Abstract
Several entities have developed, or are involved in the process of developing, safety regulations or guidelines that are appropriate for civil space activities both at the national and international levels. This section provides a brief overview of such entities and of their standardization activities with a view to assessing their (in)adequacy regarding regulatory protection and promotion of space safety.
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References
Licensing and Safety Requirements for Launch, Final Rule, Federal Register, vol. 71, no. 165 (25 August 2006) at 50508ff. Online: http://edocket.access.gpo.gov/2006/pdf/06-6743.pdf (last accessed: 03 January 2011).
Aeronautics Act (R.S., 1985, c. A-2).
Outer Space Act (United Kingdom, 1986), 1986, Chapter 38.
Outer Space Act (United Kingdom, 1986), 1986, Chapter 38, Section 5(2).
For details, see Olga Zhdanovich, “Russian National Space Safety Standards and Related Laws,” in Joseph N. Pelton and Ram S. Jakhu (eds.), Space Safety Regulations and Standards, 2010, Elsevier, 51 et seq.
Olga Zhdanovich, “Russian National Space Safety Standards and Related Laws,” in Joseph N. Pelton and Ram S. Jakhu (eds.), Space Safety Regulations and Standards, 2010, Elsevier, 51 et seq.
Ibid.
For a detailed discussion of regulation of space activities in Ukraine, see Nataliya Malysheva, “Regulation of Space Activities in Ukraine”, in Ram S. Jakhu (ed.), National Regulation of Space Activities, (Springer, 2010), 335 et seq.
Ordinance of the Supreme Soviet of Ukraine on Space Activity, Law of Ukraine of 15 November 1996 (VVRU, 1997, p. 2), Licensing of Space Activity, Article 10.
Safety Framework for Nuclear Power Source Applications in Outer Space, UN Doc. A/AC.105/934 (19 May 2009).
For details, see Paul Stephen Dempsey and Michael Mineiro, “The ICAO’s Legal Authority to Regulate Aerospace Vehicles,” in Joseph N. Pelton and Ram S. Jakhu (eds.), Space Safety Regulations and Standards, 2010, Elsevier, 245, et seq.
Assad Kotaite. Formal Regulatory Framework Needed to Govern Expanding Operations in Outer Space, 55 ICAO J. 5 (2000); Assad Kotaite, Space for new regulations, FLIGHT SAFETY AUSTRALIA, March–April, 2001, p. 58.
“Concept of Suborbital Flights: Information from the International Civil Aviation Organization (ICAO)”, Committee on the Peaceful Uses of Outer Space Legal Sub-committee, 49th session, 2010, UN Doc. A/AC.105/C.2/2010/CRP.9 (19 March 2010). Also see: Peter van Fenema, Suborbital Flights and ICAO, Air & Space Law, Vol. XXX/1 (November 2005), pp. 396 et seq.; Ruwantissa Abeyratne, ICAO’s Involvement In Outer Space Affairs — A Need For Closer Scrutiny?, Journal of Space Law, Vol. 30 (2004), pp. 185 et seq.
Trail Smelter Arbitration (1949) 3 Review of International Arbitration Awards, 1965–1966.
U.S. General Ass. Res. 1348, reproduced in Paul Stephen Dempsey, Space Law III.B1-1 (2008).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (hereinafter referred to as the Outer Space Treaty); opened for signature on 27 January 1967; ratified by 100 States and signed by 26 additional States (as of 1 January 2010); 610 U.N.T.S. 205.
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature on 22 April 1968, (hereinafter referred to as Rescue and Return Agreement); ratified by 91 States and signed by 24 additional States (as of 1 January 2010); 672 U.N.T.S. 119.
The Convention on International Liability for Damage Caused by Space Objects (hereinafter referred to as the “Liability Convention”), opened for signature on 29 March 1972; ratified by 88 States and signed by 23 additional States (as of 1 January 2010); 961 U.N.T.S. 187.
See generally, Marc S. Firestone, Problems in the Resolution of Disputes Concerning Damage Caused in Outer Space, 59 Tulane Law Review 747 (1985).
The Convention on Registration of Objects Launched into Outer Space (hereinafter referred to as the “Registration Convention”), opened for signature on 14 January 1975, ratified by 53 States and signed by 4 additional States (as of 1 January 2010); 1023 U.N.T.S. 15.
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, (hereinafter referred to as the “Moon Agreement”); opened for signature on 18 December 1979; ratified by 13 States and signed by 4 additional States (as of 1 January 2010); UN General Assembly Resolution 34/68.
Julian Verplaetse, International Law in Vertical Space, 153 (Rothman, 1960).
George Washington University, SACRI Research Study 46 (2008).
How Safe Is Space Tourism?, Wall Street Journal (19 April 2007).
133_N.E. 371 (N.Y. 1921).
Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making, 42 (1972).
International Air Services Transit Agreement (IASTA), ICAO Doc. 7500 (7 December 1944) also known as the Two Freedoms Agreement. However, many geographically important States — including the Russian Federation, Canada, China, Brazil and Indonesia — have not ratified the Transit Agreement.
Article 12 of the Chicago Convention imposes the standards created by ICAO on flights over the high seas. I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law, 32 (6th ed. 1997). Moreover, Article 5 of the Chicago Convention conferred the right of non-scheduled flights to fly over the territory of another State for non-traffic purposes, though the underlying State could impose conditions on the overflight. An ICAO delegate to the Legal Sub-committee of COPUOS observed, “the right of innocent passage of spacecraft through sovereign airspace... does not exist under present international law of the air; an unconditional right of passage through the sovereign airspace does not exist even with respect to the civil aircraft and is specifically subject to a special authorization with respect to State aircraft and pilotless aircraft”. ICAO Doc. C-WP/8158 of 15/1/86.
I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law, 33 (6th ed. 1997).
Quoted in Julian Verplaetse, International Law in Vertical Space, 146 (Rothman, 1960).
See_http://www.faa.gov/about/office_org/headquarters_offices/ast/ (last accessed: 03 January 2011).
Comments of Germany in A/AC.105/635/Add. 11 (Jan. 26, 2005) in COPUOS, Compilation of Replies Received from Member States to the Questionnaire on Possible Legal Issues with Regard to Aerospace Objects, http://www.unoosa.org/oosa/en/SpaceLaw/aero/index.html (last accessed: 03 January 2011).
Comments of the Russian Federation A/AC.105/635/Add. 1 (15 March 1996) in Compilation of Replies Received from Member States to the Questionnaire on Possible Legal Issues with Regard to Aerospace Objects in http://www.unoosa.org/oosa/en/SpaceLaw/aero/index.html (last accessed: 03 January 2011). Article 19 of the Russian Federation Act on Space Activity of 1993 authorizes a single innocent flight through its airspace provided sufficient notice of the time, location and flight path is conferred in advance.
The 1967 Bogota Declaration sought to achieve sovereignty by equatorial States over the geostationary orbit above them. See Space Law I.B14.5 (P. Dempsey, ed. Oceana 2007).
Ram Jakhu, “The Legal Status of the Geostationary Orbit”, VII Annals of Air and Space Law, 333 (1982).
Physicist Theodore von Karman calculated that this was the height at which a vehicle would have to travel at orbital velocity to have sufficient lift to derive support from the atmosphere. The air is not adequate to sustain flight at above approximately 80 km, and satellites begin to fall back into the Earth’s atmospheres at about 120 km. See Dean N. Reinhardt, “The Vertical Limit of State Sovereignty”, 72 Journal of Air Law and Commerce, 65 (2007).
In_fact, COPUOS has been unable to produce a treaty of any kind since the Moon Agreement in 1979.
Bin Cheng, “The Legal Regime of Airspace and Outer Space: the Boundary Problem”, V Annals of Air and Space Law, 323 (1980).
Wybo P. Heere, “Problems of Jurisdiction in Air and Outer Space,” XXIV Air and Space Law (1999).
Varlin Visssepo, “Legal Aspects of Reusable Launch Vehicles,” 31 Journal of Space Law 165, 175 (2005).
Robert Goedhart, The Never Ending Dispute: Delimitation of Air Space and Outer Space (1996).
Varlin Visssepo, “Legal Aspects of Reusable Launch Vehicles”, 31 Journal of Space Law, 165, 172 (2005).
John Cobb Cooper, State Sovereignty and Flight: An Historical Analysis (unpublished manuscript 1967).
John Cobb Cooper, The Chicago Convention and Outer Space (address before the American Rocket Society Conference on Space Flight (New York, 24 April 1962).
ICAO, “The Concept of Suborbital Flights”, Working Paper C-WP/12436 (30/05/05). Available online at: http://www.icao.int/ICDB/HTML/English/Representative%20Bodies/Council/Working%20Papers%20by%20Session/175/C.175.WP.12436.EN/C.175.WP.12436.EN.HTM (last accessed: 03 January 2011), reprinted in Paul Stephen Dempsey, Space Law x III.B3-1 (2006). ICAO also defined an “aeroplane” as, “A power-driven heavier-than-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight.” Ibid.
Paul Stephen Dempsey, Space Law x III.B3-1 (2006).
Ram Jakhu and Yaw Nyampong, Are the Current International Space Treaties Sufficient to Regulate Space Safety, and Establish Responsibility and Liability? (unpublished paper 2007).
Bin Cheng, “The Legal Regime of Airspace and Outer Space: the Boundary Problem”, V Annals of Air and Space Law, 323 (1980).
Paul Stephen Dempsey, Space Law x III.B3-1 (2006).
ICAO, Council Working Paper C-WP/12436 30/05/05 (2005).
John Cobb Cooper, “Backgrounds of International Public Air Law”, 1 Yearbook of Air and Space Law, 3, 23 (1967).
See generally, Stephan Hobe, “Aerospace Vehicles: Questions of Registration, Liability and Institutions”, XXIX Annals of Air and Space Law, 377 (2004).
What is needed is a “secure framework of regulations and legal responsibility... [to] encourage increased activities in the future.” Peter Nesgos, “Commercial Space Transportation: A New Industry Emerges”, XVI Annals of Air and Space Law, 393, 412 (1991).
Henri Wassenbergh, “Access of Private Entities to Airspace and Outer Space”, XXIV Annals of Air and Space Law, 311, 325 (1999); Henri Wassenbergh, “The Art of Regulating International Air and Space Transportation”, XXIII Annals of Air and Space Law, 201 (1998); Bruce Stockfish, “Space Transportation and the Need for New International Legal and Institutional regime”, XVII–II Annals of Air and Space Law, 323 (1992).
Charity Ryabinkin, “Let There Be Flight: It’s Time to Reform the Regulation of Commercial Space Travel”, 69 Journal of Air Law and Commerce, 101 (2004).
Steven Freeland, “Up, Up and... Back: The Emergence of Space Tourism and Its Impact on the International Law of Outer Space”, 6 Chicago Journal of International Law, 1 (2005). Blending functionalist and spatialist principles, Prof. Freeland argues, “the most appropriate approach seems to be the application of space law... to the entire journey on the basis of the proposed function of the spacecraft carrying tourists — that is, the intention that it involves flight in outer space. The alternate.exclusive. approach — to apply air law to the entire space tourism activity — appears unworkable given the lack of sovereignty that exists in outer space.” Ibid at 9. Prof. Hobe makes a similar argument: “the provisions of the Chicago Convention are based on the principle of sovereignty in national airspace and are therefore generally not applicable to activities which take place in outer space”. Stephan Hobe, “Aerospace Vehicles: Questions of Registration, Liability and Institutions”, XXIX Annals of Air and Space Law, 377 (2004). Similarly, Prof. Zhao argues, “The air transportation regime, characterized by state sovereignty over airspace, substantially differs from the space travel regime.... This fundamental difference justifies the necessity of developing a distinct legal regime for space travel”. Yun Zhao, “Developing a Legal Regime for Space Tourism: Pioneering a Legal Framework for Space Commercialization” (American Institute of Aeronautics and Astronautics 2005). It is unclear why it is unworkable to have an Air Law regime apply to non-territorial outer space, inasmuch as a sophisticated body of both Public and Private International Air Law has developed involving intercontinental flights over the high seas, where no state has sovereignty. Over the high seas, which comprise more than 70% of the planet, the rules of the air are those established by ICAO. See Chicago Convention, Article 12.
Susan Trepczynski, “The Benefits of Granting Immunity to Private Companies Involved in Commercial Space Ventures”, XXXI Annals of Air and Space Law, 381, 403 (2006).
Ram Jakhu and Yaw Nyampong, “Are the Current International Space Treaties Sufficient to Regulate Space Safety, and Establish Responsibility and Liability?” (unpublished paper 2007).
John Cobb Cooper, The Chicago Convention and Outer Space (address before the American Rocket Society Conference on Space Flight (New York, 24 April 1962).
Aeronautics Act, R.S.C. x 3(1) (1985).
Varlin Vissepo, “Legal Aspects of Reusable Launch Vehicles”, 31 Journal of Air Law and Commerce, 165, 214 (2005).
John Cobb Cooper, Legal Problems of Upper Space (address before the American Society of International Law, Washington, D.C. (26 April 1956), quoted in Andrew Haley, “The Law of Space — Scientific and Technical Considerations”, 4 N.Y. L. Forum, 266 (1958). In 1962, Professor Cooper wrote that ICAO should interpret what is contemplated by “airspace” under Article I of the Chicago Convention. John Cobb Cooper, The Chicago Convention and Outer Space (address before the American Rocket Society Conference, New York, 24 April 1962).
Julian Verplaetse, International Law in Vertical Space, 157 (Rothman, 1960).
Nandasiri Jasentuliyana, International Space Law and the United Nations, 379–382 (Kluwer, 1999).
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Jakhu, R.S., Sgobba, T., Dempsey, P.S. (2011). Legal and Regulatory Regimes. In: Jakhu, R.S., Sgobba, T., Dempsey, P.S. (eds) The Need for an Integrated Regulatory Regime for Aviation and Space. Studies in Space Policy, vol 7. Springer, Vienna. https://doi.org/10.1007/978-3-7091-0718-8_2
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