REUSABLE LAUNCH VEHICLES:
CROSSROADS BETWEEN AIR AND SP ACE LAW
By
Varlin Vissepa
Institute of Air and Space Law Faculty of Graduate Studies and Research McGill University Montreal
August 2003
A thesis submitted to Mc Gill University in partial fulfillment of the requirements of the degree of Master of Laws (LL.M.) in Air and Space Law.
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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. ••• Canada To my wife Evelyn and my son Varlin Andre whom l love more very much and without whom l would be completely lost.
11 ACKNOWLEDGEMENTS
First of aIl l would like to thank my wife, Evelyn, for aIl her support and patience during my studies and our stay in Montreal. Without her support and inspiration l would not have been able to finish my work. l thank my mother Nilda and my father Hugo for their support and encouragement to always do more and for believing in me and my dreams. Dr. Ram J akhu l would like to thank for aU his guidance, wisdom and supervision during my studies and thesis writing at the Institute of Air and Space Law.
l would like to thank my classmates at the Institute for their help, support and friendship during my stay in Montreal. l also wish thank Lilly Chow at Worldlingo for her help in translating the Abstract of this thesis into French. Finally, but not least l would like to thank Dr. Michel Milde for his wise lectures and aIl the professors at the
Institute of Air and Space Law, as weIl as Maria, Margaret and Dalia for their practical advice during the course of my studies.
III ABSTRACT
Space technology is increasingly becoming part of our everyday life, businesses, governments and private entities rely heavily on satellite communications for their respective dealings and transactions. On the other hand, not aIl transactions or businesses can be do ne solely through telecommunications, we often need to get on an airplane and go somewhere else to do our respective businesses and if we are on vacation we definitely need to travel. The problem is that airplane travel, although fast, sometimes is not fast enough. Today's people want convenience and when they want something they usually want it fast, especially in business. Now, imagine yourself being able to get from
Montreal to Sydney to close a business deal and be back home the same day or ordering a part from Tokyo to San Juan and have it delivered it the same day. It may seem like science fiction or something too far ahead in the future, but it is not. Currently, there are nations and private companies working on different prototypes that soon will be flying in our skies and above. These space transportation systems are the future of commercial transportation, but as every human activity, they will need regulation, in this thesis we will analyze the legal issues and aspects behind the se future vehicles.
IV RESUME
La technologie spatiale occupe une place grandissante dans notre quotidien. Le fonctionnement des entreprises, du gouvernement et du secteur privé repose considérablement sur la communication par satellites. Toutefois, la communication par satellite a ses limites, l'avion restant indispensable pour les voyages d'affaires ou d'agrément. Mais, même si le transport aérien est rapide, il ne l'est pas assez. Aujourd'hui, nous recherchons le côté pratique et lorsque nous voulons quelque chose, nous le voulons rapidement, surtout en affaires. Imaginez un instant que vous pouvez faire l'aller-retour entre Montréal et Sydney en une seule journée pour conclure un contrat ou commander une pièce de Tokyo à San Juan pour une livraison le même jour. Tout cela peut vous sembler tout droit sortir d'un film de science-fiction ou encore trop éloigné dans le futur, mais ce n'est pas le cas. Certains pays et entreprises privées travaillent actuellement à la mise au point de plusieurs prototypes qui devraient bientôt faire leur apparition dans le ciel et au-delà. Ces systèmes de transport spatial représentent l'avenir du transport commercial. Mais, comme toute activité humaine, ils devront faire l'objet d'une régulation. Aussi, dans cette thèse, nous analyserons les questions juridiques que cette technologie du futur soulève déjà.
v TABLE OF CONTENTS
Introduction ...... '" ...... 1
Chapter 1 Present and Future Space Transportation Systems
1.1 Introduction ...... , ...... 6
1.2 Expendable Launch Vehic1es ...... 7
1.2.1 United States Expendable Launch Vehic1es ...... 7 1.2.2 European Expendable Launch Vehic1es ...... 9 1.2.3 Russian and Ukrainian Expendable Launch Vehic1es ...... 10 1.2.4 China Expendable Launch Vehicles ...... 10 1.2.5 Japan Expendable Launch Vehic1es ...... 11 1.2.6 India Expendable Launch Vehic1es ...... 11
1.3 Reusable Launch Vehic1es ...... 12
1.3.1 United States Reusable Launch Vehic1es ...... 14 1.3.2 Reusable Launch Vehicle Efforts in other Countries ...... 15
Chapter 2 Space Commerce and National Regulation of Reusable Launch Vehicles
2.1 Introduction ...... 18
2.2 The Orbital Reusable Launch Vehicle
2.2.1 Current Markets ...... 18 2.2.2. Future Markets ...... 19
2.3 Suborbital Reusable Launch Vehic1es
2.3.1 Current Markets ...... 20 2.3.2 Future Markets ...... 20
2.4 National Regulation of Reusable Launch Vehicles ...... 22
2.4.1 United States Regulation of Reusable Launch Vehic1es ...... , .. 22
Chapter 3 Legal Aspects of Reusable Launch Vehicles
3.1 Introduction ...... 27
3.2 Delimitation of Outer Space and Airspace ...... 27
VI 3.2.1 The Spatial Approaeh ...... 29 3.2.2 The Funetionalist Approaeh ...... 32
3.3 A Different Approach ...... 34
3.4 Establishing a New International Regime for Reusable Launch Vehic1es ...... 36
3.5 The International Air Law Regime, the Aerospace Plane and other RL V ...... 42
3.5.1 Definition of Aircraft and the Aerospace Plane ...... 43 3.5.2 Registration Issues of the Aerospace plane and other Reusable Launeh Vehieles ...... 46 3.5.3 Certification and Airworthiness of the Aerospace Plane ...... 48 3.5.4 Air Traffie Rights and the Aerospaee Plane ...... 49 3.5.5 Navigation in Airspace and the Reusable Launeh Vehic1e ...... 51
Chapter 4 Risk Management, Liability and the Reusable Launch Vehicle
4.1 Introduction ...... 54
4.2 Risk Management and the Reusable Launch Vehic1e ...... 54
4.3 Definition of Liability ...... 57
4.4 International Liability Regimes ...... 58
4.5 National Liability Regimes ...... 61
4.5.1 Australia ...... 61 4.5.2 China ...... 63 4.5.3 Europe ...... 64 4.5.4 Russia ...... 66 4.5.5 The United States ...... 68 4.5.6 Other Countries ...... 70
4.6 International Air Carrier Liability and the Reusable Launch Vehic1es ...... 72
Chapter 5 Conclusions and Recommendations ...... 78
Bibliography ...... '" ...... 82
Tables and Diagrams Table 1.1 Vehic1e Class and Payload ...... 6 Table 1.2 Unites States Expendable Launeh Vehic1es ...... 7-8 Diagram 1.1 Types of Reusable Launeh Vehic1es ...... 12 Table 4.1 Comparison of National Liability Regimes ...... 71
VIl INTRODUCTION
Since ancient times we have been the only species on the planet fascinated with the idea of traveling outside of our planet. Although nearly all uses of rockets up to the twentieth century were for warfare or fireworks, there is an interesting old Chinese legend that reported the use of rockets as a me ans of transportation. According to the legend, around the 16th century a Chine se official named Wan-Hu, which roughly translates as
Crazy Fox, built a rocket powered flying chair in order to fly to the moon. Attached to the chair were two large kites. Fixed to the kites were forty-seven fire arrow rockets.
The Chinese official climbed into the chair and forty-seven assistants, each with a torch, lighted the fuses of the fire arrow rockets. There was a blast off and a tremendous explosion, along great clouds of smoke. After the smoke cleared, Wan-Hu had vanished; the assistants indeed believed that he was up there among the stars. History did not tell us what happened to Wan-Hu, but we can only assume the worst. The fire arrows he used were as apt to explode as to fly. Whether this happened or not, Wan-Hu did make it to the moon, as he has a crater on the Moon named after him. Historian William E. Burrows said, "If it really happened, Wan Hu had the triple distinction of being the first pers on to ride a rocket, the first to fly on a self-propelled, heavier-than-air device, and the first rocket pilot to get killed during a test flight."l Nevertheless, our ambition for space travel has never diminished and the dream of Wan-Hu became a reality when Neil Armstrong uttered his famous words; "That's one small step for a man, one giant leap for mankind.,,2
Today, we are increasingly becoming more and more dependant on space
1 William E. Burrows, This New Ocean: The Stary afthe First Space Age, (New York: Modem Library, a division of Random House, 1999) at 7.
1 transportation systems, but that dependency has only been, so far, on telecommunications,
on placing those precious birds in the sky, called satellites. However, why have we not
become more dependent on space transportation systems for other applications such as
passenger and cargo transportation? The reason is simple; the space transportation
systems that we have used so far are expendable and thus too expensive to operate. For
us, to become dependant on space transportation vehicles, we need to develop a reusable
space transportation vehicle, just like an aircraft. The big difference being that this one
will be able to operate in outer space as weIl; we will need a space plane or aerospace
plane, which is a more correct term because it refers to its dual use of being able to
operate in both airspace and outer space.
The aerospace plane, which is a reusable or highly reusable launch vehicle, might
seem like something of the future, but it is not. There are two types of aerospace planes
the tirst, the orbital type, is designed to orbit the Earth and it is more a spacecraft than an
aircraft. The only orbital reusable launch vehicle ever developed was the Space Shuttle,
which in fact is a partly reusable launch vehicle because its external tank is expendable.
The second type is the suborbital reusable launch vehicle. This type of vehicle is not a
novelty; it has been around for more than fort Y years. The X-15 of the United States was
the tirst suborbital aerospace plane. It traveled to altitudes beyond 100 km at over six
times the speed of sound.3 Currently, there are nations and private companies working on
different prototypes of suborbital reusable launch vehicles that soon will be flying in our
skies and above it.
2 Neil Armstrong, Michael Collins & Edwin E. Aldrin, First on the Moon, (New York: William s Konecky Assoc., 2002). 3 V.S., Office of Space Commercialization, Department of Commerce, Suborbital Reusable Launch Vehicles and Applicable Markets, (Washington D.C. 2002) at Il.
2 In practice, the aerospace plane will operate in both airspace and outer space and currently there is no internationallegal regime that would apply to them. The regime for
air transportation is very different and sometimes opposite to the one for the activities
carried out in outer space. An example is liability, under the Liability Convention of
4 1972 , aState can be strictly liable if damage occurs "elsewhere than on the surface of the
6 Earth"S and absolute if it occurs on the surface of the Earth , and it is the State, not the
7 launch service provider that is liable. Whereas under the Warsaw Convention system ,
applicable to air transportation, the liability is upon the air carrier, without regards of who
owns the carrier, and strict liability is the norm. Thus, it is very important that we start
working on establishing a flexible legal foundation for an international regime that will
apply to both aircraft and spacecraft. In the alternative, we can incorporate into the
current international air law regime those reusable space transportation systems or
aerospace planes that are going to operate in sub-orbit to carry us from one point in the
Earth to another.
Additionally, there are two very good reasons to believe that these aerospace
planes are going to be part of the near future. First, the private industry is very involved;
actually there is a Space Transportation Association (STA)8 (something like what the
International Air Transport Association (IATA) is to airline industry) and sorne of its
members are very important players is space technology development, like Boeing and
Lockheed-Martin. This means that these companies are investing huge amounts of money
4 Convention on the International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187. 5 Ibid at Article III 6 Ibid at Article II 7 "Warsaw Convention system" is comprised the Convention for the Unification of Certain Rules Relating to International Carriage by Air 12 October 1929 and aU its protocols and additional protocols.
3 in the development of such systems. The second reason is that the United States, one of
the biggest space powers and certainly the one with the biggest budget, is very interested
in commercial reusable space transportation and it is investing in the development of
these systems.
Within the Federal Aviation Administration (F AA), the United States government
created an office of space transportation9 that in turn has enacted regulation for reusable
space transportation systems and even has published various studies and reports regarding
aspects like liability and the impact and benefits on the economy of these systems.
Additionally, the Department of Commerce and the National Aeronautics and Space
Administration (NASA) have created offices of space commercialization. The purposes
of these offices are to ensure the growth and international competitiveness of the United
States commercial space industry, including the reusable launch vehicle. The United
States govemment is providing funds for this growth in the way of loans and contracts for
the development of these space transportation systems. These reasons provide enough
support to conclude that there is a need for research in the determination of the
international legal status of these reusable space transportation systems and for the
eventual adoption of an international regime or the incorporation of such vehic1es into a
CUITent regime.
The first chapter of this thesis will focus on the present and future technology regarding space transportation systems, including orbital and suborbital expendable
launch vehic1es (EL V), and orbital and suborbital reusable launch vehicles (RL V), with particular attention to the aerospace plane concept. These vehicles and systems will be the
8For more see the Space Transportation Association website, online:
4 backbone of the space transportation industry and are the ones that are going to be
operating in airspace and outer space. This brings us to the question of how to define
these transportation systems; as aircraft, spacecraft or both. They are also the most
worrisome in terms of liability because, as we mentioned, different regimes would apply
to the same vehicle. The second chapter will deal with space commerce and national
regulation of space transportation and the steps that various countries have taken towards
this direction. In this chapter, we will mainly examine the CUITent and future addressable
markets for orbital and suborbital reusable launch vehicles as weIl as the national
regulation of the United States, since this country has developed a more complex and
specifie regime for reusable launch vehicles.
In the third chapter, we will examine the CUITent and future legal status of the aerospace plane under the applicable internationallaw, mainly the Outer Space Treaty of
1967 10 and the Chicago Convention of 1944. 11 This chapter will also include the boundary issue, which consists in determining the deI imitation of airspace and outer
space. We will also address the spatial versus functional approaches to this issue. In the fourth chapter, we will examine liability and risk management issues of the aerospace plane and other reusable launch vehicles paying particular attention to the Liability
Convention of 1972, the Montreal Convention of 1999 as weIl as the national provisions of different nations regarding liability in space. In the fifth chapter will include our conclusions and recommendations.
9 The office is called the Associate Administrator for Space Commercial Transportation (AST), for more information go online:
Il Convention on International Civil Aviation, December 7, 1944, ICAO Doc. 7300/6.
5 CHAPTER 1 PRESENT AND FUTURE SPACE TRANSPORTATION SYSTEMS
1.1 Introduction
AIl CUITent launch vehicles, whether expendable or reusable use rockets to propel them. The reason is simple in outer space there is no air. Inside our atmosphere aircraft operate by mixing fuel with outside air to provide combustion, in outer space you have to bring you own air in addition to the fuel to provide combustion, this is the principle behind rocket engines. A rocket engine operates on the principle ofNewton's Third Law of Motion; for every action, there is an equal and opposite reaction, by generating thrust in one direction that pushes the rocket in the other direction. 12 In the future, it is more likely that reusable launch vehicles will use a combination of rockets and/or highly modified jet engines, like the scramjet, an experimental type of engine capable of going hypersonic at very high altitudes. The Associate Administrator for Commercial Space
Transportation (AST) of the Federal Aviation Administration (F AA) has divided aIl launch vehicles, whether reusable or expendable into five classes, "based on the mass of the payload that they can place in a Low Earth Orbit (LEO) equatorial orbit.,,13 Table 1.1 shows the classes and payloads of each.
Table 1.1 Vehicle Class and Payload
Vehicle Class Payload to LEO
Suborbital Not capable ofputting any mass in orbit. Small Maximum Mass capacity 5,000 lbs. (2,273 kg) to LEO. Medium Mass capacity is in the range of5,001 (2,274 kg) to 12,000lbs. (5,454 kg) to LEO. Intermediate Mass capacity is in the range of 12,001 (5,455 kg) to 25,000 lbs. (11,363 kg) to LEO. Heavy Mass capacity is greater than 25,000 lbs. (11,364 kg) to LEO.
12Sir Isaac Newton, (1642-1727) British mathematician and physicist. For more information on Newton see: Ima Cook, Newton 's Law (Texas, Abique Books, 2002) 13 See US, Associate Administrator for Commercial Space Transportation, The Anatomy of a Launch Vehicle, (QRT-I) (Washington D.C. 2001) at 4.
6 1.2 Expendable Launch Vehicles
An Expendable Launch Vehicle or EL V is launch vehicle powered by a one-time use rocket. It is composed of various stages and depending on the model, it can use either solid or liquid fuel. 14 ELV's are the primary method of transportation to space today and they have proven very reliable. The drawbacks are obvious; you can use it only once.
N evertheless, the use of EL V' s is widely spread and they will continue in service as space transportation systems to carry satellites into the Low Earth Orbit (LEO), the Medium
Earth Orbit (MEO) and the Geostationary Orbit (GSO). In sub-orbital operations, the use of EL V' s is also widespread, mainly as sounding rockets.
1.2.1 United States Expendable Launch Vehicles
The United States has currently fourteen (14) types of expendable launch vehicles available. Table 1.2 shows aIl the types ofELV's by vehicle class and company. 15
Table 1.2 Unites States Expendable Launch Vehicles
Launch Vehicle Class Company
Athena Small Lockheed Martin Minotaur Small Orbital Sciences Pegasus Small Orbital Sciences Taurus Small Orbital Sciences Delta 2 Medium Boeing Titan 2 Medium Lockheed Martin Delta 3 Intermediate Boeing Delta 4 Intermediate Boeing Atlas 2 Intermediate Lockheed Martin Atlas 3 Intermediate Lockheed Martin
14 Ibid at 1-2.
7 Atlas 5 Intermediate Lockheed Martin Delta 4 Heavy Heavy Boeing Titan 4B Heavy Lockheed Martin Zenit 3SL Heavy Sea Launch
The Minotaur, Titan 2, and Titan 4B are for government payloads only. The remaining eleven Athena, the Atlas variants, the Delta variants, Pegasus, Taurus, and
Zenit 3SL are available for commercial use and aU but the Zenit 3SL carry United States government payloads. The reason is that the Zenit 3SL uses Russian and Ukrainian components and the United States government has a policy of only launching government payloads in United States made launch vehicles. 16 The Delta 4 and Atlas 5 are designs from the Evolved Expendable Launch Vehicle (EEVL) program, which is an EL V, designed to reduce the cost of space access by twenty five percent (25%), when compared with traditional EL V' s. 17
AdditionaUy, there are currently various companies developing new concepts for
ELV's that are being design mostly to carry smaU payloads to Low Earth Orbit. Although currently, the market for this type of launchers has bottomed out, nevertheless companies are putting their efforts and monies into their rockets and trying to reduce costs so they can attract potential customers. One such venture is Space Exploration Technologies
Corporation (SpaceX), which proposes to charge around 6 million USD per launch. 18
That is around eighty-eight percent (88%) percent less than what a typicallaunch service
15 See VS, Associate Administrator for Commercial Space Transportation, 2003 Us. Commercial Space Transportation Developments and Concepts Vehicles, Technologies and Spaceports, (Washington D.C. 2003) at 8-9. 16 See V.S., Office of Science and Technology Policy, National Space Transportation PoUcy, (Washington D.C. The White House, 1994) at 4. 17 See V.S., Associate Administrator for Commercial Space Transportation, EELV Reliability Building on Experience, (QRT-l) (Washington D.C. 2002) at 1.
8 provider like Boeing or Lockheed Martin would charge. They plan to launch late in 2003.
Other initiatives include Air Launch, which proposes to use a Boeing 747 as a launch platform for a small payload ELV. This of course brings us to our question of how we classify this aircraft, which will be in use as a launch platform. Another company is
Aquarius Space Systems which is planning a cheap EL V to be launch from the sea and it is intended for bulk cargo purposes like water, fuel and food, products that are inexpensive to replace in case of a launch failure. Another company, which is planning to launch ELV's from an aircraft, is Space Launch Corporation, again planning to use aircraft as a launch platform. 19 AlI these ELV's are going to be used for orbital flights and do not represent a problem in terms of our study because they are considered spacecraft as they will only operate in outer space. They do not represent the problem of the dual role (aircraft and spacecraft) that the aerospace plane is going to represent.
1.2.2 European Expendable Launch Vehicles
The Europeans depend solely on the Ariane family of launch vehicles and their management is through Arianespace. Currently, Arianespace manages the Ariane V while the Ariane IV was phased out earlier in 2003. The Ariane V is a heavy class launch vehicle capable of carrying various payloads to orbit. Arianespace is also developing a small to medium class size launch vehicle, the Vega that is expected to launch in 2006.
The other vehicle that Arianespace is using is the Russian buiIt Soyuz launch vehicle, that
Starsem markets, a French registered company, whose partners are Arianespace, the
19 For more on these companies and others that are developing low cost ELY's see supra note 15 at 12-15.
9 Samara Space Center, the Russian Space Agency and EADS?O AIllaunchers managed by
Arianespace are orbital ELV's and there are no plans for sub-orbitallaunchers capable of carrying people, as there are no immediate plans for any kind of reusable launch vehicle.
1.2.3 Russian and Ukrainian Expendable Launch Vehicles
The Russians and Ukrainians have the large st and most reliable fleet of ELV's.
They have over twenty different models in aIl vehicle classes. Sorne of the most venerable and important include the Soyuz, now in association with Arianespace, the
Zenit, now launching with Sea Launch, the Angara, the Molniya and the Proton marketed through International Launch Services, a division of Lockheed Martin. 21 Like the
Europeans, the Russians and Ukrainians are only working with ELV's. On the other hand, they are also the most experience in human space flight. It is possible that either the
Russians themselves or any other company or country interested in developing reusable transportation systems and eventually in developing the space plane for sub-orbital transportation of cargo and people could use Russian technology, but that is yet to be seen.
1.2.4 China Expendable Launch Vehicles
China, currently has the Long March rocket in its different variants, the latest being the LM_4. 22 Although, China is developing its hum an space program and is planning to be the third nation in the world to send, independently, humans to space, it is
20 For more information on Arianespace and their family of launchers, online:
21 For more on Russian and Ukrainian launchers see Russian Space Web online:
10 not working on reusable launch vehic1es and does not have any plans for sub-orbital flights of cargo or people.
1.2.5 Japan Expendable Launch Vehic1es
Japan has not been very successful in developing its EL V program, but they have lately overcome technical difficulties and are operating the H-2A launch vehic1e. 23 The
Japanese are also very interested in human spaceflight, particularly space tourism. They have designed various reusable launcher models for space tourism vehic1es 24 and although they are only designs it is a matter of time before these launch vehic1es, which will be sub-orbital in nature, start flying. Once these vehic1es start flying, it is likely that a space plane will soon follow, not just to carry tourists, but also to carry businesspeople, mail and cargo around the world.
1.2.6 lndia Expendable Launch Vehic1es
lndia has the PSL V rocket, which has had good success, but which has been difficult to market. Like China, lndia is also interested in hum an space flight, but currently there a no plans for the immediate future for any manned flights or reusable launch vehic1es.
23 For more on the Japanese launchers see Rocket Systems Corporation, online:
Il 1.3 Reusable Launch Vehicles
A Reusable Launch Vehicle or RL V is a vehicle that can be used more than once.
The aerospace plane faIls under this category. Reusable launch vehicles, in tum, can be divided in two types, the first are those to be used for orbital flights, like the proposed
Orbital Space Plane (OSP) that NASA is developing.25 The second are the ones that are going to be used in suborbital flights. Examples of this include those that are to be used for transportation within one point on the Earth to another, like the aerospace plane, or those to be used for space tourism like the unguided suborbital launch vehicle (USL V).
This distinction is very important since the use given to the reusable launch vehicle will likely affect its status in the two different intemationallegal regimes of airspace and outer space. Diagram 1.1 summarizes a possible division for the different types of proposed reusable launch vehicles.
Diagram 1.1 Types of Reusable Launch Vehicles
l REUSABLE LAUNCH VEHICLES J 1 1 1 [ Orbital RLV l Suborbital RLV J 1 1 1 1 1 [ Orbital Space Plane Jl Space Shuttle J Aerospace Plane J Sounding Rockets
Unguided Suborbital Launch Vehicle (USLV)
25 The Orbital Space Plane will be used primarily to carry astronauts and payloads to the International Space Station, also see supra note 15 at 18.
12 In practice, orbital RLV's could offer a number of advantages over ELV's. These include greater reliability and safety, quick tumaround time, versatile performance, high flight rate capability, and lower operating cost because it is not necessary to manufacture a new system after each launch like in the case ofELV's. These advantages could be put
into practice by both the government and private sector. Scientific missions could be
carried out at lower costs and new space commercial markets such as space tourism, fast package delivery, or microgravity processing could be developed. However, orbital
RL V' s have proven difficult to develop. In contrast to EL V' s which have benefited from the military missile technology, orbital RLV's have required in most cases innovation and
invention from scratch. In addition, orbital RLV's have to take into account durability, whereas ELV's need only to perform well once. These technical challenges make the
orbital RLV's considerably more expensive than existing ELV's. In the end, although
orbital reusable launch vehicles may be cheaper to operate they are very expensive to
develop. A clear example is the Space Shuttle, which was very expensive to develop and
it is expensive to operate. Of course, the Space Shuttle was the first one and now both the
government and the private sector can benefit from its technologies and examples to build
the next generation ofreusable launch vehicles. 26
On the other hand, suborbital RL V' s would be much cheaper to both develop and
operate than orbital RLV's. As we have mentioned, the technology for suborbital RLV's has been around for over fort Y years with the X _15. 27 The report from the Office of Space
26 For more on orbital and suborbital reusable launch technologies see D.S., Office of Space Commercialization, Department of Commerce, Suborbital Reusable Launch Vehicles and Applicable Markets, (Washington D.C. 2002) at 49 and see also supra note 15 at 17. 27 See the Introduction on pages 2-3, above, for more on this topic.
13 Commercialization of the Department of Commerce clearly explains why this technology was not continued and developed after its inception:
The reasons for not continuing this line of suborbital vehicle development did not involve any deficiencies in the program itself but rather concerned the larger context of U.S. government and commercial priorities. At the end of the 1960s, military efforts were for the most part focused on the refinement of the intercontinental ballistic missile (ICBM) fleet. NASA was increasingly concentrated on development of a manned orbital RL V-the Space Shuttle. In the commercial sector, suborbital market opportunities (e.g., micro gravit y research) were not yet sufficiently understood to stimulate much private sector interest.28
As we can see, the feasibility of suborbital launch vehicles is very real and very near in terms of time. Whereas an orbital reusable launch vehicle like NASA's Orbital
Space Plane might be a reality in twelve to fifteen years from now, a suborbital reusable launch vehicle could be a reality in as little as five years from now. We will look now at the efforts being conducted in the creation of both orbital and suborbital reusable launch vehicles.
1.3.1 United States Reusable Launch Vehicles
The United States is currently the only country designing and developing reusable
launch vehicles (RLV's). To develop the se vehicles there are two simultaneous efforts
going on in the United States. The first is the government effort; they are managing the
only partly reusable launch vehicle in existence, the Space Shuttle. They are also
developing the Orbital Space Plane, which eventually will replace the Space Shuttle and it
28 Supra note 26 at Il.
14 is going to be an orbital reusable launch vehicle.29 Private companies willing to enter the commercial space market are conducting the second effort. Among these are companies like Kelly Space, Kistler Aerospace, Armadillo Aerospace, Pioneer Rocketplane and others. 30 These companies are both working on orbital and suborbital reusable launch vehicles. There are also the X Prize competitors, which are competing for a 10 million
USD prize.31 In contrast, these vehicles are aIl going to be suborbital in nature.
1.3.2 Reusable Launch Vehicle Efforts in other Countries
The efforts in other countries of designing and developing reusable launch vehicles are very limited and private companies are conducting aIl the efforts. These include, Bristol Spaceplanes and Starchaser Industries of the United Kingdom; Canadian
Arrow of Canada; and Myasishchev Designed Bureau of Russia. 32 Other countries that are only on the designing stage of suborbital reusable launch vehicles are Japan, Israel and Argentina. Of particular interest is Japan, which as we have mentioned, has been interested for a long time in space tourism and its designing efforts for reusable launch vehicles are geared towards this end. 33 In the case of Israel and Argentina there are private companies from these two countries participating in the X Prize competition?4
29 Ibid. 30 For more on these companies and their proposed reusable launch vehicles see supra note 15 at 19-25. 31 The X Prize is a 10 million USD prize designed to promote the space tourism industry. The prize will be awarded to the first team that privately finances, builds and launches a spacecraft capable of carrying at least three persons to an altitude of 100 km, retums them safely to Earth and repeat the task with the same spacecraft within two weeks. There are currently 23 teams participating, for more on the X Prize see online:
15 To conclude this chapter we will like to include sorne important benefits that are go mg to be derived from the development and implementation of reusable launch vehicles; these benefits were included as part of a report prepared for the Office of Space
Commercialization of the Department of Commerce. They are:
1. legitimization of space transportation as a private sector investment option, along with creation of long-term relationships between entrepreneurs and investors; 2. growth of a profitable industry that could serve as a tax base, even after allowing for initial tax credits and/or tax holidays, to support later space research and exploration efforts; 3. development of a more effective Federal and state space regulatory and policy fràmework, working out such issues as inforrned customer consent for assurnption of greater risk and financial incentive structures; 4. and development of the infrastructure linking vehicles to spaceports and the overall economy, such as through establishment of interrnodal transport links (e.g., bringing people and cargo to and from a spaceport; connecting plane, rail, and highway routes to the spaceport).35
As we can see the potential for reusable launch vehicles is enorrnous and the benefits wide. In the next chapter, we will examine the emergence of CUITent markets for reusable launch vehicles and the possibility of future markets, along with the national efforts in regulating these vehicles. Unlike the first generation of space vehic1es where only a handful of governrnents were involved, there is a private space business infrastructure very interested in these types of vehicles mainly because they offer lower operating costs. Additionally, there are incentives from various governrnents and private
enterprises to further advance the development of these vehicles. Sorne say that history
always repeats itself and looking back at the history of aviation we find the space industry
in the sarne place that the air industry was in the late 1920's and 1930's where after
overcoming initial misconceptions and technical difficulties commercial flying became a
35 Supra note 26 at 12.
16 reality. We are right now at the doorstep of the portal that will lead us to commercial space transportation, let us open the door and enter.
17 CHAPTER 2 SPACE COMMERCE AND NATIONAL REGULATION OF REUSABLE LAUNCH VEHICLES
2.1 Introduction
We may differ in how long it is going to take or how fast it is going to happen, but the important thing is that reusable launch vehicles are going to happen. Just like it was logical to assume that expendable launch vehicles were going to initiate the space era because of the rapid development of the expendable rocket for military uses, it is logical to assume that the next step after the Space Shuttle is the fully reusable launch vehicle.
For these purposes, different nations have been preparing for this event by adopting national policies, laws and regulations to contront this reality. Countries have also been preparing for the commercialization of space activities as they have realized the enormous economic potential that is to be obtained from different space and space related applications. The scientific community is another group that can take advantage of the development of the reusable launch vehicle, not to mention the tourism and transportation sectors. In this chapter, we will explore all the CUITent and possible market applications for the orbital and suborbital reusable launch vehicle as well as the national regulation in different countries that would apply to them.
2.2 The Orbital Reusable Launch Vehicle
2.2.1 CUITent Markets
As we have mentioned, cUITently we have only one orbital reusable launch vehicle in operation, the Space Shuttle. For the most part of its operation, the Space Shuttle has been solely used for government operations, civilian and military alike. It has been used as a scientific platform, for carrying military and civilian satellites and for transporting
18 cargo and humans to the International Space Station.36 Currently, the potential market for orbital reusable launch vehicles is limited by two factors. First, there is only one vehicle, the Space Shuttle, and second it is very expensive to operate. Still, there are addressable markets for an orbital reusable launch vehicle today. It can be used for the transportation of satellites into low earth orbit, middle earth orbit and the geostationary orbit. This was a
commercial objective of the Space Shuttle but after the Challenger accident in 1996, the
spacecraft was pulled out of commercial operations?7 Orbital reusable launch vehicles
can also be used as scientific platforms, just as the Space Shuttle is used. CUITent
micro gravit y research can greatly benefit from a fully reusable launch vehicle at a
fraction of the cost that it takes to operate the Space Shuttle.38
2.2.2. Future Markets
The future market for orbital reusable launch vehicles looks bright. The next
generation of orbital reusable launch vehicles like the Orbital Space Plane, as a
govemment investment and Kistler's K-l, as a private sector investment, could be
operated in commercial applications such as space tourism, biotechnology and movies
and entertainment. It could also have military applications like missile verification for
controls arms treaties, as weIl as industrial applications like semiconductor
manufacturing.39
36 For more on the Space Shuttle missions and applications see online:
39 Ibid at 30-32.
19 2.3 Suborbital Reusable Launch Vehicles
2.3.1 CUITent Markets
According to the Office of Space Commercialization of the United States
Department of Commerce, the suborbital reusable launch vehicle has the following
CUITent addressable markets they are mainly government applications: 4o
• Missile Verification for the Department of Defense; • National Missile Defense Tests for the Department of Defense and; • Sounding Rocket Research for NASA, these include: high-altitude and astronomical research and; micro-gravit y research and processing.
These CUITent markets, although somewhat limited because they only address government activities, provide enough support for the development of suborbital reusable launch vehicles. These applications, which are currently done with satellites and expendable launch vehicles, would benefit greatly from the lower costs associated with suborbital reusable launch vehicles.
2.3.2 Future Markets
It is for the future markets that the suborbital RLV's will really be the best investment. These future markets are greatly comprised of the private sector. Again the
Office of Space Commercialization of the Department of Commerce has identified various addressable future markets for the suborbital RLV, these are: 41
1. Military Surveillance
2. Commercial and Civil Earth Imagery
40 For a detailed explanation see supra note 26 at 15. 41 For a detailed explanation of each of the addressable future markets see Supra note 26 at 23.
20 3. Fast Package Delivery
4. High Speed Passenger Transportation
5. Media, Advertising and Sponsorship
6. Film and Television
7. Product Endorsement
8. Advertising, Branding, and Sponsorship
9. Space Tourism
10. Space Diving or high altitude parachute jumping
As we can see the potential markets for suborbital reusable launch vehicles are very plausible and aIl of them, except for fast package delivery and high-speed passenger transportation, can be easily implemented with the CUITent technology and infrastructure.
On the other hand, high-speed passenger transportation and fast package delivery would require an infrastructure built for such purposes that does not exist today.42 AdditionaIly, these markets would need to address other issues like integration with conventional airports, integration with the CUITent air traffic control system, passenger safety, as weIl as flight over land and noise abatement. Issues that space tourism or filming movies in space would not have to deal with.
42 Although no infrastructure exists, it is interesting to note that already in the United States the road is being paved for such purposes. In May of 2002 the Associate Administrator for Commercial Space Transportation of the Federal Aviation Administration and NASA signed the following: Memorandum of Understanding Concerning Commercial Space Transportation Infrastructure Development. In this MoU NASA and the F AA agreed to "advanced spaceport and range technologies and the development of safety requirements and standards for future commercial space transportation operations."
21 2.4 National Regulation of Reusable Launch Vehicles
Currently, the only country that has adopted specific regulation related to reusable launch vehicles is the United States. Other countries that have adopted space activity legislation include the United Kingdom, Russia, Japan and Sweden, but the legislation adopted in these countries is usually very general in nature and was created with expendable launch vehicles in mind.43 Besides the United States, only Australia has made sorne efforts in adopting legislation that would specifically address the reusable launch vehic1e. 44 In fact, Australia is the only country that has established a legal boundary for outer space. In 2000, it amended its law to establish that anything flying below 100 km of altitude would be considered an aircraft and above this altitude, it would be considered a spacecraft.45 Thus, Australia is the first country that officially adopted the spatial theory on the boundary issue between airspace and outer space. On the third chapter, we will look deeper into this issue as is going to be very important in determining the status and applicable international regime for reusable launch vehicles.
2.4.1 United States Regulation of Reusable Launch Vehicles
The authority to grant a license to operate a reusable launch vehicle in the United
States rests in the authority of the Secretary of Transportation by virtue of the
Commercial Launch Activities ACt.46 In turn, the Secretary of Transportation designated the Federal Aviation Administration to create and establish the appropriate regulations
43 In the United Kingdom, the Outer Space Act of 1986 was adopted; in Japan, the Law Concerning National Space Development Agency of Japan (Law No. 50 of June 23, 1969) was adopted; in Russia, it was the Law of Russian Federation on Space Activity, August 20, 1993 and in Sweden, the Act on Space Activities (1982:963) was adopted. 44 Australia adopted in 1998 the Space Activities Act; it also introduced amendments to the Act in 2000. 45 Space Activities Act (Amendment) 2000 (Cth.), s. 8. 46 49 U.S.C. Subtitle IX.
22 dealing with the licensing of launch vehicles. For these purposes, the Associate
Administrator for Commercial Space Transportation (AST) was created in 1984.47 Since this is not a detailed study of the licensing process for reusable launch vehicles, we will
only address those portions of the United States federal regulations dealing with reusable
launch vehicles.48
Under the AST regulations there are two types of reusable launch vehicle
licenses.49 The first is a mission specific license, which authorizes a licensee to launch
and re-enter a specifie type or model of reusable launch vehicle. The second type of
license is the operator license, which permits the licensee to launch and re-enter any of a
designated family of reusable launch vehicles. The important distinction of these regulations when compared with the rest of the laws and regulations in other countries is that in most of them an authorization would be required for each launch and in most of
them re-entry operations are not addressed. This is because most of this laws and
regulations were designed, as we have mentioned, with expendable launch vehicles in
mind. It is important to note that if the development of reusable launch vehicles is to be
successful, legislation permitting the flow of operations of these vehicles is essential.
Without it you could have a perfectly good reusable launch vehicle but it would be
grounded for a non-technical reason like lack of proper regulations.
47 Originally, the AST was called the Office of Commercial Space Transportation (OCST) and was part of the Office of the Secretary of Transportation, its Director responded directly to the Secretary. In 1995, the OC ST was transferred under the F AA and given its current name. The Associate Administrator now responds to the Administrator of the F AA, which in tum responds to the Secretary of Transportation, however, final authority for commercial space activities rests within the Secretary. For more on the AST see online:
23 Other important aspects of the AST regulations dealing specifically with reusable launch vehicles include the payload re-entry determination. 50 Under this regulation, a determination by the AST is required for evaluating what is going to be re-entered with the reusable launch vehicle. For example, if the vehicle is re-entering with an extraterrestrial sample or if experiments were conducted in the vehicle that might pose a hazard to human health or the environment. Although, these issues would most likely be a problem orbital reusable launch vehicles will have to deal with, since suborbital reusable launch vehicles would not probably engage in the se types of activities. 51 AdditionaIly, a licensee must have an acceptable mission risk when operating a reusable launch vehicle. 52
This means that the licensee must demonstrate that the proposed operation do es not exceed acceptable risks as defined by the regulations. 53 Of course, the risks in RL V operations are going to be higher that in EL V operations simply because in addition to launch you also have to deal with re-entry. This factor would probably affect the financial capability to compensate for Maximum Probable Loss (MPL) that has to be established for aIl types of vehicles, EL V and RL V alike, under the regulations.
Under the AST regulations, aU license applicants, whether EL V or RL V must prove financial capability to compensate for Maximum Probable Loss (MPL) for damages caused to a third party for death, bodily injury, or property damage or loss resulting from an activity carried out under the license. They must also compensate the
50 14 C.F.R. § 431.7 (2000) 51 As we saw under parts 2.3.1 and 2.3.2, above, the types of operations that suborbitallaunch vehicles are likely to engage in the present and future markets do not include scientific experiments or sample collection, although it is not to be understood that it is not possible. 52 14 C.F.R. § 431.7 (2000) (2000) 53 According to 14 C.F.R. § 431.7 (b) and (c) acceptable risk for a proposed mission is measured in terms of the expected average number of casualties and "To demonstrate compliance with acceptable risk criteria in this section, an applicant shall employa system safety process to identify the hazards and assess the risks to
24 United States government against a person for damage or loss to government property
resulting from an activity carried out under the license. MPL is defined as "the greatest
dollar amount of loss for bodily injury or property damage that is reasonably expected to result from licensed launch activities." 54 The AST is the one that makes the MPL
determination, which is the basis for financial responsibility requirements under the
license. The applicant can choose to me et the financial responsibility of MPL through one of the following: financial reserves or; escrow account or; liability insurance, which is the most common and preferred method. Other aspects common to the licensing process of aIl types of licenses, whether RL V or EL V, but that we will only mentioned here are: 55
1. Pre-application consultation
2. Policy review and approval
3. Safety review and approval
4. Payload review and determination
5. Financial responsibility deterrnination
6. Environmental review
7. Compliance monitoring.
In summary, the United States is currently the only country that has adopted specific regulations for reusable launch vehicles. Although they seemed to have do ne these regulations with orbital reusable launch vehicles in mind, nevertheless, they are an excellent example to follow in the facilitation of the development of reusable launch vehicles in general. However, for suborbital reusable launch vehicles, new regulations
public health and safety and the safety ofproperty associated with the mission, including nominal and non nominal operation and flight of the vehicle and payload, if any." 54 14 C.F.R. § 440.3 (a)(ll) 55 As we noted earlier for more information on the licensing process see supra note 48.
25 would have to be adopted or better yet existing regulations for aircraft would have to be amended to incorporate these vehicles. The reasons for this are that if suborbital reusable
launch vehicles are to be commerciaUy successful in the future addressable markets that
we described before, they will need to be operated just like aircraft are operated today.
These vehicles must be integrated with the existing legal and operational
structures in which aircraft operate; they must be incorporated into the existing navigation
systems and airport infrastructures. We need to start thinking of future suborbital reusable
launch vehicles as evolved aircraft, just as the X-15 was, and not as spacecraft. We need to separate suborbital RLV's from orbital RLV's. The existing national regulations, as we
have seen, would be too cumbersome for suborbital RLV's. This is because contrary to
orbital RL V' s, which would be operated more like an spacecraft than an aircraft,
suborbital RL V' sare going to be operated more like an aircraft, but one that operates at
very high altitudes and velocities. In the next chapter, we will review these and other
issues, including liability issues, in order to determine which venue in international law is
best for the two types of reusable launch vehicles.
26 CHAPTER 3 LEGAL ASPECTS OF REUSABLE LAUNCH VEHILCES
3.1 Introduction
The reusable launch vehicle presents a legal challenge to the current international air and space law regimes. For example, the aerospace plane, a suborbital reusable launch vehicle, will be able to operate in two very distinct environments, not only physically, but also legally. The legal differences in these two environments are in terms of sovereignty, property rights, transit rights and liability consequences. In this chapter, we will address the issue of delimitation of outer space and airspace and its relation to reusable launch vehicle operations. We will also discuss the possible integration of the aerospace vehicle to the CUITent international legal regime of air law and the necessity to establish a space transportation organization for orbital reusable launch vehicles.
3.2 Delimitation of Outer Space and Airspace
The first article of the Chicago Convention of 1944 firmly established the
sovereignty of States over the airspace above their terri tories. 56 This principle has been paramount to the development of international air law and contrasts sharply with the regime for outer space. Article II of the Outer Space Treaty of 1967 establishes the now international customary law princip le of free space, which means that outer space, is not
subject to any claims of sovereignty or national appropriation. 57 These two different international regimes have created what sorne authors have called the "boundary
56 Article 1 of the Convention on International Civil Aviation, 7 December 1944, ICAO Doc. 7300/6 states: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory." 57 Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January, 1967, 610 U.N.T.S. 205 states: "Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means ofuse or occupation, or by any other means."
27 problem".58 This boundary problem is the ongoing dispute of determining when airspace ends and outer space begins. Generally, the main problem is whether a boundary should be established or not. Author Robert F.A. Goedhart summarizes in an excellent way the reasons against establishing a boundary and the reasons for establishing one. 59 Sorne of the reasons Goedhart presents for not establishing a boundary include:
• Despite the lack of a boundary no international disputes have arisen so far; • Delimitation attempts by means of a multilateral treaty would probably encourage sorne States to make excessive territorial demands; • The boundary might be established too high so that several space activities could be hampered; • Agreement on fixing the boundary at a lower altitude will definitely not lessen the fear of sorne States that their interests may come under threat; • Once a particular altitude is settled on, it will be very hard to reconsider that decision, especially if the boundary has to be lowered. Many aState would of course be opposed to the reduction of its sovereign air space. 60
Goedhart also presents sorne reasons for establishing a boundary between
airspace and outer space and these include:
• an international agreement on such a boundary would weaken the position of those States, unfoundedly claiming the entire Earth's atmosphere above their territory to be national air space; • a different interpretation of the present space treaties, denying for example the freedom of space exploration and space exploitation, could lead sorne States to detect 'air space violations' as a pretext for frustrating space activities of other States; • disputes over the extent of air space may create a lot of tension between States and at the worst bring about the outbreak of war; • determining an upper limit of air space could further the development of space technology. 61
58 Bin Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997) at 425. 59 Robert F.A. Goedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space (France: Editions Frontières, 1996). 60 Ibid at 6-7. 61 Ibid at 7-8.
28 Accordingly, these two different visions of dealing with the boundary problem have each a group of followers. Those who advocate for establishing a defining line for differentiating airspace from outer space are called spatialists. Those who argue that no definitive line should be established are called functionalists. 62
3.2.1 The Spatial Approach
The spatial approach, which "favors the establishment of a demarcation line between air and outer space", 63 would mean that "when the aerospace plane is above the imaginary line and having orbital capabilities it is to be treated as a space object. When below the line the aerospace vehicle would be an aircraft.,,64 This type of approach means that for future reusable launch vehicles whether orbital or suborbital two different legal regimes would apply to the same vehicle, the airspace regime when below this line and the outer space regime when operating above it. This is already the reality in Australia.
This country is the only one so far to have adopted a spatialist approach to the boundary issue. In 2000, the Australian government amended its Space Activities Act to require a space license for any vehicle flying higher than 100 km of altitude above mean sea leve1. 65 This means, for example, that if you are operating an aerospace plane to or from
Australia and an accident occurs, both the Liability Convention of 1972 66 and the
62 For a more detailed discussion between the functional and spatial approach to the boundary issue see supra note 58. 63 Katherine M. Gorove, "Delimitation of Outer Space and the Aerospace Object - Where is the Law?" (2000) 28 J. Space L. Il at 16. 64 Carl Q. Christol, "Legal Aspects of Aerospace Planes" in Chia-Jui Cheng & Pablo Mendes De Leon, eds., The Highways ofAir and Outer Space Over Asia (Dordrecht, Boston, London: Martinus NijhoffPublishers, 1991) 77 at 83. 65 Space Activities Act (Amendment) 2000 (Cth.), s. 8. See part 2.4, above, for more on this topie. 66 Convention on the International Liability for Damage Caused by Space Objects, 29 March, 1972, 961 U.N.T.S. 187.
29 Montreal Convention of 199967 might apply, depending on where the vehicle is located.
Sorne countries, like Korea and Argentina, have argued that this approach would make it easier to decide the law to be applied if an accident occurS. 68 However, in our view it would make it more confusing. This is because it could be difficult to determine where the accident occurred, especially if it is near the boundary. Other problem that is present under the spatialist approach is that it will maintain two different legal regimes operating at the same time and for the same vehicle. This is not a major problem now, but in the near future when aerospace planes and reusable launch vehicles are commonplace the idea of having two different regimes, applying to the same vehicle might not be the best.
Most of those that hold the spatialist view argue that new international institutions would have to be created to deal with the new hybrid vehicles, like the aerospace plane, because they "favour separate legal regimes based on a determined boundary.,,69 Treaties would have to be drafted and an international organization similar to the International Civil
Aircraft Organization (ICAO) would have to be created. In turn, this would create problems of logistics and communications that might affect safety issues. For example, if the spatialist approach is adopted and thus the aerospace vehicle is to be operated under two different legal regimes then it would have to be certified to operate under both regimes. It would have to comply with the CUITent international standards and recommended practices of international air law 70 as weIl as the future standards and
67 The Convention for the Unification of Certain Rules Relating to International Carriage by Air, 28 May 1999 known as the 1999 Montreal Convention, although not in force at the moment this present work was accomplished, eventually will replace the system of the 1929 Warsaw Convention and most probably by the time the aerospace plane is flying, the Montreal Convention of 1999 would have already replaced the Warsaw System. For this reason and for the purposes of this study we will refer from herein on to the Montreal Convention of 1999 when discussing issues related to liability and the aerospace plane. 68 Supra note 63 at 18. 69 Supra note 64 at 84. 70 Refers to the Annexes to the Chicago Convention of 1944 adopted under Article 37 of the convention.
30 practices that would have to be adopted for when the vehicle is in outer space. This of course is not very practical. It is better to incorporate this aerospace plane into the CUITent air law system by amending the CUITent rules rather than creating new ones.
On the other hand, under the spatialist approach traffic rights would easier to deal with. For example, if the spatialist approach is adopted (and like Australia the international community adopts 100 km of altitude as the international boundary between airspace and outer space) then in a flight from New York to Moscow it would not be necessary to obtain over flight traffic rights for those portions of the flight that the aerospace plane is over 100 km of altitude. In this case, the vehicle would be in outer space, where there are no sovereignty claims. It could also be in sovereign airspace where innocent passage is already permitted to commercial aircraft under the 1944 Chicago
Convention71 and we would only need to incorporate the aerospace plane to this regime.
The same would be for an orbital reusable launch vehicle during re-entry operations especially if you were launching from a country that is landlocked or partially landlocked.
In general, the spatial approach is not very practical, as having a vehicle operating under two legal regimes at the same time might create confusion. Not only that, this approach would probably also hindered traffic management and navigation services in which the aerospace plane will operate because it will keep two separate legal regimes.
Maintaining two separate legal regimes has worked very weIl until now but as technological advances are develop, the need for a static defined boundary between airspace and outer space seems less relevant. This is not to mean that we disregard aIl the space law treaties and just amend the air law ones to incorporate these vehicles. What we
71 Article 1 of the International Air Transport Agreement permits the innocent passage of foreign aircraft over another's State territory.
31 mean is that establishing a boundary will make it more difficult to harmonize the two legal regimes in order for them to work in unison.
3.2.2 The Functionalist Approach
The functionalist approach, on the other hand, "entails the application of laws, regardless of where they may take place." 72 This means that functionalists "place emphasis on the activity or activities of vehicles,,73 rather than on where the vehicle is located. In this sense, this approach seems to be more adaptable to the aerospace plane and the reusable launch vehicles in general because under the functionalist view we can choose which legal regime to apply instead of having to apply two regimes to the same vehicle. This approach is also the most popular amongst most of the States that recently took part in a Questionnaire conducted by the Committee on the Peaceful Uses of Outer
Space (COPOUS) of the United Nations.74 Although most States also stated that "it would be necessary to analy[z]e the technical aspects of air and outer space transport systems and the me ans of delivery of objects into outer space, prospects for the development of aerospace objects capable of missions in air and outer space, as weIl as data on the use of the only existing prototype of such an aerospace object, namely, the Space Shuttle.,,75 The
72 Henri Wassenbergh, "The Art of Regulating International Air and Space Transportation: An Exercise in Regulatory Approaches to Analyzing Air and Space Transportation" (1998) XXIII Ann. Air & Sp. L. 201 at 206. 73 Supra note 64 at 84. 74 Questionnaire on Possible Legal Issues with Regard to Aerospace Objects, UN Doc. AIAC. 105/C.211995/CRP.3/Rev. (1995). For a detailed summary of the States' replies to the Questionnaire, see UN COPOUS 42d Sess., UN Doc. A/AC.105/805. (2003). See also supra note 63 at 18. 75 Ibid at 13.
32 functionalist approach has also been favoured by most of the scholars who have written on the topiC. 76
While the functional approach seems to be more apt to aerospace planes and reusable launch vehicles in general, one major fault that this approach has is that with no defining line, different States could have different sovereignty claims in what other States might consider outer space. One clear example of this is the United States and its current space policy. The United States as a big supporter of the functionalist view has always consider that establishing a defining line between airspace and outer space would limit their space operations and policies. In deed, the United States has asserted that they will deny space to other States, if required, in order to advance its interests in space. 77 This is why sorne States, especially those without space capabilities; prefer to choose the spatialist view. Prof. Chirstol explains other drawbacks of the functionalist approach in the following:
To facilitate the legal controls over such vehicles, presumably in the interests of simplicity, this approach [functionalist] has called for a single law regime. Proponents argue that since the principal goal ofthis vehicle is to be in orbit it should be govemed by a unitary regime rather than by separate space and air law regimes. 78
76 Sorne of the scholars that have adopted a functionalist approach since early in the discussion of the boundary problern include Myers S. McDougal, Harold D. Lasswell and Ivan A. Vlasic who in their book Law and Puhlic Order in Space (Chicago, 1963) adopted this view. Others include Wassenbergh that specifically stated that for reusable launch vehicles "the functionalist approach is especially apt" see supra note 60 at 207 and Rosenfield when he stated that "the CUITent functional approach to outer space is solving ail [boundary] problerns." S.8. Rosenfield, "Sorne Thoughts on the Distinction between Air Space and Outer Space" in Proceedings of the 26th Colloquium on the Law of Outer Space 95 (Arnerican Institute of Aeronautics and Astronautics, 1984) 77For more on the United States space policy see Nina Tannenwald, Law Versus Power on the High Frontier: The Case for a Rule-Based Regime for Outer Space (2002) [unpublished, archived at Brown University, Watson Institute for International Studies] 78 Supra note 64 at 81.
33 Although, as we have stated before, that a unitary regime might be the best solution for suborbital reusable launch vehicles, in particular for the aerospace plane, it might not be the best solution for orbital reusable launch vehicles which most of the time will be operating in outer space. There is no sovereignty in space and it would be very difficult if not impossible to implement a regime like the one for aviation, which is based in airspace sovereignty, for outer space. Thus, the functionalist approach although the most favoured and most likely to prevail really does not seems to resolve the boundary problem.
3.3 A Different Approach
Professor Christol, in one of his articles, proposed over 10 years ago a new approach that could address the boundary problem in a more practical way. He wrote:
In order to obtain an applicable legal regime for hybrid vehicles [aerospace plane] attention should be focused on (1) the intended purposes, or (2) the effects ofhybrid vehicular activity. Further, reference can be made to both purposes and effects. When the capabilities of the aerospace plane are taken into account separate subjective and objective approaches should also be posited. This suggests that if the vehicle's purpose or effect is that of an aircraft it should conform to the regime of air law. If its purpose or effect is that of a space craft it would fall within the regime of international space law. This approach, therefore, focuses on the identified purpose or effect of the vehicle. 79
This proposaI, which we will calI the "effective approach", seems the most practical, because it will maintain the CUITent regimes of air and space law like the spatial approach intends to, but without establishing an international defining line between airspace and outer space like the functionalist approach pretends. Although, Prof. Chirstol
79 Supra note 64 at 87.
34 falls short of determining under which regime the aerospace vehicle would fall into; if we put to the test the two types of reusable launch vehicles previously discussed, this proposaI seems to be precisely opportune. The suborbital reusable launch vehicle will be more likely used for space tourism and sounding in the very near future and for high speed transportation of people and cargo between two points on Earth on the long mn.
This means that under Prof. Chrsitol's approach this vehicle would have to be operated under the current air law regime because it will operate more like an aircraft. Although the suborbital reusable launch vehicle will use parts of outer space to reach its destination, its effect or purpose is that of a high speed, high altitude aircraft. On the other hand, orbital reusable launch vehicles, like NASA's proposed Orbital Space Plane, would fall, according to Prof. Christol's approach, under the regime of space law because its effect or purpose is that of a spacecraft. This is because its main purpose would be to transport astronauts and cargo to the International Space Station and to future space stations.
Prof. Chirstol also maintains that under his approach there is a need to establish a legal regime for aerospace planes but that the proposed regime would "have as its central characteristic an allocative function" that will determine if the vehicle will be governed be air law or space law. so Conversely, we would like to propose that, still maintaining
Prof. Christol' s recommended approach, it is possible to incorporate the aerospace plane and other suborbital reusable launch vehicles into the existing regime of air law instead of creating a new legal regime for them. In the next sub chapter, we will discuss the benefits and disadvantages of establishing a new regime for reusable launch vehicles in general and incorporating suborbital reusable launch vehicles into the CUITent air law regime.
35 3.4 Establishing a New International Regime for Reusable Launch Vehicles
In the following discussion, our theories will be based on Prof. Christol' s
"effective approach" to the boundary problem that we discussed in the previous subchapter. Under this approach, a new regime for reusable launch vehicles would only have to be adopted for orbital reusable launch vehicles and under the international space law regime. Based on this, various authors have suggested the creation of an international specialized workgroup in which the future of space vehicles is to be discussed. Sorne of the ideas call for the private and scientific sector to be involved in the process by creating an independent International Spaceways Forum. The Forum will be "coordinated with the
IAA [International Academy of Astronautics] Committee on Space Polices, Economics and the Law, with invitations to participate extended to appropriate government agencies and industry organizations in aIl interested countries, as well as national and international organizations .... ,,81 But there are two suggested frameworks that indeed would be the best.
The first one, suggested by author Claire JoIly, would be "inspired by similar existing co-operation structures in the aviation community, could identify the main safety and liability issues that could arise when operating RLV's from different parts of the world. It might be created under the aegis of ICAO to facilitate interactions between the aviation and aerospace communities.,,82 This view suggests that it is under ICAO that the new regime should be formed. According to the author, the following are the reasons for this:
80 Supra note 64 at 88. 81 William A. Gaubatz et al., "International Rule Planning for Governing Space Transportation" Framework in Proceedings of the Forty-Third Colloquium on the Law of Outer Space (American Institute of Aeronautics and Astronautics, 2000) 220 at 227.
36 In a very practical manner, ICAO already provides a forum of discussion and a source of globally agreed regulations for the aviation community ... extending this forum to the space launch sector could be practical in the short term. Indeed, cooperating with its members States and the International Air Transport Association (lATA), a non-governmental organization representing aviation companies, the ICAO deals already with key issues such as: The aviation security The establishment of air corridors and new air routes The promulgation of common air traffic services (ATS) throughout regional airspace The normalization of the management of regional air traffic The protection of the environment, which constitutes a sensitive subject for aviation and space activities alike, where the focus remains on noise and particle emissions.
All those issues could be related to futures RL V operations83
This approach, which caUs for aU reusable launch vehicles to be incorporated to the air law regime, seems to fit very weU with Dr. Christol's "effective approach".
However, Ms. Jolly's approach does not make the distinction between the orbital and suborbital type, a very important one because this distinction will put the vehicle within the appropriate legal regime. Based on this distinction and on the "effective approach", we have to say that Ms. JoUy's approach would indeed be ideal, but not for aU reusable launch vehicles, just for the suborbital type. For the orbital type, as we will see, a different approach would be better.
Dr. Nandasiri Jasentuliyana, former director of the United Nations Office for
Outer Space Affairs (UN-OOSA), suggests that it is up to COPOUS and it's Legal and
Scientific and Technical Subcommittees to conduct the initial research into the adoption of what he caUs Space Standards. These standards would be something similar to the
82 JoUy, Claire, "Reusable Launch Vehicles Regulations: First Step Towards and International Framework" in Proceedings of the Forty-Third Colloquium on the Law of Outer Space (American Institute of Aeronautics and Astronautics, 2000) 237 at 243.
37 Annexes of the Chicago Convention. 84 Article 37 of the Chicago Convention of 1944 establishes that each contracting State shaH coHaborate, to the highest practicable degree, in creating uniformity of regulations and standards that will facilitate and improve air navigation. 85 It also establishes the International Civil Aviation Organization (ICAO), which shaU adopt and amend, as may be necessary, the international standards, recommended practices and procedures in order to create this uniformity. 86 T 0 this end,
Article 54(1) of the Chicago Convention establishes as one of the mandatory functions of the Council of ICAO the task of adopting international standards and recommended practices, designate them as Annexes to the Chicago Convention and notify aH contracting States of the action taken. 87
Dr. Jasentuliyana caUs for something very similar to the described approach, although we have to remember that the described functions are of quasi-Iegislative nature.
This is because Article 37 provides that the member States need only to comply with them to "the highest practicable degree" which means that the adopted standards are not self-executing and each State reserves the right to implement them. 88 The good news is that in practice States do comply with them because if they do not comply the airlines of other States may not fly into their airports because they could be considered unsafe. This
83 Ibid at 242. 84 Nandasiri Jasentulinaya, International Space Law and the United Nations (The Hague: Kluwer Law International, 1999) at 38I. 85 Article 37 of the 1944 Chicago Convention states in part "Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in aIl matters in which such uniformity will facilitate and improve air navigation." 86 Chicago Convention of 1944 Part II, Chapter VII, Articles 43 ss. 87 Article 54 (1) states: "Adopt, in accordance with the provisions of Chapter VI of this Convention, international standards and recommended practices; for convenience, designate them as Annexes to this Convention; and notify aIl contracting States of the action taken;" 88 Michael Milde, "Enforcement of Aviation Safety Standards- Problems of Safety Oversight" (1996) 1 Z.L.W. 1 at 5.
38 means that States must comply with the standards of the Annexes if they want to "have any meaningful participation in international air navigation and air transport.,,89
On the other hand, Article 38 provides for departures from the adopted international standards and procedures and it stipulates that States that cannot comply with them must notify ICAO of the differences between their nationallegislation and that 90 of the standards. The same principle could be applied to the Space Standards and it is known as the contracting out procedure, which allows States to avoid certain obligations under the standards. If the State does not notify ICAO of a difference, then the State will be bound by the standard and it is understood that the State will implement it.9\ In 1993,
ICAO indicated that only 25% of the member States have filed a difference to the
Annexes, which makes a great example to follow in space law. 92 Unfortunately, this does not mean that most of the States are following the standards. Sorne States do not file differences simply because they lack the personnel to understand what is required by the standards while others just do not have the resources or technical means to implement them. For these reasons, this lack of filing of differences must be dealt with concern because it may put at risk the safety of aviation on a global scale.93 For space standards, this could represent an even bigger problem, as the technology for space transportation is very expensive and very few countries could really afford it. As an alternative the future
89 Ibid at 6. 90 Article 38 of the Chicago Convention states in part: "Any State which finds it impracticable to comply in aIl respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard." 91 Supra note 88 at 6. 92 Michael Milde, "The Chicago Convention- Are Major Amendments Necessary or Desirable 50 Years Later?" (1994) XIX-I Ann. Air & Sp. L. 401 at 426. 93 Ibid.
39 space organization could implement something like the ICAO Safety Oversight Program under which States are inspected and audited for compliance and are given time to comply.94 If they do not comply, the audits are published. Additionally, an office similar to ICAO's Technical Co-operation Bureau could be created in order to help States implement the standards.
As we have seen following ICAO's model for space transportation is very practical and although the standards can be considered "soft law" and States can deviate from them, in practice they comply with them. In addition, the standards are adopted as annexes to the Chicago Convention, which means that they are not law, internationally speaking and are not bound by the Convention on the Law of the Treaties adopted in
Vienna in 1968. Nevertheless, non-compliance of such standards would mean the elimination of that State from any important participation in the air carriage business and air navigation in general. An example ofthis is Article 33 of the Chicago Convention that establishes the duty of recognition of certificates and licenses of other member States if they comply with the standards. 95 This means that if the State does not comply with the standards other States will not allow its personnel or aircraft into their terri tories. In this sense, one could argue that in fact the standards are "hard law" because if the State does not comply it is "out" of international aviation. These same principles could and should be adopted for space vehicles as it has been proven that they are an effective tool in establishing worldwide standards that have advance air transportation significantly.
After the creation of the Space Standards, Dr. Jasentuliyana suggests that the
Legal Subcommittee could draft a convention that would create an international
94 Supra note 88 at 12.
40 framework, not just for reusable launch vehicles, but also for space vehicles in general.96
AIl of this would be done under the direction of an Expert Group created within the scope of the convention in which private persons and organizations could be invited to participate by the members of COPOUS. 97
The suggested framework would probably be the best alternative because it makes use of the existing infrastructure of international space law. Not only that, it would also follow the very weIl known and tested process of internationallaw making, since it will be do ne within the United Nations structure and following previous successful models, like ICAO's. Additionally, this framework also takes into account one important factor, the creation of the standards for space law, which in air law have been essential, as Dr.
Jasentuliyana has put it:
... the Chicago Convention is one of the most successful international multilateral treaties in existence. However, its Annexes are the primary reason for this. ICAO's success in law-making is due to its success in separating the technical and political aspects of international civil aviation. This is exactly what is required in the field of outer space: the political and legal aspects of space sciences and technology need to be made distinct from the technical aspects.98
As we can see, Dr. Jasentuliyana'a approach would be suitable for orbital reusable launch vehicles, because following Dr. Chirstol' s "effective approach" these vehicles would indeed be spacecraft. COPOUS and its subcommittees along with the United
Nations Office for Outer Space Affairs are the ideal forums for formulating this type of regime because they have the expertise and experience in space law. Furthermore, this
95 Supra note 88 at 6. See also Jacques Ducrest, "Legislative and Quasi-Legislative Functions of ICAO: Towards Improved Efficiency" (1995) XX-I Ann. Air & Sp. L. 343 at 354. 96 Supra note 84. 97 Supra note 84 at 382. 98 Supra note 84 at 379.
41 approach in addition to dealing with orbital reusable launch vehicles, it will also integrate satellites, expendable launch vehicles and even space stations, vehicles that under the
"effective approach" would fall into the category of spacecraft and thus under the space law regime.
Having exarnined two different approaches for establishing a new regime that would include reusable launch vehicles, we would have to conclude that we would have to adopt both of them. Ms. Jolly's approach would be suitable for suborbital reusable launch vehicles and Dr. Jasentuliyana's rule-making approach would be ideal for orbital reusable launch vehicles. These proposaIs would be in harrnony with Dr. Chrsitol's
"effective approach" and would give an excellent starting point towards the creation of an international law regime for space vehicles and for the incorporation of the aerospace plane into the air law regime. The result would be that an international regime for orbital reusable launch vehicles would have to be adopted along with "space standards". On the other hand, suborbital reusable launch vehicles would fall into the regime of air law and thus we would have to amend the Chicago Convention and its Annexes to incorporate them. In the next subchapter, we will address the benefits of incorporating these vehicles into the CUITent system of air law and how can this be accompli shed.
3.5 The International Air Law Regime, the Aerospace Plane and other RLV
In an address commemorating the 50th anniversary of Société Internationale de
Télécommunications Aéronautiques (SIT A), Dr. Assad Kotaite, president of the ICAO
Council, stated that ICAO "was the logical international institution to lead the way into space, and should work with its member States and other international organizations to
42 provide the guidance on space management.,,99 This statement, made in 1999, reflects the importance of ICAO in participating actively and directly in the future of space regulation.
Other authors agree with Dr. Kotaite and for example, Dr. Ruwantissa I.R. Abeyratne in one of his most recent books stated 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. 100
Following the principle stated by Dr. Kotaite, we will analyze sorne of the articles of the Chicago Convention of 1944 as weIl as sorne of its Annexes concerning the aerospace plane, how it might fit within the regime of international air law and the benefits of doing so. Although, we must caution the reader that this is just a broad attempt at analyzing the following provisions and in no way shaU be deemed as an exhaustive study of aU the provisions contained in the Chicago Convention or the Annexes that might affect in any way the incorporation of the aerospace plane into the regime of air law. We will only discuss those provisions that, in our understanding, are more relevant.
3.5.1 Definition of Aircraft and the Aerospace Plane
The first step in incorporating the aerospace plane into the CUITent International
Public Air Law regime would be to amend the CUITent definition for aircraft as defined in
Annex 2 of the Chicago Convention. In the annex, aircraft is defined as "Any machine
99 "ICAO Update July-August 1999" (1999) 54 ICAO Journal 6, online:
100 Ruwantissa I.R. Abeyratne, Frontiers of Aerospace Law (Hants: Ashgate Publishing Limited, 2002) at 23.
43 that can derive support in the atmosphere from the reactions of the air other than the
1 reactions of the air against the earth's surface." 10 This definition although very simple and straightforward could represent a major obstacle in incorporating the aerospace plane into the air law regime. The reason for this is that the aerospace plane would be operated outside the earth's atmosphere, which means that its support is not derived only from the reactions with the air. This means that we either develop a new whole concept for aircraft of we amend the current definition to incorporate the aerospace vehicle. We looked at how sorne countries define aircraft in their own national air law regimes to see if we could incorporate from them to amend the international definition. For example, the
Federal Aviation Administration (F AA) of United States has defined aircraft as "a device that is used or intended to be used for flight in the air."I02 The Air Code of the Russian
Federation defines it as "a flight apparatus supported in the atmosphere due to the interaction with air, which differs from the interaction with air reflected from the surface of land or water."I03 Other countries have similar definitionsl04 or have copied the ICAO definition and are not helpful for incorporating the aerospace vehicle or other suborbital reusable launch vehicles into the regime of air law. However, the definition included in the Canadian air regulations is the only one that seems to be useful in incorporating the suborbital reusable launch vehicle into the regime of air law. Canada defines aircraft as
"any machine capable of deriving supports in the atmosphere from reactions of the air, and includes a rocket."I05 This definition includes and refers to both aircraft and rockets a
101 Rules ofthe Air, ICAOOR, 34th Sess., Annex 2 Ninth ed. at 1. 102 14 CFR § 1.1(2000). 103 RussianAir Code, Ch. 5 Art. 32 (1997) online
44 combination that could define the suborbital reusable launch vehicle. An example is the
suborbital reusable launch vehicle being designed by Scaled Composites, the White
Knight a jet aircraft and Space Ship One a manned reusable rocket. 106 Regardless of this definition, we decided to attempt drafting our own definitions.
In the first attempt at creating a definition, we would have to accept Dr. Christol' s
"effective approach". In which case the definition of aircraft as stated now is to become
obsolete and could be replaced with a definition that addresses the purposes or effects of the vehicles instead of its aerodynamic and physical properties. The definition could be
something like this "Any machine that can take passengers, cargo or mail from one point on the earth to another without making an orbit of the Earth." The second alternative that would be to amend the CUITent definition would keep the aerodynamic and physical properties of both CUITent aircraft and aerospace plane. The amended definition could be
something like the following: "Any machine that can derive support inside or outside the atmosphere from the reactions of the air other than the reactions of the air against the
earth's surface or that derives support from the reactions of the mechanics of space
flight."
Either choice would incorporate the aerospace plane into the air law regime;
although we must say that, our choice would be the first since it would not bring into the
debate the physical and mechanical aspects of the vehicle, thus avoiding technical
discussions in the definition. Because for the Chicago Convention it really does not matter how the vehicle traverses the air or in this case, outer space, but where will it traverse it and how this might affect the sovereignty of States and the general safety of
106 See part 4.2, below, for more on the prototype being designed by Scaled Composites.
45 people on the ground and in the air. These are the reasons of why ICAO and the Chicago
Convention were created and adopted in the first place. 107 Additionally, the bene fit of adopting any of these alternative definitions under the Chicago Convention Annexes is that it can be easily implemented under an established international structure that has the acceptance of the vast majority of countries and without having to draft a new international convention.
3.5.2 Registration Issues of the Aerospace plane and other Reusable Launch
Vehicles
If we are to treat the aerospace plane and other suborbital reusable launch vehicles as aircraft, incorporating them into the air law regime using one of the definitions previously presented, then the application of the Registration Convention of 1974 becomes moot. 108 Nevertheless, we are going to discuss briefly the convention to see that even if we do not treat these vehicles as aircraft, the convention is not applicable.
Just by examining Article II, we find strong and concrete evidence for the non- application of the convention to suborbital reusable launch vehicles. The article states in part:
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 will maintain. 109 [Emphasis added]
107 We must always remember the tirst Article of the Chicago Convention: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory." In practice States are more worried about their sovereignty and safety when a foreign aircraft approaches their airspace than of the mechanics and physical properties of the vehicle. 108 Convention on Registration ofObjects Launched into Outer Space, 12 November 1974, 1023 UNTS 15. 109 Ibid at Article II (1)
46 This article explicitly and clearly makes the Registration Convention inapplicable to any type of object that is not to be launched into earth orbit or beyond. The aerospace vehicle and other suborbital reusable launch vehicles would be operated in sub-orbit and thus will not have to be registered under the terms of this convention. This, furthermore, reinforces our theory that the aerospace plane and other suborbital reusable launch vehicles should be operated under the air law regime. In addition, it demonstrates the intention of the drafters of the convention to include only into the regime of space law vehicles and objects capable of orbital flight.
As we can see, the 1974 Registration Convention should not be applicable to suborbital reusable launch vehicles, not only because these vehicles should be treated like an aircraft, making the convention inapplicable, but because the convention itself excludes this type of vehicles from its scope. In the case of orbital reusable launch vehicles, in which case the convention is applicable, we find that its application is not practical, because, they are reusable and with this convention, you will have to register the same vehicle repeatedly for each launch. This makes no sense, which means that either the convention would have to be amended or we would have to adopt a new convention that is not burdensome for reusable launch vehicles. The most practical way would probably be to amend the Registration Convention in which one of the articles could read like this:
For reusable launch vehicles launched into orbit or beyond, the launching States shaH register the vehicle the first time the vehicle is launched by means of an entry in an appropriate registry and shall only notify the launch to the Secretary-General of the United Nations for each subsequent launch. For the purposes ofthis section the orbital reusable launch vehicle must comply with the appropriate national certification standards for such vehicles as well as the appropriate national li cense requirements.
47 The way to accomplish this would be to create a protocol to the convention amending the convention with something similar to the example article we have just described. The article could be part of Article II as a fourth clause or could be adopted as an additional article. Other articles would also have to be amended to incorporate reusable launch vehicles, but most importantly would be the creation of Space Standards as we
1 mentioned before in Dr. Jasentuliyana' s suggestions. 10
3.5.3 Certification and Airworthiness of the Aerospace Plane
Annex 8 of the Chicago Convention includes the Standards and Recommended
Practices for the Airworthiness of Aircraft. 111 Vnder the Annex, the ICAO policy for airworthiness is to ensure, among others, a " ... minimum basis for the recognition by
States of Certificates of Airworthiness for the purpose of flight of aircraft of other States into and over their territories, thereby achieving, among other things, protection of other aircraft, third parties and properties.,,1l2 This policy would be applicable to the aerospace plane if the definition of aircraft were to be amended as we have mentioned before. For example, the policy refers to "aircraft" flying "into and over their territories" which means, in our view, flying an aircraft "into" the sovereign airspace of each State and
"over" the sovereign airspace of each State. Following this interpretation would mean that when flying an aircraft "over" the territory of another State, the vehicle would be flying in outer space just as the aerospace plane will.
110 See section 3.4, above, for more on this topic. III Airworthiness ofAircraft. ICAOOR, 34th Sess., Annex 8 Ninth ed. 112 Ibid at viii. See also, UN, The Convention on International Civil Aviation: Annexes 1 ta 18, ICAO Doc. E!Pl/8000 (February 1991) [mimeo.] at 14-16.
48 Another example is the definition of aeroplane included in Annex 8. The Annex
defines aeroplane as "A power-driven heavier-than-air aircraft, deriving its lift in flight
chiefly from aerodynamic reactions on surfaces that remain fixed under given conditions
of flight." 113 Assuming that we have amended the definition of "aircraft" to include
aerospace plane operations, then this definition would be entirely applicable to the
aerospace vehicle. This does not mean that just by changing the definition of aircraft
Annex 8 would be applicable to the aerospace plane. The technical standards of the
Annex would have to be amended to include technical provisions that specifically address the physical properties and characteristics of the aerospace vehicle. Nevertheless, these are technical limitations that can be easily overcome but that in legal terms do not represent any major obstacle for incorporating the aerospace plane and other suborbital reusable launch vehicles into the air law regime.
3.5.4 Air Traffic Rights and the Aerospace Plane
The so-called five "freedoms of the air" of air traffic rights, which are really privileges, can be found in Article 1 of the International Air Transport Agreement of
1944. 114 An additional "sixth freedom" exists which is the privilege to carry passengers
and cargo between to other States via the home country of an airline. 115 This carriage in reality is a combination of the fourth and third freedoms and unlike the other five
freedoms is not based in an international agreement; instead, it is based on a bilateral
system for the exchange of traffic rights between different States. In his book Frontiers of
113 Ibid at 1-1. 114 International Air Transport Agreement, 7 December 1944, UNTS 389. 115 H.A. Wassenbergh, "The Freedoms of the Air" in Michael Milde & Hodjat Khadjavi, ed., Public International Air Law Vol. 1 (Montreal: McGill University, 2002) 287 at 286.
49 Aerospace Law,116 Dr. Ruwantissa I.R. Abeyratne discusses the issues related to the air traffic rights and the aerospace plane and mentions that the aerospace plane will
"inevitably create hubs whereby regional carriers would converge with passengers destined for carriage in the aerospace plane.,,117 This in tum, in his view, would mean that
"at least in the introductory stages of the aerospace plane it would operate on a third and fourth freedom basis;ll8 .... " Although we completely agree with Dr. Abeyratne's views, we would like to add that the probable reasons for the initial use of the aerospace plane on a third and fourth freedom basis only are of technical reasons. The aerospace plane, which will operate at very high speeds and altitudes, would most likely be used only for transcontinental flights to city pairs like London- New York or Los Angeles- Tokyo. This is because it would not be economical or practical to stop on the way of such flights for fifth freedom traffie.
On the other hand, the open skies regime, which is a policy developed during
1990-91 and it is used to refer to the most liberal type of air transportation agreement between two countries in order to provide free market competition and minimize government intervention, will revolutionize air transport. Under this regime, States, on a mutual basis, agree to grant complete commercial freedom (traffic rights) to the airlines of each other. Prof. Henri Wassenbergh stated, in relation to the open skies regime, that not aIl airlines, especially regional ones, would be able to compete in such a regime and that the only way they will survive is through alliances. 119 This notion was recently reaffirmed at the Air Transport Seminar of the IeAO where it was stated that the future of
116 Supra note 100. 117 Supra note 100 at 25. 118 Supra note 100 at 26.
50 airlines in generallies with alliances. 120 For the aerospace plane, this would mean that it would depend for its survival on the alliances of national and regional carriers bringing the passengers to the hub from which the aerospace plane operates. Without future global alliances the aerospace plane may end up being more a novelty than a practical tool for air transportation.
3.5.5 Navigation in Airspace and the Reusable Launch Vehicle
The Associate Administrator for Commercial Space Transportation (AST) of the
United States Federal Aviation Administration (FAA) recently published "Concept of
Operations for Commercial Space Transportation in the National Airspace System.,,121 It is a concept manual for operations of reusable launch vehicles, both orbital and suborbital, within the National Airspace System (NAS) of the United States. In it, the AST recommends a model that caUs for the establishment of "an upper limit of the NAS
[National Air System] is specified in order to demarcate the FAA's operational responsibilities.,,122 The manual continues to describe operations above and below the NAS for point-to-point flights at hypersonic speeds, which is referring to the operations of the
119 Henri Wassenbergh, "De-Regulation of Competition in International Air Transport" (1996) XXI 2 Air & Space L. 83 at 89. 120 ln an article by Prof. Paul Dempsey published for the Seminar prior to the ICAO Worldwide Air Transport Conference it was stated that the benefits of alliances for the airlines are very meaningful and that most likely airlines will try to continue and pursue such alliances under the open skies agreement. Paul Dempsey "Intercarrier Agreements and Alliances- The Competitive Challenge" in Ann Barco et al eds., Aviation Strategies: Challenges and Opportunities of Liberalization (Montreal, World Markets Research Centre, 2003) 54 at 57. The major problem that alliances represent, according to Prof. Dempsey, is the anticompetitive nature of them. This could represent a problem for the future of the aerospace plane because it will depend on alliances for its survival. 121 D.S., Associate Administrator for Commercial Space Transportation, Concept of Operations, for Commercial Space Transportation in the National Airspace System Version 2.0 (Washington, D.C., 2001). 122 Ibid at 4.
51 aerospace plane, indicating the necessity of establishing a limit to the NAS for these types of operations. 123
The maJor problem with this concept manual is that it would reqmre the designation of an upper limit for the national auspace III order to establish A TC operational responsibilities. However, we may argue that this in fact is establishing a defining line between airspace and outer space by adopting a spatialist approach. 124 This is why the recommended model of the AST for NAS navigation and transition of reusable launch vehic1e is flawed. Because not only it will adopt a defining line between airspace and outer space, but it will also be contrary to the public policy of the United States, which has always been opposed to the spatialist approach for resolving the boundary problem.125 Thus, what is require under the AST model, instead of adopting an upper limit for the NAS, is that the operational responsibilities of the air traffic controllers be defined according to the "effective approach" formulated by Dr. Christol. 126 Under this approach, the vehicle would be under "air traffic control,,127 depending on the purpose of their operations, no matter where they are located. For the aerospace plane and other suborbital reusable launch vehicles, this would mean that they are always going to be under air traffic control just as commercial aircraft are today.128 For orbital reusable
123 The manual states "The en-route trajectories for hypersonic missions departing from the U.S. may involve 1) ultra-high altitude flight within the NAS, and a transition directly to international airspace, or 2) flight above the NAS and re-entry into international airspace." Ibid at 20. 124 See section 3.2.1, above, for a description of the spatialist approach. 125 According to Prof. Bing Cheng the principal reason for the United States to oppose the spatialist approach include "the inability of most countries to monitor such an altitude boundary; the lack of adequate examination of the relevant scientific, legal, technical and political factors; the possible inhibiting and even stifling effect of a fixed boundary on future efforts to explore and use outer space." Supra note 58 at 428. 126 See section above, for a discussion on Prof. Christol's approach. 127 According to Annex 2 of the Chicago Convention "air traffic control" means "A service provided for the purpose of: a) preventing collisions: 1) between aircraft, and 2) on the manoeuvring area between aircraft and obstructions, and b) expediting and maintaining an orderly flow oftraffic." Supra note 101 at 2. 128 Today, international commercial traffic is always under air traffic control when located inside the national airspace of a country. When flying over international waters they follow established international
52 launch vehicles, it would mean that they could be under ATC control until they are ready to enter orbit when ATC control would cease. Upon re-entry they could be under ATC control from the moment they initiate re-entry manoeuvres, such as firing thrusters to slow down and re-enter the atmosphere.
Although, adopting the position of the AST of establishing an upper limit to the national airspace for operational considerations sounds very appealing for its convenience, especially from the controller's perspective, the fact is that adopting this model would mean applying two internationallaw regimes to one vehicle. Thus, adopting our position, instead of that of the AS T, will maintain the vehicles operating within one regime of law instead oftwo.
As we have seen, Dr. Christol's effective approach seems to be the best way to deal with the boundary problem as it keeps of types of vehicles operating within one regime of internationallaw. At the same time provides for the development and growth of both the air and space law regimes. The approach effectively permits the incorporation of suborbital reusable launch vehicles, like the aerospace plane to the regime of international air law. It also provides for the adoption of air law principles into space law for the further development of the regime in respect to orbital reusable launch vehicles, like the orbital space plane, the successor of the Space Shuttle. Finally, the approach, permits smooth transitions of vehicles from one regime to another just by knowing the purpose or effect that the vehicle is going to have and does not restrict its transition from one medium to another based on the location or use of the vehicle. Something that happens in the effects of other approaches (e.g. functionalist and spatialist).
navigation routes. See UN, The Convention on International Civil Aviation: Annexes 1 to 18, ICAO Doc. E/P1I8000 (February 1991) [mimeo.] at 8 and 24.
53 CHAPTER 4 RISK MANAGEMENT, LIABILITY AND THE REUSABLE LAUNCH
VEHICLE
4.1 Introduction
Reusable launch vehic1es have been compared to aircraft in terms of risks, because like aircraft it is a vehicle that can be used many times over, with the difference that this one can go into space. This difference sets the reusable launch vehicle apart from aircraft in terms of risk allocation, simply because going to space is more hazardous than flying within our atmosphere. In this chapter, we will address those differences as weIl as the differences between suborbital and orbital reusable launch vehic1es in terms of risk management and liability. We will examine the diverse national and international regimes and the possible application of the aviation liability regime to the reusable launch vehic1e.
4.2 Risk Management and the Reusable Launch Vehic1e
Risk management can be defined as "a process for identifying and addressing loss exposure of aIl kinds." 129 With this definition, we can immediately appreciate the difference that it represents for reusable launch vehic1es, especially orbital ones, when compared to conventional aircraft. The reasons for this are various and inc1ude but are not limited to types of fuels, re-entry operations and velocities. For example, the proposed
Kistler K -1, a well-funded orbital reusable launch vehic1e, is going to have a take off weight similar to a Boeing 747 but the fuels used are highly toxic and explosive, whereas
129Julian Hermida, Legal Aspects of Space Risk Management: The Allocation of Risks and Assignment of Liability in Commercial Launch Services (LL.M. Thesis, Institute of Air and Space Law, McGill University, 2000) [unpublished] at 7.
54 for the 747 they are not. 130 In addition, the take off speeds for the K -1 are similar to those
of an expendable launch vehicle, reaching orbital speeds and finally it would have to withstand re-entry conditions that are high in risk.l3l Although we have no data for the performance of reusable launch vehicles, as we have for aircraft, we can compare the
risks of reusable launch to those of the expendable launch vehicle. For example, launch
failure probabilities for existing expendable launch vehicles vary from about 3 in 50 to 1
in 483. 132 This is a very high failure rate when compared to commercial aircraft.
Commercial aircraft have a takeofffailure probability estimated to be 1 in 2.3 million.\33
As we have noted, the examples given are for orbital reusable launch vehicles and
for these vehicles it can be understood that the exposure to loss is greater than for aircraft.
However, for suborbital reusable launch vehicles it could be a different story. A
suborbital reusable launch vehicle would not have to endure the same re-entry hazards as
an orbital reusable launch vehicle would have to and although sorne of the proposed
vehicles will use highly explosive and toxic fuels other are not. For example, Burt Rutan
of Scaled Composites is building a promising and well-funded suborbital reusable launch
vehicle. 134 The vehicle is a two-stage system, the first, called the White Knight is a manned twin turbojet aircraft intended for high-altitude missions.
The second is the Space Ship One, a manned suborbital vehicle. In this
configuration, the White Knight will act as a high-altitude airbome launch platform for
130 See US, Associate Administrator for Commercial Space Transportation, Liability Risk Sharing Regime for u.s. Commercial Space Transportation: Study and Analysis (Washington D.C., 2002) at 7-13. The Kistler K-l is going to use RP-l (a kerosene-based rocket fuel) which is similar to JP fuel Get fuel) and like JP is usually not explosive, but when RP-l is used in combination with liquid oxygen, which the K -1 will, then it becomes highly explosive and toxic. For more information see Kistler online:
55 the Space Ship One. The White Knight williaunch the Space Ship One at 50,000 feet into
suborbital flight and Space Ship One will return to land as a glider at light airplane speeds.
The fuel used for the White Knight is regular jet fuel and Space Ship One will use a hybrid rocket motor in which neither the fuel nor the oxidants are hazardous. 135 This means that for suborbital reusable launch vehicles, risk management can be similar to that
of commercial aviation. Of course, just as it took the aviation industry many years to have the safety record it has today; it will take many years for reusable launch vehicles in general to have a good safety record.
While risk management aspects can differ greatly between commercial aircraft and reusable launch vehicles, there are sorne similarities in the risks involve, especially for suborbital reusable launch vehicles. This means that in the near future, when suborbital flights become commonplace, the risk management process could be the same for commercial aircraft and suborbital reusable launch vehicles. For orbital reusable launch vehicles, the risk management process is going to be similar to that of the CUITent expendable vehicle launch industry. In this industry, risk is "allocated among the participants by a means of a complex system of reciprocal waivers of liability, indemnification granted by states, commitments to obtain insurance, limitations of
liability ... and exclusions of liability clauses, among other legal instruments.,,136 Although, it may be possible that in the future the operations of orbital reusable launch vehicles may become routine, like the operations of the aviation industry, and maybe then these vehicles can adopt a similar risk sharing regime.
134 For information on Scaled Composites see online:
56 4.3 Definition of Liability
Liability can be defined as "a legal obligation to compensate for damage caused by action or inaction, intentional or negligent, or simply caused by an act without intention or negligence.,,137 There are various types of liabilities and each of them, as we will see, affects the use of reusable launch vehicles in general.
The first type of liability is strict liability. This type of liability had its origins in the English common law system and has been adopted in one form or another by other common law systems. 138 In strict liability, there is no need to proof fault as fault is presumed and the victim only needs to proof a relation or causation between the damage suffered and the action of inaction of the defendant. 139 The second type of liability is fault-based liability in which negligence or fault must be proved. In this type of liability, the claimant must prove that the defendant owed him a dut y of care, that the defendant breached that dut y of care and that there is causation between the breach and the damage caused. 140
The third type of liability is absolute liability in which the defendant is liable without the need to prove any fault. The major difference between this type of liability
136 Supra note 129 at 9. 137 Idorenyin Edet Amarra, The Montreal Convention of 1999: Problems and Prospects (LL.M. Thesis, lnstitute of Air and Space Law, McGill University, 2002) [unpublished] at 15. 138 The case that established strict liability as a doctrine was Rylands v. Fletcher (1868), L.R. 3 H.L. 330. In the case, a mill owner ordered construction of a dam to get waterpower. The resulting reservoir lay over ancient abandoned coalmines. The mil! owner had no reason to suspect that these old diggings led into an operating colliery, but they did. When the dam was closed, water ran down the old shafts, seeping into and flooding the colliery. The mill owner obtained the water for his own use without drainage facilities. The mil! owner's use was classified as a "non-natural user" and was found liable. 139 For example In Greenman v. Yuba Power Products, Inc. 377 P 2d 897 (1962) the court established strict liability for product manufacturers in the United States when it stated: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being."
57 and strict liability is that the defendant cannot raise any defences and is usualIy impose in ultra hazardous activities (e.g. nuclear reactors). 141 AlI the three types of liability currently used alIocate responsibility in the different national and international liability regimes and as we will explain, will or may apply to reusable launch vehicles operations.
4.4 International Liability Regimes
The Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967 (Outer Space
Treaty) imposes international responsibility on member States for the activities of their private entities engaged in space activities. 142 The 1972 Convention on the International
Liability for Damage Caused by Space Objects (Liability Convention), which is the expanded or explanatory version of Article VII of the 1967 Outer Space Treaty, states that this responsibility shaH be upon the launching state (Launching state is the one who launches, who procures a launch, whose facility is used or whose territory is used).143
This responsibility shalI be absolute if the damage is caused on the surface of the
Earth or to aircraft in flight and if it is caused in space then it is based on fault liability.144
140 Lee S. Kreindler, Aviation Accident Law, (Albany: Mathew Bender, 1998) Vol. 2 at 103. 141 In Caveney v. Raven Arms Co. 665 F. Supp. 530 (1987) the federal district court stated that for the imposition of absolute liability, the activity for which the liability is imposed must be an ultra hazardous one. The court then proceeded to define them: "the activities recognized as ultra hazardous are limited to those activities that pose a danger to pers ons in close proximity to the activity such as blasting, storing water and storage of explosives." Ultra hazardous activities have also been defined as "those with a risk of serious harm, which cannot be eliminated by exercise of the utmost care." See supra note 130 at 5-3. 142Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January, 1967, 610 U.N.T.S. 205. Article VI of the Outer Space Treaty states "Parties to the Treaty shaH bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities ... "
143 Convention on the International Liability for Damage Caused by Space abjects, 29 March 1972, 961 UNTS 187. Article l(c). 144 Ibid Articles II and III.
58 Article IV establishes absolute joint and several liabilities when the space object of one
State causes damage to another State's space object that subsequently causes damage to a third State on the surface of the Earth or to its aircraft in flight. It also establishes fault joint and several liabilities when the same damage is caused to a third State's space object. 145 Finally, Article V establishes joint and severalliabilities for two or more States launching a space object. 146
These absolute and fault liabilities, dictated respectively by Articles II, III and IV, are imposed for the damage caused by the launching state's "space object". The problem is that "space object" is not defined under the convention, which means that we do not know to what type of vehicle or object it refers. However, the convention, in Article l, does include the term "launch vehicle" upon which the space object is launched as part of the space object, but not as a "space object" itself. Article l (d) of the Liability
Convention states "The term "space object" includes component parts of a space object as weIl as ifs launch vehicle and parts thereof." From this we can interpret that the drafters of the convention did not want to apply the provisions of the convention to the launch vehicle itself, but only if it was part of the "space object". In other words, the convention is not applicable to a launch vehicle by itself, but it is applicable to the launch vehicle that is carrying or is part of a space object, whatever that is.
For current expendable launch vehicles, this not seems to be a major Issue, because we can easily argue that the purpose of these vehicles is to carry a "space object" like a communications or remote sensing satellite. In fact, hardly anybody would argue
145 Ibid Article IV 1 (a), (b). 146 Ibid Article V 1. Nevertheless, States can also have agreements in which one of the launching States assumes ail responsibility as a launching State; one example is the Baikonur in Kazakhstan where Russia has agreed to assume responsibility as a launehing State, for more on this topie see section 4.5.4, below.
59 that the term "space object" as stated in the Liability Convention does not include all types of satellites launched into or beyond orbit as well as space debris. 147 But for reusable launch vehicles this represents an interesting dilemma, if the reusable launch vehicle is not to be used to carry any satellite or objects that will become "space objects"; is the convention applicable? We would answer in the negative when referring to a suborbital reusable launch vehicle, but we would have to answer in the positive if we are talking about orbital reusable launch vehicles. For example, if the reusable launch vehicles were to be used to place satellites in orbit, eventually replacing expendable launch vehicles, then yes, the convention would be applicable. Of course, a reusable launch vehicle capable of placing objects in orbit would have to be an orbital one. 148 But if the reusable launch vehicle is going to be used for transporting passengers or cargo using outer space and without placing anything in orbit, then we could argue that this vehicle is not a space object, thus the Liability Convention is inapplicable. 149 As an example, we can mention the current type of reusable launch vehicles being design for space tourism, these vehicles are going to be launched for suborbital manoeuvres and are
147 However, Prof. Foster and others have argued that the term "space object" "does not apply to damage sustained by permanent installations, or the persons or property occupying them, on the moon or other celestial bodies." See W.F. Foster "The Convention on International Liability for Damage Caused by Space Objects" (1972) Cano Y.B. Int'l Law137 at l4l. See also Frans G. von der Dunk "The 1972 Liability Convention, Enhancing Adherence and Effective Application" The Review of the Status of the Outer Space Treaties. 1998IISLlECSL Symposium held March 23, 1998 in Vienna Austria at 368 in which Prof. von der Dunk argues for the inclusion of space debris as a space object under the Liability Convention. 148 The reusable launch vehicles that companies like Kelly Space & Technology and Kistler Aerospace, among others, are designing are for delivering payloads into orbit and are going to orbital reusable launch vehicles. For more on the projects of reusable launch vehicles see supra note 15 at 19. 149 Various authors have excluded sorne types of reusable launch vehicles, like sounding rockets, form the application of the Liability Convention because they are not objects "designed for movement in outer space" See W.F. Foster, supra note 147. See also Thomas Beer "The Specific Risks Associated with Collisions in Outer Space and the Return to Earth of Space Objects-The Legal Perspective" (1999) XXV Air & Space L. 42 at 47. Still, there are others like Prof. Cheng who argue that "a space object, whatever this may be, is a space object within the meaning of the Convention only when it is in its operational state, Le. 'from the time of its launching (or attempted launching) or at any stage thereafter until its descent', including at the one end the 'planned launching' phase and at the other end the 'recovery phase'. Supra note 47 at 325-26.
60 not going to be carrying any "space objects" unless we consider space tourists space objects. Another example is the future aerospace plane, which will be transporting cargo and passengers from one point of the Earth to another using outer space, but without carrying any "space objects". This means that for suborbital reusable launch vehic1es the
Liability Convention seems to be inapplicable because they are not going to be part of a
"space object".
4.5 National Liability Regimes
The responsibility imposed on member States by both the Outer Space Treaty and the Liability Convention has required the creation of nationallaws and regulations. These national laws, in turn, require private companies involved in the launching of space objects to assume tinancial responsibility or to acquire insurance in order to reimburse the
State in case of an international or national c1aim for an accident or incident involving a space object. In this subchapter, we will discuss the national provisions relevant to the liability regime of several space faring nations.
4.5.l Australia
In 1998, the Australian Parliament enacted the Space Activities Act (SAA).150
This act pro vides a detailed regulatory framework for space activities, including space vehicle launches. Although it contains sorne similarities with the United States regulatory framework it has also sorne major differences, which in sorne cases reflect the interpretations given by the Australian government to International Space Law. 151
150 Space Activities Act of 1998 (eth.). 151 For the United States insurance regulatory framework, see section 4.5.5, below.
61 In terms of risk management, the SAA is very similar to the United States laws and regulations. The applicant must demonstrate financial responsibility or meet certain insurance requirements, which are based on the maximum probable loss (MPL) that may occur from the launch. 152 In addition, as in the United States, the licensee of the launch is not liable for claims in excess of the insured amount, except in the case of gross negligence. 153 For the claims in excess of the insured amount, the Australian govemment would assume liability and pay the corresponding compensation. 154 As for specific amounts for the MPL of expendable and reusable launch vehicles, the Australian government has not given any information "because no launch company has applied for a license.,,155
In general, Australia is an ideal place to conduct both expendable and reusable launch vehicle launches because of its geographical position, good weather and extensive unpopulated territory that would make the insurance amounts far less than in other States.
However, Australia has not been able to sustain its own launch vehicle capabilities that began with the launch of its first satellite in 1967. 156 This means that Australia would have to rely completely in attracting foreign launch providers to build its space industry.
Although this has not yet materialized, it is a real possibility because of the advantages that we mentioned before of launching from Australia. In fact, Kistler Aerospace has shown interest in launching its future reusable launch vehicle from Woomera, Australia' s
152 Ibid at s. 47. 153 Ibid at ss. 67, 68 and 69 (3). 154 Ibid at s. 64 (2). 155 Supra note 130 at 4.3.
156 "In 1967, Australia became the fourth country to successfully launch its indigenous WRESTAT satellite, designed and constructed in Australia using a V.S. Redstone rocket from the Woomera launch site." Supra note 130 at 4-2.
62 current spaceport. 157 Nevertheless, without their own launch vehicles, Australia might have difficulties in attracting foreign launch vehicle manufacturers and operators because most of them already have access to good established facilities in their own countries.
4.5.2 China
China, which only entered the international trade in launch serVIces less than fifteen years ago, has proven a good contender for commercial launches. 158 In this country aIl commercial launches are conducted by the China Great Wall Industry
Corporation, a government owned corporation. 159 This company offers the Long March rocket family of launchers, aIl expendable launch vehicles.
In terms of insurance and liability, the People's Insurance Company of China provides coverage, although the same is conducted through underwriters from Europe. 160
For liability, the risk sharing report of the United States Associate Administrator for
Commercial Space Transportation (AST) summarizes very weIl the requirements:
Third-party liability insurance is in effect for a period of two years following launch. The PRC [People's Republic of China] Government will coyer any claims above $100 million. The PRC Government, not a jury, would determine the amount of any third-party claims, although a third party can theoretically file claims if he or she does not believe the amount of the government-determined settlement is sufficient. If a client is concerned that the $100 million is not adequate, the CGWIC [China Great Wall Industry Corporation] can arrange for an additional $300 million in third-party launch liability insurance paid for by the client. The CGWIC
157 Supra note 130 at 4-3. 158 China entered the international trade in launch services when the United States agreed to sign a bilateral launch agreement with China permitting United States commercial satellite manufacturers and operators to launch with China. For more on the United States bilateral launch agreements see Peter van Fenema, International Trade in Launch Services: The Effects of u.s. Laws, Policies and Practices on its Development (Leiden: International Institute of Air and Space Law, Leiden University, 1999) at 183 ss. 159 For more on the China Great Wall Industry Corporation see online: < http://www.cgwic.com/> 160 Supra note 130 at 4-5.
63 estimated that an additional $300 million in insurance would cost a client approximately $900,000. 161
As we have mentioned, China is only developing expendable launch vehic1es, which have a good launch failure record and along with the low cost of launching that they offer it combines for very good prices in the current launch industry. As for reusable launch vehicles, they do not seem very interested and are really putting their other space efforts, not on reusable launch vehic1e technology, but on manned space flight using expendable launch vehic1es. 162
4.5.3 Europe
In the 1970' s several European nations got together to create the European Space
Agency (ESA) in order to integrate resources and maintain competitiveness in the growing launch industry. 163 For this, they created Arianespace, a private company organized under French law. 164 According to the AST, Arianespace is the biggest competitor for United States service launch providers and since 2000 has taken the lead in worldwide intemationally competed launches. 165
161 Supra note 130 at 4-5. 162 China plans to be the third nation in the world to independently sent humans into space. See Ted Anthony, "China Plans to Launch Manned Space Flight in 2003" The Associated Press (January 2, 2003), online: Space.com < http://www.space.com/missionlaunches/china_manned_030 102.html> 163 ESA is an organization comprised of 15 European countries (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and United Kingdom) that is headquartered in Paris, France. For more see online:
64 In terms of liability insurance requirements, the United States study on risk sharing liability regimes best summarizes Arianespace's policies as a French based company. The study states:
Arianespace obtains primary third-party launch liability insurance on behalf of its customer in the amount of 400 million French francs, the equivalent of approximately $53 million U.S. at the current exchange rate (Arianespace 2001b)[As of June 2003 this represents 60 million Euro approximately]. Insurance covers the liability of the liability of the French Government, CNES, ESA, Arianespace, their contractors and subcontractors, in addition to the launch customer and its contractors, arising out of the launch. This indemnification coverage is in effect for a period of three years following the launch. Any third-party claims exceeding this insurance coverage are the responsibility of ESA (ultimately, the European government owners, principally France). Any damage to the launch site or property owned by ESA is the sole responsibility of ESA and is not covered by any launch-specific insurance requirements. 166
Finally, the French government or any other European govemment member of
ESA does not coyer third party losses beyond the specified amount. 167 As we can see the liability regime in Europe is a far simpler one when compared to the United States. This in part may be because Arianespace is not developing and has not shown any interest in developing reusable launch vehicles that are expected to increase insurance premiums because of re-entry operations. The future re-entry operations, we think, was the primary reason for the United Sates to establish a minimum of 100 million dollars for liability insurance that is almost the double of the amount provided by Arianespace.
2003) at 14. This document also de fines an internationally competed launch contract as "one in which the launch opportunity was available in princip le to any capable launch service provider." 166 Supra note 130 at 4-2.
167 Supra note 130 at 4-2.
65 4.5.4 Russia
In Russia, all space activities were included under one alI-inclusive Iaw known as the Russian Law on Space Activities of 1993 (RLSA).168 This Iaw is a complex set of mIes that aiso pro vides the foundation for a Iiability regime, regarding the Iaunch of space vehicles. Article 29 of the RLSA stipulates that government offices, their officiaIs as well as citizens of the Russian Federation shall be held Iiable if found guilty of violating the
RLSA. 169 Under Article 30 of the Iaw, the Russian government guarantees, "full compensation for direct damage inflicted as a result of accidents while carrying out space activity in accordance with Iegisiation of Russian Federation.,,170 The RLSA, contrary to the United Sates regulations, does not set a maximum amount for compensation related to a Iiability claim arising out of an accident and the responsible organizations and/or citizens, not the government shall pay the compensation.l7l Finally, the Iaw specifies that
Iiability shall be imposed when a Russian Federation space object (which is not defined in the Iaw) causes damage within the territory of the Russian Federation or outside the jurisdiction of any State (except outer space) regardiess of who might be at fault. l72
Regarding insurance the RLSA is the foundation of a complex insurance regime aiso based in another two Iaws of the Russian Federation. Article 25 of the RLSA requires compuisory insurance when carrying out any space activities, including space Iaunches, contrary to the United States and Australian regimes that pro vide for alternatives of meeting the financiai responsibilities of Iiability requirements, such as demonstrating
168 Law ofRussian Federation on Space Activity, August 20, 1993. 169 Ibid Article 29. 170 Article 30 (1), supra note 168. 171 Article 30 (2), supra note 168. 172 Article 30 (3), supra note 168.
66 financial reserves. 173 There are other two laws that affect the insurance requirements of space launches in Russia, the first is the Civil Code of the Russian Federation, which
"defines an insurance contract, explains third-party insurance requirements, and addresses the rights of insurance companies to assess risk.,,174 The second is the Russian Federation
Law on Organizing the Insurance System in Russia, which "establishes the general principles of state oversight of insurance practices and regulates relations between insurance companies and citizens or other organizations.,,175
Although, the customer is the one who usually buys third party liability insurance, the Russian government, if specified in the launch contract, will pay claims in excess of the insurance. Third party liability insurance in Russia depends largely on the type of vehicle used in the launch and range from 80 million to 300 million. 176 It is also interesting to note that for the launches made from the Baikonur spaceport, Kazakhstan is not considered a launching state under the provisions of the Outer Space Treaty and the
Liability Convention and Russia accepts aIl responsibility for such launches. 177 AlI of these requirements are based in expendable launch vehicle technology, as Russia does not have to date any plans for reusable launch vehicles of any type, orbital or suborbital and like Arianespace does not have to deal with re-entry operations.
173 Article 25 (1), supra note 168. For Australia see above, section 4.5.1 and for the United States see section 4.5.5, below. 174 Civil Code of the Russian Federation, Part Two, No. 14-F3, dated January 26, 1996, amended on October 24, 1997 (No. 133-F3). See supra note l30 at 4-7. 175 Russian Federation Law on Organizing the Insurance System in Russia No. 4015-1, dated November 27, 1992, and amended on December 31, 1997 (No. 157-F3), and on November 20, 1999 (No. 204-F3). See supra note 130 at 4-7. 176 See supra note 130 at 4-8. For a detailed description of the insurance requirements for third party liability for each of the different types of Russian expendable launch vehicles see Table 4-1.
67 4.5.5 The United States
Currently, the United States has the more complex and developed liability risk-
sharing regime for expendable and reusable launch vehides of any country. The regime is
comprised of a three-tier system. Under the first tier license applicants must prove
financial capability to compensate for Maximum Probable Loss for damages caused to a third party for death, bodily injury, or property damage or loss resulting from an activity carried out under the license. The licensee must also compensate the United Sates government against a person for damage or loss to government property resulting from an activity carried out under the license. 178 Maximum Probable Loss (MPL) is defined as
"the greatest dollar amount of loss for bodily injury or property damage that is reasonably expected to result from licensed launch activities.,,179 It is the Associate Administrator for
Commercial Space Transportation (AST) who makes the MPL determination that is the basis for financial responsibility requirements under the license. The MPL has statutory ceilings that are not to exceed the lesser of $500 million for third party liability or the maximum available on the world market at reasonable cost and $100 million for United
States government range property or the maximum available on the world market at reasonable COSt.1 80
The second tier is the catastrophic loss protection that indudes the daims that exceed liability in surance and financial responsibility requirements (also known as indemnification). 181 Subject to Congress appropriations, the United States govemment may pay successful third party liability daims in excess of required MPL based insurance,
177 See supra note 130 at 4-8. 178 Commercial Space Launch Act, 49 u.s.e. Subtitle IX § 70112 (a) (1). 179 14 e.F.R. § 440.3 (a)(11). 180 49 u.s.e. § 70112 (a) (3).
68 up to $1.5 billion (as adjusted for post-1988 inflation) above the amount of MPL based insurance. 182 Additionally, the United States government waives claims for property damage above required property insurance. 183 The third tier is for claims above MPL based insurance plus indemnification, which by regulation, the financial responsibility of such claims remains with the licensee, or legally liable party.184 In addition, the United
States government, as an exception, will not indemnify a party's wilful misconduct and may pay claims from the first dollar of loss in the event of an insurance policy exclusion that is determined to be usual. 185
The applicant can choose to me et the financial responsibility of MPL through one of the following: financial reserves or; escrow account or; liability insurance, which is the most cornmon and preferred method. An example is Sea Launch, an international partnership of companies from four different countries (United States, Russia, Ukraine and Norway). 186 This company, which is launching rockets from the high seas, was required by the United States government to obtain insurance and a license from the
Department of Transportation for the launch of its vehicles because Boeing, a United
States company, was deemed to hold a "controlling interest,,187 under the Commercial
Space Launch Act of the United States. 188 In this way, the United States could prote ct
181 Ibid § 70113. 182 Ibid § 70113 (a) (1). 183 Ibid. 184 Ibid § 70112 (b) (2). 185 Ibid § 70113 (a) (2). 186 For more on Sea Launch see online:
69 itself by requiring Boeing sufficient insurance under the license in case someone made an international daim under the provisions of the Liability Convention.
One final aspect that distinguishes the United States regime from that of other countries is the expiration date for the liability regime established under the Commercial
Space Launch Act. Under the CUITent extension, the provisions pertaining to the daims exceeding the minimum insurance amounts (government indemnification) and financial responsibility requirements will expire on December 31, 2004. 189 This means that for licenses submitted after this date, the United States government will not provide indemnification for daims above the msurance coverage amounts. This "sunset provision" (expiration date) which Congress has been extending since 1988, with amendments to the Act, is probably the biggest factor affecting United States competitiveness in the launch industry right now and it will probably be amended before the next expiration date.
4.5.6 Other Countries
Other countries that currently have space launch capabilities and have sorne kind of liability regime for space launches indude: Brazil, India, Israel, Japan, South Africa,
Sweden, Ukraine and the United Kingdom. 190 For the regimes of these countries and the regimes of the countries that we have previously discussed in sorne detailed, the following table provides an excellent comparison and overview of each ofthem. 191
189 Ibid § 70113 (f). 190 For detailed information on the liability regime ofthese countries, see supra note l30 at ch. 4. 191 AIl data from the table was adopted from Table 4-4 of the AST report on risk sharing liability, supra note 130 at 4-13.
70 Table 4.1 Comparison of National Liability Regimes
Country Commercial Space Insurance Number of Launch Licensee's Government Launch Capability Requirements Tiers of Required Amount Supplied Third ELV Name(s) for Third Licensee of Third Party Party Liability (Iauncher affiliation) Party Government Liability Insurance Indemnification Liability Third Party Risk Sharing Australia No, but foreign Yes 2 MPL, similar to U.S. No Limit interest( foreign method commercial) Brazil Under development Draft 2(Proposed) Not Specified (but Unknown VLS(government) launch risk-based) China Yes, Long March Yes 2 $100 million (client No Limit (govemment) can request another $300 million) Europe (ESA) Yes, Yes 2 $53 million at CUITent No Limit Ariane(govemment) exchange rate( 400 million French francs) India Yes, GSLV Yes 2 Not Specified No Limit (govemment) Israel Under Development No NIA Not Specified None Shavit (commercial) Japan Yes, H-IIA Yes 2 $50 million or $200 No Limit (govemment) million( depending on launch vehicle) Russia Yes, Cosmos, Dnepr, Yes 2 $80 million to $500 No Limit-By Rockot, START, Soyuz, million( depending on contract only Zenit, Proton, Molniya, launch vehicle) Tsyklon, Strela(government) South Africa No Yes 1 Not Specified None Sweden No Yes 2 Not Specified None Ukraine No, but affiliated with Yes NIA Not Specified Not Specified foreign ventures - Zenit ( commercial) United No Yes $142 million None Kingdom United States Yes, Atlas, Delta, Yes 3 MPL (but not more $1.5 billion above the Minotaur, Taurus, than $500 million). MPL (as adjusted Pegasus( commercial) Current licensed post-1988 inflation) Athena EL V s have MPLs of from $0.25 million to $261 million (Delta IV) ESA = European Space Agency; MPL = maximum probable loss; EL V = expendable launch vehicle; GSLV= Geostationary Launch Vehicle; VLS = Vehiculo Lancador de Satelites; N/A=Not available. Ali amounts in USD, unless specified.
From table 4.1 we can see that the United States is the only country with a three-
tier system for third party liability that makes the system a more complex one.
71 Additionally, the United States is the only one with an expiration date for govemment indemnification and with a cap on the amount of government indemnification, which affects the United States competitiveness. On the other hand, Australia and the United
States are the only countries in which the required amount of insurance is based on the maximum probable loss (MPL) which we think is advantageous because it provides for a flexible way of determining the insurance amounts based on the type of operations being conducted under the license. This is an excellent way to incorporate reusable launch vehicles into the CUITent risk-sharing regime. Finally, we see that under sorne of the liability regimes, notably the United States and Australia, steps have been taken to incorporate the reusable launch vehicle into the CUITent expendable launch vehic1e regime.
Although, this seems like a logical step, it only seems so for orbital reusable launch vehicles. As we have mentioned, these vehicles will have operations similar to expendable launch vehicles with the difference that they can re-enter the atmosphere to be used again, but their use or effect will be essentially the same. For suborbital reusable launch vehicles, we will examine in the next subchapter if it is viable to incorporate them to the CUITent liability risk regime for aviation.
4.6 International Air Carrier Liability and the Reusable Launch Vehicle
The internationalliability regime that applies to the aviation industry is commonly known as the "Warsaw system". This system is to be replaced by the 1999 Montreal
Convention, which for the purposes of this paper we will continue to refer to it in the rest of our discussion. This is because probably, this convention will be the one in use when
72 reusable launch vehicles begin operation. 192 Under the Montreal Convention, the liable party is the operating carrier and the State where such airIine is registered is never held liable, because the liability arises from a contract, in which the carrier has the obligation to transport the passenger in a safe manner. 193 This principle contrasts sharply with that of the Liability Convention of 1972 for space objects, where liability is upon the launching state of the space object and there is no contractual relationship involved. 194 Additionally, the type of liability under the Montreal Convention is strict liability, whereas under the
Liability Convention it is a mix of absolute and fault liabilities. 195 Finally, the Montreal
Convention is applicable to international carriage by air, whereas the Liability
Convention applies to the launching of space objects. 196
Being two regimes drastically different where do we place the suborbital reusable launch vehicle and can us apply the principles of the aviation liability regime to them.
192 "Warsaw system" refers to the Convention for the Unification of Certain Rules Relating to International Carriage by Air 12 October 1929 and aU its protocols, addition al protocols and agreements. This system is to be replaced by Convention for the Unification of Certain Rules Relating to International Carriage by Air 28 May 1999 (1999 Montreal Convention) once it enters into force, which incorporates ail of the protocols, additional proto cols and agreements of the Warsaw System. Although the Montreal Convention is not in force yet, as of July 30, 2003, 29 of the 30 instruments of ratification, accession, approval or acceptance have been deposited for the convention to enter into force. For more on the new Montreal Convention see Idorenyin Edet Amana, The Montreal Convention of 1999: Problems and Prospects (LL.M. Thesis, Institute of Air and Space Law, McGill University, 2002) [unpublished] 193 Article 17 of the Warsaw Convention stipulates, "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger ... " Thus, the liability is imposed upon the carrier and not the State. It is interesting to note that the term bodily injury is defined in the AST/FAA regulations. Under 14 C.F.R. § 440.3 (a) (1) (2000), "Bodily injury means physical injury, sickness, disease, disability, shock, mental anguish, or mental injury sustained by any person, including death." In the definition, mental anguish is included as being a form of bodily injury, an interpretation that has caused much litigation under the Warsaw system, because the term bodily injury was never defined, not even in the new Montreal Convention of 1999. Maybe, in the future International Public Air Law attorneys can borrow from these regulations, at least as a parallel or example in the United States, in order to support their views or influence a judicial decision. 194 Articles II, III, IV and V of the Liability Convention of 1972. 195 For the Liability Convention Articles II and III clearly establish both types of liability. The strict liability in the Warsaw Convention arises from the contract of carriage where the general rule is dut y of care. See section 4.3, above, for more on the types ofliability.
196 See Articles II and III of the Liability Convention and Article 1 of both the Warsaw Convention and Montreal Convention.
73 Although, there cannot be a detinitive answer because we simply do not have the experience and necessary data regarding suborbital reusable launch vehicle performance and statistics, we can establish sorne theories. Following the theory we have mentioned, that the Liability Convention of 1972 would only be applicable to orbital reusable launch vehicles but not suborbital ones,197 we can say that, at least for suborbital reusable launch vehicles, we have no choice but to incorporate them to the air law regime or establish a completely new regime for them. This means that for international liability purposes we will only discuss the applicable possibilities for suborbital reusable launch vehicles, as orbital ones would have to be included under the provisions of the 1972 Liability
Convention.
For the tirst option, incorporating the suborbital reusable launch vehicle into the international regime of air law, we encounter sorne major obstacles in the tirst article of the 1999 Montreal Convention. Article 1 of the convention explicitly states, "This
Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward.,,198 The problem is the use of the word 'aircraft' in the convention; this word would seem to exclude the suborbital reusable launch vehicle. Although not detined in the convention, it would be easy to argue that the word aircraft as used in the convention has the same detinition as the one used in the International Public Air Law
(Chicago Convention) regime that we have previously discussed. That is, that an aircraft is "Any machine that can derive support in the atmosphere from the reactions of the air
197 In our theory the term "space object" does not refers to the launch vehicle, unless it is part of it. See section 4.4, above, for more on this topic. 198 Article 1 (1) of the Convention for the Unification of Certain Ru/es for International Carriage by Air, 28 May 1999, ICAO Doc. 9740.
74 other than the reactions of the air against the earth's surface.,,199 The application of this definition to the International Private Air Law regime, of course, would make the convention inapplicable to the suborbital reusable launch vehic1e. This means that we have to, either adopt a definition for the International Private Air Law regime that would include the suborbital reusable launch vehic1e or proceed on to the second option of adopting a new international liability regime for these vehicles. It is our belief, that it would be more practical to just adopt a definition of aircraft that would include suborbital reusable launch vehicles, just like we suggested for the International Public Air Law regime, rather than adopting a whole new liability convention just for these vehic1es. 200
In this sense suborbital reusable launch vehic1es, like the future aerospace plane would have the same protection in terms of liability that other air carriers would and furthermore this action will protect the new suborbital reusable launch vehicle industry while it grows and develops, just as the Warsaw Convention did for the emerging airline industry of the
1930's.
Another reason for the incorporation is that, since there are no suborbital reusable launch vehic1es currently in use and we have no information on the risks associated with these vehic1es Gust like there was not much information about the risks of the emerging airline industry in 1929), incorporating them to the mentioned regime would provide further protection for the industry to develop. Additionally, suborbital reusable launch vehicles are going to start operating very soon in the form of space tourist vehicles, which means that this emerging industry is going to need protection for it to develop. According
199 Supra note 102. See section 3.5.1, above, for more on the definition ofaircraft un der the international air law regime. 200 For the International Public Air Law regime we suggested various definitions of aircraft that wou Id include suborbital reusable launch vehicles. See section 3.5.1, above, for the suggestions given.
75 to vanous scholars, this emergmg industry could turn out to be a highly profitable business if the prices can bec orne accessible to most people and if it is profitable, it has very good chances of developing?OI Of course, as we have said, it will be years before suborbital reusable launch vehic1es operations become as common and safe as CUITent airline operations and even more years for the risks of both operations to be comparable.202 This is why we need a transition period for the se vehic1es in which at first they would be treated with the same standards as expendable launch vehic1es in terms of risk management and not the standards used for commercial aviation.
The transition period is essential, as we cannot expect the safety record of suborbital reusable launch vehic1es to be as good as it is for the aircraft industry. During the transition period, the risks of suborbital launch vehic1es should be associated with the risks of expendable launch vehic1es and the national laws dealing with launch vehic1e liability, such as the Commercial Space Launch Act of the United States, should be applicable. In this transition period, the performance of the expendable launch vehic1e industry should be used to calculate risk instead of using the risks associated with the aircraft industry. This is very important because as we have seen it is very probable that reusable launch vehic1es would have similar risks, at least in the beginning, to expendable launch vehic1es. Additionally, the transition would ensure that suborbital reusable launch vehic1es would be protected as an industry and while it is being developed. After this transition period, we find that the CUITent International Private Air Law regime might be
201 According to a paper on space tourism if the priees of tickets cornes down to 10,000 USD per pers on " ... space travel by 'ordinary' people or 'average' people could become possible in the near future." Ram Jakhu & Raja Bhattacharya, "Legal Aspects of Space Tourism" (2002) in Proceedings of the Forty-Fifth Colloquium on the Law of Outer Space (American Institute of Aeronautics and Astronautics, 2002) IAC- 02-IISL.2.09. 202 See section 4.2, above for more on the associated risks of airline operations.
76 weIl suited, because of the similarities between these vehicles and commercial aircraft and because it will continue to prote ct the emerging industry. Finally, while national insurance requirements for future suborbital reusable launch vehicles are adequate for the time being,203 the se vehicles might see a rapid development. It would be better if we decide early on, where we are going to place these vehicles, legally speaking, before they start flying across national borders, which inevitably will bring liability claims arising out of incidents and accidents related to the operations of these vehicles.
203 At least in the United States a recent study on liability risk sharing regimes found the current U.S. liability regime "adequate". According to the AST, "The current liability risk-sharing regime for commercial space transportation is judged to be adequate based on historical acceptability of statutory risk allocation, inciuding risk-based insurance requirements; support of U.S. obligations under relevant treaties; and the ability of the U.S. launch industry to compete for a share of the commercial space launch market." Supra note 130 at 10-3.
77 CHAPTER 5 CONCLUSIONS AND RECOMMENDA TIONS
As we have discussed and analyzed the best venue for c1assifying reusable launch vehic1es is to divide them into two major categories, orbital and suborbital. Under these two categories, orbital reusable launch vehic1es would fall into the regime of space law.
Suborbital reusable launch vehic1es would be integrated into the regime of air law after sorne major amendments as well as a transition period in which these vehic1es would be treated under standards especially designed for them.
The transition period would calm the concems of major suborbital reusable launch vehic1e investors like Dennis Tito and Elon Musk that worry that the Federal Aviation
Administration's Office of Regulation and Certification and not the Associate for
Commercial Space Transportation (AST) would get jurisdiction over such vehic1es. 204
Their concem is that if the Office of Regulation and Certification, which has dominion over the certification of commercial and experimental aircraft, gets jurisdiction over suborbital reusable launch vehic1es, it will apply the same standards used for aircraft in terms of safety and liability that "would ensure that commercial space flight never gets off the ground.,,205 It is our understanding that suborbital reusable launch vehic1es in the
United States should be maintained under the jurisdiction of the AST, even after the initial transition period. The AST has the experience and personnel to deal with these vehic1es, which in the beginning, as we have said, would be similar in risks and
204 See Brian Berger, "Dennis Tito Ready to Invest in Suborbital Rocket, But Wary of Govemment Regulators" Space News (July 24, 2003), online: Space.com
78 operations to current expendable launch vehicles. The same should be for other countries that have established similar laws and offices for the regulation of space activities.
On the other hand, sorne members of the emerging space tourism industry, an industry that will depend initially only on suborbital reusable launch vehicles, think that these vehicles should never be treated as aircraft. Jeff Greason, president of XC OR Aerospace has go ne a little farther and has even asked the United States Congress to "shield the fledgling industry from excessively burdensome regulation, establish a formaI definition of suborbital rocket that makes clear they are not airplanes, and affirm an individual's right to waive liability before becoming a passenger of one of the planned services.,,206
We believe that it is not necessary to go so far in order to protect the suborbital reusable launch vehide or space tourism industry while it develops. For example in aviation the airline industry was protected internationally against liability daims in its beginnings and still is protected but did not have to go as far as waiving complete liability for passengers against claims for accidents in international travel.
Manufacturers and operators of suborbital reusable launch vehicles should be held liable in case damage is caused to the passengers, but the liability should be limited, not waived, as the industry develops. A good example, as we have discussed, is the strict liability initially established for the emerging airline industry under the provisions of the
Warsaw Convention of 1929. Similar provisions could be established for suborbital reusable launch vehicles used in space tourism or we can even incorporate these vehicles to the international Air Law liability regime, thus protecting these industries while they grow and develop.
206 Ibid.
79 On the boundary issue, we believe that the "effective approach" is the most practical way to resolve this issue. Under this approach, unlike the functionalist or spatialist approaches, both air and space law regimes are maintained without establishing a defining line between airspace and outer space. For suborbital reusable launch vehic1es, this approach means that these vehic1es would faH under the regime of air law. These vehic1es will be used for space tourism and sounding in the near future and for high-speed transportation of people and cargo between two points on Earth in the future, which means that its effect or purpose is that of a high speed, high altitude aircraft. For orbital reusable launch vehic1es, this approach means these vehic1es would faU under the regime of space law because its effect or purpose is that of a spacecraft, carrying cargo and people between earth and space.
For registration and certification issues orbital reusable launch vehicles should remain within the regime of space law. Space standards similar to the international standards and recommended practices contained in the Annexes to the Chicago Convention should be established for these vehic1es and aU other space vehicles or objects. The Registration
Convention of 1974 should be amended to accommodate orbital reusable launch vehic1es and a definition of space object should be adopted which would inc1ude these vehic1es.
Suborbital reusable launch vehic1es should be inc1uded under the regime of air law. The international framework for these vehic1es should be created under the auspices of the
International Civil Aviation Organization (lCAO) by either amending existing conventions or establishing new ones.
In terms of national liability and risk management of orbital reusable launch vehic1es the CUITent system of insurance requirements or financial reserves that each country involved in space launches has should be maintained. The operations of these vehicles are
80 going to be very similar to the operations of expendable launch vehicles and we find the
CUITent systems appropriate. For international liability, the 1972 Liability Convention should be amended to include orbital reusable launch vehicles. In the case of national liability for suborbital reusable launch vehic1es, the CUITent national systems of risk management and liability should also be maintained but only during the mentioned transition period. In the long term, it would be appropriate to incorporate the se vehicles to the regime of air law once they become commonplace and as safe as aircraft operations.
For international liability of suborbital reusable launch vehic1es, the 1999 Montreal
Convention should be amended in the future to include these types of operations.
Finally, we believe that scientists, engineers, policy makers and law experts should start working together both at ICAO and at the Office for Outer Space Affairs of the
United Nations to commence establishing roles and parameters that would define the different types ofreusable launch vehicles. We also believe that differentiating orbital and suborbital reusable launch vehicles would resolve much of the debate of where to place these vehic1es. This distinction is one logical way to determine the applicable regime to each of the different types of reusable launch vehicles. N evertheless and regardless of our opinions and theories, one thing is certain, reusable launch vehicles are going to be part of our near and far future and just like every other activity that humankind has been engaged; this one will need regulation. This is why we need to start the exchange of ideas and knowledge among those interested so one day we might be able to fulfill the dream of one ancient Chinese official and "boldly go where no man has go ne before. ,,207
207 Gene Rodenberry, creator of "Star Trek", coined this famous phrase in his popular science fiction series.
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