Virgin Galactic spent years getting ready to send paying passengers to the edge of space and back at Spaceport America in the New Mexico desert, a structure that resembles a cross between an airport terminal and a movie set, situated on a level expanse of scrubland beneath an immense sky. Hundreds of thousands of dollars were sold for tickets. They signed waivers. Customers reportedly received a large number of legal documents before to boarding.
Beneath those documents was a question that no one in the fields of international aviation or space law has yet to provide a legally enforceable response to: what precisely are these individuals once they leave the ground? not aviators. Not astronauts from the government. not passengers on a regular airline. Something novel, for which the current frameworks are only approximations at best.
International aviation law is being forced to change as a result of space tourism because the existing regulations were created for a world that did not foresee this. Anyone in space is referred to as a “envoy of mankind” in the groundbreaking 1967 Outer Space Treaty, which is now the cornerstone of international space governance. This phrase is more appropriate for Neil Armstrong than for a retired software executive who paid $450,000 for a suborbital excursion.
The possibility that private businesses will eventually offer seats to civilians hardly registered as a hypothetical worth regulating against during the Cold War space race, when the only humans traveling to space were trained government specialists. That possibility has a spaceport and a waiting list fifty or so years later.
Where airspace stops and space begins is the most directly applicable legal conundrum. An internationally binding response does not exist. The Fédération Aéronautique Internationale frequently cites the Kármán Line, which is 100 kilometers above Earth, but it is a convention rather than a treaty requirement.
Depending on which nation’s airspace a rocket plane is passing through at the time, the answer to the question of whether it is an aircraft subject to the strict regulations of the International Civil Aviation Organization or a spacecraft subject to the more lenient framework of space treaties varies. This issue is not theoretical for vehicles performing suborbital flights that start in one regulatory regime and land in another. Attorneys are currently addressing this filing issue with insufficient resources.
If anything, the liability situation is more awkward. According to the 1972 Liability Convention, the launching state is fully liable for any harm a space object does on Earth, which means that governments and eventually taxpayers are responsible for paying for it. When national space agencies were the only organizations launching objects into space, such paradigm made some sense. Now that private firms are operating commercial operations with paying passengers, it is much less logical, and it is completely nonsensical in the event that a privately owned spacecraft lands in an incorrect location.
There is a gap between what lawmakers intend and what the legally binding documents actually say because regulatory bodies in the US, the EU, and other countries are drafting frameworks that would require commercial operators to carry private insurance and transfer the financial exposure away from governments. However, the international treaty structure hasn’t been formally updated.
Those who have no interest in space travel at all are most immediately impacted by the air traffic management issue. Some of the busiest commercial aviation airspace in the world is traversed by suborbital trajectories and rocket launch corridors, and rocket re-entries were not taken into consideration while designing the Air Traffic Control systems that oversee thousands of commercial flights every day.
Although the FAA’s Office of Commercial Space Transportation is making headway in resolving the integration issue, each new launch operator brings with them a different vehicle architecture and set of presumptions for how its trajectory should be managed. There is a sense that the law is doing what it frequently does, which is to lag behind the industry it is meant to regulate by several years while making every effort to catch up without causing a literal or figurative collision. This is evident when one observes these systems developing concurrently and attempts to envision them eventually cooperating.
