TFEU, Article 6(d). 390 MASSON-ZWAAN Tanja, Regulation of Sub-orbital Space Tourism in Europe: A Role for EU/EASA? Air and Space Law, Vol. 35, No. 3, 2010, p. 268. 391 TFEU, Article 195(1). 392 MASSON-ZWAAN Tanja, Regulation of Sub-orbital Space Tourism in Europe, op. cit., p. 268.

55 Space Tourism is not a Transport Activity

As mentioned above, space tourists are embarking on a space tourism flight in the course of a leisure activity provided to them against remuneration of the operator. This journey may be seen as the accomplishment of a “space dream”393 by people who seek to experience a flight in outer space, to admire the beauty of our Planet and to experience a timeless moment in microgravity; before coming back to Earth, at the exact same location where they took-off. In total, the journey may not take more than three hours and may very well be slotted into a broader trip such as a two-week holiday in Spain.

This audacious mission carried out partly in a hostile environment is obviously not deprived of an element of thrill, and therefore may even be qualified as “space adventurism”394 or even as a “high-risk adventure tourism”.395

What this means for our interpreting purpose is that the service provided to the customer is definitely not transportation like. A transport is indeed suggesting a “movement”396 between two different points – whether or not within the same country – and because space tourism activities do not have the vocation to cross horizontal States’ borders, – put differently, to enter foreign airspaces – ICAO insisted on the inapplicability of the Chicago Convention to this particular type of activities and therefore on its ineptitude to take over any mandate.397

Consequently, as the goal of these paying passengers is definitely not to travel from one place to another on Earth, Air Law in its very purpose of transporting passengers shall be left aside. Specific provisions to be found in national aviation law may however be envisaged in their outlines as an insightful interpreting element to understand how passengers could be legally protected.

A National Insight: The French Provisions on Sensational Flights

In compliance to the functional approach followed throughout this work, space tourists share the desire to experiment outer space and as mentioned above, an important element of thrill is intrinsically linked to this activity. This situation therefore justifies to envisage a regime dedicated to sensational flights. Moreover, because this activity does not imply to cross national borders, this accentuates the possibility to apply a domestic legislation.

We will first of all analyse the legal regime applicable to sensational flights (a) before focusing on its application in practice (b).

393 Ibid., p. 263. 394 HERTZFELD Henry R. et al., A Guide to Space Law Terms., op. cit., p. 113. 395 VON DER DUNK Frans G., The Integrated Approach, op. cit., p. 199. 396 Encyclopaedia Britannica, definition of Transportation: “The movement of goods and persons from place to place and the various means by which such movement is accomplished”. 397 ICAO Council – 175th Session, Concept of Sub-Orbital Flights, Working Paper C-WP/12436, op. cit., p.5

56 a) The Legal Regime

The Decree on the Conditions of Use of Civil Aircrafts in General Aviation398 lays down in its Chapter VIII the rules applicable to Sensational Flights.

This legal regime governs in particular the parabolic flights carried out onboard an Airbus A310 by Novespace, a CNES’ subsidiary, commercialized in partnership with Avico under the brand name Air Zero G. The flight profile is in many respects similar to the one intended to be pursued by Virgin Galactic. In both cases the vehicle follows a high parabolic trajectory where passengers can enjoy a experience. The differences lie of course in both the operational altitude and the speed reached. Air Zero G flights are also much less risky in the sense that they are carried out onboard a conventional and type certified aeroplane.

Under French law, these parabolic flights are therefore qualified as sensational flights – in French, vols à sensations – and are defined as “the flights of which the points of departure and of destination are identical, carried out for leisure, for the purpose of creating thrills to the passengers by manoeuvres of aerobatics. It does not constitute a public air transport activity within the meaning of […] the Code of Transport”.399 According to this definition, three important elements have to be highlighted. First, the points of departure and arrival are the same. Second, the flight is a leisure activity. Third, it is not a public transport of passengers. The distinction with point-to-point transportation is thus made clear.

According to the Decree, this activity is subject to Aviation Law but adapted to the particular nature of the activity. The air operations, maintenance and the crew training must be supervised by a third party400 and a safety study aimed to ensure an acceptable level of safety401 must have been carried out by the operator prior to any flight and prior to the national authority’s approval to fly. What an acceptable level of safety means is not indicated by the Decree and its determination is made by the operator himself through a safety management system402 in which he describes the inherent risks related to the flight profile. The continuous supervision of his safety performances must also be ensured.403 The operator is therefore granted a high level of responsibility vis-à-vis the safety measures that he must put in place but of course, everything is subject to the national authorities’ approval prior to the beginning of the commercial activity.404

Important are the information to provide to passengers. On this point, the Decree is particularly succinct as it only requires the operator to inform in writing his future clients that the flight

398 Arrêté du 24 juillet 1991 Relatif aux Conditions d’Utilisation des Aéronefs Civils en Aviation Générale. 399 Ibid., Chapter I of the Annex: “Vol à sensations : Vol dont les points de départ et de destination sont identiques, effectué pour l’agrément, aux fins de créer des sensations fortes aux passagers par des manœuvres de voltige. Il ne constitue pas une activité de transport aérien public au sens du Chapitre II du Titre Ier du Livre IV du Code des Transports”. 400 Decree on the Conditions of Use of Civil Aircrafts in General Aviation, Chapter VIII, Article 8.1.2. 401 Ibid., Article 8.1.3. 402 Ibid. 403 Ibid., Annex VII, Paragraph A.2. 404 Ibid., Articles 8.2.4 and 8.2.5.

57 safety does not correspond to the standards of public air transport.405 Nothing is said on the details to provide to the passengers, for instance on the type of risks to which they expose themselves.

The Decree is in itself very elusive, particularly regarding the information to be given to the future passengers. A more detailed study of the Novespace’s flight terms and conditions should therefore be envisaged to better understand how the rules are implemented in practice.

b) Its Application in Practice

Passengers are informed that the Airbus A310 is granted a temporary issued by the French DGAC, after EASA’s approval.406 The Airbus A310, as an aircraft design, is certified by an EASA Type Certificate but the individual airplane is not granted a certificate of airworthiness by the DGAC.407 Consequently, the safety norms are not as high as for public air transport and the weightlessness phases entail an additional risk. Moreover, the passengers are informed that their insurance (life insurance, invalidity…) may be declared null and void by their insurers due to their participation to a sensational flight onboard a plane that does not carry such certificate. The passengers must explicitly declare their understanding of that situation.

The flight terms and conditions further inform the passengers that Novespace has concluded on their behalf an individual accident insurance for bodily injury and death occurring during the flight. The guarantee expires after the service has been provided but it extends up to twenty- four months following the flight accident in case of death. Under this collective insurance policy, Novespace is offering a protection up to a ceiling of 300.000 euros per passenger. Some clauses on liability limitation and/or exemption are also introduced for example in cases where Novespace would have perfectly respected the laws in force; for indirect damages; or for any disease, handicap, injury or death of the passenger, due to his physical condition, nor for any aggravation of this physical condition.

Should this regime inspire the national legislators? Its main problem is the imbalance introduced between Novespace and its passengers because of the acceptation of the risks by the latter, particularly in respect to the level of details provided to them which is really too evasive. This is nonetheless compatible with the activity which is certainly more risky than a traditional flight but which is at the same time carried out onboard a Type Certified conventional aircraft, not propelled by explosive propellants, and operating at relatively low altitudes. Parabolic flights have been carried out across the world for about seventy years and not a single accident even occurred.408 In contrast, in 2014, a catastrophic failure happened during a Virgin Galactic’s testing flight where one pilot died.

405 Ibid., Article 8.1.6. 406 COSPACE, Task Force SoA, Aéronefs Suborbitaux: Position Française, 29 février 2016, p. 80. 407 Such as those typically granted to public transport aeroplanes. 408 https://fr.wikipedia.org/wiki/Vol_parabolique.

58 Because the risks are not really high in the case of Novespace, its associated insurance regime is therefore quite in line with that feature. A translation for suborbital tourism flights, de lege lata, seems however not really conceivable. The limitation of the operator’s liability up to an amount of maximum 300.000 euros is also subject to contestation before courts to the extent that it applies to bodily injury and even to the death of the passengers.409 Increasing this liability cap would necessarily be a prerequisite. With regard to suborbital tourism flights, the law should therefore be more stringent concerning the operator’s liability.

The sensational flights’ regime provides in any case a good basis for reflection in respect of an activity regulated at the national level. Additionally, should space tourism flights be considered as falling under an aviation regime in Europe, the EASA could intervene in vehicles’ certification matters, thus implying a great level of safety across the continent. This particular aspect will be studied in greater details in Part III infra.

As we will see below, inspiring elements may also be found in Space Law. While this regime cannot really be conceived in the case of point-to-point transportation activities for the reasons mentioned in Paragraph 1 supra, its “tailor made coverages”410 might potentially be adapted to the particular nature of space tourism flights.

B. Space Law: An Insightful Regime?

The purpose of space tourists to experiment outer space implicitly leads us to envisage its governing regime. We will try to get beyond its uncertainties in regulating this very specific activity (1), before considering the protection it grants to astronauts (2).

Beyond the Ambiguity of Space Law regarding Leisure Activities

Suborbital tourism flights do not share the exact same vocation as traditional space activities, notably due to the intended purpose of the device involved. Satellites for example are intended to remain in outer space for approximately fifteen to twenty years while orbiting around the Earth.

In addition, and similarly to point-to-point transportation, the passengers cannot be qualified as envoys of mankind under the Rescue Agreement as they are accomplishing their own and purely personal space dream.

Still, because space tourists reach outer space, – or at least the edge of it if one may not come back to the delimitation issue – and accomplish their space dream, Space Law might be envisaged as it constitutes on the one hand the basis for regulating activities occurring in this

409 COSPACE, Task Force SoA, Aéronefs Suborbitaux, op. cit., p. 80. 410 BENSOUSSAN Denis, Space Tourism risks: A Space Insurance Perspective. Acta Astronautica, Vol. 66, 2010, p. 1635.

59 sovereignty-free area. On the other hand, it is questionable whether such venturesome flights carried out by private individuals correspond to the definition of a space activity as envisaged by the Space Treaties. Recreational activities were indeed not considered by the drafters but one may not forget Article VI of the Outer Space Treaty which contemplates non-governmental activities in outer space. Whether the business model of these private undertakings is to provide satellite to customers, to undertake a space mining activity, or to offer space tourism flights does not seem to be a distinctive criteria since they are all, per definition, non- governmental entities. So, if the tourists are not directly bound by outer space law, at least the companies which provide space tourism services are covered, through the mechanism of national licensing envisaged by Article VI OST.

The International Space Station itself is not set aside by commercial incentives since Article 1 of its governing IGA provides that “this civil International Space Station will enhance the […] commercial use of outer space”. In that sense, the Partner States are enabled to set up their “own policy of commercial utilization”411 of the Station, including “the promotion of space tourism”412 onboard. The ISS Crew Selection Principles further implement the rules that shall apply to the so called non-professional space flight participants. Dennis Tito therefore became in 2001 the first ever space tourist spending a week onboard the ISS, in exchange of a sum of 20 million US$.

The IGA, through a cross-waiver of liability provision,413 lays down a “mutual exemption of liability on board the [Station]”414 among the different Partners States.415 This approach, which “shall apply to any claims for damage”416 has been decided to encourage “participation in the exploration, exploitation, and use of outer space through the Space Station”.417 However, the cross-waiver of liability does not apply in particular for bodily injury, impairment of the health, or the death of a natural person.418

Therefore, if applied to space tourists embarking onboard a suborbital vehicle, this model only says that they will be entitled to bring a claim against the operator if their health has been injured but does not address how they will be covered. A look at how astronauts are protected is interesting in that respect.

411 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 640. 412 Ibid. 413 ISS Intergovernmental Agreement, op. cit., Article 16. 414 YUN Zhao, A Legal Regime for Space Tourism: Creating Certainty in Outer Space. Journal of Air Law and Commerce, Vol. 74, Issue 4, Article 6, 2009, p. 966. 415 MASSON-ZWAAN Tanja, HOFMANN Mahulena, Introduction to Space Law, op. cit., p. 82. 416 ISS Intergovernmental Agreement, op. cit., Article 16(3)(a) 417 Ibid., Article 16(1). 418 Ibid., Article 16(3)(d)(2): “This cross-waiver of liability shall not be applicable to […] claims made by a natural person, his/her , survivors or subrogees (except when a subrogee is a Partner State) for bodily injury to, or other impairment of health of, or death of such natural person”.

60 The Astronauts’ Assurance Regime

Astronauts sent in outer space are subject to a “personal accident”419 insurance policy which covers damages such as permanent invalidity or death.420 This is not a liability insurance, meaning that we will not seek the person responsible for the damage so the recovery will be addressed in any case.421

Such insurance policy is based on a flat rate so the higher the damage is, the higher the compensation will be.422

However, these insurances are based on a subordination link since they are subscribed by the space agency to which depends the astronauts but “there is no legal obligation”423 for the employer to do so.

Should this regime be applicable to suborbital tourism spaceflights? The answer is conditional upon the fact that the suborbital operators sould be obliged to opt for the guarantee on behalf of their clients. Thus, the situation might be similar to the one of Novespace but one should not forget that since the liability of the “potentially accountable person”424 is not sought in the case of astronauts, indemnification of injured space tourists will always be guaranteed in a very predictable way, which is of course very beneficial to them. And since the amount of compensation follows the amount of damages, one may expect efficient liability actions before Courts.

In conclusion, both Aviation and Space Law provide inspiring tools that may serve legislators to regulate suborbital tourism activities. The aviation approach may however be preferred since it has the advantage in the European Union to give competence to the EASA in certification matters. According to our catch-all understanding which gives mandate to the aviation regime in cases where an aircraft or an aerospace vehicle is involved, safety requirements regarding the vehicles that qualify as such would be therefore harmonized across the Union. In contrast, the space approach would be deprived of any kind of approximation because of Article 189 TFEU and different standards might possibly emerge between the different Member States.

In trying to find the best approach to protect the people’s safety, this Chapter consequently leads us to different legal regimes governing different types of suborbital flights. This finding is justified because the term suborbital is to be seen only as a roof covering a wide panel of different activities. Whereas point-to-point transportation and suborbital space missions are rather self-evidently qualified under a functionalist viewpoint, space tourism flights are in contrast even more subject to discussion. A common feature that may however unite them is

419 GAUBERT Cécile, Insurance in the Context of Space Activities. In: VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 942. 420 Ibid. 421 Ibid. 422 Ibid. 423 Ibid. 424 Ibid.

61 the fact that they will operate substantially in the airspace. As a consequence, and regardless of the legal regime applicable to point-to-point transportation, suborbital space missions, or space tourism flights, these three categories shall be inserted safely within the airspace. We believe this accommodation425 will only be possible through an extension of the rules on Air Traffic Management (ATM).

Chapter 2. Sharing the Sky: Towards a Safe Integration of Suborbital Flights

Because suborbital vehicles will be sharing both the airspace and the low altitudes of outer space with other users, it is essential to move forward in a harmonious system.426 Consequently, every suborbital activity described in this Thesis shall converge into an integrated safety system guaranteeing a safe navigation to every users operating daily. We will first of all deny a potential mandate to Space Traffic Management (STM) in daily suborbital operations (Section 1) before advocating for a far-reaching extension of the ATM system (Section 2).

Section 1. Space Traffic Management: A Problematic Reality

In addition to their legal qualification, the challenge for suborbital flights is to shift from the exception to the routine regime where every users – be it aircrafts, suborbital vehicles, or other High Altitude Platform Stations (HAPS) – will find their way into a more and more congested airspace.

The shape such system may take is an ongoing technical and but it appears that discussions are often oriented towards a convergence of STM and ATM.

This vision is problematic for many reasons but before getting into the details, a conceptual definition should be given. Space Traffic Management can be defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference”.427 Under this “non-authoritative”428 definition provided in the 2006 Cosmic Study of the International Academy of Astronauts (IAA), the whole lifetime of an object launched into outer space is encompassed with a view to achieve operations free from any “harmful interference”.429 Textually, one may interpret this wide definition as applying also to the traffic regulation of suborbital vehicles. As we will see however, STM is quite uneducated in that respect and its associated rules on physical interference are not sufficiently developed.430

425 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit. 426 JAKHU Ram S. et al., The Need for an Integrated Regulatory Regime for Aviation and Space, op. cit., p. 61. 427 Cosmic Study on Space Traffic Management, op. cit., p. 10. 428 Ibid. 429 Ibid. 430 Ibid., p. 11.

62 The Cosmic Study first highlights a prospected increase in human spaceflights, including suborbital flights and acknowledges that outer space is being more and more congested.431 It recognizes that “suborbital traffic may increase substantially in the near future”,432 notably due to space tourism activities first, then followed by commercial point-to-point transportation.433

The report also draws special attention to the importance of “safety provisions for human spaceflight, including space tourism” and “safety provisions for re-entries”.434 It also recommends Air and Space Law to find consensus on the issue of space objects traversing the airspace.435 Suborbital vehicles, particularly point-to-point crafts will travel at high altitudes and will cover wide distances. Thus, it is true that safety procedures will be needed to avoid interferences in outer space operations but one may be precise on what STM really is.

Readings on STM all come to the same conclusion that this system is rather focused on in-orbit operations and their associated risks of space debris than on the management of the suborbital traffic strictly speaking. “Space Traffic Control is a term that is [indeed] frequently misused to describe a type of Air Traffic Control of space vehicles”.436 It is in fact very different.

In addition to that, STM rules aimed at the avoidance of physical interference “are neither complete nor harmonized”437 and Space Law is lacking an important amount of rules “which are essential for a comprehensive traffic management regime [such as] pre-launch notification”.438 The existing national rules only intend “to achieve safe access”439 to and “safe operations”440 within outer space in accordance with the Outer Space Treaty through the licensing of space operators in order to minimize the responsibility and liability risks441 but were “not originally developed to deal with traffic management issues”.442

On top of that, no distinction is made yet between the different types of space objects.443 Space debris on the one side and “valuable assets”444 on the other are not legally distinguished.445 So, as of today, the same traffic management standards are deemed applicable to space debris and suborbital (space) vehicles whereas the former are inactive pieces orbiting around the Earth

431 Ibid. 432 Ibid., p. 29. 433 Ibid., p. 30. 434 Ibid., p. 14. 435 Ibid., p. 13. 436 MURRAY Daniel P., MITCHELL Megan, Lessons Learned in Operational Space and Air Traffic Management. Forty-Eighth American Institute of Aeronautics and Astronautics Aerospace Sciences Meeting, Orlando, Florida, Paper No. AIAA 2010-1349, 2010, p. 8. 437 Cosmic Study on Space Traffic Management, op. cit., p. 54. 438 Ibid. 439 MAHBOUBEH MOUSAVI SAMEH Seyedeh, op. cit., p. 104. 440 Ibid. 441 Cosmic Study on Space Traffic Management, op. cit., p. 44. 442 MAHBOUBEH MOUSAVI SAMEH Seyedeh, op. cit., p. 104. 443 Cosmic Study on Space Traffic Management, op. cit., p. 54. 444 Ibid. 445 Ibid., p. 40.

63 causing threat to the growing space traffic whilst the latter are operational devices embarking onerous assets.446

From these lines, we may conclude that STM is not yet ready to take over any mandate on suborbital flights and it is believed that developing a regulatory answer at the international level will take a very long time.447

Because of what has been described, we believe ATM and STM should remain two distinct entities and should not converge. Rather, and in a view to shift from the exception to the routine regime, it is important for the aviation authorities to manage the whole suborbital operation by themselves. To an approach focused on the uninterrupted coordination between ATM and STM,448 we rather prefer a “legal one”449 which, through amendments to the relevant Texts, would “expand the responsibilities of the aviation authorities”.450 For that reason, we believe that ATM shall extend its mandate towards the suborbital operational altitudes, particularly in view of the prospected pace in these types of operations.

Section 2. Air Traffic Management: From Coordination to Integration

ATM is aimed at ensuring the “safe and efficient movement of aircraft during all phases of operations”.451 In other words, it is a tool enabling to achieve the overall safety of the international civil aviation fostered by the Chicago Convention.452 It is also a very well developed and continuously improving system and it is under this logic that we will promote its application to the entire suborbital operation (Paragraph 1). We will then analyse how the progresses made at the European level would be beneficial to suborbital vehicles coming back to Earth (Paragraph 2).

A Full Integration of the Suborbital Phase

Suborbital vehicles will be crossing the airspace at very high Mach numbers and as previously discussed, manoeuvrability is not what characterize them best. The reentering phase particularly has the potential to be really harmful to the existing traffic453 so it is of utmost importance for the ATM to integrate them safely into an already existing safety regime.

446 Ibid., p. 15. 447 SCHROGL Kai-Uwe, Regulations for Future Space Traffic Control and Management. In: JAKHU Ram S., DEMPSEY Paul Stephen, Routledge Handbook of Space Law, op. cit., p. 308. 448 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 410. 449 Ibid. 450 Ibid., p. 411. 451 Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky, Article 2(10). 452 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., p. 24. 453 VON DER DUNK Frans G., Passing the Buck to Rogers: International Liability Issues in Private Spaceflight. Nebraska Law Review, Vol. 86, Issue 2, Article 5, 2007, p. 427.

64 The incentives behind this argument are twofold. First, considering the very high speed of these vehicles when coming back to the ground, a coordination between the two different Air Traffic and Space Traffic Management systems may not be the most appropriate solution. Second, for all the three types of suborbital activities studied in this Thesis, the outer space phase will only last for some minutes, at an altitude of about 100 kilometres above sea level. Bringing their regulation under the roof of the STM system would be therefore inconsistent with the purpose of this regime which, as already mentioned, has not been designed for the management of these kinds of activities but which is more focused on orbital traffic.

Consequently, we believe that ATM shall take the lead over three identified phases of flight: the ascending phase, the suborbital phase, and the returning phase.

This extension of prerogatives would take the form of a fully integrated system governing those three phases of flight and would have the advantage of avoiding any possible conflict arising between two different traffic management systems. Under this logic, the ATM system would have the mission to coordinate all operations falling under its realm in order to integrate safely the suborbital vehicles in the airspace as well as to manage their traffic in the suborbital phase. This approach would thus cover all suborbital activities, performed either by those vehicles that correspond to the notion of aircraft or by those corresponding to our proposed definition of aerospace vehicle.

In terms of day-to-day work, the 2006 Cosmic Study reveals that their incorporation “should not pose any insurmountable challenges to the operational and regulatory experts concerned”454 both in the ascending and returning phase. For the in-between suborbital phase, we believe that this assumption also applies since the challenge will rather be technical than operational. The real difficulty will be in fact to maintain the communication with these vehicles at such high altitudes and velocities. The International Telecommunication Union (ITU) clearly has an important role to play on this topic, probably through the allocations of new radio frequencies.

In order not to create confusion from a sovereignty perspective, a similar approach that the one undertaken by the international aviation community to regulate the traffic over the high seas shall be envisaged. ICAO has “divided”455 the world into Flight Information Regions (FIR) “spanning also the high seas [where] responsibility to establish rules of the air and to provide air navigation services has then been delegated to the Contracting States to whom each FIR has been assigned”.456 So, in practice, national air traffic controllers are designated to provide management and control services over this res communis area, without equating to any claim of sovereignty by their respective States. Regarding outer space, ICAO would similarly have to develop “rules of the road”457 with respect to this non-sovereign area that States would implement through delegated competences to their national ATC and ATM services.

454 Cosmic Study on Space Traffic Management, op. cit., p. 55. 455 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 189. 456 Ibid. 457 Cosmic Study on Space Traffic Management, op. cit., p. 55.

65 As said, the challenge of this approach will principally be a technical one where the extended prerogatives of traffic controllers will reach higher controlled altitudes. Even if a legal and universally accepted delimitation of air and outer space were to arise, this understanding would not cause any problem since the mandate of national controllers to keep an orderly traffic management over this border would not equate to claims in sovereignty over these delegated portions of outer space. Their mission would only serve a safety purpose, within a sovereignty- free area, just as it is currently made over the high seas.

It is only through International Agreements – presumably to be reached under the realm of ICAO – that States will be able to introduce this overall and integrated safety system. We believe that this integrated approach will enable the safe operations between all the relevant stakeholders sharing the sky.

Additionally, because of the significant progresses that have been made at the ATM level especially in Europe, the safe return of suborbital vehicles will be better guaranteed.

A Promising Tool to Achieve a Safe Return: The Single European Sky

Particularly in Europe, where National territories are relatively small,458 this approach would be a very satisfactory answer to the problematic raised by suborbital vehicles in their returning phase. In that sense, we believe that the currently developing Single European Sky (SES)459 which is aimed at establishing a “pan-European ATM”460 constitutes a significant step forward. Primarily designed for the (current) civil aviation, the SES regime could very well adapt to all type of suborbital flights, and more particularly to the civil aviation of tomorrow carried out by point-to-point suborbital vehicles.

The purpose of the SES is to achieve a “more integrated operating airspace”461 where national borders and national airspaces would no longer be operated side by side but rather on a seamless basis. We strongly support the idea to integrate suborbital activities within this operational regime.

Indeed, because there are currently sixty-six area control centres in Europe – in comparison, only eight are operated in the United States462 – significant coordination is required between all national air traffic controllers. This approach will no longer be appropriate for suborbital

458 Cosmic Study on Space Traffic Management, op. cit., p. 50. 459 The Single European Sky legal basis is based on the so called SES Package I and SES Package II. The first Package is composed of four Regulations: No. 549/2004 laying down the Framework for the Creation of the Single European Sky; No. 550/2004 on the Provision of air navigation services in the Single European Sky; No. 551/2004 on the Organisation and Use of the Airspace in the Single European Sky; No. 552/2004 on the Interoperability of the European Air Traffic Management Network. The second Package amends and supplements these four Regulations by way of Regulation No. 1070/2009 Improving the Performance and Sustainability of the European Aviation System and by the implementation of Regulation No. 1108/2009 extending the EASA mandate. 460 Cosmic Study on Space Traffic Management, op. cit., p. 51. 461 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., p. 130. 462 Ibid., p. 135.

66 vehicles for two reasons already mentioned: the latter are non-manoeuvrable and come back to Earth at very high speeds. Because the SES breaks down the national borders of ATC and ATM, only one controller will be able to manage much larger areas463 and therefore to avoid a time- consuming and burdensome coordination with his peers.464 These areas – named Functional Airspace Blocks (FAB) – get rid of national borders and if applied to suborbital vehicles will definitely meet their expectations since air traffic controllers will be able to better anticipate their return into the Earth atmosphere, and ultimately to the ground.

A look at the definition of FAB ultimately supports our proposition: “[FAB] means an airspace block based on operational requirements and established regardless of State boundaries, where the provision of air navigation services and related functions are performance-driven and optimised with a view to introducing, in each [FAB], enhanced cooperation among air navigation service providers or, where appropriate, an integrated provider”.465 This concept thus promotes the “operational efficiency”466 of the whole system and reorganise the European airspace national blocks into integrated ones.467

This integration is essential to ensure the safe and regular launch and return of suborbital vehicles within the airspace468 and this “comprehensive air and space management”469 will enable the safe interoperability among all stakeholders.

To conclude, we certainly not call into question the utility STM has in regard of some specific operations. The latter will have an important role to play for the return of orbiting objects that have spent weeks, months, or even years in outer space and for which coordination with ATM will be an obvious necessity. It would indeed make no sense for ATM to take the lead also on orbiting space operations. Timely sharing of information between the two will become a safety concern enabling the ATM to open specific landing paths for the return of these orbiting space objects. In that sense, literature has suggested to coordinate space launch and reentry operations with those of airlines and other users of the national airspace system470 in order to create a safety environment where both would communicate and “give timely instructions to aircrafts operating in the vicinity”.471

On the other hand, one should not expect so much of STM in regulating daily transits in outer space by suborbital vehicles. For that particular case, a fully integrated ATM system should be

463 Ibid., p. 131. 464 Ibid., p. 130. 465 Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system. 466 MENDES DE LEON Pablo, Introduction to Air Law, op. cit., p. 130. 467 NAVA-GAXIOLA Cesar A., BARRADO Cristina, Performance Measures of the SESAR Southwest Functional Airspace Block. Journal of Air Transport Management, Vol. 50, 2016, p. 21. 468 SCHULTZ Michael, GERDES Ingrid, STANDFUSS Thomas, TEMME Annette, Future Airspace Design by Dynamic Sectorization. ENRI International Workshop on ATM/CNS, Japan, Paper No. EN-A-032, 2017, p. 3. 469 Ibid. 470 See: VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 414. ; LYALL Francis, LARSEN Paul B., Space Law, op. cit., p. 300. 471 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 414.

67 operating, supported by a promising SES for the returning phase particularly. STM does not have the vocation to disappear but only to grow, it should nevertheless focus on what really matters to itself. To the convergence of systems, we rather prefer an extended and fully integrated ATM regime.

Three different types of suborbital activities have been studied throughout the present Part. Recommendations regarding their governing legal regimes have been made and a connecting factor bringing them all under the roof of ATM has been identified. Further perspectives shall now be envisaged, with a particular focus on the European situation.

68 PART III – SUBORBITAL FLIGHTS: FURTHER PERSPECTIVES

The suborbital topic is definitely a heated one. Regulatory perspectives may diverge between States and if agreement is not reached, the whole industry may suffer from it. As seen, the United States have followed the space licensing approach, based on a so called SFP informed consent. This model is expanding and might very well reach our European jurisdictions (Chapter 1). The future of the suborbital industry will also rely intrinsically on the mandates given to the relevant institutions that will enable to foster its ongoing development (Chapter 2).

Chapter 1. The American Informed Consent: An Expanding Regulatory Model

We will first of all present the American informed consent (Section 1) before focusing on its exportation towards the European Union (Section 2).

Section 1. A Notion often Wrongly Interpreted

The US informed consent is a notion that comes from medicine and which has been introduced into the sport practice,472 before giving inspiration to the suborbital industry. The provisions on informed consent have thus been included at the Federal level in the Commercial Space Launch Act by way of the 2004 Amendments. However, its extent has evolved throughout the years principally due to some Federate States’ individual legislative actions which finally incited the US Congress to harmonize it across the whole country through the 2015 Space Act.

We will first of all analyse the real meaning of the informed consent (Paragraph 1) before getting focused on how it impacted the whole American suborbital industry through its bottom- up development (Paragraph 2).

Presentation and Meaning

A great amount of literature has been devoted to the US informed consent and contrary to a common misunderstanding, it is not in itself a complete waiver of liability claims. According to Title 51, §50905 of the United States Code, it is a license requirement allowing the space flight operator to embark space flight participants (SFP).473 The United States Code is clear in that respect: “The holder of a license or a permit […] may launch or reenter a

472 Skydiving for instance. 473 MORO-AGUILAR Rafael, National Regulation of Private Suborbital Flights: A Fresh View, op. cit., p. 690.

69 spaceflight participant only if […] [it] has informed the space flight participant in writing about the risks of the launch and reentry […]”.474

The only party which is really exempted from liability is the US Government which “has not certified the launch vehicle and any reentry vehicle as safe for carrying crew or space flight participants”.475 This information must be provided to the future SFP by the operator and is the basis for the exclusion of the US Government from the liability scheme.

The type of information to be provided by the operator to the future SFP is laid down in Title 14 of the United State Code of Federal Regulations. Its most important elements are laid down below:

§ 460.45 Operator informing space flight participant of risk. (a) Before receiving compensation or making an agreement to fly a space flight participant, an operator […] must inform each space flight participant in writing about the risks of the launch and reentry, including the safety record of the launch or reentry vehicle type. An operator must present this information in a manner that can be readily understood by a space flight participant with no specialized education or training, and must disclose in writing – (1) For each mission, each known hazard and risk that could result in a serious injury, death, disability, or total or partial loss of physical and mental function; (2) That there are hazards that are not known; and (3) That participation in space flight may result in death, serious injury, or total or partial loss of physical and mental function […] (f) Before flight, an operator must provide each space flight participant an opportunity to ask questions orally to acquire a better understanding of the hazards and risks of the mission, and space flight participant must then provide consent in writing to participate in a launch or reentry. The consent must – (1) Identify the specific launch vehicle the consent covers; (2) State that the specific space flight participant understands the risk, and his or her presence on board the launch vehicle is voluntary; and (3) Be signed and dated by the space flight participant.

474 United States Code, Title 51, § 50905. License applications and requirements (2015). 475 United States Code of Federal Regulations, Title 14 §460.45(b).

70 This provision is rather comprehensive but its real extent and the “amount of information”476 to be given to the SFP is not defined as such.477 In reality, the US informed consent equates to the SFPs’ voluntary assumption of risks who shall understand that they are part of an ongoing “testing process”478 and this “constellation of warnings”479 shall lies at the basis of it. The whole logic behind it stems from the US Congress’ declaration that commercial human space flights were not to be compared to the “highly regulated airline industry”480 but rather to an “adventure travel”481 where SFPs fly at their own risks. In fact, it is quite similar to the one provided by Novespace, but one shall bear in mind that the activity is far more risky in case of suborbital flights where the vehicle does not even bear a Type Certificate.

In other words, a “duty to warn”482 lies on the operator’s shoulders to ensure that the SFP effectively gave an informed, read enlightened, consent.483

As we will see below, the “limit”484 between the operator’s liability/non-liability lies in the fact that he has correctly or not correctly informed the future SFP. Thus, the informed consent is not an automatic waiver of claims but the potential liability of the operator will be assessed according to the SFP’s level of understanding of these risks.485

A focus on the Federate States’ provisions on informed consent should enable us to better apprehend its meaning as well as to understand why its implementation at the States’ level finally lead to a harmonized answer at the Federal one.

The Bottom-Up Approach: From States’ Action to a Federal Answer

For the purpose of this study, we will present the similarities and differences that exist between these so called “Spaceflight Liability and Immunity Acts”486 implemented in four US States; namely, California,487 Texas,488 Florida489 and New Mexico.490

476 A-P-T Research, Inc., Study on Informed Consent for Spaceflight Participants, Document No. APT-CFA-230- 0001-02F, September 26, 2008, p. 11. 477 KNUTSON Tracey, What is Informed Consent for Space-Flight Participants in the Soon-to-Launch Space Tourism Industry? Journal of Space Law, Vol. 33, p. 110. 478 Ibid., p. 115. 479 A-P-T Research, Inc., Study on Informed Consent for Spaceflight Participants, op. cit., p. 3. 480 Ibid., p. 7. 481 Ibid. 482 KNUTSON Tracey, op. cit., p. 110. 483 A-P-T Research, Inc., Study on Informed Consent for Spaceflight Participants, op. cit., p. 10. 484 KNUTSON Tracey, op. cit., p. 122. 485 Ibid. 486 HARRINGTON Andrea J., US State Spaceflight Liability and Immunity Acts in Context. In: WOUTERS Jan et al., op. cit., p. 127. 487 Spaceflight Liability and Immunity Act (2012), California Civil Code, Division 3, Part 4, Title 7, Chapter 5, Article 5. 488 Space Activities Statute (2011), Texas Civil Practice and Remedies Code, Title 4, Chapter 100A. 489 Space Activities Statute (2009), Florida , Title XXV, Chapter 331, Section 501. 490 Space Flight Informed Consent Act (2010), New Mexico Statutes, Chapter 41 - , Section 14.

71 Under Title 51, §50919 of the United States Code, Federate States have been authorized to adopt their own provisions that may be additional to or more stringent than US Federal Law, to the extent that they are consistent with it.

What incited individual States to draft their own statutes is the idea to make sure that the informed consent would systematically lead to the operator waiver of liability – as long as the informed consent clause was properly implemented – a guarantee that was – as seen in Part I supra – not formally provided by the Federal Commercial Space Launch Amendments Act of 2004 (CSLAA)491 since the cross-waiver of liability claims “did not extent to spaceflight participants”.492 Operators were indeed not satisfied enough as they were fearing that courts would overrule their defence and award damages to the SFPs.493

Thus, by reassuring investors that the liability waiver would be mandatorily applicable in case of judicial action, an individual State would attract suborbital investors within its borders.494

Consequently, all Statutes put as a general principle that the space flight entity, read the operator, will not be held liable495 for SFP injury, including death, arising out of the risks of the activity, if the informed consent procedure has been properly followed. However, California, Florida and New Mexico are more restrictive vis-à-vis the operator since the latter is protected from liability only against the inherent risks of the activity, “not all risks generally”.496

All the statutes further implement the informed consent procedure which is based on a twofold requirement. First, the operator must inform the SFP about the risks through a written warning statement. Second, the SFP returns his or her signed informed consent.497 A sample warning statement is included within each statute where it is notably indicated that SFPs fly at their own risks.

The operator will therefore be entitled to invoke the “privileges of immunity”498 only in those cases where the warning statement has been properly given and the SFP’s informed consent has been effectively returned to the operator prior to the flight.

Furthermore, in California, Florida and New Mexico, the operator will never be covered for his act or omission that constitutes gross negligence with regard to the safety of the SFPs;499 for damages intentionally caused to them;500 and if he had knowledge or reasonably should have known of a dangerous condition which proximately caused them injury, damage, or death.501

491 VON DER DUNK Frans G., TRONCHETTI Fabio, Handbook of Space Law, op. cit., p. 690. 492 Ibid. 493 Ibid., p. 692. 494 HARRINGTON Andrea J., op. cit., p. 127. 495 California: 2212(a) ; Florida: 331.501(2)(a) ; NM: 41-14-3(A) ; Texas: Sec. 100A.002(b). 496 HARRINGTON Andrea J., op. cit., p. 128. 497 California: 2212(2) ; Florida: 331.501(2)(a) ; NM: 41-14-3(A) ; Texas: (Sec. 100A.002(b). 498 California: 2211(b) ; Florida: 331.501(3)(c) ; NM: 41-14-4(B) ; Texas: Sec. 100A.004(a). 499 California: 2212(c)(1) ; Florida: 331.501(2)(b)(1) ; NM: 41-14-4(B)(1) ; Texas: Sec. 100A.004(b)(1). 500 California: 2212(c)(2) ; Florida: 331.501(2)(b)(2) ; NM: 41-14-4(B)(2) ; Texas: Sec. 100A.004(b)(2). 501 California: 2212(c)(3) ; Florida: 331.501(2)(b)(3) ; NM: 41-14-4(B)(3).

72 So, in cases where the operator acted as such, his liability will be entitled to be challenged before courts. The same criterion are retained in Texas, except the last one (actual knowledge or reasonably should have known). Texas is therefore less favourable for the SFP who will not be able to bring a claim against the operator even if the latter knew or reasonably should have known that a dangerous condition existed.502

Thus, the informed consent does not grant the operator an absolute immunity before courts. The contractual liability remains when the operator has “failed to warn”503 or in those three cases – two in Texas – where he acted wrongfully.

Some differences between the different statutes lie on the side of the vehicle’s manufacturer who is not exempted in California504 from liability in cases where a “defective part or component […] proximately cause[d] an injury to the participant”. Also, only in Texas shall the informed consent, in addition to the SFP, be signed by a “competent witness”.505 Finally, only New Mexico obliges the operator to cover its liability with an insurance coverage “in the amount of at least one million dollars”. The protection granted to the operators by the New Mexico Statute will consequently not apply for those who failed to subscribe to this guarantee.

In response to these States’ interventions, the US Congress finally implemented its 2015 Space Act to make sure that this liability waiver becomes mandatory across the United States and that SFPs are party to it. Therefore, Title 51, §50914 of the United States Code now reads that “a launch or reentry license issued […] under this chapter shall contain a provision requiring the licensee […] to make a reciprocal waiver of claims with applicable parties involved in the launch […] or reentry services under which each party to the waiver agrees to be responsible for personal injury to, death of, or property damage or loss by it […] resulting from an activity carried out under the applicable license. […] In this paragraph, the term “applicable parties” means […] space flight participants”.

Of course, the waiver is effective only if the operator complied with the licensing requirements, of which the informed consent is part, but the Federal Law has thus become much more stringent upon the SFPs following this bottom-up approach. As seen in Part I, the latter were indeed not party to that mandatory liability waiver prior to 2015.

§50914 further states that this reciprocal waiver of claims extends until September 30, 2025. This sunset clause is made applicable to enable the industry to mature until it acquires sufficient experience,506 without being penalized by recovery damages claimed by SFPs during that period. The whole rationale of the informed consent lies in this provision.

502 HARRINGTON Andrea J., op. cit., p. 129. 503 A-P-T Research, Inc., Study on Informed Consent for Spaceflight Participants, op. cit., p. 9. 504 2212(e). 505 Sec. 100A.003(5). 506 CHATZIPANAGIOTIS Michael P., Regulating Suborbital Flights in Europe: Selected Issues. University of Cyprus, Department of Law, 2012, p. 59.

73 However, it is very likely that this “interim regime”507 will be challenged before courts508 by victims or their families but what is even more sure is that the operator will be released from his potential liability if the informed consent procedure has been correctly followed and if he did not act wrongfully.509

From a European perspective, where the is far reaching, this liability waiver – even if not automatic – is quite troubling. The matter becomes relevant for European citizens due to the American industrial and regulatory dynamic and its intention to provide suborbital flights across the globe. One may very well imagine the exportation of these clauses towards our legal regimes since the Federal Aviation Administration is “actively promoting [this] regulatory approach as a [worldwide] model”.510 The Spanish draft legislation is fully in line with this assumption and its expected provisions on liability waiver “except in cases of gross negligence or deliberate wrongful action”511 may be significantly detrimental to the protection of the passengers. Thus, the next Section will investigate the applicability of EU rules on consumer protection.

Section 2. The Informed Consent: An Unfair Term under European Law?

This Section will only focus on space tourism flights and will not address the particular case of point-to-point transportation since the latter – if the European Union decides to integrate it within the civil aviation regime – will be governed by Regulation 889/2002 on air carrier liability in the event of accidents.512

Some concrete projects already happened in Europe with the objective to foster the development of suborbital flights in the years to come. In Italy, a first Memorandum of Cooperation for the development of Commercial Space Transportation has been signed in March 12, 2014 between the FAA and the Italian Civil Aviation Authority (ENAC). This has been followed a Decree No. 354 on the Sustainable Development of the Commercial Suborbital Flights Sector. All of this finally led to a Memorandum of Understanding concluded last year between the US and the Italian Governments aimed at welcoming Virgin Galactic on the Italian soil through the development of a suborbital hub. Sweden also clearly showed its intention to follow that trend and as already discussed, Spain is currently drafting its own Bill.

Because of these developments, one may fear the importation of the informed consent clauses within the European jurisdictions and the question is therefore to discuss whether the latter would be valid under European Union Law.

507 VON DER DUNK Frans G., Space Tourism, Private Spaceflight and the Law: Key Aspects, op. cit., p. 151. 508 MORO-AGUILAR Rafael, National Regulation of Private Suborbital Flights: A Fresh View, op. cit., p. 690. 509 KNUTSON Tracey, op. cit., p. 115. 510 SGOBBA Tommaso, KEZIRIAN Michael, Commercial Human Spaceflight: What Regulation?, op. cit., p. 6. 511 MORO-AGUILAR Rafael, National Regulation of Private Suborbital Flights: A Fresh View, op. cit., p. 707. 512 Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents.

74 In Europe, special protection for consumers who are considered as weaker parties are in force, especially in cases where the contract has not been individually negotiated,513 meaning when “it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract”.514

In such a case, Directive 93/13 on Unfair Terms in Consumer Contracts515 may be applicable under the condition that the contract effectively qualifies as a consumer contract. The latter is defined as the contract “concluded between a seller or supplier and a consumer”.516 The former relates to “any natural or who […] is acting for purposes relating to his trade, business or profession […]”517 while the latter is “any natural person who […] is acting for purposes which are outside his trade, business or profession”.518 The Directive applies to any consumer contract, be it one related to the delivery of goods or one related to the provision of services.519

Consequently, a contract for the performance of a space tourism flight concluded between a commercial company providing this service in its professional capacity (the professional) and an individual space tourist acting for purposes outside of such capacity (the consumer) will be qualified as a consumer contract within the meaning of Directive 93/13. Moreover, it seems obvious that the contracts will not be individually negotiated since they will be formulated in advance, with the relevant informed consent clauses incorporated into them.520

Under this Directive, “exclusion of liability for negligently caused death and personal injury”521 will be seen as a “flagrantly unfair term”522 thus breaching good faith per se.523 As we have seen however, the informed consent is not an automatic waiver of liability claims. Therefore, a case by case assessment will necessarily be made by the Courts. In that sense, the Directive offers protection to consumers challenging the terms of a contract under a twofold requirement.

First, according to Article 4(1), the unfairness of the contract’s terms must be assessed, “taking into account the nature of the goods or services for which the contract was concluded”, in reference to “all the circumstances” surrounding its conclusion at the time of its conclusion. In relation to a “suborbital contract”,524 the potential unfairness of an informed consent clause will therefore be assessed taking into account the “particularities”525 of such contract. The “lack of

513 NEBBIA Paolisa, Unfair Contract Terms in European Law: A Study in Comparative and EC Law. Modern Studies in European Law, Volume 15, Hart Publishing, 2007, p. 3. 514 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Article 3(2). 515 Directive 93/13, ibid. 516 Ibid., Article 1. 517 Ibid., Article 2(c). 518 Ibid., Article 2(b). 519 HOWELLS Geraint, European Consumer Law. In: BARNARD Catherine, PEERS Steve, European Union Law. Oxford University Press, 2014, p. 694. 520 CHATZIPANAGIOTIS Michael P., Regulating Suborbital Flights in Europe: Selected Issues, op. cit., p. 61. 521 HOWELLS Geraint, op. cit., p. 692. 522 Ibid. 523 Ibid. 524 CHATZIPANAGIOTIS Michael P., Regulating Suborbital Flights in Europe: Selected Issues, op. cit., p. 61. 525 Ibid., p. 62.

75 experience”526 of the suborbital industry, the “experimental nature of the technology”527 involved, the degree of information provided to the passenger regarding the risks of the activity, and whether or not a medical visit has been carried out prior to the flight are all elements that may carry weight in assessing the potential unfairness of an informed consent clause.528

Second, the clause must create a “significant imbalance in the parties’ rights and obligations […], to the detriment of the consumer”. Article 5 of the Directive then provides that – in case of a written contract – when the terms are unclear and where a doubt about their meaning arise, the interpretation which is the most favourable to the consumer “shall prevail”. It is exactly on this point that consumers might challenge informed consent clauses. If the latter have not been formulated in a “clear [and] unambiguous way”,529 using technical language obscuring the understanding of an average space tourist who does not have specific knowledge, then it is likely that the informed consent be declared null and void.530 For example when, from the terms of the contract, one cannot not be sure whether the informed consent also covers on the ground accidents happening before lift-off, the clause “will be interpreted as not covering such accidents”.531

However, according to Article 8, it is a so called minimum harmonization Directive, meaning that the effective level of protection may vary between Member States. Some may have implemented the Text as it is while other may have implemented more protective measures into their national regulatory frameworks.

Particularly, annexed to the Directive is a non-exhaustive and indicative list laying down clauses that may be qualified as unfair. Among them are comprised those “excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier”.532

The extent to which Member States have implemented this Annex may vary and therefore the solution may depend from one jurisdiction to another. For instance, Luxembourg has textually implemented the Annex in its Consumer Code533 whereas France is more restrictive vis-à-vis the professional as it provides that “are irrevocably deemed unfair and therefore prohibited, the terms that have for object or for effect to remove or reduce the right to compensation for the harm suffered by the consumer in the event of the breach by the professional of any of his

526 Ibid. 527 Ibid. 528 Ibid. 529 Ibid. 530 Ibid. 531 Ibid. 532 Directive 93/13, Annex. 533 Code de la Consommation, Article L211-3(21): “Sont notamment à considérer comme abusives au sens de l’article précédent […] les clauses excluant ou limitant la responsabilité légale du professionnel en cas de mort d’un consommateur ou de dommages corporels causés à celui-ci, résultant d’un acte ou d’une omission de ce professionnel”.

76 obligations”.534 Under these general terms, if the professional provides in the contract to be held liable only in cases where he lacked to inform the passengers about the risks of the activity, it is likely that the clause will be considered null and void since a breach by the professional of any of his obligations – and not only the breach of a duty to warn – is covered by the law. The answer is the same if the professional provides to be held liable only in cases of gross negligence, if he knew or reasonably should have known of a dangerous condition, or for intentional damages caused to passengers. Of course, it is a matter of interpretation by the Courts.

As seen in this Chapter, the regulatory divergences introduced among States will certainly lead to conflicts before Courts. The next Chapter will now consider the institutional aspects into which suborbital activities should find their way.

Chapter 2. The Institutional Framework for Suborbital Activities

This final Chapter will address the institutional aspects surrounding suborbital flights. It will first of all provide an up to date view and a commentary regarding the ICAO mandate (Section 1), before explaining how the EASA would be able to act within this field (Section 2). In an attempt to shed light on how future perspectives might be shaped, the most recent information will be given regarding the eagerness of these institutions to take over any mandate.

Section 1. ICAO: Up to Date View and Commentary

In 2005 already, the ICAO Council stated that “should sub-orbital vehicles be considered (primarily) as aircraft, when engaged in international air navigation, consequences would follow under the Chicago Convention […]”.535 Despite the fact that the Organization missed its chance to determine whether or not suborbital vehicles should qualify as such,536 this declaration marked the beginning of a significant step forward.

Since then, the Organization has indeed significantly moved forward. Following its 217th Session held very recently in June 2019, the ICAO Council has presented a Working Paper to be submitted to the forthcoming 40th Session of the ICAO Assembly (September 2019).537 The paper “presents an overview of the emergence of commercial space transport (CST) and its

534 Code de la Consommation, Article R212-1(6) : “Dans les contrats conclus entre des professionnels et des consommateurs, sont de manière irréfragable présumées abusives […] et dès lors interdites, les clauses ayant pour objet ou pour effet de […] supprimer ou réduire le droit à réparation du préjudice subi par le consommateur en cas de manquement par le professionnel à l'une quelconque de ses obligations”. 535 ICAO Council, Concept of Sub-Orbital Flights, Working Paper C-WP/12436, op. cit., p. 3. 536 MINEIRO Michael C., An Intersection of Air and Space Law: Licensing and Regulating Suborbital Commercial Human Space Flight Operations. Air and Space Law, Vol. 22, No. 4, 2010, p. 2. 537 ICAO Council – 217th Session, Agenda Item 26: Other high-level policy issues to be considered by the Executive Committee, Report on Commercial Space Transport (CST), A40-WP/15 EX/8, June 27, 2019.

77 overlap with the existing air transport sector”.538 It first of all takes note of the prospected increase in suborbital flights and translates in general the ICAO’s willingness to be an active participant in this field.539

While this “overlapping nature of CST operations”,540 especially with the space domain, has led to uncertainties about a possible ICAO mandate,541 the Council recognizes now its own competence in five important areas: “accommodation of CST in air space; the joint use of infrastructure; the co-location of airports and spaceports; the use of aircraft as launchers; and the phases of flight of space vehicle that use the interaction with the atmosphere to derive lift”.542 Ambitious is that message but the competence in the last identified area should be commented.

In line with the proposed definition of aerospace vehicle, we can only suggest the ICAO to take a complete lead over international civil transportation activities, without being too much focused on distinguishing the phases of flight that interact with the atmosphere and those that do not. As already defended in relation to point-to-point flights, our position is that of a completely interoperable one where vehicles performing the same activity shall be subject to the same rules and institutions, non-regarding of their technical properties.

The Council finally made a proposal for an Assembly Resolution543 aimed at clarifying “the role of ICAO in order not to inhibit the development and growth of this emerging sector”.544 Its adoption is now conditioned by the next Assembly Session’s approval. The Draft recognizes the relevance of an ICAO mandate in the five areas mentioned above and recalls Articles 37 and 44 of the Chicago Convention which grant the Organization the power to amend its International Standards and Recommended Practices (SARPs) and Procedures in order to be always up to date on safety matters, regularity and efficiency of air navigation. It finally reaffirms the role of ICAO in developing policy provisions in areas of intersection between suborbital operations and international civil aviation.

The outcome of the next ICAO Assembly will be determinant for the years to come. From a dawning position held in 2005, the Council has evolved towards a more involved one which reflects the role the Organization has to play in that field. The suborbital industry could necessarily achieve a lot if it were relying on the vast experience that has been drawn by the ICAO throughout the last seventy-five years of international civil aviation.

We can therefore only recommend the next Assembly to follow the objective pursued in this Draft which is in line with the late Dr. Assad Kotaite’s vision who stated in 1999 that the

538 Ibid., p. 1. 539 Ibid., p. 2. 540 Ibid., p. 3. 541 Ibid. 542 Ibid. 543 Ibid., Appendix: Draft Resolution for Adoption by the 40th Session of the Assembly, Resolution A40-x: Commercial Space Transportation (CST). 544 ICAO Council, Report on Commercial Space Transport (CST), A40-WP/15 EX/8, op. cit., p. 3.

78 Organization was “the logical international institution to lead the way into space […]”.545 An assumption further supported three years later by Dr. Ruwantissa I.R. Abeyratne who added that “there is absolutely no difficulty from a commercial standpoint in applying exclusively principles of Air Law to the operations of an aerospace plane, which carries passengers and goods from one State to another, while traversing outer space in the process”.546

However, since the United States has always promoted a space approach to suborbital activities, one may not expect a change of direction in that respect. It is very unlikely that the country will become eager to adopt a pro-aviation logic and will most probably stick to its space law understanding regarding the suborbital topic.

There is still a long way to go before the ICAO takes over any mandate on this subject but it is of fundamental importance for the European Union not to miss its opportunity to carry weight on this problematic. The latter is indeed in full position to impact significantly the future international regulatory approach, for instance if it decides to implement the ICAO’s definition of aircraft or even the prospected one of aerospace vehicle in its – to be achieved – point-to- point regulatory regime.547 This answer would definitely represent an “important ”548 before the international community.

We will now envisage how suborbital operations would fall under the EASA’s mandate and try to provide further recommendations.

Section 2. EASA: The Expertise at the Service of the Industry

In 2008 already, EASA officials declared the Agency’s state of readiness to develop a “policy”549 if the suborbital industry were calling for guidance on certification matters550 as well as receiving “applications for airworthiness approvals”.551 This position has been upheld two years later by the same group who declared that since then, the Agency has been consulted “by several potential applicants”.552

This certification basis would eventually lead to a “specific Certification Specification”553 dedicated to suborbital vehicles “once sufficient experience [would have been] acquired”.554 This statement echoes the whole logic behind the EASA’s perception of suborbital vehicles which is based on a so called “small steps”555 approach. The rationale behind this is based on

545 In: VON DER DUNK Frans G., International Space Law., op. cit., p. 528. 546 Ibid., pp. 528-529. 547 MINEIRO Michael C., An Intersection of Air and Space Law, op. cit., p. 2. 548 Ibid. 549 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 191. 550 Ibid. 551 Ibid. 552 MARCIACQ JB et al., Towards Regulating Sub-Orbital Flights: An Updated EASA Approach, op. cit., p. 2. 553 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 192. 554 Ibid. 555 Ibid., p. 188.

79 the need of the industry not to depart from scratch but rather to take into account the existing rules and to adapt them along the technological development of a particular product.556 This pragmatic understanding allows the industry to evolve and the technology to accommodate in a predictable fashion, through an already known (aviation) legal framework.557

Because the regulation is at the core of a vehicle’s design,558 if the industry knows it has to target aviation safety requirements – even the minimal ones – straight from the beginning, it will develop its vehicles’ prototypes in consequence. For aircraft manufacturers who already know these standards, it enables an incredible level of certainty throughout the whole manufacturing process. Importantly, in 2010, the EASA’s officials called the industry to “identify the requirements they cannot meet in [already existing CS], and provide a clear rationale and equivalent level of safety […] in each case”.559 This reflects the progressive approach the Agency is eager to follow to address the specific concerns of the manufacturers which may fear too burdensome aviation standards. Particularly, the Agency wants to emancipate from the different type of propulsion mechanisms that are currently in use by conventional aircrafts and those that are currently developed by suborbital manufacturers (rocket-powered).560

Because the Agency relies on the ICAO’s definition of aircraft to apply its legal framework,561 “winged aircrafts, including rocket-powered aeroplanes”562 which are “sustained by aerodynamic lift”563 fall under its realm. The same would apply to suborbital vehicles presenting similar technical features564 and the Agency seems ready to adapt to their new modes of propulsion.565 Therefore, both the “regulatory framework and […] procedures”566 to certify suborbital vehicles as aircraft are in the hands of the Agency but one may bear in mind our attempt to emancipate from technical constraints. In order to do so, and similar to the recommendation made for ICAO, the most important task for the EASA will be to get beyond the capacity of a craft to be sustained in the Earth’s atmosphere. If the Agency is certifying point-to-point transportation vehicles that present that feature, it shall also be competent to do the same in relation to vehicles that do not since they perform the same activity. The Agency’s mandate would necessarily have to be amended by the EU to include these new types of aerospace vehicles as well as the suborbital phase of the flight within its scope of action.567

556 Ibid., p. 185. 557 Ibid., p. 188. 558 CHATZIPANAGIOTIS Michael P., Regulating the Safety of Suborbital Flights in Europe: Navigating Through the Labyrinth of Competences of the EU, its Member States and ESA. Proceedings of the Sixty-Fourth International Astronautical Congress, Beijing, Paper No. IAC-13-D6,1,1x17300, 2013, p. 1. 559 MARCIACQ JB et al., Towards Regulating Sub-Orbital Flights: An Updated EASA Approach, op. cit., p. 7. 560 Ibid. 561 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 191. 562 Ibid., p. 188. 563 MARCIACQ JB et al., Towards Regulating Sub-Orbital Flights: An Updated EASA Approach, op. cit., p. 15. 564 MARCIACQ JB et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 196. 565 MARCIACQ JB et al., Towards Regulating Sub-Orbital Flights: An Updated EASA Approach, op. cit., p. 9. 566 MARCIACQ Jean-Bruno, Establishing a Regulatory Framework for the Development and Operation of Sub- orbital and Orbital Aircraft in the EU, op. cit., p.245. 567 CHATZIPANAGIOTIS Michael P., Regulating the Safety of Suborbital Flights in Europe, op. cit., p. 1.

80 If the Agency succeeds in doing so, it will be able to apply its evolutive certifying regime for all vehicles. The use of the term evolutive is important since it is at the core of the EASA’s work to “complement existing rules […] rather than developing new specifications from scratch”.568 As mentioned, the logic would be therefore to take the already existing Certification Specifications and to adapt and complement them in relation the particularities of these new vehicles.569 The obvious aim behind this idea is to “ensure an equitable level of safety”570 for every type of vehicle engaged in the same activity. The strong procedures implemented by the EASA would be the guarantee for an overall safety. In addition, if suborbital space tourism vehicles were also to fall under the aviation regime, the EASA would also be competent to certify them. The entire manned suborbital flights’ industry (point-to-point and tourism) would thus benefit from this safety regime.

We strongly believe this approach is the one that will serve the industry the most and will allow for its close cooperation with the regulatory body, ultimately guaranteeing the people’s safety. It is therefore important for the European Union to decides in favour of this approach and to extend the EASA’s mandate.

568 MARCIACQ Jean-Bruno et al., Accommodating Sub-Orbital Flights Into the EASA Regulatory System, op. cit., p. 188. 569 Ibid., p. 194. 570 Ibid., p. 195.

81 CONCLUSION

This Thesis was aimed at analysing the existing legal regimes that may be potentially applicable to govern suborbital flights. With a particular focus on both the European Union and the passengers’ protection, it departed from the assessment that national space legislations in Europe are not well fitted to welcome suborbital activities under their realm. Drawing conclusions from their general provisions is in that sense a challenging and not satisfactory task that hinders legal certainty. General space laws across the European Union are also facing a regulatory competition coming from both the United States and the United Kingdom where dedicated national suborbital Bills addressing the particularities of this activity have been enacted.

In a nascent industry where products can potentially be very harmful to the passengers’ safety, the main risk is to be overwhelmed by varied legal answers due to a lack of consensus between legislators. In that sense, the European non-harmonization clause bothers in providing a viable answer as it hinders the approximation of the Member States’ national space laws so their regimes will continue to diverge if this activity falls solely under this regime.

Rather, because the term suborbital is a generic one, Space Law should not be the unique legal regime automatically governing these flights. A functional approach to this topic enabled to identify three different type of suborbital activities to which different regimes may apply whereas a common denominator might bring them under the auspices of an extended Air Traffic Management system.

As such, intercontinental point-to-point transportation shall be ruled by International Aviation Law since its very purpose is to carry passengers safely from one place to another, just as it is the case of the present civil aviation. This regime provides legal certainty and guarantees the States’ sovereignty as well as a high level of safety to the passengers. Point-to-point suborbital crafts would therefore rely on serious safety standards “deriving from long-standing aviation experience”571 but which are at the same time perfectly capable to adapt to a nascent industry. In Europe particularly, the far-reaching mandate of the Union in the field of Transport would definitely serves the different stakeholders. Through a redefinition of concepts, its evolutive approach may also very well fit the future suborbital systems that will not necessarily correspond to the current definition of aircraft.

Suborbital space missions on the other hand are definitely in line with the very purpose of Space Law and an alternative legal regime should not be envisaged. The legal challenge will however shift to a political one where consensus among States before the UN COPUOS will be highly needed to redefine the concepts laid down in both the Registration and Liability Conventions. Launching unregistered suborbital vehicles in outer space as well as qualifying a carrier aircraft as a space object are indeed very problematic issues that must be resolved in a coherent fashion.

571 GERHARD Michael, Space Tourism – The Authorisation of Suborbital Space Transportation, op. cit., p. 274.

82

The most ambiguous category is finally the one of space tourism which truly lies between the two aforementioned categories of Air and Space Law. An answer to this regulatory deadlock may even be envisaged at the national level since the vehicles involved will not have the vocation to cross States’ borders. If a sui generis legal regime were to be envisaged, elements of aviation – including national – and outer space law might very well be taken into account as insightful components.

This approach, based on a diversity of legal regimes potentially applicable to suborbital activities is justified by the misuse of the term suborbital as an overarching concept. The unique meaning one shall accord to this locution is the one relating to the following of non-orbital trajectories achieved through an incidental passage in outer space. The three identified activities do share that criteria but still remain substantially different in their very purpose and as such, shall be governed differently. This distinction also enables the industry to know straight from the beginning of the developing process to which standards it shall comply. If the manufactured craft is aimed at transporting passengers, a certifying process will be followed whereas if the latter is unmanned and is only destined to send payloads into orbit, a (space) license will suffice.

However, due to the prospected increase in suborbital operations and their substantial presence in the airspace, Air Traffic Management clearly has a lead to take on this matter. In that respect, the Thesis recommended the latter to extend its mandate through upper altitudes in order to regulate the three phases of flight. This fully integrated system presents the advantage of being more reactive than a coordinated one, particularly with regard to the high velocities reached by vehicles returning back to Earth. Inspiration from what has been done over the high-seas under the auspices of ICAO should also be envisaged as a way to foster international cooperation on safety matters in a sovereignty-free area.

Further perspectives shed light on the potential conflicts that will certainly arise before European jurisdictions due to a gaining ground informed consent regime that – despite being often darkened as of its real meaning – might be causing trouble to the consumers’ protection, as envisaged under European Law. However, because this protection is minimally harmonized across Europe, its extent in front of allegedly unfair terms will certainly not be the same among Member States.

These perspectives finally led to institutional aspects where relevant mandates to be granted respectively to the ICAO, the EASA and the European Union have been advocated. In addition to the manufacturing and the legislative work, it is only through a coherent institutional framework that suborbital activities will find their way towards a safe and viable ecosystem. The relevant Institutions, in respect to their dedicated mandate, definitely have an important role to play in fostering the development of this promising industry.

83 Of course, an internationally recognized sui generis approach to the suborbital problematic would settle many gaps and uncertainties572 but one should not expect so much about its feasibility due to a lack of political consensus at the global level. Particularly before the UN COPUOS, multilateralism has progressively gave its seat to unilateralism and States do not wait upon their peers to move forward into their respective space priorities.573 For industrials established outside of either the United States or the United Kingdom and which have already started to develop their prototypes,574 this regulatory deadlock is an additional burden in the manufacturing process since they lack a clear cut on the path to follow, to the detriment of the passengers ultimately. This Thesis was in that sense also aimed at giving inspiration and the proposed legal regimes based on the nature of the activity should be understood as a kind of tailor-made solution but at the same time lying on what already exists. It is in that respect that we have tried to take advantage of the best practices currently in force.

572 BALLESTE Roy, Worlds Apart: The Legal Challenges of Suborbital Flights in Outer Space, op. cit., p. 1054. 573 KERREST Armel, Presentation given on the “Legal Status of the Moon and other Celestial Bodies”. Colloquium on the Exploitation of Space Resources, Aix-Marseille University, Faculty of Law and Political Science, May 17, 2019. 574 FREELAND Steven, Fly Me To The Moon […], op. cit., p. 102.

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Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Space Strategy for Europe, COM(2016) 705 final, 2016.

Proposal for a Regulation Establishing the Space Programme of the Union and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, COM(2018) 447 Final, 2018.

90 Regulation 2018/1139 of the European Parliament and of the Council of 4 July 2018 on Common Rules in the Field of Civil Aviation and Establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.

Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system.

Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC.

Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents.

Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky.

Treaty on the European Union

Treaty on the Functioning of the European Union

International Treaties and Conventions (in chronological order)

Convention on International Civil Aviation, Done at Chicago on 7 December 1944.

The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use and Outer Space, including the Moon and Other Celestial Bodies.

The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.

Vienna Convention on the Law of Treaties, Concluded at Vienna on 23 May 1969. The 1972 Convention on International Liability for Damage Caused by Space Objects.

The 1975 Convention on Registration of Objects Launched into Outer Space.

91 Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on May 28, 1999, ICAO Doc. No. 4698.

Agreement Among The Government of Canada, Governments of Member States of the European Space Agency, The Government of Japan, the Government of The Russian Federation, and The Government of The United States of America Concerning Cooperation on The Civil International Space Station, Signed at Washington on January 29, 1998 and Entered into Force on March 27, 2001.

National Laws and

Austria: - Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry, 28 December 2011 (Austrian Outer Space Act).

Belgium: - Law of 17 September 2005 on the Activities of Launching, Flight Operation or Guidance of Space Objects.

Canada: - Aeronautics Act, R.S.C., 1985, c. A-2.

Denmark: - Outer Space Act (Act n°409 of 11 May 2016).

Finland: - Act on Space Activities, No. 63/2018, January 23, 2018.

France: - Arrêté du 24 juillet 1991 Relatif aux Conditions d’Utilisation des Aéronefs Civils en Aviation Générale. - Space Operations Act No. 2008-518 of 3rd June 2008.

Germany: - Act to give Protection against the Security Risk to the Federal Republic of Germany by the Dissemination of High-Grade Earth RemoteSensing Data (Satellite Data Security Act – SatDSiG) of November 23, 2017. - LuftVerkehrsGesetz (German Aviation Act).

Luxembourg : - Loi du 20 Juillet 2017 sur l’Exploration et l’Utilisation des Ressources de l’Espace.

92 Netherlands: Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (Space Activities Act), June 13, 2006.

Norway: - Act on Launching Objects from Norwegian Territory into Outer Space, No. 38, June 13, 1969.

United States: - Commercial Space Launch Act, H.R. 3942, October 30, 1984. - Commercial Space Launch Amendments Act, H.R. 3752, March 4, 2004. - Space Activities Statute (2009), Florida Statutes, Title XXV, Chapter 331, Section 501. - Space Flight Informed Consent Act (2010), New Mexico Statutes, Chapter 41 - Torts, Section 14. - Space Activities Statute (2011), Texas Civil Practice and Remedies Code, Title 4, Chapter 100A. - Spaceflight Liability and Immunity Act (2012), California Civil Code, Division 3, Part 4, Title 7, Chapter 5, Article 5. - United States Code, Title 51 – National and Commercial Space Programs. - United States Code of Federal Regulations, Title 14 – Aeronautics and Space.

Spain: - Law 14/2009 of 22 July 2009 concerning Airports, Heliports and other Airport Infrastructures (Catalonia).

Sweden: - Act on Space Activities, No. 1982:963 of 18 November 1982.

United Kingdom: - 2018 Space Industry Act.

Online Resources https://fr.wikipedia.org/wiki/Vol_parabolique. https://spacewatch.global/2019/05/germany-to-draft-new-space-laws-and-regulations-to-spur- lagging-new-space-sector/.

93 Other Materials

A-P-T Research, Inc., Study on Informed Consent for Spaceflight Participants, Document No. APT-CFA-230-0001-02F, September 26, 2008.

CHATZIPANAGIOTIS Michael P., Regulating Suborbital Flights in Europe, Selected Issues. University of Cyprus, Department of Law, 2012.

Committee on Formation of Customary (General) International Law of the International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law: Final Report of the Committee. London Conference, 2000.

COSPACE, Task Force SoA, Aéronefs Suborbitaux: Position Française, 29 février 2016.

HERTZFELD Henry R., YUNG Liana X., OSBORNE Daniel V., A Guide to Space Law Terms. Space Policy Institute (SPI), Georges Washington University and Secure World Foundation (SWF), 2012.

International Academy of Astronautics (IAA), Cosmic Study on Space Traffic Management, 2006.

IAASS, Safety Design and Operation of suborbital vehicles guidelines, October 7, 2015.

International Civil Aviation Organization Council – 175th Session, Concept of Sub-Orbital Flights, Working Paper C-WP/12436, May 5, 2005.

International Civil Aviation Organization Council – 217th Session, Draft Assembly Working Paper – Commercial Space Transport (CST), C-WP/14910, June 13, 2019.

KERREST Armel, Presentation given on the “Legal Status of the Moon and other Celestial Bodies”. Colloquium on the Exploitation of Space Resources, Aix-Marseille University, Faculty of Law and Political Science, May 17, 2019.

MAHBOUBEH MOUSAVI SAMEH Seyedeh, Suborbital Flights: Selected Legal Issues. Institute of Air and Space Law, Faculty of Law, McGill University, 2013.

MINEIRO Michael C., Commercial Human Space Flight in the United States: Federal Licensing and Tort Liability. Nahum Gelber Law Library, 2008.

United Kingdom Civil Aviation Authority, UK Government Review of Commercial Spaceplane Certification and Operations: Technical Report, July 2014.

UKSA, Presentation given by HUGHES Louise before the UN COPUOS: The Space Industry Act 2018, Available at: http://www.unoosa.org/documents/pdf/copuos/lsc/2018/tech-01.pdf.

94 United Nations Committee On the Peaceful Uses of Outer Space – Legal Sub-Committee, Questionnaire on Possible Legal Issues with Regard to Aerospace Objects: Replies from Member States, February 15, 1996. UN Doc. A/AC.105/635.

TRAPPIER Éric, Séminaire Perspectives Spatiales. Cercle National des Armées, April 2, 2019.

2019 Satellite Conference: Remarks by Vice President Pence on May, 6, 2019, Walter E. Washington Convention Center Washington, D.C.

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