Sanat Kaul

1. Regulation of Emerging Modes of Aerospace TravelThe Big PictureTo what extent is the current regime governing international air transport relevant to aerospace transport? SanatKaul Chairman, International Foundation for Aviation, Aerospace and Development(India Chapter) Montreal 24 and 25th May 2013 Manfred Lachs Conference on Regulation on Emerging Modes of Aerospace Transportation

2. Regulation for Emerging Modes of Aerospace Transport • Aerospace travel is the next big innovation which will take place in commercial travel • Just like in 1944 when Chicago Convention was convened to lay out the laws for nascent air travel and decide on a regulatory system, we are again at the same crossroad regarding aerospace travel. Commercial space tourism has arrived and sub-orbital flights are also not too far away

3. Aerospace and Sovereignty • Since there is no legal delimitation between air and outer space, we are not restricted to a strict height. In any case, over 70% of air space is over high seas over which there is no sovereignty of any country and is under the technical jurisdiction of ICAO.

4. Near Space Travel • Lower or Near Space for space tourism and for sub-orbital flights, therefore, needs to be regulated. • The question that arises is whether we need yet another International Regulatory Institution to manage this new activity or some existing institution would be the preferred option.

5. Why a new institution is not necessary • A new institution becomes necessary if the existing institutions are not able to serve the purpose. Existing Institutions which can, perhaps, serve the demands of aerospace travel of the future are ITU,IMO,ISO and ICAO.

6. International Tele-communication Union (ITU) • ITU has been in existence since 1865 and is governed by its constitution and convention. Current membership of ITU is 192 states and it has more than 700 sector members and associates. Its substantive work is with Radio Communication Sector, Telecommunication Standardization Sector and Telecommunication Development Sector. While its importance cannot be undermined, its restricted area of work is perhaps not suffient enough to be developed as an organization for aerospace activities

7. International Maritime Organization(IMO) • IMO is an UN specialized agency formed in 1948 and its convention entered into force in 1958. It has an assembly, a council and four main committees. It has currently 159 member states. • The most important committee is the Maritime Safety Committee. • IMO administers a comprehensive body of international convention supplemented by numerous regulations covering all aspects of maritime transport. • IMO itself has no enforcement powers.

8. International Standards Organization (ISO) • Established in 1947 for purpose of facilitating international exchange of goods and services. • Currently ISO has membership of 163 countries and has entered into developing standards related to space. • It has developed standard for Space Debris Mitigation and Management (ISO 24113) and re-entry safety control for unmanned space craft and launched vehicle upper stages safety (ISO 27875). • ISO standards are helpful but as an organization it will not be able to manage putting up rules and regulations for sub-orbital flights

9. International Civil Air Organization(ICAO) • ICAO was formed in 1944 by adoption of Chicago Convention with the constitution of ICAO described within the Convention. • ICAO is a specialized body of UN with 190 states as members and a council composed of 36 states elected every 3 years. • It has a full time secretariat with five bureaus consisting of Air Navigation, Air Transport, Technical Cooperation, Legal Affairs and Administration. It has six regional offices in various locations in the world. • The council in entrusted with power to adopt Standard and Recommended Practices (SARPS) which are designated as Annexes to the Chicago Convention. • ICAO can add more annexes and has gone beyond its mandated work by adding items in its annexes like environment and security. • ICAO is ,therefore best suited for this purpose

10. UN Committee on the Peaceful Uses of Outer Space (COPUOS). • COPUOS is the present body for development of all aspects of outer space activities. • Established in 1959 by UN General Assembly, it was able to successfully achieve highest degree of cooperation in setting a platform for legal treaties on outer space. • It has two main sub-committees – the legal , scientific & technical sub-committee.

11. UN Committee on the Peaceful Uses of COPUOS • Over last 25 years COPUOS has got five Treaties/Conventions passed, these are: - • 1967- Outer Space Treaty • 1968 – Rescue & Return Agreement • 1972 – Liability Convention • 1976 – Registration Convention • 1979 – Moon Agreement Since 1979 there have been no more agreements. Currently two major items are attracting the attention of COPUOS, these are: • Working group on the use of nuclear power sources in outer space established in 1980. • Space Debris Mitigation

12. Space Law and Aviation Law • While ICAO is entrusted with the responsibility of development of International Civil Aviation and Air Transport Services, issues of space crafts going through air was not even on the horizon in 1944. • Chicago Convention does not define the limits of air. Nor does it state definition of aircraft (However, Chapter 1 of Annex 7 – Aircraft Nationality & Registration Marks – “Terms aircraft as any machine that can derive support in the atmosphere from reaction of the air other than reactions of air against earth surface”. None of the Space Conventions define limits of air and outer space. • The Council of ICAO during its 13th meeting of 174th Session, approved inclusion of the item “Concept of Sub-Orbital Flights” in the work program for 176th Session • A sub-orbital flight is flight up to very high altitude but does not involve sending a vehicle into full orbit. In US Legislation (49 USC 70102 (2004) it is International flight path of a launched vehicle, re-entry vehicle or any portion thereof.

13. The ambiguity between Air and Outer Space needs greater appreciation. While sovereignty of Air Space is guaranteed over land and territorial waters of a country, 72% of the air space lies over high seas and and is common heritage of all mankind like the outer space. By virtue of Chicago Convention 1944, ICAO has jurisdiction given to it over this area of air. • Therefore, there is also similarity between air and space law. • On issues of liability, the Montreal Convention 1999 has fixed absolute liability up to SDRs 100000 on the air carriers whereas the Liability Convention states that the States shall be absolutely liable to pay compensation for damaged caused by its space object on the surface of the earth or to aircraft in flight. Again there is no indication of any vertical limit of air space.

14. Liability over Air and Space • Warsaw Convention of 1929 forms the basis of liability in case of accident in a civil commercial aircraft. The fin Montreal Convention1999 replaces the Warsaw System and also mentions that it applies to aircrafts only. • It provides a strict liability of up to SDR 100,000 in case of death even if the airline is not at fault • The Liability Convention of 1972 fixes the liability in case of an accident of a space craft or a space object on the ‘launching state’ even if the space object is owned by a private company of some state or the other .

15. The Liability Convention defines launching state as a state which launches or procures the space object or from whose territory or facility the space object is launched. Therefore, there may be several launch states for one space object. Also not all states have ratified Liability Convention and therefore if one launching state is a non-party, it can create complications.

16. Liability of an Aerospace Craft • There is, perhaps, a need to bring liability of the two regimes on a common platform. What happens if a private spacecraft, explodes in air with passengers. Will The liability will be fixed under Liability Convention? Is Montreal Convention not more efficient and better? Why commercial air and near space flights not be treated at par?

17. National Legislation and International Space Law • How ICAO ensures harmonization of ICAO SARPs with National Legislation. • Role of ICAO’s constant monitoring. • With civil and commercial space about to flights taking off, some countries have formed their own space legislation. • In 1958 NASA(National Aeronautics & Space Organization) Act was created with a mandatw to plan, direct and conduct aeronautical space activities. • Since US is the largest market for space launch services, it gave the US FAA the responsibility. • In 1984, US Commercial Space Launch Act was signed which made provision for US government to enter into international negotiations to encourage fair competition in launch services.

18. National Legislation on Space Law • FAA of US is mandated, additionally to civil aviation ,to regulate US commercial space transportation. • Canada has also gone in for a Canada Aeronautic Act which comes under Transport Canada. • France has its space launch from Centre Spatial Guyanais located in French Guiana and the European Space Agency has accepted its rights and obligations under 1972 Liability Convention. • Similarly many other countries have enacted their own legislation like UK with Outer Space Act, Russia with Russian Space Activity Law of 1993, Ukraine with Ukraine Space Law etc.

19. Integration of Air Law and Space Law to Aerospace Law • All these legislations by various countries are stand alone. No common rules, standards or recommended practices have been laid out as yet.For example, Australia has defined the limit of Air Space as 100 kms without any international consensus on the issue. Like in Aviation there is a need now to lay out Standards and Recommended Practices as done by ICAO for manned aerospace travel. • ISO has developed some standards as mentioned earlier like on Space Debris Mitigation but these are not obligatory.

20. Space Tourism and Sub-Orbital Flights • Space Tourism is likely to start from the launching state and return to the same state. It is unlikely that the initial space tourism will be crossing the air space of a second country. However, once sub-orbital flight start as commercial venture, the issue of crossing air space of launch country and entering air space of another country will arise. This will have legal implications and will require greater control, harmonization and navigation for both air and lower space. It will also require a common organization for both air and space activities as two separate controls may not be able to bring the quality of surveillance required. • Another aspect which requires a more dedicated organization is the issue of space debris. With space debris of 10 cms or larger estimated to be of 21000 objects; and another 300,000 bits of debris with a diameter of one centimeter or more, the issue of debris hitting aerospace crafts is very important. Further such debris includes pieces of metals, globes of liquid metal coolant that leak from discarded space reactors, debris due to satellite explosion, lens cover and other hardware discarded during satellite operations, pose a very great threat for future. Near space tourism operations and well as sub-orbital flights will also face this hazard. • COPUOS is currently working on the subject but there is a need for a full time body to monitor . • Such collision of debris with a spacecraft can even cause loss of the craft.

21. Space Tourism and Sub-Orbital Flights • In 2003 risk assessment performed after Columbia accident determined that the likelihood of orbital debris bringing down the shuttle is far greater than of a failure main engines, solid rocket boosters or thermal protection.

22. Growth of Aviation & ICAO • In 1944 when Chicago Convention took place it was beyond imagination that Civil Aviation would grow into such a big industry as it is now. • Because of ICAO and its consultative process that there has been so much of good regulation that civil aviation today is the safest mode of transportation. • The structure of ICAO which has evolved over years has managed to provide a very high level of safety and security. While enforcement of its SARPs are weak, post 9/11 incident there has been voluntary audit of both safety and security of all countries. This has resulted in tightening of the implementation of SARPs.

23. Infraction • Chicago Convention provides for reporting of infraction by any State. Under Article 54(j) which enumerates under the mandatory duties of the Council, the Council shall report any infraction of the Convention to the concerned State. • This is an important tool to correct a wrong, though rarely used.

24. Space Insurance • The liability Convention has structured a dual objective and a subjective system of unlimited state liability, which imposes on states a high burden. • Satellite operators started to resort to insurance in 1965. Between 1965 and early ‘80s space insurance policies were limited as government did most of self-insurance

25. Loss of Challenger, a Titan, a Delta and an Ariane launch vehicles in the mid ‘80s eroded the insurance market, although only Ariane launch was insured. Consequently the insurance market had a major set back. As space insurance is closely linked to air insurance, the events of 9/11 in 2001 led to a collapse of space insurance also. These were compounded further by six Boeing Satellites suffering orbital loss due to solar array anomalies.

26. Unlike aviation where there are sets of laid out guidelines by ICAO and IATA on safety, based on which the insurance companies determine the premium with Montreal Convention 1999 in view, there is none, as yet, for spacecrafts. With space tourism and sub-orbital flights carrying paying passengers there is a need to evolve a similar system. • Perhaps, Montreal Convention 1999 could be extended to space tourism and sub-orbital flights? If so the right organization to carry this out will be, of course, ICAO.

27. Launching State • With a limited number of states having Launch capability, and as satellite and space tourism grows, many states and non-government parties have a commercial tie up with a launching state for launching their satellite. Liability Convention puts the liability of a satellite on the launching state. This is obsolete as launching state has no responsibility for the satellite after it is launched.UNCOPOUS has passed a resolution to meet this challege but it has yet to amend the Liability Convention

28. State Responsibility: Aviation V/s Space • Air law does not provide for State responsibility. Montreal Convention 1999 is for Carriers/Airlines. In contrast Space law is focused on State responsibility to pay compensation. Further, there is no specific provision in any international instrument regarding liability for personal loss during space travel as there was hardly any human travel in space. • With space tourism and sub-orbital flights this will change

29. US Commercial Space Launch Act 2004 • The above act has proposed the concept of ‘informed consent’ in line with human space flights. States of Florida, New Mexico and Florida have similar enactment. • This involves waiving of liability in case of injury or death. • This procedure cannot be accepted once near space tourism flights start in a big way and thereafter, sub-orbital flights. This will be like taking ‘informed consent’ from air passenger.

30. Safety Issues • It goes to the credit of ICAO and the Aviation Community that Aviation is today the safest mode of transportation. • This level of safety has been achieved through constant monitoring with stake holders including manufacturers, airlines, airports and passengers. • In space, safety of launch, malfunction of trajectory defining exclusive zones, explosives hazards, toxics hazards from rocket exhaust products are a part of list of safety issues that needs proper risk analysis and thereafter risk management. • There is no regulator to address these issues as well as the issue of debris in near space. • Therefore there is a need for a full time international regulator like ICAO for Aviation who could look into the various safety issues of spacecraft and near space travel.

31. Ownership issues of spacecrafts • While Civil Aviation provides nationality of ownership of aircraft and national registration of airline, the spacecraft has a very weak legislation on the subject. • The Cape Town Convention on International Interests in Mobile Equipment 2001 forms the basis of ownership of aircrafts. • UNIDROIT has produce a preliminary draft protocol on matters specific to space assets.

32. Ownership issues of Spacecrafts • The draft protocol under Article 1 (2) (I) provides “Assets means any manmade uniquely identifiable satellite, satellite transponder payload, space station, space vehicle, reusable space capsule or other object capable of independent control, in or intended to be launched in or into space or used or intended to be used as a launched vehicle including any such asset in course of manufacture or assembly together with all modules and other installed incorporated accessories, parts and equipments and all data, manuals and records relating thereto”. • Once this is incorporated it will solve many issues and will also help space companies to raise loans from Banks.

33. Interference with Activities of another State • Under 1972 Liability Convention a State is obliged under Article IX of the Outer Space Treaty to undertake appropriate international consultations before proceeding on any such activity. • As Near Space traffic grows an international mechanism has to be evolved, preferably on a multilateral basis for consultation prior to a launch and its subsequent surveillance during its flight

34. ICAO’s Flight Information Regions(FIR) • Besides Sovereign airspace, the navigation and surveillance of aircrafts over high seas is an activity under the overall responsibility of ICAO. ICAO has devised a method by which countries are allotted airspace over high seas for the same purpose. Usually it is given to adjoining countries for air traffic management • However, for sub-orbital flights there is no such mechanism.

35. Air and Space management of Sub-orbital Flights • ICAO’s architecture for aircraft surveillance and navigation has been in place and improved over half a century. It should be extended to spacecrafts also.

36. It is fortunate that there is no limit defined between Air & Space in any of the existing Conventions/Laws. National Legislation like Australian Space Activity Act of 1998, a reference to distance of 100 KMS above sea level has been defined as the demarcation point. It is, therefore, necessary at this stage to ensure that such a definition is not accepted universally and a decision to include near space is made to include in the definition of air so that sub-orbital flights can be included within ICAO’s mandate.

37. Thank you