Alexandre ISRAEL (014010644D) Reconsidering the Legal and Institutional Challenges: A New Approach to Suborbital Flights LL.M. in Space, Communication and Media Law University oF Luxembourg Faculty of Law, Economics and Finance Thesis Supervisor: Prof. Dr. Mahulena HOFMANN August 2019 Acknowledgements To my Grandfathers… I address my sincere gratitude to Prof. Dr. Mahulena HOFMANN for her continuous support throughout these past two years. Thanks to Prof. HOFMANN, I have immediately felt passionate about Space Law when I first heard about it back in 2017. She never stopped believing in my related projects since then. The high quality of the Master in Space, Communication and Media Law has been a real springboard for many of us who are now able to move forward and to address future challenges. To Prof. Dr. Mark COLE, I would also like to express my profound acknowledgment. I am also very grateful to all my colleagues of the Space Department at Dassault Aviation and more particularly to my tutors Marie-Christine BERNELIN and Marc VALES who have welcomed me in their team to help fostering their space activities from a legal standpoint. As engineers, their supervision has considerably helped me to better understand the technical and scientific aspects of the domain. Finally, this Thesis is of course the result of the unconditional love and support of my family, my parents, my sister. I am learning every day at their side and their transmission of the values of work, respect and perseverance has been determinant in the accomplishment of this work. Alexandre ISRAEL 2 Abstract This Thesis aims to propose a different approach to the regulation of suborbital flights than the ones usually provided in specialized and dedicated literature. Going beyond the mere and traditional debate between Air and Space Law, it develops a critical understanding to this problematic and relies on both an activity-based and technology-free approach in order to advance new arguments as to which legal regimes should govern these new types of activities. An in depth analysis of relevant existing legal regimes, both at the national and international levels as well as up to date views and commentaries regarding the institutional aspects surrounding this topic lead to tailor-made solutions that put aside the exclusive and automatic application of either Air or Space Law. The solutions given intend to answer the legal uncertainties that necessarily come into play in a realistic and pragmatic fashion in order for the industry to flourish, while not depriving the passengers’ safety and the sovereign interests of the States over their national airspace. 3 INTRODUCTION .................................................................................................................... 7 PART I – SUBORBITAL FLIGHTS AND THEIR RELATION TO NATIONAL SPACE LAWS ........................................................................................................................................ 9 Chapter 1. Towards Comprehensive and Dedicated Legal Regimes .......................... 9 Section 1. The United States of America .................................................................... 9 Section 2. The United Kingdom ................................................................................ 13 Chapter 2. Towards General Space Laws in Europe and the Harmonising Issue .. 16 Section 1. General Space Laws: The Unsuitable Answer to Suborbital Flights ....... 16 Section 2. The Difficulty of a European Harmonised Answer .................................. 26 PART II – BEYOND THE HYBRID NATURE OF SUBORBITAL VEHICLES: AN ACTIVITY-BASED APPROACH ........................................................................................ 32 Chapter 1. Different Legal Regimes Based on the Nature of the Activity ............... 32 Section 1. Suborbital Flights in the Middle of a “Never Ending Dispute” ............... 33 Section 2. Navigating through the Legal Regimes .................................................... 37 A. The Imperative Guarantee to the States’ Sovereignty ...................................... 38 B. Avoiding Conflicts with Outer Space Law Provisions .................................... 40 Space Law: A State-Oriented Approach… .................................................. 41 a) The Status of Passenger: A Lacking Notion in International Space Law 41 b) The Incompatibility of Space Law with Passengers’ Claims ................... 42 … That Unfairly Calls their International Responsibility and Liability ...... 44 C. The Evolving Nature of Aviation Law ............................................................. 45 A Certification Basis to Guarantee the Overall Safety ................................. 45 Redefining the Notion of Aircraft? .............................................................. 47 4 A. The Ambiguity of the Registration Convention ............................................... 50 B. The Status of the Carrier Aircraft ..................................................................... 53 A. A Partial Affiliation to Aviation Law? ............................................................. 55 Space Tourism is not a Transport Activity ................................................... 56 A National Insight: The French Provisions on Sensational Flights ............. 56 a) The Legal Regime .................................................................................... 57 b) Its Application in Practice ........................................................................ 58 B. Space Law: An InsightFul Regime? .................................................................. 59 Beyond the Ambiguity of Space Law regarding Leisure Activities ............ 59 The Astronauts’ Assurance Regime ............................................................. 61 Chapter 2. Sharing the Sky: Towards a Safe Integration of Suborbital Flights ..... 62 Section 1. Space Traffic Management: A Problematic Reality ................................. 62 Section 2. Air Traffic Management: From Coordination to Integration ................... 64 PART III – SUBORBITAL FLIGHTS: FURTHER PERSPECTIVES ........................... 69 Chapter 1. The American Informed Consent: An Expanding Regulatory Model .. 69 Section 1. A Notion often Wrongly Interpreted ........................................................ 69 Section 2. The Informed Consent: An Unfair Term under European Law? ............. 74 Chapter 2. The Institutional Framework for Suborbital Activities .......................... 77 Section 1. ICAO: Up to Date View and Commentary .............................................. 77 Section 2. EASA: The Expertise at the Service of the Industry ................................ 79 CONCLUSION ....................................................................................................................... 82 BIBLIOGRAPHY .................................................................................................................. 85 5 List of Abbreviations ATC Air Traffic Control ATM Air Traffic Management CNES Centre National d’Études Spatiales CS Certification Specification (EASA) CST Commercial Space Transportation DGAC Direction Générale de l’Aviation Civile EASA European Union Aviation Safety Agency ELV Expendable Launch Vehicle ESA European Space Agency FAA Federal Aviation Administration FAA-AST Federal Aviation Administration Office of Commercial Space Transportation FIR Flight Information Region ICAO International Civil Aviation Organization OST Outer Space Treaty RLV Reusable Launch Vehicle SES Single European Sky SFP Spaceflight Participant STM Space Traffic Management TC Type Certificate (EASA) COPUOS Committee on the Peaceful Uses of Outer Space VCLT Vienna Convention on the Law of Treaties 6 INTRODUCTION The emergence of commercial private companies into the space domain revives a “space race”1 that was at the origin led by a handful of sovereign superpowers. This change of paradigm where outer space becomes more accessible and gets more and more commercialized is concerning many areas, including the suborbital field. These commercial incentives revitalize the interest people have for outer space and the emergence of suborbital flights can be seen as a technological exploit awaiting a regulatory answer. A suborbital flight can be defined as a “flight up to a very high altitude which does not involve sending the vehicle into orbit”2 and presents the particularity to include in its trajectory “both air space and outer space”.3 Specifically, the operational altitude for suborbital vehicles is located in an “area of encounter”4 between these two spaces, situated at 100 kilometres above the sea level, as defined by the late Theodore von Kármán. The whole complexity of the suborbital topic lies in these characteristics since the two aforementioned spaces intrinsically diverge both on the technical and legal sides. From a technical perspective, the airspace is characterized by the presence of the Earth’s atmosphere where crafts generating lift can be aerodynamically sustained into it whereas outer space is an infinite expanse of very low density and pressure between celestial bodies and where atmosphere is lacking. On top of that, the devices engaged in suborbital activities may involve varied technologies and features (rocket engine, wings, airborne, aerodynamic sustainment…). From a legal angle on the other hand, the first is defined by the complete sovereignty of the underlying State over its national airspace5 whereas the latter, including