Space law in Paris
No worries; as promised, here is a brief recap of the event, sent in by SLP's Euro-correspondent and space law LL.M candidate at Leiden University, D.J. Den Herder, who made the big sacrifice of stopping work on his thesis to travel to Paris for the forum.
(By the way, unconfirmed sightings and reports indicate D.J. may have spent the weekend. However, anything unrelated to the space law forum that may have happend to D.J. while he was in Paris, stays in Paris. Merci beaucoup!)
Practitioners and academics from across Europe convened at ESA Headquarters Friday to discuss legal and policy aspects of space tourism.
The forum’s keynote speech was delivered by Virgin Galactic president Will Whitehorn, who began by presenting the ESA Director-General with a model Virgin space ship, and proceeded to brief Euro-lawyers on Virgin’s business model.
Mr. Whitehorn emphasized that Virgin was not approaching its current SpaceShipTwo effort as a space tourism project per se, but rather as a means to prove the commercial viability of space tourism and also of air-based rocketry (with an eye toward the potential for manned orbital vehicles).
On the licensing front, he noted that FAA/AST considered the rocket component and White Knight aircraft together to be one launch system, and thus the system would not be “designated by the aviation authority” (the effort instead, presumably, licensed exclusively by AST.) Virgin has apparently nevertheless selected registration numbers for the craft – N400K (as in 400,000 feet, the target altitude of SpaceShipTwo) – and also volunteered to “build to Part 25 standards,” though certification as such would not be required.
Mr. Whitehorn further noted that Virgin’s due diligence indicates the risk of an onboard medical incident outweighs the risk of vehicle failure. As such, he said Virgin was in talks with NASA regarding health aspects, and was also seeking a European partner for such consultations.
Also addressing the forum was Steve Bochinger from Euroconsult, who cautioned that turning the concept of “going to space” into a mass consumer market was “very ambitious.” Mr. Bochinger took care to differentiate suborbital and orbital flight, pointing out unique circumstances that have allowed Russia to achieve profit at the margins. He warned that the orbital tourism market is not likely large enough to amortize investment in the long or short term, and noted there was no reason to anticipate a significant decrease in associated costs.
Other forum highlights included a presentation by Dr. Martin Stanford of UNIDROIT, who suggested the Cape Town Convention on mobile equipment financing was particularly germane to questions of financing and security in space tourism, and also a presentation by ESA lawyer André Farand, who cited issues raised by the International Space Station’s Intergovernmental Agreement (IGA) as relevant for consideration going forward. Mr. Farand said he believed there would not be new negotiations to “fix the rules” vis space tourism on the international level, and it is now up to individual states to implement appropriate national laws.
Notable legal lacunae observed by members of the academy attending the forum included the familiar issue of an air space/outer space delimitation, and also the related distinction between aircraft and spacecraft, raising the specter of civil aviation conventions on liability.
Finally, an issue that received significant academic attention was the definition of astronaut. Professors expressed concern as to precisely how space flight participants would be recognized in an international context, and the ensuing ramifications – from criminal jurisdiction and control issues, to liability considerations, to diplomatic status as envoys of mankind (see Art. V of the Outer Space Treaty), to the potential for unjust profiteering by sale of the envoy label.