Following Dennis Tito's flight to space aboard the Russian Soyuz capsule in 2001, suborbital has become a new form of commercial activity. Fueled by an eager public and decreasing prices, the industry is rapidly expanding. Because the current space law regime was originally designed for governmental exploration, it is inadequate to handle the range of legal challenges emerging from this private commercial activity. This article therefore suggests that the current legal regime is incapable of sustaining the space tourism industry and that there is an urgent need for a new international convention.As part of his discussion Failat comments that
In 2004, SpaceShipOne’s success in winning the X Prize offered an opportunity for further commercial development in the space tourism industry. Dr Aldrin, an Apollo 11 NASA astronaut said, ‘I think the [Ansari] X PRIZE should be viewed as the beginning of one giant leap’ for the industry. In 2009, Virgin Galactic began to provide suborbital commercial journeys after revealing the SpaceShipTwo — renamed the Virgin Space Station — which can carry up to six passengers and two pilots. This advent in space tourism raises challenges from a legal standpoint because such vehicles are of a hybrid nature: their function uses mechanisms of both aircrafts and space vehicles. Due to the design and purpose of these vehicles, both space law and air law may be applicable to such flights. This leads to uncertainty regarding the operation and application of the two legal regimes when dealing with registration and liability amongst other legal matters related to suborbital commercial flights Furthermore, the need to clarify this issue is now of prime importance given that the manufacturing of two-part vehicles has become common for the purposes of space tourism.
Accordingly, the objective of this section is to outline the current law and its deficiencies in this regard, and to ultimately suggest an adequate approach towards resolving this uncertainty.
A. Aircraft, Space Vehicle, or Both?
The classification of hybrid vehicles, such as the ones modelled after Space-ShipOne, revolves around the terms ‘aircraft’ and ‘space object’. With regard to the former, the International Civil Aviation Organisation defines an aircraft as ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface’. There has not, however, been any universally accepted definition of the term ‘space object’ by international space law or its related texts. Therefore, any hybrid vehicle which travels in both airspace and outer space may also be included in definitions of the term ‘space object’. Furthermore, a ‘space object’ generally refers to ‘any vehicle intended to be active in outer space’. The commercial suborbital flights offered by space travel agencies fall under this general classification as the terms they use in their advertisements, such as space tourism, space travel, and space flight, illustrate the obvious purpose of the flight. Nevertheless, this may be disputed, as the general definition appears to be too narrow. Some believe that the term ‘space object’ does not refer only to vehicles but also to objects such as aerolites and cosmic dust.
The applicability of either term depends on the particular stage of the journey, as the method of operating the vehicles varies at different phases of a flight. By way of example, SpaceShipOne is lifted to an altitude of 15.24km by its carrier: the mother ship, WhiteKnightOne. At that point the two components detach, the mother ship returns and lands at the spaceport, and SpaceShipOne launches its rocket vertically to an altitude of approximately 100km above sea level. Thus, the vehicle operates as an aircraft for the first stage of the trip as it does in fact ‘derive support from the reactions of air’. But, in the other stages of the trip, the vehicle falls under the status of a ‘space object’ as it can only operate on rocket-mode propulsion. Presumably, therefore, air law applies to the space vehicle before detachment and to the mother ship after the separation, and space law applies to the object which operates on rocket-mode propulsion after separation.
In terms of registration, the approach referred to above requires the space vehicle to register the two components separately according to their classification. The registration of the component classified as an aircraft needs to conform to the Chicago Convention where, according to Article 17, the aircraft must register with its country of nationality. Such registration must be performed in harmony with national laws and regulations of the relevant state participating in the Chicago Convention. In contrast, the registration of the component classified as a ‘space object’ should be made under the Convention on the Registration of Launched Objects into Outer Space 1974 (‘Registration Convention’). Although in principle, Article II(1) of the Registration Convention imposes registration as an obligation, it offers flexibility of choice in relation to the state exercising jurisdiction and control over the ‘space object’. In situations involving more than one launching state, the parties shall ‘jointly determine which one of them shall register the object’ and agree on terms regarding jurisdiction and control of the objects in question This must be done in conformity with Article VIII of the OST, which provides that, ‘[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body’.
Some experts maintain that the two systems discussed above can operate simultaneously. Other experts, however, are of the opinion that this approach is unworkable, and argue that both regimes are not compatible as they relate to two separate industries of dissimilar status and nature. This is supported by the fact that the aviation industry, unlike the space industry, is already fully established, regulated, and deals with nominal risks. In order to tackle this incompatibility, it has been suggested that only one registration should be allocated per vehicle under a de lege ferenda paradigm of the Chicago Convention.
Similarly, in relation to liability, a dual regime does not seem viable because the applicable regime will depend on circumstantial events. The point at which the ‘incident’ occurs will determine the legal position of the parties involved. This leads to uncertainty and inconsistency as to rights and obligations which could possibly arise during commercial flights on hybrid vehicles. Thus, a more appropriate solution would be to design a complete regime specific to the space tourism industry whilst taking into account the current framework of both air law and space law.As mentioned in the preceding parts, the rules established by the Liability Convention essentially constitute the space liability regime. Articles I and II of the Liability Convention provide that a country which either launches or procures the launch of a ‘space object’, or from whose territory a ‘space object’ is actually launched, shall be considered to be absolutely liable for any damage that is caused by the ‘space object’ on Earth or to other aircrafts that are already in flight. Then, with regard to any further damage that is caused anywhere other than the Earth’s surface, Article III of the Liability Convention imposes a fault-based subjective standard of liability.
In air law, the 1929 Warsaw Convention, as amended by the Montreal Convention, provides the liability framework for the international carriage of persons and property by aircraft. The Montreal Convention provides that a carrier is liable for death or bodily injury of a passenger, loss or damage to property, and damages caused by delay in the carriage. Furthermore, when damage is established, monetary reparation of up to 100,000 Special Drawing Rights can be provided. But, the Convention exonerates the carrier from liability if it can be established that the ‘damage was caused or contributed to by the negligence or other wrongful act or omission’ of a person other than the carrier.
The two regimes address liability in different manners and neither fully nor adequately regulate suborbital flights. For instance, in relation to private claims, the air law regime clearly has an advantage for the reason that, unlike space law, direct claims by individuals are possible. Furthermore, claims under the air law regime are preferable as decisions are reached through binding courts under either national tort systems or the international regimes. Nonetheless, the limits provided by the air law regime are not consistent due to the absence of international harmony in this regard.