Is it a plane?

Reports tion will be achieved depends largely on the availability of financial resources, not only in Germany but also in Eastern Europe. In any case, the united Germany will play an important role in the future development of East-West space cooperation.

Stephan Hobe and Mathias Spude Deutsche Agentur for Raumfahrtangelegenheiten Bonn Germany This article reflects the authors' personal views and not necessarily those of DARA. It covers developments until the end of August 1991.

Notes: 1The German Space Agency, DARA, is currently preparing this programme which is expected to be presented to the public in late 1991. 2See Wolfgang Wild, 'Cornerstones of German space strategy', Space Policy, Vol 7, No 1, February 1991, p 5. 3See ibid, p 8. 4See Finke, 'Space policy of the FRG', (in German), in K. Kaiser and S. von Welck, eds, Weltraum und Internationale Politik, Munich, 1987, p 280, ~See for a general description of DARA, M. Spude and Staudt, 'Tasks and legal aspects of the German Space Agency DARA', Journal of Space Law, forthcoming, 1991.

eSee for a description of Interkosmos V.S. Vereshchetin, 'Cooperation in the exploitation and use of outer space for peaceful purposes (Interkosmos)', in Jasentuliyana and Lee, eds, Manual on Space Law, Vol 1, Dobbs Ferry, 1979, p 415. rSee for a general description of its activities, Zimmer, 'Space policy of the GDR' (in German), in Kaiser and von Welck, op cit, Ref 4, p 379. SSee for a detailed description of the legal aspects of unification for German space activities: S. Hobe and M. Spude, 'Unification of German space activities - legal aspects, ZLW, 1991, p 163. 9"rhe full title of this treaty is: Treaty between the FRG and the GDR on the Establishment of German Unity of 31 August 1990 (translation by the authors). 1°Recognized by Article 15, Vienna Convention of Succession of States in respect of Treaties of 22 August 1978, UN DOC A/Conf. 80/31, reproduced in ILM, 1978, 1488. 11See eg N. Matte, Aerospace Law, From

Scientific Exploration to Commercial Utilization, Toronto/Paris, 1977, p 67. ~2See generally on Intersputnik Kolossov, 'International system and organization of space communication', in Jasentuliyana and Lee, op cit, Ref 6, p 401. ~3Note of the Ambassador of the Federal Republic of Germany to the Intersputnik Board of 3 October 1990. ~4See Protocol of the session of the Intersputnik Board of 15 October 1990, p 2. ~SFor a more detailed description of the legal problems of this sui generis accession see Hobe and Spude, op cit, Ref 8, pp 174-176.

Is it a plane? An international colloquium on the Spaceplane and the Law was organized by the French Society for Air and Space Law, with the help of the European Space Agency, the French Civil Aviation Authority, the Centre National d'Etudes Spatiales (CNES) and Air France, and had ICAO, Eurocontrol and the French Ministries of Foreign Affairs, Transport, PTT and Research as its patrons. The purpose of the colloquium was to create awareness of the legal problems that may arise when spaceplanes become reality, and to propose solutions to those problems. The colloquium was held in Paris on 14-15 May 1991.

The first part of the colloquium was called 'General aspects and programmes' and served to outline the state of the art concerning the various projects for spaceplanes presently being developed by E S A (Hermes), the UK (Hotol), Germany (S~inger), Japan ( H O P E ) , the U S A ( N A S P ) and

SPACE POLICY November 1991

France. It appeared that all projects will (initially) only serve for space transportation, and not for transportation of passengers from a point on Earth to another point on Earth via space. The second part a d d r e s s e d the 'Conditions of use' of the spaceplane,

and dealt with registration and certification of spaceplanes. Registration has fundamentally different requirements under the Chicago Convention and under the Registration Convention, mainly because under the latter marking is not an obligation, and registration must take place at each and every launch. Also, certification rules differ; under space law, no safety certificate is required. A last difference between the two regimes is that under air law permission is required to fly over another country, and in space law there may even be a custom of free transit.

Rules The air navigation rules were explained by the Director General of French Air Navigation. If the take-off of the spaceplane is horizontal, normal runways will have to be reserved for considerable periods because of their limited manoeuvrability. Landing will be like a glider and again the plane will be hardly manoeuvrable. Thus, already overcrowded runways must be r e s e r v e d for substantial periods of time to allow the spaceplane to take off and land safely. It would be better to reserve some airspace for the spaceplanes. But if these flights become routine in the future, it may be preferable to create special spaceports to a c c o m m o d a t e these vehicles. Dr Vereshchetin from the USSR Institute of State and Law was of the opinion that the various spaceplanes are so different that one cannot apply one and the same legal regime to all of them. A regime must be applied according to the following criteria: (1) purpose and function (Earth-to-Earth or Earth-to-space?); (2) technical configuration and capabilities (SSTO, two-stage, cargo-type, horizontal, vertical, air launch, etc); (3) the medium where it predominantly operates. The first criterion is the most important one. Dr Vereshchetin believed it may now become necessary to make a boundary between air and space and between air law and space law. The use of spaceplanes will not contribute to the formulation of a customary rule of innocent passage through foreign

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airspace without prior consent. On the contrary, frequent use of spaceplanes may even reverse this tendency. Finally, considering whether there should be a separate aerospace law next to air law and space law, his answer was yes in the sense that the regulation of the s p a c e p l a n e may r e q u i r e supplementing space law with rules from air law and vice versa, but not in the sense that the main difference between air and space law (sovereignty) would remain. The third part of the colloquium concerned 'Liability' questions. The air law regime is very elaborate; liability of the operator is governed by the Warsaw Convention, and liability to third parties by the unsuccessful Rome C o n v e n t i o n , and thus in fact by national laws. Collisions among aircraft are not regulated by international law, but must be settled under national law. Actually, these two fields, which are not regulated internationally by air law (collisions and damage to third parties), are the only ones regulated under international space law, which is mainly public law, and holds the state liable. Mr Webb oc discussed the operator's liability towards passengers and third parties on the ground. He was of the opinion that the time is not ripe to determine who is liable, but only to determine who has jurisdiction. In view of the failure of the Rome Convention, Mr Webb did not expect a space convention for liability towards third parties.

Insurance From an insurer's point of view, the spaceplane was expected to be insurable, as were the first Boeing or the first Concorde. An international consortium would probably be formed with waivers of liability to protect the respective partners. It was considered essential that the insurers be involved in the elaboration of the legal texts which they have to apply in practice. In his conclusion Judge Guillaume of the International Court of Justice repeated the three main differences between air and space law: (1) the status of the vehicle and its crew, (2) the conditions of use, and (3) the respective liability regimes. The final

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question is whether air law or space law or a whole new law should apply to the spaceplane. Technically, the projects are very diverse. Also the purposes and missions may differ. The territorial approach is not a useful criterion to solve this matter, because there is still no boundary between air and space. The functional approach is better suited, so that the use of the vehicle should be decisive, although this leaves the problem of multiplepurpose missions. The most compli-

cated problem is liability. Since neither of the two systems seems perfect, the ultimate solution would be to develop a new autonomous law for spaceplanes. Work on such a new legal regime should start with close cooperation among lawyers and technicians in this field.

Tanja L. Masson-Zwaan International Institute of Air and Space Law Paris, France

Le silence eternel de ces espaces infinis? During the last 40 years - the merest blip in world history - talk about Homo

astronauticushas signalled a growing awareness that the passengers on planet Earth can, if they want, take off for other destinations. If the scale of past advances is a satisfactory measure of future possibilities, then the wish will be father of the achievement.

In the year 2001 we celebrate the centenary of the first controlled flight in a powered aircraft by the Wright brothers. By that date robotic devices are likely to be exploring the Moon: and by the year 2101 the anticipations of science fiction may be realized in colonies on the Moon and on Mars. Is the onward journey encoded in the human genes? Will the long journey out of Africa into the world carry on in the even longer journey out of Terra and into space? The beginning of the answer will come from our children's children. One hundred years ago, and for the first time in human history, a series of books began to appear throughout Europe dedicated to the proposition that the future is a distinct and discernible area of investigation. One of the first of these essays in prediction was Dans cent ans (1892) by Charles Richet, the eminent French physiologist, discoverer of anaphylaxis and Nobel Prize winner. He forecast bigger and faster trains, food in abundance, better health, declining death rates, medical advances, the European colonies still intact in Africa,

English the world language, and standing armies probably gone by 1992. There was no hint, not even a hope, that at some time in the 20th century men from planet Earth would take off for the Moon; and yet as an adolescent Richet must have read De la Terre ~ la Lune by Jules Verne, the story that helped to send the first rockets into space. Indeed, he may well have read the expectations of space exploration that Victor Hugo entered into La L~gende des Si~cles: Un Christophe Colomb de l'ombre, quelque jour, Un Gama du cap de l'fibime, Un Jason de l'azur, depuis longtemps parti, De [a terre oubli6, par le ciel englouti, Tout ft coup, sur I'humaine rive, Reparaltra, mont6 sur cet al6rion, Et, montrant Sirius, Allioth, Orion, Tout pfile, dira: J'en arrive! ~ A century later the expectations of Victor Hugo and the anticipations of Jules Verne were realized in the fly-by lunar mission of Apollo 8. The link with Verne was of consequence for the flight c o m m a n d e r , Colonel Frank Borman; for he made a point of re-

SPACE POLICY November 1991