WHAT JUST HAPPENED?
Blue Origin’s New Shepard rocket-capsule combo aced its latest mission on 26th August 2021, an uncrewed jaunt that carried a variety of scientific experiments, as well as some pioneering artwork, to and from suborbital space.[1]
WHAT DOES THIS MEAN?
Suborbital flight, which remains in space for only a few minutes, is considered to be at an altitude of one hundred kilometres and belongs to the space sphere which benefits astronauts "rights for a short time frame.[2]
To date, only a few suborbital spaceflights have been performed with civilians on board, and none to the extent that commercial space companies hope to achieve. A handful of companies have announced plans to offer passenger tickets for space flights, including Boeing, Blue Origin, SpaceX, Xcor and Virgin Galactic, which will offer a range of different space travels, including suborbitals (flights to the same location as transcontinental suborbital flights) and quick transportation for interplanetary spaceflight. While these are still theoretical, SpaceX announced concrete plans for 2018 to launch seven civilian return missions to the moon by 2023.[3]
SpaceX also announced in 2018 that it would send space tourists, including Yusaku Maezawa, to a free orbit around the moon in a spaceship. Since 2001, few tourists have travelled to space other than those performing suborbital flights. Russia halted orbiting space tourism in 2010 by expanding the crew of the International Space Station and selling expedition crew seats to paid space travellers.[4]
A search of the UN Online Index of Objects Started into Outer Space shows that a number of countries have registered satellites that have been put into orbit by maritime launches, including the US, Brazil, Japan and Italy. For Andre Farand, the head of the ESA legal department, the United States of America has made the decision to support development of space transporters to fully profit from the substantial private sector investment in space tourism.[5]
While space tourism advocates are optimistic that safe and operational systems will be developed to support their business ambitions, significant technical, financial and regulatory challenges will need to be tackled before these ambitions can be realized. Companies like Virgin Galactic, Xcor Aerospace and Blue Origin will not only have to develop and test the technology to send ordinary people into space at affordable prices, but they also have to navigate the uncertain legal and regulatory environment to jump-start space tourism. Another development is XCors Lynx, which will bring paid travelers and scientific payloads into space.[6]
HOW DOES THIS IMPACT THE LEGAL SECTOR?
The 2004 US Commercial Space Launch Amendments Act defines it in Section 19, which states: "Suborbital rocket is a vehicle or rocket which is propelled to the intended trajectory with a thrust greater than its lift for most of the rocket's ascent..”. On the one hand it is argued that space law applies to the first stage which involves transportation in the air or space by aircraft or spacecraft regardless of the status of the launch vehicle as a space object. It is also proposed that, for reasons of legal certainty, Member States should agree on a specific uniform legal system applicable to the entire space tourism journey.[7]
While states have agreed to the creation of a specific regime adapted to existing aviation and space law for space tourism activities [101], Masson, Zwaan and Freeland [102] also agreed that existing space law should be applied as a complement to the Code of Directives in order to provide clarity and legal certainty on matters such as liability and status of space tourists.[8]
With regard to civilian astronauts, clear laws have been put in place to protect astronauts. Participants must sign an informed declaration of consent, which provides that space operators cannot be held responsible for the death of a participant due to the inherent risks of space activities. Under US law, companies are obliged to inform space participants that the United States has not certified that space travel and spacecraft are safe for humans, and there is no clear legal obligation for companies to notify passengers.[9]
Under current US law a company who intends to launch a paid passenger on a suborbital rocket from US soil must first obtain a license from the Federal Aviation Administration Office of Commercial Space Transportation (FAA-AST). The Spaceflight Informed Consent Act provides legal protection for private space flight companies in the event of an accident or death of a person. In addition to extending the learning period for companies until 2023, the law allows companies and government to further share the risk of space launches until 2025.[10]
While most satellites and other space objects are subject to the jurisdiction and control of a single state, this is complicated when space objects involve participation by several states and their nationals. The construction and launch of space objects can be a joint venture of several companies in different countries. Article 5 of IGA provides that a partner may register a space object as a flying element if provided by the partner in accordance with Article II of the registration convention.[11]
One of the simplest solutions would be to return state-owned space assets such as surveillance satellites to the state. Private space objects could be returned to a state when a company is formed.[12]
With advances in space technology, suborbital flight has evolved into a certain type of transport activity, with different satellite missions and legal issues highlighting legal gaps in existing aerospace rules. It is therefore imperative to develop a harmonised legal system for suborbital vehicles.[13]
The main objective is to establish the regime of applicable laws (air and space law) for hybrid suborbital vehicles, which include aircraft and space objects that cross space. In short, there is the possibility of applying air law to use of RLVs in orbital flight.[14]
Written by LawMiracle Holdings
ASSESSING FIRMS:
#SquirePattonBoggs #K&LGates #BoiesSchillerFlexner #DrinkerBiddle&Reath #Cooley
REFERENCES:
[1] See https://www.space.com/blue-origin-new-shepard-ns-17-suborbital-launch-success
[2] See https://www.spacelegalissues.com/space-law-space-tourism-legal-aspects/
[3] See https://vce.usc.edu/volume-4-issue-2/profitable-risk-the-dangers-of-consumer-spaceflight-and-space-tourism/
[4] See https://www.spacelegalissues.com/space-law-space-tourism-legal-aspects/ and https://en.wikipedia.org/wiki/Space_tourism
[5] See https://www.spacelegalissues.com/space-law-space-tourism-legal-aspects/ and https://www.routledgehandbooks.com/doi/10.4324/9781315750965.ch3
[6] See https://www.govinfo.gov/content/pkg/CHRG-112hhrg75397/html/CHRG-112hhrg75397.htm and https://www.forbes.com/sites/legalnewsline/2017/05/30/commercial-spaceflight-industry-faces-uncertain-legal-regulatory-environment/
[7] See https://www.spacelegalissues.com/space-law-space-tourism-legal-aspects/ and http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100002
[8] See http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100002
[9] See https://vce.usc.edu/volume-4-issue-2/profitable-risk-the-dangers-of-consumer-spaceflight-and-space-tourism/ and https://en.wikipedia.org/wiki/Space_tourism
[10] See https://www.forbes.com/sites/legalnewsline/2017/05/30/commercial-spaceflight-industry-faces-uncertain-legal-regulatory-environment/ and https://en.wikipedia.org/wiki/Space_tourism
[11] See https://www.routledgehandbooks.com/doi/10.4324/9781315750965.ch3
[12] See https://www.routledgehandbooks.com/doi/10.4324/9781315750965.ch3
[13] See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471960 and https://www.igi-global.com/chapter/suborbital-spaceflight/224179
[14] See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471960 and https://www.igi-global.com/chapter/suborbital-spaceflight/224179
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.