Regulation of Emerging Modes of Aerospace
Travel
The Big Picture
To what extent is the current regime governing international air transport relevant to
aerospace transport?
Sanat Kaul
Chairman, International Foundation for Aviation,
Aerospace and Development(India Chapter)
Montreal 24 and 25th May 2013
Manfred Lachs Conference on Regulation on Emerging Modes of
Aerospace Transportation
1
Regulation for Emerging Modes of
Aerospace Transport
• Aerospace travel is the next big innovation
which will take place in commercial travel
• Just like in 1944 when Chicago Convention
was convened to lay out the laws for nascent
air travel and decide on a regulatory system,
we are again at the same crossroad regarding
aerospace travel. Commercial space tourism
has arrived and sub-orbital flights are also not
too far away
2
Aerospace and Sovereignty
• Since there is no legal delimitation between
air and outer space, we are not restricted to a
strict height. In any case, over 70% of air space
is over high seas over which there is no
sovereignty of any country and is under the
technical jurisdiction of ICAO.
3
Near Space Travel
• Lower or Near Space for space tourism and for
sub-orbital flights, therefore, needs to be
regulated.
• The question that arises is whether we need
yet
another
International
Regulatory
Institution to manage this new activity or
some existing institution would be the
preferred option.
4
Why a new institution is not necessary
• A new institution becomes necessary if the
existing institutions are not able to serve the
purpose. Existing Institutions which can,
perhaps, serve the demands of aerospace
travel of the future are ITU,IMO,ISO and ICAO.
5
International Tele-communication
Union (ITU)
• ITU has been in existence since 1865 and is
governed by its constitution and convention.
Current membership of ITU is 192 states and it
has more than 700 sector members and
associates. Its substantive work is with Radio
Communication
Sector,
Telecommunication
Standardization Sector and Telecommunication
Development Sector. While its importance cannot
be undermined, its restricted area of work is
perhaps not suffient enough to be developed as
an organization for aerospace activities
6
International Maritime
Organization(IMO)
• IMO is an UN specialized agency formed in 1948
and its convention entered into force in 1958. It
has an assembly, a council and four main
committees. It has currently 159 member states.
• The most important committee is the Maritime
Safety Committee.
• IMO administers a comprehensive body of
international convention supplemented by
numerous regulations covering all aspects of
maritime transport.
• IMO itself has no enforcement powers.
7
International Standards Organization
(ISO)
• Established in 1947 for purpose of facilitating
international exchange of goods and services.
• Currently ISO has membership of 163 countries and
has entered into developing standards related to space.
• It has developed standard for Space Debris Mitigation
and Management (ISO 24113) and re-entry safety
control for unmanned space craft and launched vehicle
upper stages safety (ISO 27875).
• ISO standards are helpful but as an organization it will
not be able to manage putting up rules and regulations
for sub-orbital flights
8
International Civil Air
Organization(ICAO)
• ICAO was formed in 1944 by adoption of Chicago Convention with
the constitution of ICAO described within the Convention.
• ICAO is a specialized body of UN with 190 states as members and a
council composed of 36 states elected every 3 years.
• It has a full time secretariat with five bureaus consisting of Air
Navigation, Air Transport, Technical Cooperation, Legal Affairs and
Administration. It has six regional offices in various locations in the
world.
• The council in entrusted with power to adopt Standard and
Recommended Practices (SARPS) which are designated as Annexes
to the Chicago Convention.
• ICAO can add more annexes and has gone beyond its mandated
work by adding items in its annexes like environment and security.
• ICAO is ,therefore best suited for this purpose
9
UN Committee on the Peaceful Uses of
Outer Space (COPUOS).
• COPUOS is the present body for development
of all aspects of outer space activities.
• Established in 1959 by UN General Assembly,
it was able to successfully achieve highest
degree of cooperation in setting a platform for
legal treaties on outer space.
• It has two main sub-committees – the legal ,
scientific & technical sub-committee.
10
UN Committee on the Peaceful Uses of
COPUOS
• Over last 25 years COPUOS has got five Treaties/Conventions passed,
these are: 1) 1967- Outer Space Treaty
2) 1968 – Rescue & Return Agreement
3) 1972 – Liability Convention
4) 1976 – Registration Convention
5) 1979 – Moon Agreement
Since 1979 there have been no more agreements.
Currently two major items are attracting the attention of COPUOS, these are:
1) Working group on the use of nuclear power sources in outer space
established in 1980.
2) Space Debris Mitigation
11
Space Law and Aviation Law
• While ICAO is entrusted with the responsibility of development of
International Civil Aviation and Air Transport Services, issues of space
crafts going through air was not even on the horizon in 1944.
• Chicago Convention does not define the limits of air. Nor does it state
definition of aircraft (However, Chapter 1 of Annex 7 – Aircraft Nationality
& Registration Marks – “Terms aircraft as any machine that can derive
support in the atmosphere from reaction of the air other than reactions of
air against earth surface”. None of the Space Conventions define limits of
air and outer space.
• The Council of ICAO during its 13th meeting of 174th Session, approved
inclusion of the item “Concept of Sub-Orbital Flights” in the work program
for 176th Session
• A sub-orbital flight is flight up to very high altitude but does not involve
sending a vehicle into full orbit. In US Legislation (49 USC 70102 (2004) it is
International flight path of a launched vehicle, re-entry vehicle or any
portion thereof.
12
• The ambiguity between Air and Outer Space needs greater
appreciation. While sovereignty of Air Space is guaranteed over
land and territorial waters of a country, 72% of the air space lies
over high seas and and is common heritage of all mankind like the
outer space. By virtue of Chicago Convention 1944, ICAO has
jurisdiction given to it over this area of air.
• Therefore, there is also similarity between air and space law.
• On issues of liability, the Montreal Convention 1999 has fixed
absolute liability up to SDRs 100000 on the air carriers whereas the
Liability Convention states that the States shall be absolutely liable
to pay compensation for damaged caused by its space object on the
surface of the earth or to aircraft in flight. Again there is no
indication of any vertical limit of air space.
13
Liability over Air and Space
• Warsaw Convention of 1929 forms the basis of liability
in case of accident in a civil commercial aircraft. The fin
Montreal Convention1999
replaces the Warsaw
System and also mentions that it applies to aircrafts
only.
• It provides a strict liability of up to SDR 100,000 in case
of death even if the airline is not at fault
• The Liability Convention of 1972 fixes the liability in
case of an accident of a space craft or a space object
on the ‘launching state’ even if the space object is
owned by a private company of some state or the
other .
14
• The Liability Convention defines launching
state as a state which launches or procures
the space object or from whose territory or
facility the space object is launched.
Therefore, there may be several launch states
for one space object. Also not all states have
ratified Liability Convention and therefore if
one launching state is a non-party, it can
create complications.
15
Liability of an Aerospace Craft
• There is, perhaps, a need to bring liability of
the two regimes on a common platform. What
happens if a private spacecraft, explodes in air
with passengers. Will The liability will be fixed
under Liability Convention? Is Montreal
Convention not more efficient and better?
Why commercial air and near space flights not
be treated at par?
16
National Legislation and International
Space Law
• How ICAO ensures harmonization of ICAO SARPs with National
Legislation.
• Role of ICAO’s constant monitoring.
• With civil and commercial space about to flights taking off, some
countries have formed their own space legislation.
• In 1958 NASA(National Aeronautics & Space Organization) Act was
created with a mandatw to plan, direct and conduct aeronautical
space activities.
• Since US is the largest market for space launch services, it gave the
US FAA the responsibility.
• In 1984, US Commercial Space Launch Act was signed which made
provision for US government to enter into international
negotiations to encourage fair competition in launch services.
17
National Legislation on Space Law
• FAA of US is mandated, additionally to civil aviation ,to regulate US
commercial space transportation.
• Canada has also gone in for a Canada Aeronautic Act which comes
under Transport Canada.
• France has its space launch from Centre Spatial Guyanais located in
French Guiana and the European Space Agency has accepted its
rights and obligations under 1972 Liability Convention.
• Similarly many other countries have enacted their own legislation
like UK with Outer Space Act, Russia with Russian Space Activity
Law of 1993, Ukraine with Ukraine Space Law etc.
18
Integration of Air Law and Space Law
to Aerospace Law
• All these legislations by various countries are stand alone.
No common rules, standards or recommended practices
have been laid out as yet.For example, Australia has
defined the limit of Air Space as 100 kms without any
international consensus on the issue. Like in Aviation there
is a need now to lay out Standards and Recommended
Practices as done by ICAO for manned aerospace travel.
• ISO has developed some standards as mentioned earlier
like on Space Debris Mitigation but these are
not
obligatory.
19
Space Tourism and Sub-Orbital Flights
•
•
•
•
Space Tourism is likely to start from the launching state and return to the same state. It
is unlikely that the initial space tourism will be crossing the air space of a second
country. However, once sub-orbital flight start as commercial venture, the issue of
crossing air space of launch country and entering air space of another country will arise.
This will have legal implications and will require greater control, harmonization and
navigation for both air and lower space. It will also require a common organization for
both air and space activities as two separate controls may not be able to bring the
quality of surveillance required.
Another aspect which requires a more dedicated organization is the issue of space
debris. With space debris of 10 cms or larger estimated to be of 21000 objects; and
another 300,000 bits of debris with a diameter of one centimeter or more, the issue of
debris hitting aerospace crafts is very important. Further such debris includes pieces of
metals, globes of liquid metal coolant that leak from discarded space reactors, debris
due to satellite explosion, lens cover and other hardware discarded during satellite
operations, pose a very great threat for future. Near space tourism operations and well
as sub-orbital flights will also face this hazard.
COPUOS is currently working on the subject but there is a need for a full time body to
monitor .
Such collision of debris with a spacecraft can even cause loss of the craft.
20
Space Tourism and Sub-Orbital Flights
• In 2003 risk assessment performed after
Columbia accident determined that the likelihood
of orbital debris bringing down the shuttle is far
greater than of a failure main engines, solid
rocket boosters or thermal protection.
21
Growth of Aviation & ICAO
• In 1944 when Chicago Convention took place it was
beyond imagination that Civil Aviation would grow into
such a big industry as it is now.
• Because of ICAO and its consultative process that there has
been so much of good regulation that civil aviation today is
the safest mode of transportation.
• The structure of ICAO which has evolved over years has
managed to provide a very high level of safety and security.
While enforcement of its SARPs are weak, post 9/11
incident there has been voluntary audit of both safety and
security of all countries. This has resulted in tightening of
the implementation of SARPs.
22
Infraction
• Chicago Convention provides for reporting of
infraction by any State. Under Article 54(j)
which enumerates under the mandatory
duties of the Council, the Council shall report
any infraction of the Convention to the
concerned State.
• This is an important tool to correct a wrong,
though rarely used.
23
Space Insurance
• The liability Convention has structured a dual
objective and a subjective system of
unlimited state liability, which imposes on
states a high burden.
• Satellite operators started to resort to
insurance in 1965. Between 1965 and early
‘80s space insurance policies were limited as
government did most of self-insurance
24
• Loss of Challenger, a Titan, a Delta and an Ariane
launch vehicles in the mid ‘80s eroded the
insurance market, although only Ariane launch
was insured. Consequently the insurance market
had a major set back. As space insurance is
closely linked to air insurance, the events of 9/11
in 2001 led to a collapse of space insurance also.
These were compounded further by six Boeing
Satellites suffering orbital loss due to solar array
anomalies.
25
• Unlike aviation where there are sets of laid out
guidelines by ICAO and IATA on safety, based on which
the insurance companies determine the premium with
Montreal Convention 1999 in view, there is none, as
yet, for spacecrafts. With space tourism and sub-orbital
flights carrying paying passengers there is a need to
evolve a similar system.
• Perhaps, Montreal Convention 1999 could be extended
to space tourism and sub-orbital flights? If so the right
organization to carry this out will be, of course, ICAO.
26
Launching State
• With a limited number of states having Launch
capability, and as satellite and space tourism
grows, many states and non-government parties
have a commercial tie up with a launching state
for launching their satellite. Liability Convention
puts the liability of a satellite on the launching
state. This is obsolete as launching state has no
responsibility for the satellite after it is
launched.UNCOPOUS has passed a resolution to
meet this challege but it has yet to amend the
Liability Convention
27
State Responsibility: Aviation V/s Space
• Air law does not provide for State responsibility.
Montreal Convention 1999 is for Carriers/Airlines.
In contrast Space law is focused on State
responsibility to pay compensation. Further,
there is no specific provision in any international
instrument regarding liability for personal loss
during space travel as there was hardly any
human travel in space.
• With space tourism and sub-orbital flights this
will change
28
US Commercial Space Launch Act 2004
• The above act has proposed the concept of
‘informed consent’ in line with human space
flights. States of Florida, New Mexico and Florida
have similar enactment.
• This involves waiving of liability in case of injury
or death.
• This procedure cannot be accepted once near
space tourism flights start in a big way and
thereafter, sub-orbital flights. This will be like
taking ‘informed consent’ from air passenger.
29
Safety Issues
• It goes to the credit of ICAO and the Aviation Community that
Aviation is today the safest mode of transportation.
• This level of safety has been achieved through constant monitoring
with stake holders including manufacturers, airlines, airports and
passengers.
• In space, safety of launch, malfunction of trajectory defining
exclusive zones, explosives hazards, toxics hazards from rocket
exhaust products are a part of list of safety issues that needs proper
risk analysis and thereafter risk management.
• There is no regulator to address these issues as well as the issue of
debris in near space.
• Therefore there is a need for a full time international regulator like
ICAO for Aviation who could look into the various safety issues of
spacecraft and near space travel.
30
Ownership issues of spacecrafts
• While Civil Aviation provides nationality of
ownership of aircraft and national registration
of airline, the spacecraft has a very weak
legislation on the subject.
• The Cape Town Convention on International
Interests in Mobile Equipment 2001 forms the
basis of ownership of aircrafts.
• UNIDROIT has produce a preliminary draft
protocol on matters specific to space assets.
31
Ownership issues of Spacecrafts
• The draft protocol under Article 1 (2) (I) provides “Assets
means any manmade uniquely identifiable satellite,
satellite transponder payload, space station, space vehicle,
reusable space capsule or other object capable of
independent control, in or intended to be launched in or
into space or used or intended to be used as a launched
vehicle including any such asset in course of manufacture
or assembly together with all modules and other installed
incorporated accessories, parts and equipments and all
data, manuals and records relating thereto”.
• Once this is incorporated it will solve many issues and will
also help space companies to raise loans from Banks.
32
Interference with Activities of another
State
• Under 1972 Liability Convention a State is obliged
under Article IX of the Outer Space Treaty to
undertake
appropriate
international
consultations before proceeding on any such
activity.
• As Near Space traffic grows an international
mechanism has to be evolved, preferably on a
multilateral basis for consultation prior to a
launch and its subsequent surveillance during its
flight
33
ICAO’s Flight Information Regions(FIR)
• Besides Sovereign airspace, the navigation and
surveillance of aircrafts over high seas is an
activity under the overall responsibility of
ICAO. ICAO has devised a method by which
countries are allotted airspace over high seas
for the same purpose. Usually it is given to
adjoining countries for air traffic management
• However, for sub-orbital flights there is no
such mechanism.
34
Air and Space management of Suborbital Flights
• ICAO’s architecture for aircraft surveillance
and navigation has been in place and
improved over half a century. It should be
extended to spacecrafts also.
35
• It is fortunate that there is no limit defined
between Air & Space in any of the existing
Conventions/Laws. National Legislation like
Australian Space Activity Act of 1998, a reference
to distance of 100 KMS above sea level has been
defined as the demarcation point. It is, therefore,
necessary at this stage to ensure that such a
definition is not accepted universally and a
decision to include near space is made to include
in the definition of air so that sub-orbital flights
can be included within ICAO’s mandate.
36
Thank you
37