C-Span Airs Live Space Policy Discussions at NSS Conference

May 30, 2008 at 2:37 pm | Posted in Space Law Current Events | Leave a comment
by Joanne Irene Gabrynowicz with the blog faculty

“The New Pace of Space”

Live today 30 May 08
What will happen to the International Space Station while NASA transitions from the Space Shuttle, retiring in 2010, to the Orion spacecraft, launching in 2014? The National Space Society considers this question and others during its 27th annual conference today in Washington, D.C.

Source: C-Span

IAA 1st Symposium on Private Human Access to Space: Session N-15

May 30, 2008 at 1:33 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

The legal portion of the IAA 1st Symposium on Private Human Access to Space was capped off on the final day with a round table discussion on Legal Aspects & Certification. The participants in the round table included Philippe Clerc, CNES; Andre Farand, ESA; Tanja Masson-Zwaan, International Institute of Air and Space Law, Leiden University; and Cedric Wells, SCOR, who all moderated different sessions. The round table was moderated by Stephan Hobe, Institute of Air and Space Law, Koln, Germany.

Prof. Hobe started with an opening statement that covered some of his views on the subject of private human access. He emphasized the necessity of differentiating between air and space law, but that many of the problems can be solved by looking to both regimes. He pointed out specifically that a problem still existed in relation to the delimitation of air space and outer space, but that science and practice has helped to give a general range for this delimitation. He then moved to the question of certification and authorization by emphasizing Article 6 of the Outer Space Treaty and the duty of supervision of non-governmental actors by their respective states. Liability was also emphasized as a major issue for the emerging industry. He finished up by commenting on the status of space tourists under international law and whether they qualified as Astronauts.

Clerc then gave comments on the session that he chaired. He started with the question of sovereignty and jurisdiction over space objects and how the regime is different from that of aviation law. He then shortly discussed the status of Astronauts and Space Tourists and how this was affected by French tourism laws. The comments generally centered on the differences between air law and space law. He endorsed a hybrid air/space licensing regime. He stated his belief that an informed consent regime would probably not work in France because it would not defeat fault based liability.

Farand then summarized his session. He discussed the status of astronauts under international law as was presented in Francis Lyall’s paper, and whether space tourists should be considered “envoys of mankind.”

Masson-Zwaan then discussed her session and the papers that were presented. These included regulation of private human space flight in the United Kingdom, the European Union, the United States, and France.

Finally, Wells reported on the panel that he moderated. He stated that his panel discussed how the risks will be born by the insurance market. Primary to this discussion was the need to identify all the various risks and all the various parties. Wells stressed that not all risks could be born by the insurance market, so that other alternative transfer of risk should be part of commercial space flight plans.

Questions were then taken. The first question asked about a French space plane and what regulating body should be consulted for licensing. Clerc responded saying that it was a very important question and one to which a clear answer was not available.

The next question was whether there might be a treaty on commercial space use. Hobe answered that the hurdles involved a lack of cooperation and a resistance to incorporating air law concepts into space law. Masson-Zwaan pointed out that the increasing number of nations taking part in COPUOS has slowed the process down, but that states should look to regional agreements in order to fill the void.

The next question focused on accidents and who would claim on behalf of those that might die an accident. Masson-Zwann stated that the estate of the deceased person would have competency to make a claim. Hobe added that insurance should be attained before liftoff to cover these sorts of claims.

Next, a question was directed as to whether there might be insurance against damage to reputation claims in the wake of an accident and bad press. Wells respond to the question that it was unclear as to whether this could be an insurable loss, but that a plan might be able to be set up in order to minimize damage during then disaster management phase of an accident.

The round table then concluded.

IAA 1st Symposium on Private Human Access to Space: Session N-13

May 29, 2008 at 4:51 pm | Posted in Space Law | 2 Comments

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

The final law related session for the day was Legal, Insurance, & Regulatory: Specific National Regimes and was chaired by Tanja Masson-Zwaan. There were four presentations: Privately Funded Human Space Flight in the Context of the U.K.’s Outer Space Treaty by Richard Crowther, Rutherford Appleton Laboratory; European Regulation for Private Human Space Flight in the Context of Space Traffic Management by Julie Abou Yehia, European Space Policy Institute; Informed Consent v. ITAR: Regulatory Conflicts that Could Constrain Commercial Human Space Flight by P.J. Blount; and Licensing Regime of the Launch and Reentry of Suborbital Planes by Sabine Akbar, Institut du Droit de l’Espace et des Telecommunications.

Three of the presentations (Crowther, Abou Yehia, and Akbar) focused on human space flght regulations in countries that hve not yet adopted them (United Kingdom, European Union, and France respectively). It was striking that all three seemed to look towards the 2004 Commercial Space Launch Amendments Act and the FAA’s Human Space Flight Requirements as a model for other countres. This highlights that there are currently many unknowns in the emerging commercial space fligh industry.

My presentation sought to investigate a possible conflict between ITAR and informed consent under the Human Space Flight Requirements. Rather than summarize it, I have made the presentation available for download.

IAA 1st Symposium on Private Human Access to Space: Session N-11

May 29, 2008 at 4:30 pm | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
Session N-11 of the Symposium was moderated by Andre Farand of ESA and titled Legal, Insurance & Regulatory: Regime and User Status. It consisted of two presentations.

Th first presentation was of a paper, Who is an Astronaut? The Inadequacy of Current International Law by Francis Lyall of the University of Aberdeen. Unfortunately, Lyall was unable to make it to the Symposium, so Tanja Masson-Zwaan presented the paper for him. The paper sought to clarify the numerous different classifications for space actors and questioned whether a space tourist can be considered an Astronaut under the Outer Space Treaty. The paper stated that it was vague due to the lack of a definition for the term Astronaut. Furthermore, the question is complicated by other terms in use such as personnel in the Rescue and Return Agreement or Space Flight Participant under the Human Space Flight Requirements.

The next and final presentation was made by Annette Froehlich of the Institute of Air & Space Law in Koln, Germany. She presented Space Tourists – the new Ambassadors of the Common Heritage of Mankind Principle?. Froehlich traced the idea of space being for the benefit of all mankind through the treaty regime. She then made the connection to the principle of the Common Heritage of Mankind found in the Moon Treaty. She argued that due to environmental concerns created by increased space tourism that the common heritage of mankind principle should be reevaluated and possibly applied to space.

IAA 1st Symposium on Private Human Access to Space: Session N-10

May 29, 2008 at 4:14 pm | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

Session N-10 of the Symposium was titled Legal, Insurance & Regulatory: Risks and Insuranceand was chaired by Cedric Wells of SCOR. The session consisted of four presentations: Typology of Insurable Risks Related to manned Suborbital Flights as a Space Tourism Activity by Sophie Moysan, Marsh S.A.; Space Tourism Insurances by Denis Bensoussan, Hiscox; Private Manned Access to Space: Space Insurance Questions, but also a Broader View on Insurance Matters by Pierre Miquet, Pierre Miquet Conseil; and Space Insurance for Space Passengers: Protecting a Space Tourism Business by Vanessa Leigh and Magalie Rungasamy, Gates & Partners.

This set of presentations all worked to identify the numerous risks for space flight operators, participants, and third parties as well as to property and the environment. They discussed how space tourism companies would have to work with underwriters in order to negotiate insurance packages that would allow operators to manage risks but that would still be acceptable to underwriters. Each stressed that risk management is going to be vital to the emerging industry.

IAA 1st Symposium on Private Human Access to Space: Session N-8

May 29, 2008 at 9:30 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

The second day of the IAA 1st Symposium on Private Human Access to Space has a full slate of presentations on law and regulations. The first session of the day was N-8 – Legal, Insurance & Regulatory: General Legal Framework and was chaired by Philippe Clerc of CNES.

The first presentation was by Axelle Cartier of Excalibur Almaz and was titled The UK Outer Space Act (1986) and its Application to Potential Licensing of Commercial Manned Orbital Flight. Excalibur Almaz Ltd. is a British company incorporated on the Ilse of Man. Cartier stated that the projects works under the legal framework of the UK Outer Space Act. She stated that Article 1(c) of that act extends it to cover human access to space. Her presentation focused on the regulatory regime that will govern Excalibur. Stating that clear and transparent regulations were needed for the industry, Cartier claimed that while there are regulatory similarities to satellite launches under the act a different licensing regime for private human space flight is needed in order to fully protect the party’s involved.

The next presentation, Private Human Access to Space – The Legal Challenges and Possibilities, was made by Tanja Masson-Zwaan of the International Institute Air and Space Law, Leiden University. Masson-Zwaan is also the president of the International Institute of Air and Space Law. She started by citing the principles of benefits sharing and “province of all mankind” found in Article I of the Outer Space Treaty. After a short overview of international space law instruments, she moved to a discussion of how these instruments apply to tourism. Among the issues noted was a state’s duty to supervise non-governmental actors and how this is often accomplished via national laws. However, she stated that this leads to patchwork of national laws that could lead to forum shopping. She also proposed that space law should be applied to both suborbital and orbital flights, but that this law needs to be clarified in order, amongst other things, to promote safety and to provide for a second and third party liability regime.

The next presentation was made by R. Olofsson and was titled Private Manned Space Flight -Navigating the Intersection of Public International Law and Commercial Law Regimes. He pointed to several broad principles found in the space treaty regime, and then asked the question, “what does that mean for my client?” He said that one of the first issues would be to deal with definitional problems found in the treaties, such as defining “space object” or even where space begins. He also stated that suborbital flights present unique questions of liability and which treaty to apply the Liability Convention or the Warsaw Convention.

The next presentation was Attempt of Identification of the Legal Framework Potentially Applicable to Manned Suborbital Flights by Sylvain Devouge of Marsh, S.A. He gave a short overview of the space treaty regime and then went on to point out that there is a lack of private law to govern space activities. He then gave a summary of aviation law that might be applied to commercial suborbital flights including the Rome Convention and EU Regulation 89/2002. Finally, he pointed out that terrestrial tourism laws might also be applicable, giving the example of the French tourism law which gives strict liability to the seller and organizer of a travel package, fault based liability flight bookers, and provisions related to the cancellation of travel.

The final presentation was given by Andre Farand of ESA and was titled Suborbital Flights with Entertaining Purposes: Legal Considerations. He stated that there were many definitional problems for suborbital flights. He endorsed regulating these sorts of flights with current aviation regimes. He noted though that the nature of the flights would have to be taken into account that suborbital flights are not “air transport” but instead are “risky recreational activity.” He noted numerous considerations that operators would have to be able to cope with including liability, contracts, and implications for airport activities.

IAA 1st Symposium on Private Human Access to Space: Opening Presentation

May 28, 2008 at 3:55 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

Professor Mireille Couston from the University of Lyon gave the first law related presentation of the Conference, Introduction to Legal Aspects and Certification. It served as an overview of legal topics that will be covered during the conference.

She began with a discussion of the legal order now extant for space tourism. She pointed out that there are only two types of law to govern space tourism: space law and air law. This law must cover five zones in which tourism might occur: airspace, suborbital flights, orbital flights, celestial bodies, and outer space. She then discussed the Outer Space Treaty and how it created a regime in which space is considered a global commons for state actors. This legal regime was compared with the international agreements that govern overflight in air law such as the Paris Agreement. The potential conflict of these two regimes could create uncertainty for suborbital flights, according to Couston.

Then Prof. Couston noted that there were three possible orders to govern space activities. The first theory is a single unified order that governs both space and air as “flight space.” The second theory consists of two different orders, one governing air and the other governing space. The third theory and the one that Couston endorsed, is a mixed aerospace law. She stated that the emergence of a commercial space activities should be met with the emergence of a new legal order to govern these sorts of activities.

The second part of her presentation concerned jurisdiction. Jurisdiction is based on competency of a state over its citizens. She noted that in space law this jurisdiction is extended via registration of a space object. However she said that registration has its limits, and that it shouldn’t be the only instrument to extend the a state’s jurisdiction. She stated that nationality is also an appropriate way for states to exercise jurisdiction on space actors. She also noted that states could look to contractual relations and parallel legal orders in order to establish some forms of jurisdiction.

The final part of her presentation covered regulations of space tourism. She stated that these could be based on the object used or the nature of the activity. She noted that the term space object is vague under international law, and that difficulties may arise for suborbital flights due to this vagueness. She said that regulation could be based either on the engine used and means of flight or the function of the craft.

In relation to the nature of the activity she questioned whether the term “tourism” is the proper term for suborbital space flight or whether it should be treated more like an extreme sport. She suggested the term “space sport.” Also she noted that the nature of the activity and how it is treated under law will affect liability issues.

She concluded by stating that space activities will need a unified theory of law.

IAA 1st Symposium on Private Human Access to Space

May 28, 2008 at 3:07 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
This post is part of a series of live blogs from the IAA 1st Symposium on Private Human Access to Space. A list of all posts can be found in the wrap up.

The IAA 1st Symposium on Private Human Access to Space kicked off this morning in Arcachon, France. The morning session was comprised of general remarks on the IAA and private human access to outer space (both suborbital and orbital). The Conference is the initial step in the development of a position paper by the IAA on the topic. For this reason the conference is covering a wide range of topics including technical, legal, medical, and sociological. Throughout the next few days, Res Communis will be posting the highlights of the legal content of the conference.

Library: A Round-up of Reading

May 26, 2008 at 9:51 am | Posted in Library | Leave a comment

Anguel Anastassov, Can The Comprehensive Nuclear-Test-Ban Treaty Be Implemented Before Entry Into Force?, Netherlands International Law Review (Vol. 55, no. 1, May 2008).

Nicholas J. Farber, Avoiding the Pitfalls of Public Private Partnerships: Issues to be Aware of When Transferring Transportation Assets, 35 Transportation Law Journal 25 (2008).

Gerry Oberst, “Global Regulations: European Neutrality Principles,” Via Satellite, p. 16 (June 2008).

Alice Wong & Ray E. Clore, “Promoting International Civil GNSS Cooperation Through Diplomacy,” High Frontier Journal, v. 4, no. 3, p. 25 (2008)

NTSB Accepts Untimely Responsive Pleading In the Absence Of Prejudice – Aviation Law Discussions

Additional tidbits in the authorization bill

The “Sense of Congress” Regarding NewSpace and Space Exploration
– Jeff Krukin

The Maple Leaf Rag
– Export Law Blog

Bi-Monthly Issue #1: How will oil at $120 a barrel affect the aviation’s legal landscape? – ABA Forum on Air & Space Law Blog

Value of Spatial Information
– Geodata Policy

Battlefield robotics, a very brief introduction – Opinio Juris

Japan approves new military space policy
– Space Politics

Mr. Chips or Professor Moriarty? – Export Law Blog

Airbus vs. Boeing vs. China
– International Economic Law and Policy Blog

UK Law Lords bar Home Office appeal in case of pilot wrongly detained after 9/11
– Jurist Paper Chase

Are County GIS Data Subject to State Open Records Law? – Geodata Policy

Nelson on NASA authorization – Space Politics

Address by the Secretary General of the International Civil Aviation Organization (ICAO), Dr. Taïeb Chérif, to the First Session of the African Union Conference of Ministers Responsible for Transport, Algiers, 21 – 25 April 2008

Address by the Secretary General of the International Civil Aviation Organization (ICAO), Dr. Taïeb Chérif, to the Eleventh Session of the General Assembly of the Arab Civil Aviation Commission (ACAC), Tripoli, Libya, 12 – 13 May 2008

Fact Sheets
FAA – Aviation Safety Organization Initiatives

French Lawmakers Codify Procedures at Spaceport

May 26, 2008 at 9:48 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty
From Space News:

French Lawmakers Codify Procedures at Spaceport

The French parliament on May 22 adopted a law governing space operations that officials said codifies most of the current practice surrounding launches at Europe’s Guiana Space Center, which is on French territory. It also makes more formal — but not more strict, officials said — the licensing regime for satellite operators in France or those launching their spacecraft from Europe’s spaceport, located near Kourou, French Guiana.

“This law gives us a formal legal framework for space operations, which we needed. But the goal was to do this while having no negative effect on launch service suppliers or satellite operators,” said Philippe Clerc, head of the legal service at the French space agency, CNES. “I think this was achieved.”

Sen. Henri Revol, who coordinated debate on the law in the French Senate, said a legal regime was needed in part because Europe’s spaceport is about to add new vehicles — Russia’s Soyuz and the Italian-led Vega vehicle — to its stable of launchers.

Like the current Ariane 5 heavy-lift rocket, Soyuz and Vega will need to be insured for 60 million euros ($93 million) for third-party liability. For damages above that amount, the French government takes responsibility. In the case of Russia’s Soyuz, France shares legal responsibility with the Russian government. For Vega, France assumes one-third of the liability, with the remaining two-thirds divided among the European Space Agency governments participating in Vega’s development.

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