Regulating Private Human Suborbital flight at the International and European Level: Tendencies and Suggestions
Fundamentals of Spaceflight Regulation and Licensing
In the context of the FAST20XX project (Future High-Altitude High-Speed Transport) that started in 2009 under the 7th Framework Programme of the European Union (EU), the authors reexamined the legal status of private human suborbital flight, and researched whether it might be regulated as aviation or as spaceflight.
International space law is ambiguous as to accommodating suborbital activities. While some provisions of the UN outer space treaties would seem to exclude them, generally there is not any explicit condition in terms of reaching orbit as a requirement for application. International air law presents equal difficulties in dealing with this activity. The classic definition of “aircraft” as contained in the Annexes to the Chicago Convention does not really encompass the kind of rocket-powered vehicles that are envisaged here. As a result, it is unclear whether the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Civil Aviation Organization (ICAO), or both could be involved in an eventual international regulation of suborbital flight.
In the absence of a uniform international regime, each state has the sovereign right to regulate human suborbital flights operating within its airspace. So far, two practical solutions have been realised or proposed, and will be analyzed.
On the one hand, the USA granted power for regulation and licensing over private human suborbital flight to the Office of Commercial Space Transportation of the Federal Aviation Administration (FAA/AST). Subsequent regulations by the FAA have set out a series of requirements for companies that want to operate these flights, enabling a market to develop. On the other side of the Atlantic, both the European Space Agency (ESA) and a group of representatives of the European Aviation Safety Agency (EASA) of the European Union (EU) seem to rather regard this activity as aviation, potentially subject to the regulation and certification competences of EASA, although recent developments may indicate a changed view.
Due to these differences, it is uncertain when this activity will be considered aviation and when it will be considered as spaceflight. However, the characterization as either of these has important consequences for the industry and for a stable regulatory landscape.
In the longer term, from an international and a European perspective, the best solution for regulation may be to create a sui generis legal regime specifically addressing the particular nature of suborbital flight. Suborbital transportation is neither aviation nor spaceflight; it is rather something in between. A new legal regime would be able to combine notions of both air and space law, in order to overcome and resolve the current deficiencies of each discipline.
Masson-Zwaan, T., & Moro-Aguilar, R. (2013). Regulating Private Human Suborbital flight at the International and European Level: Tendencies and Suggestions. , (). Retrieved from https://commons.erau.edu/db-cso-351-spring2019/3