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Jan Wouters, Philip De Man and Rik Hansen

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Armel Kerrest

Although we have long moved on from a spacefaring environment dominated by the actions of two State powers, modern space law is still centred on the notion of ‘launching States’, including as the basic concept for applying the Liability Convention. This chapter asks whether the legal framework established at the time of adoption of the Liability Convention is still efficient for the regulation of commercial space ventures, in particular by questioning the continuing relevance and definition of the concept of ‘launching State’. This question will be considered in four steps, discussing in turn (1) the importance of the notion of launching States; (2) the interest of holding States liable for damage caused by a space object; (3) the implications of private entities getting involved in this framework; and (4) the entity carrying the risk created by private space activities. Keywords: launching State; liability; private actors

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Lesley Jane Smith

This chapter focuses on the impact of sub-orbital flight on the existing air and space transport liability regimes. It discusses whether the future sub-orbital or orbital aircraft services, designed to deliver new forms of faster and further aerospace travel, can be pegged with existing aerospace liability regimes, or whether a new sui generis sector-specific approach to liability for this growth sector is needed. It reviews the regulatory options available at national and international level, identifies the importance of dialogue and consultation across the national licensing systems, and highlights some of the considerations involved in identifying the best possible approach to a liability regime for this sector. The technical considerations involved in certifying and licensing sub-orbital craft are not addressed. Keywords: sub-orbital flights; liability; licensing; aerospace transport

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Steven Wood

This chapter discusses the impact of manned commercial space activities on the legal definition of space tourists. Specifically, the chapter aims to answer the question whether space tourists are eligible to receive rescue assistance in outer space under the 1967 Outer Space Treaty and the 1968 Astronaut Return and Rescue Agreement. Answering this question depends, in turn, upon the resolution of several other challenging questions, including whether space tourists qualify as ‘astronauts’ or ‘personnel of a spacecraft’, as well as determination of the precise criteria required by the OST and RRA rescue provisions. The author raises and discusses a number of arguments to support the position that these definitions should be interpreted as inclusive of space tourists, taking into account the meaning of the verb ‘have alighted’ in the relevant provisions, and the underlying humanitarian objectives and purposes of the RRA to provide for search and rescue for all spacecraft personnel in danger. Keywords: space tourist; astronaut; personnel of a spacecraft; rescue and return; definitions

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Ward Munters

This chapter discusses the legal challenges under international law associated with the planned implementation of large constellations of small satellites by a number of commercial space operators, including OneWeb, SpaceX and Boeing. The international community is increasingly aware of the challenges that the paradigm shift posed by these constellations may hold with regard to, inter alia, effective regulation and sustainability. Using the real-world example of the forthcoming OneWeb constellation as well as scientific studies on its ostensible impact on the space debris environment in low Earth orbit, the chapter seeks to critically frame a number of concerns relating to large constellations vis-à-vis international space debris mitigation guidelines, liability and reparations, the prevention of transboundary harm and the precautionary principle. Keywords: space debris mitigation; small satellites; large satellite constellations; international environmental law; transboundary harm; precautionary principle

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Andrea J. Harrington

Several US states have pioneered the adoption of space tourism industry-sponsored Spaceflight Liability and Immunity Acts for spaceflight participants in the past decade. These Acts specify the conditions under which a spaceflight entity will not be liable for a participant injury resulting from the risks of spaceflight activities. This trend in US space law is likely to have an impact on the emerging space tourism industry. The current chapter sets forth the context in which these Acts exist, by defining key terms and discussing the relevant distinctions between orbital and suborbital transportation. The chapter presents the federal setting in which the US Acts have come to exist, both in terms of liability with regard to commercial spaceflight and conflict with federal law generally. Finally, the language of the Acts is analysed, comparing key differences among them, and the potential applicability of such acts in non-US jurisdictions is considered. Keywords: space tourism; spaceflight liability and immunity; liability waiver; US state and federal law

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Daniel P. Murray

This chapter details the performance-based regulatory framework for space transportation developed by the US Federal Aviation Administration Office of Commercial Space Transportation (FAA AST). The aim of the framework adopted by the FAA AST is to ensure the protection of the public, property and the national security and foreign policy interests of the United States during commercial launch or re-entry activities, and it encourages, facilitates and promotes US commercial space transportation. In fulfilling its safety mission FAA AST grants a licence or a permit to a launch vehicle operator based on the operator’s demonstration that it has met the applicable requirements of the US Code of Federal Regulations. Given the success of this approach, the FAA AST has recently started undertaking international cooperation efforts to assist other administrations in developing a similar approach. Keywords: commercial space transportation; US federal law: safety; international cooperation

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Jeremy Stubbs

This chapter concentrates on the thought processes and challenges that were faced by the UK Civil Aviation Authority in carrying out a recent review to determine the requirements from an operational and regulatory perspective to enable spaceplanes to operate from the UK by 2018, pending demonstration of feasibility and a decision to do so. The chapter covers the following issues tackled by the review: (1) the extent to which the UK can support safe spaceplane operations; (2) possible options for the certification of spaceplanes, engines and associated systems; (3) the key characteristics and potential locations of a spaceport; and (4) a possible understanding of the future market for spaceplane operations. Keywords: commercial spaceplane operations; spaceport; certification; UK law

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Mike N. Gold and Christopher M. Hearsey

This chapter reviews the legal, policy, and historical factors that impacted the current reforms as well as how, subsequent to the Genesis campaigns, Bigelow Aerospace pursued changes to the application of the US International Traffic in Arms Regulation to its commercial operations. Moreover, the issues discussed herein are scoped to the current promulgation of the final rule to the amendments to Category XV of the United States Munitions List. Finally, the chapter ends with a description of the lessons learned from Bigelow Aerospace’s efforts. Keywords: dual use; export control: International Traffic in Arms Regulation; US federal law; Bigelow Aerospace; munitions

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Thierry Herman and Alexander Soucek

This chapter provides elements for consideration regarding the regulation of sub-orbital flights carrying humans, in particular those carried out for commercial purposes. The authors argue that the formulation or application of law concerning this issue should be anticipated by establishing clarity in respect of two questions. First, what needs to be achieved? Second, how can this best be achieved? To answer those questions, the chapter proposes elements for discussion rather than conclusive answers. The authors argue that clarity over the purposes for regulation plays as much a role as the experience gained from existing regimes and precision in definitions and semantics. They recall characteristics of the two systems that are considered apparent ‘candidate regimes’ for regulating commercial suborbital flights. Finally, they present two examples of domestic regulatory approaches that deal with different subjects and yet reveal certain commonalities. Keywords: commercial sub-orbital flight; air law; aircraft; space object; US federal law; French law