EMERGING MODES OF AEROSPACE TRANSPORTATION

1. EMERGING MODES OF AEROSPACE TRANSPORTATION Liability And Traffic Rights

2. By Peter Haanappel • Table of Contents: Definitions of emerging forms of aerospace transportation • Definitions for purposes of traffic rights & liability • The vehicles involved in aerospace transportation • Definitions of air space / outer space & relevance • Traffic rights: transit rights, innocent passage, rights for commercial carriage • Liability: existing conventions, earth-to-earth transportation, space tourism, space transport

3. Definitions of emerging forms of aerospace transportation • In common: move through air space and outer space: hence boundary question • Aerospace transportation, earth-to-earth, (aero)space plane • (sub-orbital) space tourism • Transportation to/from outer space, for instance ISS • Mixed forms, overlaps, future forms

4. Definitions for the purposes of traffic rights and liability • Carriage for the purpose of hire and reward / by onerous title • Commercial purpose, at least for carrier • Scheduled and non-scheduled carriage • Carriage by aircraft • Carriage by space objects • Carriage / transport / transportation < traffic

5. The vehicles involved in aerospace transportation • Forerunners: Space shuttle, Soyuz, Concorde, SST • Under development: • Rockwell X – 30 type • Space Ship Two, Lynx etc. type • Space shuttle successor • Extremely high prices, notwithstanding the promises! • All vehicles, except Soyuz, combine aerodynamic lift & rocket power, single / multiple body, lift / landing, single / multiple engine (rocket gliders)

6. Definitions air space / outer space and relevance • Physical, functional and arbitrary definitions • Overlaps, or both physical and functional • Tódor van Kármán line (physical & functional, IAF, link with 1979 Soviet proposal) at 100 km • The upper limit of aerodynamic lift • The lower boundary of an orbiting satellite • A single or a multiple boundary? • Contiguous zone

7. Definitions of air space / outer space: preliminary conclusions • 1) The advent of aerospace transportation may need its own “functional approach”, which is one of pragmatism: namely to go ahead and to provide legal rules or accommodations for the coming forms of aerospace transportation, for the time being within the constraints of the uncertainty that still rules the matter of the definition and delimitation of air space, outer space, and the activities within them; and connected therewith:

8. Continued • 2) The emerging forms of aerospace transportation are not going to resolve definitional / delimitational issues, but they should convince the international community (read COPUOS) that there is now more urgency to solve these issues

9. Traffic rights • Definition of traffic and transit rights • Transit right and right of innocent passage • Transit right: Article 5 Chicago (right for an aircraft); IASTA (right for a State) • What is the position of the (aero)space plane herein? • ICAO to examine its position under Article 5 and the IASTA? • Right of innocent passage for space tourism and space transportation? COPUOS to examine?

10. Continued • Commercial rights: • 1) for the (aero) space plane: some form of bilateral arrangements likely? • 2) for space tourism? Only if more than one country involved in departure / return? • 3) for space transportation: not required?

11. Liability • Existing international legal instruments: Warsaw 1929, Montreal 1999, Rome 1952, Liability 1972 • Avoidance of overlaps • (Aero)space planes, next to aircraft, also space object? COPUOS and ICAO to examine? • If no Conventions: freedom of individual contractual regimes, insurance obligations, liability notices?

12. Continued • Aerospace transportation: let the air law liability instruments apply? • Space tourism: let freedom of contract prevail for the time being? Carrier’s conditions of carriage? Obligatory insurance? Liability notices? • Analogies with ferry and cruise ship contracts? • Space transportation: let freedom of contract prevail for the time being?

13. General conclusions • 1) The advent of aerospace transportation may need its own, functional, pragmatic approach to the definition / delimitation of outer space / outer space activities: international community to move on this • 2) In the meantime: to find rules, understandings, accommodations for the three coming forms of aerospace transportation

14. Continued • 3) The (aero)space plane may present issues of transit rights in air law, which the international community (especially ICAO) is encouraged to consider in detail • 4) Space tourism and space transportation do not present such issues, but there may be another one, namely the right of innocent passage (COPUOS to consider?)

15. Continued • 5) Commercial traffic rights may very well be necessary for the (aero)space place, probably in the form of bilateral agreements • 6) Authoritative interpretation (ICAO?) needed whether the (aero)space plane is covered by the Warsaw/Montreal/Rome/Liability Conventions • 7)For space tourism/ transportation, for the time being, no conventional liability regimes needed, but perhaps provisions on insurance and liability notices