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‘One-stop shop’ space safety regulation: Should we do it and how?
Journal of Space Safety Engineering 6 (2019) 212–218
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Journal of Space Safety Engineering journal homepage: www.elsevier.com/locate/jsse
‘One-stop shop’ space safety regulation: Should we do it and how? Michael Chatzipanagiotis a,∗, George Kyriakopoulos b a b
University of Cyprus, 1 Panepistimiou Ave., 2109 Nicosia, Cyprus National and Kapodistrian University of Athens, 47 Akadimias Str., 10672, Athens, Greece
a r t i c l e
i n f o
Keywords: Space safety Regulation Space law Air law International law Manned spaceflight Safety standards
a b s t r a c t The significant increase of manned private space activities brings to the fore the discussion about the appropriateness and the feasibility of a ‘one-stop shop’ space safety regulation. At national level, both outer space and aviation authorities could be competent for the safety of private manned spaceflights. At international level, there seems to be no common understanding on safety requirements for manned spaceflights, contrary to what is in force in aviation. Thus, to comply with the applicable safety requirements a private operator may have to adhere to a plurality of national and international safety provisions, the scope of which is often uncertain, but the oversight of which belongs often to different authorities. This paper examines the reasons for such situation and proposes possible solutions. One cause is regulatory and oversight “inertia” and habit, i.e. national agencies are used to have specific competencies for specific issues and encounter difficulties in adjusting to new situations either by relinquishing or assuming new responsibilities. Another reason, at both national and international level, is the traditional dichotomy between the fields of aviation and space law, which have been developed independent from each other, based on different principles and situations. At international level, despite the freedom of use of outer space, States often act unilaterally and connect outer space with national security, which makes them reluctant to delimitate outer space and entrust an international organization with promulgation of safety regulations. In addition, private manned spaceflights are just starting to develop their potential, which means that so far uniform regulation appeared to be no real necessity. To overcome these issues, at national level, a mixed aviation and space (aerospace) authority could be created, which would combine expertise from both fields. Such authority should be competent for all flights into/from outer space (orbital, suborbital, deep space) and in airspace. Furthermore, new rules applicable to all spaceflights, irrespective of their specifications, could be developed, or existing rules could be amended to accommodate spaceflights. At international level, such a task would require either the expansion of regulatory authority of the International Civil Aviation Organization (ICAO) to spaceflights or the institutional upgrading of the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS) to an autonomous international spaceflight organization, with powers to issue uniform technical safety standards. Ultimately, an international organization competent for all flights should be created. In the meantime, private international initiatives in the form of private certification standards are expected to play a key role.
1. Introduction – current situation Safety could be defined as a set of rules, procedures and practices whose objective is to minimize the risks of events (potentially) hazardous to persons and property, which arise from concrete activities. In aviation, safety is officially defined as the state in which risks associated with aviation activities, related to, or in direct support of, the operation of aircraft, are reduced and controlled to an acceptable level [1], e.g. aircraft certification, personnel licensing, air traffic management, operational approvals of airports, etc.
∗
Manned spaceflight has been until recently a State endeavor and yet only three States have, so far, developed the technical capacity to sent humans into outer space: the US, Russia/Soviet Union and China. Nonetheless, in the last fifteen years there has been a growing interest by private companies to offer spaceflights and a series of projects to develop appropriate vehicles are ongoing [2]. In the context of private manned spaceflights, there are two significant developments: (a) reusable hardware is expected to drop the cost and increase the frequency of spaceflights [3], (b) hybrid vehicles have been developed or are being developed, which combine flight specifications of air-
Corresponding author. E-mail addresses: [email protected] (M. Chatzipanagiotis), [email protected] (G. Kyriakopoulos).
https://doi.org/10.1016/j.jsse.2019.09.002 Received 7 August 2019; Received in revised form 4 September 2019; Accepted 5 September 2019 Available online 20 September 2019 2468-8967/© 2019 International Association for the Advancement of Space Safety. Published by Elsevier Ltd. All rights reserved.
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Journal of Space Safety Engineering 6 (2019) 212–218
craft (air breathing engines and gliding in the atmosphere)1 with ballistic flights (mainly rocket propulsion) [4]. In aviation, safety is governed to a significant extent by global safety standards, issued by the International Civil Aviation Organization (ICAO) according to Art. 37 of the Chicago Convention (CC) and the Annexes thereto [5] and specified by national rules. Safety regulation in aviation comprises rigorous rules and lengthy procedures. On the contrary, there are no international space safety provisions, while for spaceflights there is no equivalent of ICAO. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), in which space regulatory issues are discussed, has no regulatory powers. However, Art. VI of the Outer Space Treaty (OST) [6] obliges States to ensure the safety of spaceflights, which is achieved through a national procedure for licensing of space activities. Although each State lays down its own requirements for licensing of national space activities, such requirements are much less onerous than these of aviation. Consequently, there is a regulatory fragmentation as to safety of flights, depending on whether they qualify as aviation flights, spaceflights or both. This paper examines whether we should have a “one-stop shop” safety regulation and, in the affirmative, how we could achieve this. Such safety regulation means the establishment of a uniform set of rules and procedures for all flying devices, both aircraft and space objects, with a single authority in charge of regulatory implementation and supervision. Regulatory uniformity does not entail that all flying devices will be subject to exactly the same rules and procedures, but that there will be an integrated and highly coordinated regulatory safety system. In order to answer the question of the necessity and usefulness of a “one-stop shop” safety regulation, we indentify the consequences of safety fragmentation at national and international level (Part 1), which indicate the need for action. To find out how a uniform set of regulation could be established, the causes of the current fragmentation must be approached (Part 2), in order to be able to suggest concrete measures on how such causes could be remedied (Part 3), at both national and international level.
need to overcome many operational issues such as hazardous fueling, noise abatement, traffic volume/capacity, and controller workload [7]. 1.3. Legal uncertainty - Increased administrative burden The current legal regime causes great legal uncertainty to operators and manufacturers, which brings about a series of other effects [9]. To begin with, operators and manufacturers would have to go through potentially long and expensive bureaucratic procedures. Instead of having to address a predefined national authority, they have to first inquire whether under the applicable national regulations their vehicle is seen as an ‘aircraft’, a space object or both, whether their vehicle has to be certified as an aircraft or licensed as a space object or both, and what are the exact requirements to be met. The answer to all these questions could be given only on an individual basis, taking into account the specifications and the flight profile of each vehicle, the States where the operations will be conducted from, as well as the nationality of the operator and the manufacturer. Furthermore, safety rules are connected with liability issues: violation of the former may entail application of the latter, as it might establish negligence. The legal uncertainty as to the exact safety rules applicable creates uncertainty as to liability exposure – which in turn affects the cost and the extent of insurance cover. In addition, a segregated legal regime increases the risk of litigation in case of an accident, because claimants could attempt to benefit from the grey areas in safety regulations, to achieve higher compensation, and might be less willing to reach an out-of-court settlement. 1.4. Distortion of competition A segregated regime creates the danger of undermining the level playing field for manufacturers and operators. Manufacturers and operators whose vehicles fulfill the definition of aircraft would be obliged to abide by also the aviation safety regulations. Such process would entail additional, non-negligible costs in money and time. Thus, commercial operations would start later than technically practicable and perhaps at an additional cost for passengers, if operators decided to pass on part of the compliance cost to customers. At the same time, operators should have their vehicles licensed under the applicable national law for the space part of the flight. As a result, operators of hybrid vehicles would have to deal with both aviation and space authorities. On the contrary, manufacturers and operators of vehicles that do not qualify as aircraft would only need to obtain a license for space operations. Compared to their competitors with hybrid vehicles, these manufacturers and operators could save time and money, which they could invest to promote their business. In this regard, also the savings in time play a significant role - they would at least allow them to start earlier commercial operations and thus be established earlier in the market. Hence, they could gain a competitive advantage. As a result, the application of the current regime risks distorting the competition.
1.1. Consequences of fragmentation The consequences of fragmentation are multi-faceted. They related to operational, legal and economic parameters. 1.2. Compromise of safety – disruption of operations Technological progress and proliferation of private spaceflights entail that airspace is shared at an increasing rate by flying vehicles with a variety of flight characteristics and operational modes. Yet, these vehicles may be subject to different safety rules (aviation, space, or both), which can compromise the safety of flights and/or disrupt flight operations. A typical example of the current situation presents the White Paper of the Air Line Pilot Association International (ALPA) on the negative impact of space operations to air travel in the US [7]. The White Paper warns that the current fragmentation of safety regulation and segregation of airspace for space operations cause flight delays and flight plan alterations, increase the distance flown and the flight times, may lead to flight cancellations, and affect adversely crew duty cycles, gate slot management and fuel burn. Such risks have been identified by an older FAA study as well [8]. Moreover, the White Paper indicates that space launch operations near airports pose a safety risk to the public as well as to commercial aviation: Spaceports in the vicinity of airports would
1.5. Hindrance of innovation The competitive disadvantage entailed by the lack of an integrated regulation process could also affect innovation. Since the design and use of vehicles that resemble aircraft would be connected with lengthier and costlier regulatory procedures, a preference for exclusively rocketpropelled vehicles, which are not ‘aircraft’,2 might be promoted. Hence, operators and manufacturers would have to consider in the design and operation of their vehicles not only technical but also regulatory parameters. Innovation would be guided towards vehicles of a certain design
1 ICAO defines an aircraft as ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface’ – see e.g. Annex 8 to the Convention on International Civil Aviation Airworthiness of Aircraft, Part I. Definitions (Tenth Edition, April 2005). However, States are free to adopt other definitions in their national legislation for flights in national airspace.
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See the ICAO definition of aircraft supra note 1.
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Journal of Space Safety Engineering 6 (2019) 212–218
and configuration, instead of being completely free to develop according to exclusively technical and economic criteria. Options that could be advantageous from a technical view might not be preferred because of their regulatory implications. Consequently, innovation could be hampered.
happening or are about to happen very soon. The exact identification of the problem enables us to analyze its different aspects, identify the benefits and risks for all stakeholders involved, and balance the competing interests. Therefore, it is unlikely that governments will classify as a legislative priority a problem which is unlikely to arise in the near future and whose exact parameters cannot be currently specified. To illustrate, safety issues of private manned commercial spaceflight arose, when NASA decided to use private spacecraft for the carriage of US astronauts to and from the ISS, which resulted in issuing of special certification standards and processes [14,15]. Perceived necessity may also have the form of anticipated economic and technological gains through the establishment of regulatory measures that create legal certainty and promote industry development. The imminence of private suborbital flights resulted in changes to the US space legislation [16]. In the UK, the Space Industry Act 2018 was enacted after year-long consultation, to promote the local aerospace industry and enhance the attractiveness of UK territory as a base for commercial space operations [17].
2. Causes of fragmentation of safety regulation In order to find solutions to the current unsatisfying situation, we need to identify the causes of fragmentation. Such causes could be found at national and international level. 2.1. At national level 2.1.1. Dichotomy between air and space law Lack of unified procedures can be explained by the dichotomy between aviation and space regulations. These sets of regulations are mostly distinct from each other and are governed by different principles and policies. Aviation is characterized by massive, routine commercial operations. Aviation flights have been conducted for more than 100 years, during which significant experience as to safety shortcomings has been gained. Aviation flights occur exclusively in the atmospheric space, which is a relatively safe, predictable environment. There are also many detailed national technical rules on aviation safety, which are modeled to and specify the international standards and recommended practices developed by the International Civil Aviation Organization. On the contrary, space flights began about 55 years later than aviation flights and their missions related mostly to national security and science – at least in the early days. Spaceflights have been scarce, compared to aviation, and occur partly in outer space, which is a highly dangerous and hostile environment. Moreover, the physics of a spaceflight is significantly different than that of an aviation flight, while there are hardly any internationally developed safety standards.
2.2. At international level At international level, the causes of fragmentation of safety rules are similar to the causes at national level. There are, however, some additional complicating factors. 2.2.1. Dichotomy between air and space law The dichotomy between air and space law, which was mentioned above, has its roots in the significantly different international legal rules governing each activity. In air law, the experience of two world wars, during which the aircraft proved to be a very successful weapon, led to the recognition of absolute State sovereignty in the airspace (Art. 1 CC) [5]. Thus, each State has the exclusive competence to lay down safety regulations in its national airspace regarding both aviation and space flights. At the same time, however, the rapid and extensive development of international air travel resulted in the development of uniform international technical rules on aviation safety, which serve as the basis for more detailed national rules. In addition, in international airspace there are concrete international rules in force by virtue of Art. 12 CC [5],4 the Annexes to the CC (mainly Annex 2 Rules of the Air and Annex 11 Air Traffic Services), regional air navigation plans, as well as special technical documents issued by the ICAO [18]. Yet, these rules apply only to ‘aircraft’. Space law was developed during the Cold War and the Space Race. A peculiar combination of mutual distrust and fear between the two major space powers of the time (US and USSR) with idealism as to the use of outer space, to which Art. I OST refers as ‘province of mankind’ [6], has resulted in the prohibition of appropriation of the outer space and the celestial bodies (Art. VI OST) [6]. Consequently, activities in outer space are governed by general international law (Art. III OST) [6]. From the perspective of international law, the applicability of national space safety rules is limited to space objects registered in the national registry of the respective State (Art. VIII OST) [6]. The problem is that there is no international organization for outer space, as is ICAO for aviation, with authority to establish safety regulations. There are only a few ad hoc safety rules laid down for specific international projects, such as the ISS. As a result, under current international law there are two main different regimes: air law and space law, both of which incorporate a mix-
2.1.2. Status quo bias The dichotomy between air and space law has led to the development of distinct sets of rules and the creation of separate authorities. These authorities have their own personnel, their own administration and often their own budget. So far, they have been working with limited contact to each other. This is the current situation, the status quo, which is difficult to change, because decision makers have a strong tendency to prefer the state of things as they are, despite the possible existence of better alternatives (status quo bias) [10]. One reason for status quo bias is the uncertainty regarding potential losses in view of the new, unkown situation - ‘better the devil you know than the devil you do not’ [10,11]. Moreover, people tend to prefer harmful omissions to correspondingly harmful actions. Even when a decision results in both benefits and losses, omissions are preferred [12]. In the administrative and regulatory context, status quo bias often takes the form reluctance to give up existing powers or accept new responsibilities, since these are connected with reorganization of staff, resources and personal status. 2.1.3. Perceived lack of necessity “Discontent is the first necessity of progress” according to Thomas Edison, a quote cited also at the website of the International Association for the Advancement of Space Safety [13]. In the same vein, discontent is the first necessity of new regulation. For governments to feel discontent there must be a situation that creates ‘real’ problems, which cannot be adequately solved by the current legal framework.3 ‘Real’ problems require situations that are already
perience on private manned spaceflights is gathered (‘learning period’); however, the FAA may establish such rules to prohibit or restrict design features that have resulted in serious injury or property damage or pose a high risk in this regard. 4 Art. 12 CC, third sentence provides that ‘Over the high seas, the rules in force shall be those established under this Convention.’.
3 Compare 51 U.S.C. § 50905(c), which prohibits the FAA from laying down safety regulations for commercial spaceflights until 1 October 2023, so that ex-
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ture of international and national rules. The issue is exacerbated by the lack of delimitation of outer space in relation to air space, which renders even more difficult the identification of the applicable rules (air law/space law, national/international law). The issue of delimitation has been debated at the UNCOPUOS since 1967, without reaching an agreement so far [19].
to a certain extent [22]. However, the recent EU proposal for a Regulation ‘establishing the Space Programme of the Union and the European Union Agency for the Space Programme’ (6.6.2018) [23] could seriously lead to complexity, given the space safety activities of the European Space Agency.6 3. Overcoming fragmentation
2.2.2. National security concerns In the airspace there are not visible borders, while in outer space there are no national borders at all (Art. II OST) [6]. Yet both spaces are crucial for national security purposes, as the experience of two world wars and the Cold War has demonstrated. Accepting international regulation of any kind is perceived by many States as a potential national security risk, because they will have to give up a part of national decisionmaking competency to an international body. While delegation of certain State powers has been achieved in the context of aviation under the 1944 Chicago Convention, outer space seems to be a much more sensitive area from a security perspective, since the current international regime allows States to take advantage of the grey areas between freedom of use and prohibition of appropriation. As a result, States prefer to reserve for themselves as many powers as possible.
The fragmentation of safety rules mentioned above calls for specific solutions. In this regard, a quite popular approach, which refers mainly to the dichotomy between air and space law, suggests that we should refer to the mission of the flight and the technical characteristics of the vehicles (functional theory) [24]. Space law rules should apply, if vehicles that do not qualify as ‘aircraft’ are employed for the exploration and use of outer space. On the contrary, air law safety regulations would be applicable if ‘aircraft’ are used for point-to-point transportation. However, both technological developments, such as the use of hybrid vehicles, and operational parameters, like the sharing of airspace with air traffic at the beginning and the end of a space exploration mission, render such solution inappropriate [24]. Therefore, an integrated approach is necessary [25]. There should be uniform rules, whose core is applicable to all spaceflights, irrespective of their technical specifications and their mission objective. However, this is without prejudice to necessary differentiations at the detailed, implementing level, as has happened already in aviation, e.g. the differentiation between ‘aeroplanes’ and ‘helicopters’ in aviation, all of which being ‘aircraft’ [26].
2.2.3. Perceived lack of necessity Reflecting situations at national level, in the international field, a perception of necessity to regulate current pressing problems is the main drive for international lawmaking of any kind. Such perception may change according to the circumstances, especially if a high-profile event occurs.5 However, hypothetical scenario or long-term benefits usually do not suffice. Hence, discussions at UNCOPUOS on the delimitation of outer space, which have also safety implications, have been conducted for more than 60 years. Nevertheless, many States are reluctant to find a solution to a problem that they view as theoretical [20]. Only once they perceive such problem as necessary to solve an urgent issue, are States motivated to act. As a result, there were vivid discussions within UNCOPUOS on the issue of delimitation, shortly before the Space Shuttle becomes operational, yet they returned to low-priority level, once the issue was settled by other means. Thus, to change the status quo, governments must feel a kind of pressure from the facts. An additional factor is that no international point-to-point (PTP) spaceflights are envisaged for the near future. The technology for safe and affordable PTP space travel has not been fully developed yet.
3.1. At national level At national level, appropriate steps need to be taken to create unified flight-safety legislation, under the authority of a single governmental agency. 3.1.1. Define areas most affected and Emphasize potential losses from lack of coordinated regulation At a preliminary stage, policymakers need to be convinced for the necessity of coordinated safety regulation and procedures. People, including policymakers, tend to react more to losses than to gains [27]. Therefore, framing a situation in terms of potential losses, instead of potential gains, creates a stronger incentive for action [28]. This becomes more effective, if the long-term costs of an ineffective status quo are underlined [7]. To motivate policymakers to adopt an integrated safety system for aviation and space flights, interested stakeholders should underline the risks that lack of such coordination entails. Nonetheless, the risk invoked should be adapted to the audience one seeks to convince. To persuade policymakers, who are concerned with more generic issues, it would be preferable to focus on wider risks for the national economy, such as the loss of technological competitiveness, slowing of economic growth, leakage of specialized personnel to other countries etc. An illustration of such risks should be made by using data from the domains most affected currently and in the near future by such lack of coordination. For example, current segregated procedures for spaceflights affect Air Traffic Management and airline operations, with wider impact on the travelling public [7].
2.2.4. Lack of common understanding Related to the lack of perceived necessity, there appears to be a lack of common understanding among States as to the exact content of space safety regulation. States have often very different views on what is needed and why in terms of safety standards. Such views are influenced by a variety of factors, including national security considerations, economic objectives, protection of the national space industry etc. 2.2.5. Institutional barriers Regarding Europe, there are also institutional hurdles that have contributed to regulatory fragmentation. On the one hand, there is the allocation of competences between the EU and its Member States (MS). While aviation safety is regulated mainly at EU level as a shared competence, space policy has been reserved mainly to MS. Thus, in aviation the regulatory competence belongs mainly to the EU, while in spaceflights competent are the MS [21]. On the other hand, there are two intergovernmental organizations responsible for space in Europe: the EU and the European Space Agency (ESA). The relationship between the two is not absolutely clear, although there are institutional arrangements in place that clarify things
6 It is worth mentioning that, according to ESA, “ESA’s understanding is to continue to be ’THE Space Agency of its Member States and for the EU’, see ESA Press Release No 13-2018, dated 6 June 2018, The European Space Agency welcomes European Commission’s proposal on space activities, https:// www.esa.int/For_Media/Press_Releases/The_European_Space_Agency_welcomes_ European_Commission_s_proposal_on_space_activities (last accessed 29 Aug. 2019).
5 E.g. the 9/11 terrorist attacks prompted negotiations on a new convention regarding the third-party liability of aircraft operators.
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3.1.2. Set integrated safety as a policy objective and prioritize it The first step for the integration of safety regulation is to set it as a national policy objective and place it high in the list of safety priorities. Policy objectives define the framework in which the content of the legal rules is developed. Prioritizing integrated safety rules and procedures contributes to the allocation of adequate resources and the intensification of efforts for achieving the objective.
3.1.6. The examples of US and the UK The US is the first country to have developed uniform rules applicable to all vehicles, at least concerning sub-orbital flights, and designated a single agency for safety issues. The Federal Aviation Administration Office for Commercial Space Transportation (FAA/AST) has been established as the US authority competent for regulating the safety of commercial spaceflight activities and issuing the necessary licenses [29]. The FAA/AST is assisted by the Commercial Space Transportation Advisory Committee (COMSTAC), which provides advice and recommendations [30]. In principle, US legislation does not provide for certification of commercial spaceflight systems. Nevertheless, there are special certification rules especially for commercial space transportation of NASA astronauts to and from the ISS in the framework of NASA Commercial Crew Program [31]. In the UK the Space Industry Act 2018 (SIA) [32] has been largely influenced by the situation in the US, yet the end result as to the competent authorities is different. The SIA contains safety provisions for all spaceflights conducted from UK territory. However, the authority competent for safety regulation depends on the type of the flight (the UK Space Agency is responsible for orbital flights, while the Civil Aviation Authority is responsible for suborbital and stratospheric flights) and the type of the vehicle (rocket flights fall under the competence of the UK Space Agency), while the Health and Safety Executive (HSE) is responsible for safety issues on the ground [33]. Thus, there is no ‘one-stop shop’ for safety regulation in the UK. In any case, crucial details on safety regulation of spaceflights conducted from the UK will be determined by implementing regulations, which have not yet been issued.
3.1.3. Evaluate existing rules and identify regulatory needs The effective implementation of integrated safety policy requires evaluation of the existing space safety rules as to their suitability in the new operational environment. Such evaluation should be conducted by mixed groups of experts, comprising persons from different scientific disciplines and with different professional origin (government, industry and academia). The combined input of experts will provide guidance as to the rules that should be maintained, modified or replaced. The organization of the aviation safety system could serve as an example for spaceflights. Nevertheless, great caution is required. A replication of aviation safety regulations would hardly be possible and suitable, because they have been developed based on significantly different situations than those of spaceflights, e.g. conditions of flight, technological development, experience on accidents etc. In this regard, the development of special safety standards could be recommended, which would be used for the certification of vehicles, organizations and procedures, as well as for personnel licensing [7]. To enable flexibility and not stifle innovation, such standards should be performance-based, meaning that the desired outcome should be prescribed, while the means of achieving such outcome should be left to manufacturers and operators to decide.
3.2. At international level Creating an integrated regime at international level is more challenging, because many more actors are involved with a variety of competing interests, while lack of point-to-point international space transport makes States reluctant to coordinate. Nonetheless, also at international level an incremental approach could be followed, taking the steps described below.
3.1.4. Create a special agency with mixed personnel Implementation of safety regulation and safety oversight should be entrusted to a single agency, responsible for both aviation and space flights. Such agency could be organized into different directorates, to consider major operational differences among the regulated and supervised entities, such as commercial aircraft operators, general aviation operators, suborbital vehicle operators, etc. However, all directorates should communicate with each other and be subject to the same general overarching rules and procedures, with a person (e.g. a General Director) or a board being responsible for the coordination of the system. Such agency could be created by either annexing national space agencies to the existing Civil Aviation Authorities (CAAs)7 or by merging the national space agencies with the CAAs into a new agency. In any case, the single agency should be provided with adequate human and financial resources, including legal support, to be able to cope with the expected increase in commercial human space operations. This single agency will also have the task of coordination with other governmental agencies and authorities, the activities of which could affect the safety of flights or be affected by flights, e.g. military authorities, agencies responsible for other modes of transport, telecommunications authorities, etc.
3.2.1. Enhance institutional cooperation between ICAO and COPUOS As a first step, the institutional cooperation between ICAO and UNCOPUOS, which are the global decision-making fora regarding flights, should be strengthened. In this regard, it has been suggested [34] that ICAO should perform safety oversight of commercial space launch and reentry/return operations that make use of the international airspace, while UNCOPUOS should promote the establishment of an international regulatory framework for space traffic management and space environment protection. Such cooperation would be supplemented by self-regulation of the commercial human spaceflight industry, which should establish a Space Safety Institute for developing and enforcing private standards. We recognize the merits of such proposal, but we find it unnecessary at this point to discuss the exact allocation of responsibilities between the two organizations.8 In our view, the core issue is that UNCOPUOS could use the experience of ICAO to develop a set of basic international rules on spaceflight safety, which would be applicable in outer space, just like the ICAO rules are applicable in international airspace. In case of failure to adopt binding rules, which would have the form of an international convention, a series of safety recommendations could be undertaken, which could serve as guidance for national space safety legislation. Engaging ICAO in the rule making procedure within UNCOPUOS, entails a dual advantage: on the one hand ICAO’s experience is used, on the other hand a coordination with aviation rules and procedures is achieved. However, this would require two things. First, the institutional upgrade of the UNCOPUOS with regulatory powers, which it currently
3.1.5. Apply incremental changes The changes suggested above ought to occur gradually, according to operational needs and technological development. This will facilitate adjustment of the stakeholders to the new conditions, while initial shortcomings can be easier identified and corrected. Moreover, an incremental approach would enable more efficient use of the experience accumulating around manned spaceflights.
7 Compare the approach adopted in the US, which created the Office of Commercial Space Transportation (AST) within the Federal Aviation Agency (FAA), although NASA remains responsible for certain aspects of orbital spaceflight.
8
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lacks. In the alternative, ICAO could be vested with powers to regulate issues related to space safety, a parameter which is currently being discussed [35] and has been raised in the past as well [36]. In both cases, States would have to delegate regulatory powers as to space safety which is not expected to find widespread support among them. However, it should be noted that such delegation is apparent to a significant degree: given that under the current regime outer space is not subject to territorial sovereignty (Arts I and III OST) [6], the regulatory powers of States are limited to space objects registered in their national registries. This leaves a legal vacuum, which can be filled only by rules of international law. Second, enhancing the cooperation between ICAO and UNCOPUOS requires delimitation of outer space, in order to delineate the competence of each of them, as well as the upper limit of State sovereignty in the air space and thus the national regulatory powers. In this regard, there have been suggestions that special regulation may be necessary for ‘protospace’ or ‘near space’, which is the high-altitude atmospheric area between about 18 km and 100 km above mean sea level, not navigable for most aircraft but not considered ‘outer space’ either [37,38]. Such suggestions are interesting, but they constitute in essence more complicated solutions to the delimitation problem. In our view, the most preferable solution would be to set the upper limit of national sovereignty at the airspace at an altitude of 100 km. In any case, the experience from the UNCOPUOS work so far indicates that both requirements would be very difficult to achieve in practice.
on Space Traffic Management [42], followed by a further study in 2017 [43]. Moreover, the International Association for the Advancement of Space Safety (IAASS) and the Society of Automotive Engineers International (SAE Int.) have developed space safety performance requirements, in the form of a Space Safety Standard for Commercial HumanRated System (IAASS-SSI-1700 Safety Standard: Commercial HumanRated Space Systems). The IAASS is going to establish a commercial Space Safety Institute to offer safety certification services on a commercial basis based on this Standard [13]. Private international standards and certification are expected to play an increasingly important role in international coordination and legal certainty for private space actors, at least to some extent, for two reasons: First, in view of the reluctance of States to establish international space safety rules. Second, in view of the very limited technical expertise of most States on manned spaceflights [34,44], given that so far very few States have organized or participated in manned space programs. Such standards should be performance-based to enable flexibility and promote innovation [34,44]. 3.2.4. Europe: coordinate and formalize institutional arrangements In Europe, comprehensive institutional arrangements are needed to delineate the exact competences of the EU, its MS and ESA. In the long term, there should be seamless cooperation of all institutions and agencies involved, to create uniform aerospace rules applicable to all vehicles. However, the likelihood of achieving such result is rather low, given that there are very diverse views in Europe on how such things should be regulated regarding both institutional and technical issues.
3.2.2. Create a single international organization for all flights After the institutional cooperation on international air and space law has been achieved, the next step would be to create a single organization with competence for all flights. This is a very ambitious objective. Various suggestions thereon have been submitted, e.g. creating an International Space Safety Organization [39], or extending ICAO’s authority by amending the definition of ‘aircraft’ or issuing a new Annex on ‘Space Standards’ under Art. 37 of the Chicago Convention [40]. We believe that the creation of an International Space Safety Organization is currently unrealistic. Extending ICAO’s authority to cover spaceflights would be an attractive solution in the long term. Yet, it would require an amendment of the Chicago Convention, because it would significantly extend its scope. Spaceflight is not aviation and cannot be regarded as such. At the same time, merely amending the definition of ‘aircraft’ to cover flights of space objects in the airspace may solve some issues of Air Traffic Management, but risks creating other problems, like applicability of aviation safety processes and crew licensing to spaceflights. To achieve congruent solutions, it would be necessary, among many other things, to conduct a comprehensive review of all Technical Annexes to the Chicago Convention, to ensure adjustment with the particularities of spaceflights [41]. Moreover, States will have to agree on the delimitation of outer space, to clarify national sovereignty issues and thus the ambit of the international rules. Thus, comprehensive amendments would be required and current political conditions among States are not favorable thereto. Nonetheless, technological advancements are expected to bring space transportation between an Earth point to another Earth point or to Low Earth Orbit close to what we already have in aviation. This will make the sharp distinction between aviation and space flights obsolete and will underline the need for a global unified approach.
4. Conclusion Under current regime, space safety regulation is fragmented into national and international rules of air law and space law. Such fragmentation compromises the safety of both aviation and spaceflights in the airspace, of the persons involved in flight operations and of the uninvolved public. At the same time, it creates legal uncertainty, increases administrative burden, hinders innovation and distorts competition. As a result, the current regime distinguishes unnecessarily on the one hand between different users of airspace, and on the other hand between spacecraft operators depending on the technology used. The causes of such fragmentation are rooted in the dichotomy between the air and space law regimes, the status quo bias, the perceived lack of necessity to modernize regulation, national security concerns of the States, and the lack of common understanding as to the actions needed. In the case of the EU, additional complicating factors are the allocation of competences between the EU and its MS and between the EU and ESA. To overcome this situation, a series of steps could be undertaken at national and international level. At national level, the potential losses for the industry and the national economy could be underlined to create an incentive for policy makers to prioritize regulation of space safety as a policy objective. Then, the current rules should be evaluated, to identify concrete regulatory needs, alongside with the creation of a special agency with competence for all flights. New rules should be performance-based and be guided by the rules in force for aviation, albeit with great caution and the necessary modifications, to account for the particularities of spaceflights. Regulatory changes should be incremental, according to operational needs and technological development, in order to facilitate adjustment and corrections, and avoid overregulation. At international level, the first step should be to vest safety ICAO or UNCOPUOS with regulatory powers on space. ICAO’s experience would assist significantly in this regard. As a next step, a single international organization should be created to deal with the changing operational environment and the blurring of aviation with space flights. At the same time, private international cooperation efforts should be encouraged,
3.2.3. Encourage development of international standards Notwithstanding efforts and regulation at State level, development of unofficial international standards and recommendations ought to be encouraged. Such course of action could on the one hand substitute for the failure of States to coordinate their efforts at an official level, and on the other hand motivate States to undertake action themselves. In this regard, a number of significant international initiatives have taken place. Among others, one could mention the 2006 Cosmic Study 217
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which could compensate for the reluctance of States to coordinate at international level and encourage States to become more active. Overall, although international coordinated efforts would be preferable, the experience so far has shown that space safety remains largely a national issue. Therefore, it would be more realistic to start the coordination procedures at national level and create pressure at the international level through national delegations and private initiatives. In other words, the most feasible approach in the short and medium term would be a combination of national safety rules with international private standards. International legal rules on space safety are most likely to be established at a later stage. In any case, rigorous enforcement of safety rules, whether national or international, public or private is crucial, because complacency as to safety is easy to occur and may have devastating consequences. Despite the practical difficulties in establishing a uniform flight safety regulatory system, we believe that such action is necessary, in order to enhance the safety of all flights in airspace, create legal certainty for spaceflight operators, reduce regulatory compliance costs, and promote fair competition and technological innovation.
[19] Committee on the Peaceful Uses of Outer Space Secretariat Report, Historical summary on the consideration of the question on the definition and delimitation of outer space, submitted to the legal subcommittee at its 41st session (2-12 April 2002), A/AC.105/769 and Corr.1, http://undocs.org/A/AC.105/769 (accessed 29 Aug. 2019) [20] Report of the Committee on the Peaceful Uses of Outer Space, 59th Session (2016), https://digitallibrary.un.org/record/838421 (accessed 29 Aug. 2019), para. 166. [21] M. Chatzipanagiotis, Regulating the safety of suborbital flights in Europe: navigating through the Labyrinth of competences of the EU, Member States and EASA, paper presented in the 64th International Astronautical Congress, Beijing, 2013, 15 Apr. 2014, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424764 (accessed 29 Aug. 2019). [22] European Space Agency, ESA and the EU https://www.esa.int/About_Us/Welcome_ to_ESA/ESA_and_the_EU (accessed 29 Aug. 2019). [23] Proposal for a Regulation of the European Parliament and of the Council establishing the space programme of the Union and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, Brussels, 6.6.2018 COM(2018) 447 final, https:www.//eur-lex.europa.eu/resource.html?uri=cellar:33f7d93e-6af6-11e8-948301aa75ed71a1.0003.03/DOC_1&format=PDF (accessed 29 Aug. 2019). [24] M. Chatzipanagiotis, in: The Legal Status of Space Tourists in the Framework of Commercial Suborbital Flights, Carl Heymanns, Cologne, 2011, pp. 15–17. [25] G.D. Kyriakopoulos, Spaceplanes operating in airspace, in: Search of a Regulatory Regime For Traffic Coordination, 60, Proceedings of the International Institute of Space Law, 2017 Eleven International Publishing, The Hague 2018, pp. 327-340 (333), also available at. [26] Annex 8 to the Convention on International Civil Aviation, Airworthiness of Aircraft, 12th ed. (2018) [27] D. Kahnemann, A. Tversky, Prospect theory: an analysis of decision under risk, Econometrica 47 (1979) 263–292 (279, 288) https://www.jstor.org/ stable/1914185 . [28] S. Ryan, How loss aversion and conformity threaten organizational change, Harvard business review, 25 Nov. 2016, https://hbr.org/2016/11/how-lossaversion-and-conformity-threaten-organizational-change (accessed 29 Aug. 2019) [29] FAA, About the Office of Commercial Space Transportation, https://www. faa.gov/about/office_org/headquarters_offices/ast/about/ (accessed 29 Aug. 2019) [30] FAA, Office of Commercial Space Transportation, COMSTAC, https://www.faa.gov/ about/office_org/headquarters_offices/ast/advisory_committee/ (accessed 29 Aug. 2019) [31] NASA, Commercial Crew Program - Essentials, https://www.nasa.gov/content/ commercial-crew-program-the-essentials (accessed 29 Aug. 2019) [32] Space Industry Act 2018, http://www.legislation.gov.uk/ukpga/2018/5/contents/ enacted (accessed 29 Aug. 2019). [33] UK Space Agency, Guidance - Applying for a future licence under the Space Industry Act, 8 Febr. 2019, https://www.gov.uk/guidance/applying-for-a-futurelicence-under-the-space-industry-act (accessed 29 Aug. 2019) [34] T. Sgobba, M. Kezirian, Commercial human spaceflight: what regulation? J. Space Saf. Eng. 3 (1) (2016) 4–10, doi:10.1016/S2468-8967(16)30002-7. [35] ICAO Press release, Aviation legal experts confront new operational and technological challenges, 2018, https://www.icao.int/Newsroom/Pages/Aviationlegal-experts-confront-new-operational-and-technological-challenges-.aspx (accessed 29 Aug. 2019). [36] ICAO Council Working Paper, Concept of suborbital flights, 175th session, CWP/12436 (30 May 2005), https://www.icao.int/Meetings/LC36/ Working%20Papers/LC%2036%20-%20WP%203-2.en.pdf (accessed 29 Aug. 2019). [37] , Private Commercial Space Enterprises and Global Governance System, Global Space Governance: An International Study, in: R.S. Jakhu, J.N. Pelton, et al. (Eds.), Private Commercial Space Enterprises and Global Governance System, Global Space Governance: An International Study, Springer, Cham, 2017, pp. 116–117, doi:10.1007/978-3-319-54364-2_510.1007/978-3-319-54364-2. [38] H. Liu, F. Tronchetti, Regulating near-space activities: using the precedent of the exclusive economic zone as a model? Ocean Dev. Int. Law 50 (2–3) (2019) 91–116, doi:10.1080/00908320.2018.1548452. [39] Federal Aviation Administration, Concept of operations for commercial transportation in the national airspace system, version 2.0 (11 May 2001), https://www.faa.gov/about/office_org/headquarters_offices/ast/media/CST_ CONOPS_v2.pdf (accessed 29 Aug. 2019), p. 8. [40] , The Need for an Integrated Regulatory Regime for Aviation and Space, in: R.S. Jakhu, T. Sgobba, P.S. Dempsey (Eds.), The Need for an Integrated Regulatory Regime for Aviation and Space, Springer, Wien/New York, 2011, p. 119, doi:10.1007/978-3-7091-0718-8. suggested the extension of ICAO authority to space safety issues. [41] R. Abeyratne, in: Regulation of Commercial Space Transport, Springer, 2015, pp. 60– 103, doi:10.1007/978-3-319-12925-9. Cham et al. [42] International Academy of Astronautics, Cosmic study on space traffic management, https://iaaweb.org/iaa/Studies/spacetraffic.pdf (accessed 29 Aug. 2019) [43] K.U. Schrogl et al. (eds), Space traffic management – Towards a road for implementation, https://shop.iaaweb.org/?q=node/9994 (accessed 29 Aug. 2019) [44] T. Sgobba, Proposal on organizing the industrial cooperation on commercial space safety and technical standards, J. Space Saf. Eng. 2 (2015) 23–30, doi:10.1016/S2468-8967(16)30036-2.
Declaration of Competing Interest None. References [1] Annex 19 to the Convention on International Civil Aviation, Safety Management, first ed. (2013), Chapter I. Definitions. [2] S. Scoles, The wired guide to commercial human spaceflight, posted 31 Jan. 2019, The Wired, https://www.wired.com/story/wired-guide-commercial-space-flight/ [3] L. Grush, SpaceX’s last Falcon 9 upgrade could finally make reusable rockets cost-effective, 2018, The Verge, https://www.theverge.com/2018/5/9/17254384/ spacex-falcon-9-block-5-upgrade-rocket-reusability-savings (accessed 29 Aug. 2019). [4] S. Clark, Virgin Galactic’s SpaceShipTwo completes second powered test flight, 2018, Spaceflight Now, https://spaceflightnow.com/2018/05/30/virgin-galacticsspaceshiptwo-completes-second-powered-test-flight/ (last accessed 29 Aug. 2019). [5] Convention on International Civil Aviation, signed at Chicago on 7 Dec. 1944, entered into force on 4 April 1947, (1994) 15U.N.T.S. 295 (Chicago Convention - CC). [6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, adopted on 19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967, 610 U.N.T.S. 205 (Outer Space Treaty – OST). [7] ALPA White Paper, Addressing the challenges to aviation from evolving space transportation, 2018, http://www.alpa.org/∼/media/ALPA/Files/pdfs/newsevents/white-papers/white-paper-aviation-space.pdf (accessed 29 Aug. 2019) [8] J. Jung and M. Kee, SpaceX Falcon 9/Dragon operations NAS impact and operational analysis, 2014, https://www.researchgate.net/publication/264002541_SpaceX_ Falcon_9Dragon_Operations_NAS_Impact_and_Operational_Analysis (accessed 29 Aug. 2019), at 33-34 [9] T. Masson-Zwaan, R. Moro-Aguilar, Regulating private human spaceflight at the international and European level: tendencies and suggestions, Acta Astronaut. 92 (252) (2013) 243–254, doi:10.1016/j.actaastro.2012.11.002. [10] W. Samuelson, R. Zeckhauser, Status Quo Bias in decision making, J. Risk Uncertain. 1 (1) (1988) 7–59, doi:10.1007/BF00055564. [11] R. Fernandez, D. Rodrik, Resistance to reform: status Quo Bias in the presence of Individual- Specific Uncertainty, Am. Econ. Rev. 81 (1154–1155) (1991) 1146–1155 https://www.jstor.org/stable/2006910. [12] E M. Spranca, E. Minsk, J. Baron, Omission and commission in judgment and choice, J. Exp. Soc. Psychol. 27 (1) (1991) 76–105. (1991), doi:10.1016/0022-1031(91)90011-T. [13] International Association for the Advancement of Space Safety – Standards, http://iaass.space-safety.org/publications/standards/ (accessed 29 Aug. 2019) [14] NASA Procedural Requirements, Human-Rating requirements for space systems, NPR 8705.2C, https://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPR&c=8705&s=2C (accessed 29 Aug. 2019) [15] Office of Inspector General, NASA’s challengers certifying and acquiring commercial crew transportation services, 2011, https://oig.nasa.gov/docs/IG-11-022.pdf (accessed 29 Aug. 2019) [16] 14 CFR Parts 401, 415, 431, 435, 440 and 460, Human Space Flight Requirements for Crew and Space Flight Participants, 15 December 2006, 71 FR 77262-77290 https://www.govinfo.gov/content/pkg/FR-2006-12-15/pdf/E6-21193.pdf [17] Space Industry Act 2018, Explanatory notes, http://www.legislation.gov.uk/ukpga/ 2018/5/pdfs/ukpgaen_20180005_en.pdf (accessed 29 Aug. 2019) [18] ICAO Doc. 4444, Procedures for Air Navigation Services – Air Traffic Management, 16th ed. (2016)
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Contents lists available at ScienceDirect
Journal of Space Safety Engineering journal homepage: www.elsevier.com/locate/jsse
‘One-stop shop’ space safety regulation: Should we do it and how? Michael Chatzipanagiotis a,∗, George Kyriakopoulos b a b
University of Cyprus, 1 Panepistimiou Ave., 2109 Nicosia, Cyprus National and Kapodistrian University of Athens, 47 Akadimias Str., 10672, Athens, Greece
a r t i c l e
i n f o
Keywords: Space safety Regulation Space law Air law International law Manned spaceflight Safety standards
a b s t r a c t The significant increase of manned private space activities brings to the fore the discussion about the appropriateness and the feasibility of a ‘one-stop shop’ space safety regulation. At national level, both outer space and aviation authorities could be competent for the safety of private manned spaceflights. At international level, there seems to be no common understanding on safety requirements for manned spaceflights, contrary to what is in force in aviation. Thus, to comply with the applicable safety requirements a private operator may have to adhere to a plurality of national and international safety provisions, the scope of which is often uncertain, but the oversight of which belongs often to different authorities. This paper examines the reasons for such situation and proposes possible solutions. One cause is regulatory and oversight “inertia” and habit, i.e. national agencies are used to have specific competencies for specific issues and encounter difficulties in adjusting to new situations either by relinquishing or assuming new responsibilities. Another reason, at both national and international level, is the traditional dichotomy between the fields of aviation and space law, which have been developed independent from each other, based on different principles and situations. At international level, despite the freedom of use of outer space, States often act unilaterally and connect outer space with national security, which makes them reluctant to delimitate outer space and entrust an international organization with promulgation of safety regulations. In addition, private manned spaceflights are just starting to develop their potential, which means that so far uniform regulation appeared to be no real necessity. To overcome these issues, at national level, a mixed aviation and space (aerospace) authority could be created, which would combine expertise from both fields. Such authority should be competent for all flights into/from outer space (orbital, suborbital, deep space) and in airspace. Furthermore, new rules applicable to all spaceflights, irrespective of their specifications, could be developed, or existing rules could be amended to accommodate spaceflights. At international level, such a task would require either the expansion of regulatory authority of the International Civil Aviation Organization (ICAO) to spaceflights or the institutional upgrading of the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS) to an autonomous international spaceflight organization, with powers to issue uniform technical safety standards. Ultimately, an international organization competent for all flights should be created. In the meantime, private international initiatives in the form of private certification standards are expected to play a key role.
1. Introduction – current situation Safety could be defined as a set of rules, procedures and practices whose objective is to minimize the risks of events (potentially) hazardous to persons and property, which arise from concrete activities. In aviation, safety is officially defined as the state in which risks associated with aviation activities, related to, or in direct support of, the operation of aircraft, are reduced and controlled to an acceptable level [1], e.g. aircraft certification, personnel licensing, air traffic management, operational approvals of airports, etc.
∗
Manned spaceflight has been until recently a State endeavor and yet only three States have, so far, developed the technical capacity to sent humans into outer space: the US, Russia/Soviet Union and China. Nonetheless, in the last fifteen years there has been a growing interest by private companies to offer spaceflights and a series of projects to develop appropriate vehicles are ongoing [2]. In the context of private manned spaceflights, there are two significant developments: (a) reusable hardware is expected to drop the cost and increase the frequency of spaceflights [3], (b) hybrid vehicles have been developed or are being developed, which combine flight specifications of air-
Corresponding author. E-mail addresses: [email protected] (M. Chatzipanagiotis), [email protected] (G. Kyriakopoulos).
https://doi.org/10.1016/j.jsse.2019.09.002 Received 7 August 2019; Received in revised form 4 September 2019; Accepted 5 September 2019 Available online 20 September 2019 2468-8967/© 2019 International Association for the Advancement of Space Safety. Published by Elsevier Ltd. All rights reserved.
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craft (air breathing engines and gliding in the atmosphere)1 with ballistic flights (mainly rocket propulsion) [4]. In aviation, safety is governed to a significant extent by global safety standards, issued by the International Civil Aviation Organization (ICAO) according to Art. 37 of the Chicago Convention (CC) and the Annexes thereto [5] and specified by national rules. Safety regulation in aviation comprises rigorous rules and lengthy procedures. On the contrary, there are no international space safety provisions, while for spaceflights there is no equivalent of ICAO. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), in which space regulatory issues are discussed, has no regulatory powers. However, Art. VI of the Outer Space Treaty (OST) [6] obliges States to ensure the safety of spaceflights, which is achieved through a national procedure for licensing of space activities. Although each State lays down its own requirements for licensing of national space activities, such requirements are much less onerous than these of aviation. Consequently, there is a regulatory fragmentation as to safety of flights, depending on whether they qualify as aviation flights, spaceflights or both. This paper examines whether we should have a “one-stop shop” safety regulation and, in the affirmative, how we could achieve this. Such safety regulation means the establishment of a uniform set of rules and procedures for all flying devices, both aircraft and space objects, with a single authority in charge of regulatory implementation and supervision. Regulatory uniformity does not entail that all flying devices will be subject to exactly the same rules and procedures, but that there will be an integrated and highly coordinated regulatory safety system. In order to answer the question of the necessity and usefulness of a “one-stop shop” safety regulation, we indentify the consequences of safety fragmentation at national and international level (Part 1), which indicate the need for action. To find out how a uniform set of regulation could be established, the causes of the current fragmentation must be approached (Part 2), in order to be able to suggest concrete measures on how such causes could be remedied (Part 3), at both national and international level.
need to overcome many operational issues such as hazardous fueling, noise abatement, traffic volume/capacity, and controller workload [7]. 1.3. Legal uncertainty - Increased administrative burden The current legal regime causes great legal uncertainty to operators and manufacturers, which brings about a series of other effects [9]. To begin with, operators and manufacturers would have to go through potentially long and expensive bureaucratic procedures. Instead of having to address a predefined national authority, they have to first inquire whether under the applicable national regulations their vehicle is seen as an ‘aircraft’, a space object or both, whether their vehicle has to be certified as an aircraft or licensed as a space object or both, and what are the exact requirements to be met. The answer to all these questions could be given only on an individual basis, taking into account the specifications and the flight profile of each vehicle, the States where the operations will be conducted from, as well as the nationality of the operator and the manufacturer. Furthermore, safety rules are connected with liability issues: violation of the former may entail application of the latter, as it might establish negligence. The legal uncertainty as to the exact safety rules applicable creates uncertainty as to liability exposure – which in turn affects the cost and the extent of insurance cover. In addition, a segregated legal regime increases the risk of litigation in case of an accident, because claimants could attempt to benefit from the grey areas in safety regulations, to achieve higher compensation, and might be less willing to reach an out-of-court settlement. 1.4. Distortion of competition A segregated regime creates the danger of undermining the level playing field for manufacturers and operators. Manufacturers and operators whose vehicles fulfill the definition of aircraft would be obliged to abide by also the aviation safety regulations. Such process would entail additional, non-negligible costs in money and time. Thus, commercial operations would start later than technically practicable and perhaps at an additional cost for passengers, if operators decided to pass on part of the compliance cost to customers. At the same time, operators should have their vehicles licensed under the applicable national law for the space part of the flight. As a result, operators of hybrid vehicles would have to deal with both aviation and space authorities. On the contrary, manufacturers and operators of vehicles that do not qualify as aircraft would only need to obtain a license for space operations. Compared to their competitors with hybrid vehicles, these manufacturers and operators could save time and money, which they could invest to promote their business. In this regard, also the savings in time play a significant role - they would at least allow them to start earlier commercial operations and thus be established earlier in the market. Hence, they could gain a competitive advantage. As a result, the application of the current regime risks distorting the competition.
1.1. Consequences of fragmentation The consequences of fragmentation are multi-faceted. They related to operational, legal and economic parameters. 1.2. Compromise of safety – disruption of operations Technological progress and proliferation of private spaceflights entail that airspace is shared at an increasing rate by flying vehicles with a variety of flight characteristics and operational modes. Yet, these vehicles may be subject to different safety rules (aviation, space, or both), which can compromise the safety of flights and/or disrupt flight operations. A typical example of the current situation presents the White Paper of the Air Line Pilot Association International (ALPA) on the negative impact of space operations to air travel in the US [7]. The White Paper warns that the current fragmentation of safety regulation and segregation of airspace for space operations cause flight delays and flight plan alterations, increase the distance flown and the flight times, may lead to flight cancellations, and affect adversely crew duty cycles, gate slot management and fuel burn. Such risks have been identified by an older FAA study as well [8]. Moreover, the White Paper indicates that space launch operations near airports pose a safety risk to the public as well as to commercial aviation: Spaceports in the vicinity of airports would
1.5. Hindrance of innovation The competitive disadvantage entailed by the lack of an integrated regulation process could also affect innovation. Since the design and use of vehicles that resemble aircraft would be connected with lengthier and costlier regulatory procedures, a preference for exclusively rocketpropelled vehicles, which are not ‘aircraft’,2 might be promoted. Hence, operators and manufacturers would have to consider in the design and operation of their vehicles not only technical but also regulatory parameters. Innovation would be guided towards vehicles of a certain design
1 ICAO defines an aircraft as ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface’ – see e.g. Annex 8 to the Convention on International Civil Aviation Airworthiness of Aircraft, Part I. Definitions (Tenth Edition, April 2005). However, States are free to adopt other definitions in their national legislation for flights in national airspace.
2
213
See the ICAO definition of aircraft supra note 1.
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and configuration, instead of being completely free to develop according to exclusively technical and economic criteria. Options that could be advantageous from a technical view might not be preferred because of their regulatory implications. Consequently, innovation could be hampered.
happening or are about to happen very soon. The exact identification of the problem enables us to analyze its different aspects, identify the benefits and risks for all stakeholders involved, and balance the competing interests. Therefore, it is unlikely that governments will classify as a legislative priority a problem which is unlikely to arise in the near future and whose exact parameters cannot be currently specified. To illustrate, safety issues of private manned commercial spaceflight arose, when NASA decided to use private spacecraft for the carriage of US astronauts to and from the ISS, which resulted in issuing of special certification standards and processes [14,15]. Perceived necessity may also have the form of anticipated economic and technological gains through the establishment of regulatory measures that create legal certainty and promote industry development. The imminence of private suborbital flights resulted in changes to the US space legislation [16]. In the UK, the Space Industry Act 2018 was enacted after year-long consultation, to promote the local aerospace industry and enhance the attractiveness of UK territory as a base for commercial space operations [17].
2. Causes of fragmentation of safety regulation In order to find solutions to the current unsatisfying situation, we need to identify the causes of fragmentation. Such causes could be found at national and international level. 2.1. At national level 2.1.1. Dichotomy between air and space law Lack of unified procedures can be explained by the dichotomy between aviation and space regulations. These sets of regulations are mostly distinct from each other and are governed by different principles and policies. Aviation is characterized by massive, routine commercial operations. Aviation flights have been conducted for more than 100 years, during which significant experience as to safety shortcomings has been gained. Aviation flights occur exclusively in the atmospheric space, which is a relatively safe, predictable environment. There are also many detailed national technical rules on aviation safety, which are modeled to and specify the international standards and recommended practices developed by the International Civil Aviation Organization. On the contrary, space flights began about 55 years later than aviation flights and their missions related mostly to national security and science – at least in the early days. Spaceflights have been scarce, compared to aviation, and occur partly in outer space, which is a highly dangerous and hostile environment. Moreover, the physics of a spaceflight is significantly different than that of an aviation flight, while there are hardly any internationally developed safety standards.
2.2. At international level At international level, the causes of fragmentation of safety rules are similar to the causes at national level. There are, however, some additional complicating factors. 2.2.1. Dichotomy between air and space law The dichotomy between air and space law, which was mentioned above, has its roots in the significantly different international legal rules governing each activity. In air law, the experience of two world wars, during which the aircraft proved to be a very successful weapon, led to the recognition of absolute State sovereignty in the airspace (Art. 1 CC) [5]. Thus, each State has the exclusive competence to lay down safety regulations in its national airspace regarding both aviation and space flights. At the same time, however, the rapid and extensive development of international air travel resulted in the development of uniform international technical rules on aviation safety, which serve as the basis for more detailed national rules. In addition, in international airspace there are concrete international rules in force by virtue of Art. 12 CC [5],4 the Annexes to the CC (mainly Annex 2 Rules of the Air and Annex 11 Air Traffic Services), regional air navigation plans, as well as special technical documents issued by the ICAO [18]. Yet, these rules apply only to ‘aircraft’. Space law was developed during the Cold War and the Space Race. A peculiar combination of mutual distrust and fear between the two major space powers of the time (US and USSR) with idealism as to the use of outer space, to which Art. I OST refers as ‘province of mankind’ [6], has resulted in the prohibition of appropriation of the outer space and the celestial bodies (Art. VI OST) [6]. Consequently, activities in outer space are governed by general international law (Art. III OST) [6]. From the perspective of international law, the applicability of national space safety rules is limited to space objects registered in the national registry of the respective State (Art. VIII OST) [6]. The problem is that there is no international organization for outer space, as is ICAO for aviation, with authority to establish safety regulations. There are only a few ad hoc safety rules laid down for specific international projects, such as the ISS. As a result, under current international law there are two main different regimes: air law and space law, both of which incorporate a mix-
2.1.2. Status quo bias The dichotomy between air and space law has led to the development of distinct sets of rules and the creation of separate authorities. These authorities have their own personnel, their own administration and often their own budget. So far, they have been working with limited contact to each other. This is the current situation, the status quo, which is difficult to change, because decision makers have a strong tendency to prefer the state of things as they are, despite the possible existence of better alternatives (status quo bias) [10]. One reason for status quo bias is the uncertainty regarding potential losses in view of the new, unkown situation - ‘better the devil you know than the devil you do not’ [10,11]. Moreover, people tend to prefer harmful omissions to correspondingly harmful actions. Even when a decision results in both benefits and losses, omissions are preferred [12]. In the administrative and regulatory context, status quo bias often takes the form reluctance to give up existing powers or accept new responsibilities, since these are connected with reorganization of staff, resources and personal status. 2.1.3. Perceived lack of necessity “Discontent is the first necessity of progress” according to Thomas Edison, a quote cited also at the website of the International Association for the Advancement of Space Safety [13]. In the same vein, discontent is the first necessity of new regulation. For governments to feel discontent there must be a situation that creates ‘real’ problems, which cannot be adequately solved by the current legal framework.3 ‘Real’ problems require situations that are already
perience on private manned spaceflights is gathered (‘learning period’); however, the FAA may establish such rules to prohibit or restrict design features that have resulted in serious injury or property damage or pose a high risk in this regard. 4 Art. 12 CC, third sentence provides that ‘Over the high seas, the rules in force shall be those established under this Convention.’.
3 Compare 51 U.S.C. § 50905(c), which prohibits the FAA from laying down safety regulations for commercial spaceflights until 1 October 2023, so that ex-
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ture of international and national rules. The issue is exacerbated by the lack of delimitation of outer space in relation to air space, which renders even more difficult the identification of the applicable rules (air law/space law, national/international law). The issue of delimitation has been debated at the UNCOPUOS since 1967, without reaching an agreement so far [19].
to a certain extent [22]. However, the recent EU proposal for a Regulation ‘establishing the Space Programme of the Union and the European Union Agency for the Space Programme’ (6.6.2018) [23] could seriously lead to complexity, given the space safety activities of the European Space Agency.6 3. Overcoming fragmentation
2.2.2. National security concerns In the airspace there are not visible borders, while in outer space there are no national borders at all (Art. II OST) [6]. Yet both spaces are crucial for national security purposes, as the experience of two world wars and the Cold War has demonstrated. Accepting international regulation of any kind is perceived by many States as a potential national security risk, because they will have to give up a part of national decisionmaking competency to an international body. While delegation of certain State powers has been achieved in the context of aviation under the 1944 Chicago Convention, outer space seems to be a much more sensitive area from a security perspective, since the current international regime allows States to take advantage of the grey areas between freedom of use and prohibition of appropriation. As a result, States prefer to reserve for themselves as many powers as possible.
The fragmentation of safety rules mentioned above calls for specific solutions. In this regard, a quite popular approach, which refers mainly to the dichotomy between air and space law, suggests that we should refer to the mission of the flight and the technical characteristics of the vehicles (functional theory) [24]. Space law rules should apply, if vehicles that do not qualify as ‘aircraft’ are employed for the exploration and use of outer space. On the contrary, air law safety regulations would be applicable if ‘aircraft’ are used for point-to-point transportation. However, both technological developments, such as the use of hybrid vehicles, and operational parameters, like the sharing of airspace with air traffic at the beginning and the end of a space exploration mission, render such solution inappropriate [24]. Therefore, an integrated approach is necessary [25]. There should be uniform rules, whose core is applicable to all spaceflights, irrespective of their technical specifications and their mission objective. However, this is without prejudice to necessary differentiations at the detailed, implementing level, as has happened already in aviation, e.g. the differentiation between ‘aeroplanes’ and ‘helicopters’ in aviation, all of which being ‘aircraft’ [26].
2.2.3. Perceived lack of necessity Reflecting situations at national level, in the international field, a perception of necessity to regulate current pressing problems is the main drive for international lawmaking of any kind. Such perception may change according to the circumstances, especially if a high-profile event occurs.5 However, hypothetical scenario or long-term benefits usually do not suffice. Hence, discussions at UNCOPUOS on the delimitation of outer space, which have also safety implications, have been conducted for more than 60 years. Nevertheless, many States are reluctant to find a solution to a problem that they view as theoretical [20]. Only once they perceive such problem as necessary to solve an urgent issue, are States motivated to act. As a result, there were vivid discussions within UNCOPUOS on the issue of delimitation, shortly before the Space Shuttle becomes operational, yet they returned to low-priority level, once the issue was settled by other means. Thus, to change the status quo, governments must feel a kind of pressure from the facts. An additional factor is that no international point-to-point (PTP) spaceflights are envisaged for the near future. The technology for safe and affordable PTP space travel has not been fully developed yet.
3.1. At national level At national level, appropriate steps need to be taken to create unified flight-safety legislation, under the authority of a single governmental agency. 3.1.1. Define areas most affected and Emphasize potential losses from lack of coordinated regulation At a preliminary stage, policymakers need to be convinced for the necessity of coordinated safety regulation and procedures. People, including policymakers, tend to react more to losses than to gains [27]. Therefore, framing a situation in terms of potential losses, instead of potential gains, creates a stronger incentive for action [28]. This becomes more effective, if the long-term costs of an ineffective status quo are underlined [7]. To motivate policymakers to adopt an integrated safety system for aviation and space flights, interested stakeholders should underline the risks that lack of such coordination entails. Nonetheless, the risk invoked should be adapted to the audience one seeks to convince. To persuade policymakers, who are concerned with more generic issues, it would be preferable to focus on wider risks for the national economy, such as the loss of technological competitiveness, slowing of economic growth, leakage of specialized personnel to other countries etc. An illustration of such risks should be made by using data from the domains most affected currently and in the near future by such lack of coordination. For example, current segregated procedures for spaceflights affect Air Traffic Management and airline operations, with wider impact on the travelling public [7].
2.2.4. Lack of common understanding Related to the lack of perceived necessity, there appears to be a lack of common understanding among States as to the exact content of space safety regulation. States have often very different views on what is needed and why in terms of safety standards. Such views are influenced by a variety of factors, including national security considerations, economic objectives, protection of the national space industry etc. 2.2.5. Institutional barriers Regarding Europe, there are also institutional hurdles that have contributed to regulatory fragmentation. On the one hand, there is the allocation of competences between the EU and its Member States (MS). While aviation safety is regulated mainly at EU level as a shared competence, space policy has been reserved mainly to MS. Thus, in aviation the regulatory competence belongs mainly to the EU, while in spaceflights competent are the MS [21]. On the other hand, there are two intergovernmental organizations responsible for space in Europe: the EU and the European Space Agency (ESA). The relationship between the two is not absolutely clear, although there are institutional arrangements in place that clarify things
6 It is worth mentioning that, according to ESA, “ESA’s understanding is to continue to be ’THE Space Agency of its Member States and for the EU’, see ESA Press Release No 13-2018, dated 6 June 2018, The European Space Agency welcomes European Commission’s proposal on space activities, https:// www.esa.int/For_Media/Press_Releases/The_European_Space_Agency_welcomes_ European_Commission_s_proposal_on_space_activities (last accessed 29 Aug. 2019).
5 E.g. the 9/11 terrorist attacks prompted negotiations on a new convention regarding the third-party liability of aircraft operators.
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3.1.2. Set integrated safety as a policy objective and prioritize it The first step for the integration of safety regulation is to set it as a national policy objective and place it high in the list of safety priorities. Policy objectives define the framework in which the content of the legal rules is developed. Prioritizing integrated safety rules and procedures contributes to the allocation of adequate resources and the intensification of efforts for achieving the objective.
3.1.6. The examples of US and the UK The US is the first country to have developed uniform rules applicable to all vehicles, at least concerning sub-orbital flights, and designated a single agency for safety issues. The Federal Aviation Administration Office for Commercial Space Transportation (FAA/AST) has been established as the US authority competent for regulating the safety of commercial spaceflight activities and issuing the necessary licenses [29]. The FAA/AST is assisted by the Commercial Space Transportation Advisory Committee (COMSTAC), which provides advice and recommendations [30]. In principle, US legislation does not provide for certification of commercial spaceflight systems. Nevertheless, there are special certification rules especially for commercial space transportation of NASA astronauts to and from the ISS in the framework of NASA Commercial Crew Program [31]. In the UK the Space Industry Act 2018 (SIA) [32] has been largely influenced by the situation in the US, yet the end result as to the competent authorities is different. The SIA contains safety provisions for all spaceflights conducted from UK territory. However, the authority competent for safety regulation depends on the type of the flight (the UK Space Agency is responsible for orbital flights, while the Civil Aviation Authority is responsible for suborbital and stratospheric flights) and the type of the vehicle (rocket flights fall under the competence of the UK Space Agency), while the Health and Safety Executive (HSE) is responsible for safety issues on the ground [33]. Thus, there is no ‘one-stop shop’ for safety regulation in the UK. In any case, crucial details on safety regulation of spaceflights conducted from the UK will be determined by implementing regulations, which have not yet been issued.
3.1.3. Evaluate existing rules and identify regulatory needs The effective implementation of integrated safety policy requires evaluation of the existing space safety rules as to their suitability in the new operational environment. Such evaluation should be conducted by mixed groups of experts, comprising persons from different scientific disciplines and with different professional origin (government, industry and academia). The combined input of experts will provide guidance as to the rules that should be maintained, modified or replaced. The organization of the aviation safety system could serve as an example for spaceflights. Nevertheless, great caution is required. A replication of aviation safety regulations would hardly be possible and suitable, because they have been developed based on significantly different situations than those of spaceflights, e.g. conditions of flight, technological development, experience on accidents etc. In this regard, the development of special safety standards could be recommended, which would be used for the certification of vehicles, organizations and procedures, as well as for personnel licensing [7]. To enable flexibility and not stifle innovation, such standards should be performance-based, meaning that the desired outcome should be prescribed, while the means of achieving such outcome should be left to manufacturers and operators to decide.
3.2. At international level Creating an integrated regime at international level is more challenging, because many more actors are involved with a variety of competing interests, while lack of point-to-point international space transport makes States reluctant to coordinate. Nonetheless, also at international level an incremental approach could be followed, taking the steps described below.
3.1.4. Create a special agency with mixed personnel Implementation of safety regulation and safety oversight should be entrusted to a single agency, responsible for both aviation and space flights. Such agency could be organized into different directorates, to consider major operational differences among the regulated and supervised entities, such as commercial aircraft operators, general aviation operators, suborbital vehicle operators, etc. However, all directorates should communicate with each other and be subject to the same general overarching rules and procedures, with a person (e.g. a General Director) or a board being responsible for the coordination of the system. Such agency could be created by either annexing national space agencies to the existing Civil Aviation Authorities (CAAs)7 or by merging the national space agencies with the CAAs into a new agency. In any case, the single agency should be provided with adequate human and financial resources, including legal support, to be able to cope with the expected increase in commercial human space operations. This single agency will also have the task of coordination with other governmental agencies and authorities, the activities of which could affect the safety of flights or be affected by flights, e.g. military authorities, agencies responsible for other modes of transport, telecommunications authorities, etc.
3.2.1. Enhance institutional cooperation between ICAO and COPUOS As a first step, the institutional cooperation between ICAO and UNCOPUOS, which are the global decision-making fora regarding flights, should be strengthened. In this regard, it has been suggested [34] that ICAO should perform safety oversight of commercial space launch and reentry/return operations that make use of the international airspace, while UNCOPUOS should promote the establishment of an international regulatory framework for space traffic management and space environment protection. Such cooperation would be supplemented by self-regulation of the commercial human spaceflight industry, which should establish a Space Safety Institute for developing and enforcing private standards. We recognize the merits of such proposal, but we find it unnecessary at this point to discuss the exact allocation of responsibilities between the two organizations.8 In our view, the core issue is that UNCOPUOS could use the experience of ICAO to develop a set of basic international rules on spaceflight safety, which would be applicable in outer space, just like the ICAO rules are applicable in international airspace. In case of failure to adopt binding rules, which would have the form of an international convention, a series of safety recommendations could be undertaken, which could serve as guidance for national space safety legislation. Engaging ICAO in the rule making procedure within UNCOPUOS, entails a dual advantage: on the one hand ICAO’s experience is used, on the other hand a coordination with aviation rules and procedures is achieved. However, this would require two things. First, the institutional upgrade of the UNCOPUOS with regulatory powers, which it currently
3.1.5. Apply incremental changes The changes suggested above ought to occur gradually, according to operational needs and technological development. This will facilitate adjustment of the stakeholders to the new conditions, while initial shortcomings can be easier identified and corrected. Moreover, an incremental approach would enable more efficient use of the experience accumulating around manned spaceflights.
7 Compare the approach adopted in the US, which created the Office of Commercial Space Transportation (AST) within the Federal Aviation Agency (FAA), although NASA remains responsible for certain aspects of orbital spaceflight.
8
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lacks. In the alternative, ICAO could be vested with powers to regulate issues related to space safety, a parameter which is currently being discussed [35] and has been raised in the past as well [36]. In both cases, States would have to delegate regulatory powers as to space safety which is not expected to find widespread support among them. However, it should be noted that such delegation is apparent to a significant degree: given that under the current regime outer space is not subject to territorial sovereignty (Arts I and III OST) [6], the regulatory powers of States are limited to space objects registered in their national registries. This leaves a legal vacuum, which can be filled only by rules of international law. Second, enhancing the cooperation between ICAO and UNCOPUOS requires delimitation of outer space, in order to delineate the competence of each of them, as well as the upper limit of State sovereignty in the air space and thus the national regulatory powers. In this regard, there have been suggestions that special regulation may be necessary for ‘protospace’ or ‘near space’, which is the high-altitude atmospheric area between about 18 km and 100 km above mean sea level, not navigable for most aircraft but not considered ‘outer space’ either [37,38]. Such suggestions are interesting, but they constitute in essence more complicated solutions to the delimitation problem. In our view, the most preferable solution would be to set the upper limit of national sovereignty at the airspace at an altitude of 100 km. In any case, the experience from the UNCOPUOS work so far indicates that both requirements would be very difficult to achieve in practice.
on Space Traffic Management [42], followed by a further study in 2017 [43]. Moreover, the International Association for the Advancement of Space Safety (IAASS) and the Society of Automotive Engineers International (SAE Int.) have developed space safety performance requirements, in the form of a Space Safety Standard for Commercial HumanRated System (IAASS-SSI-1700 Safety Standard: Commercial HumanRated Space Systems). The IAASS is going to establish a commercial Space Safety Institute to offer safety certification services on a commercial basis based on this Standard [13]. Private international standards and certification are expected to play an increasingly important role in international coordination and legal certainty for private space actors, at least to some extent, for two reasons: First, in view of the reluctance of States to establish international space safety rules. Second, in view of the very limited technical expertise of most States on manned spaceflights [34,44], given that so far very few States have organized or participated in manned space programs. Such standards should be performance-based to enable flexibility and promote innovation [34,44]. 3.2.4. Europe: coordinate and formalize institutional arrangements In Europe, comprehensive institutional arrangements are needed to delineate the exact competences of the EU, its MS and ESA. In the long term, there should be seamless cooperation of all institutions and agencies involved, to create uniform aerospace rules applicable to all vehicles. However, the likelihood of achieving such result is rather low, given that there are very diverse views in Europe on how such things should be regulated regarding both institutional and technical issues.
3.2.2. Create a single international organization for all flights After the institutional cooperation on international air and space law has been achieved, the next step would be to create a single organization with competence for all flights. This is a very ambitious objective. Various suggestions thereon have been submitted, e.g. creating an International Space Safety Organization [39], or extending ICAO’s authority by amending the definition of ‘aircraft’ or issuing a new Annex on ‘Space Standards’ under Art. 37 of the Chicago Convention [40]. We believe that the creation of an International Space Safety Organization is currently unrealistic. Extending ICAO’s authority to cover spaceflights would be an attractive solution in the long term. Yet, it would require an amendment of the Chicago Convention, because it would significantly extend its scope. Spaceflight is not aviation and cannot be regarded as such. At the same time, merely amending the definition of ‘aircraft’ to cover flights of space objects in the airspace may solve some issues of Air Traffic Management, but risks creating other problems, like applicability of aviation safety processes and crew licensing to spaceflights. To achieve congruent solutions, it would be necessary, among many other things, to conduct a comprehensive review of all Technical Annexes to the Chicago Convention, to ensure adjustment with the particularities of spaceflights [41]. Moreover, States will have to agree on the delimitation of outer space, to clarify national sovereignty issues and thus the ambit of the international rules. Thus, comprehensive amendments would be required and current political conditions among States are not favorable thereto. Nonetheless, technological advancements are expected to bring space transportation between an Earth point to another Earth point or to Low Earth Orbit close to what we already have in aviation. This will make the sharp distinction between aviation and space flights obsolete and will underline the need for a global unified approach.
4. Conclusion Under current regime, space safety regulation is fragmented into national and international rules of air law and space law. Such fragmentation compromises the safety of both aviation and spaceflights in the airspace, of the persons involved in flight operations and of the uninvolved public. At the same time, it creates legal uncertainty, increases administrative burden, hinders innovation and distorts competition. As a result, the current regime distinguishes unnecessarily on the one hand between different users of airspace, and on the other hand between spacecraft operators depending on the technology used. The causes of such fragmentation are rooted in the dichotomy between the air and space law regimes, the status quo bias, the perceived lack of necessity to modernize regulation, national security concerns of the States, and the lack of common understanding as to the actions needed. In the case of the EU, additional complicating factors are the allocation of competences between the EU and its MS and between the EU and ESA. To overcome this situation, a series of steps could be undertaken at national and international level. At national level, the potential losses for the industry and the national economy could be underlined to create an incentive for policy makers to prioritize regulation of space safety as a policy objective. Then, the current rules should be evaluated, to identify concrete regulatory needs, alongside with the creation of a special agency with competence for all flights. New rules should be performance-based and be guided by the rules in force for aviation, albeit with great caution and the necessary modifications, to account for the particularities of spaceflights. Regulatory changes should be incremental, according to operational needs and technological development, in order to facilitate adjustment and corrections, and avoid overregulation. At international level, the first step should be to vest safety ICAO or UNCOPUOS with regulatory powers on space. ICAO’s experience would assist significantly in this regard. As a next step, a single international organization should be created to deal with the changing operational environment and the blurring of aviation with space flights. At the same time, private international cooperation efforts should be encouraged,
3.2.3. Encourage development of international standards Notwithstanding efforts and regulation at State level, development of unofficial international standards and recommendations ought to be encouraged. Such course of action could on the one hand substitute for the failure of States to coordinate their efforts at an official level, and on the other hand motivate States to undertake action themselves. In this regard, a number of significant international initiatives have taken place. Among others, one could mention the 2006 Cosmic Study 217
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which could compensate for the reluctance of States to coordinate at international level and encourage States to become more active. Overall, although international coordinated efforts would be preferable, the experience so far has shown that space safety remains largely a national issue. Therefore, it would be more realistic to start the coordination procedures at national level and create pressure at the international level through national delegations and private initiatives. In other words, the most feasible approach in the short and medium term would be a combination of national safety rules with international private standards. International legal rules on space safety are most likely to be established at a later stage. In any case, rigorous enforcement of safety rules, whether national or international, public or private is crucial, because complacency as to safety is easy to occur and may have devastating consequences. Despite the practical difficulties in establishing a uniform flight safety regulatory system, we believe that such action is necessary, in order to enhance the safety of all flights in airspace, create legal certainty for spaceflight operators, reduce regulatory compliance costs, and promote fair competition and technological innovation.
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