| by Dr. Ruwantissa Abeyratne
( April 23, 2013, Montreal, Sri Lanka Guardian) In 1944, when the war was coming to an end, President Roosevelt invited the nations of the world to a conference in Chicago with a view to establishing a global regime for the burgeoning commercial aviation sector that would flourish after the war. The President said in his invitation: “I do not believe that the world today can afford to wait several years for its air communications. There is no reason why it should. Increasingly, the airplanes will be in existence…”.
At the present time, this message could be applied to commercial space transport with just a change of words that would adapt it to the increasingly developing space tourism sector.
Commercial space flight is here, and it is a foregone conclusion that it will take off in earnest within the next few years. The issue is whether we are prepared with the necessary legislative and infrastructural base to launch these flights in sustained progression. Unlike the Chicago Convention of 1944 which was adopted at the Chicago Conference pursuant to the initiative of President Roosevelt, there is no multilateral legal instrument that provides comprehensively for commercial space transportation. When commercial air transport was in its incipient stages the world community took just over a month to develop, draft, and adopt the Chicago Convention that comprehensively provided for technical and commercial regulation. This treaty still serves air transport well.
We continue to use and explore outer space, take pictures, calculate trajectories of planets and determine who owns the moon and what the purpose of outer space exploration is. An added dimension is the use of aerospace in terrestrial transportation where an aerospace plane will take off as an aircraft, go into orbit, enter the atmosphere using the Earth’s orbit into its destination, cutting the travel time significantly. It is said that by using this method, air travel time can be reduced drastically. For instance, a journey by air between Los Angeles and Sydney, which would now take 14 to 16 hours by conventional air travel, could take 2 hours or less.
The newest and most expensive mode of transportation is commercial space travel which offers high-end suborbital flights to space tourists. Some consider it an extension of air travel, mostly on the basis that a spacecraft that operates suborbital flights would have to traverse airspace to go beyond it. This has encouraged some academics to suggest that this area of travel can easily be accommodated within the existing air transport regime, by incorporating the various safety principles that would be adopted for commercial space travel within existing treaty provisions with some adaptation and modification. Although there may be some commonality in both air travel and outer space travel, on the basis that a vehicle operating suborbital flights would go through airspace, it would be both unwise and impracticable to move a space travel regime lock stock and barrel into the existing air transport regime.
Given that a spacecraft traverses airspace before it goes into outer space, one would have to have a clear, internationally accepted definition of outer space. No multilateral treaty currently applicable to space transportation or the exploration and exploitation of outer space resources has this definition. This is both disconcerting and unsettling in an age where complex and advanced space exploration has been taking place well over 5 decades, with a man stepping on the moon in 1969. In this context, neither is airspace defined, although commercial air travel has been regulated for the past 67 years.
As per principles of public international law, airspace does not constitute the territory of a State and should not be confused with the word “territory” . The reason is that the dimensions of airspace have not been defined either by treaty or by customary recognition (Australia has a domestic law which recognizes that airspace goes up to 100 kilometres over its land and adjacent sea territory. Other instances of definition of airspace are hitherto unknown).
As for outer space, at the time of writing, the aerospace community was considering such issues as sub-orbital flights and space tourism, both of which could further blur the boundaries between air space and outer space, while raising other issues of topical interest. As already mentioned, so far, there has not been a universally accepted definition distinguishing air space and outer space. Some years ago, when the legalities of an aerospace plane, which is a hypersonic single stage to orbit reusable vehicle that horizontally takes off and lands on a conventional runway were considered, it was thought that the transit through near space which is involved is incidental to the main transit which takes place within the airspace. Generally, the aerospace plane, which will be constructed with the use of aeronautical and space technologies and be required to fly both in airspace and outer space, would bring to bear the need to consider the applicability of and appropriateness of laws relating to the space plane’s activities. It will be subject to the sovereignty of the State whose airspace it is in. This is an incontrovertible fact which need not be stated since any object within the airspace of a territorial State would indeed be subject to that State’s sovereignty.
The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), which is the UN forum where technical and legal aspects of space activities with global impact are considered, has discussed the issue of the definition and delimitation of outer space from 1962 and no definite conclusion has been reached so far in this regard. In this connection, it is of interest to note that the Legal Subcommittee of UNCOPUOS, through its Working Group on Matters Relating to the Definition and Delimitation of Outer Space, has been considering possible legal issues with regard to aerospace objects. A questionnaire thereon was circulated to all U.N. Member States. A compilation of the replies received and an analytical summary of such replies, as well as a historical summary on the consideration of the question on the definition and delimitation of outer space, may be found on the OOSA website.
A sub-orbital flight is a flight up to a very high altitude which does not involve sending the vehicle into orbit. ‘Sub-orbital trajectory, which a sub orbital flight would follow, is defined in the legislation of the United States as “The intentional flight path of a launch vehicle, re-entry vehicle, or any portion thereof, whose vacuum instantaneous impact point does not leave the surface of the Earth.”
One must not confuse a sub orbital flight with a space flight which is a flight into or through space. The craft which undertakes a spaceflight is called a spacecraft. It is often thought that orbital spaceflights are spaceflights and sub-orbital spaceflights are less than actual spaceflights.
In 2004, SpaceShipOne was the first private vehicle to complete two sub-orbital flights within two weeks carrying weight equivalent to three human adults up to about 62.5 miles (100 km) to win the Ansari X Prize. It was carried during one hour by an aeroplane up to nearly 50 000 feet (9.5 miles) from where it was released into a glide and then propelled vertically for 80 seconds by a rocket motor to an altitude of more than 62 miles at apogee, reaching a speed over Mach 3. Then falling back to return to earth, it re‑entered the atmosphere and glided during 15 to 20 minutes before landing back on the runway of departure.
SpaceShipOne, strictly speaking, does not operate as an aeroplane or even as an aircraft during the ballistic portion of the flight while it is not supported by the reactions of the air, even though some degree of aerodynamic control exists throughout the trajectory from launch altitude until the craft enters the upper reaches of the atmosphere where the air density is no longer sufficient for aerodynamic flight. After apogee, during re-entry into the atmosphere the vehicle transitions to unpowered aerodynamic (gliding) flight for the return to earth. Consequently, depending upon some design and operational aspects, it could be considered operating as an aircraft in flight during this latter portion of the journey.
Plans have been announced by Virgin Galactic for the development of a fleet of five sub‑orbital vehicles to carry paying passengers, six per vehicle; it plans that the first of these will be ready for commercial operations in 2008 at the earliest. There are indications that at least one other company is planning to offer rival sub‑orbital flights.
Manned and unmanned sub-orbital flights have been undertaken to test spacecraft and launch vehicles intended for later orbital flight, but some vehicles have been designed exclusively to reach space sub-orbitally: manned vehicles such as the X-15 and SpaceShipOne, and unmanned ones such as ICBMs and sounding rockets.Sub-orbital tourist flights will initially focus on attaining the altitude required to qualify as reaching space. The flight path will probably be either vertical or very steep, with the spacecraft landing back at its take-off site.
The term orbit can be used in two ways: it can mean a trajectory in general, or it can mean a closed trajectory. The terms sub-orbital and orbital spaceflights refer to the latter: an orbital spaceflight is one which completes an orbit fully around the central body.
From the above discussion the conclusions that could be drawn are that for a flight from Earth to be a spaceflight, the spacecraft has to ascend from Earth and at the very least go past the edge of space. The edge of space is, for the purpose of space flight, often accepted to lie at a height of 100 km (62 miles) above mean sea level. Any flight that goes higher than that is by definition a spaceflight. Although space begins where the Earth's atmosphere ends, the atmosphere fades out gradually so the precise boundary is difficult to ascertain. Therefore one could argue that there is a need to accept the fact that vehicles which would effect earth-to-earth connections through sub-orbital space could incorporate the constitutive elements of aircraft and fly as such at least during descending phase while gliding. However, rocket-propelled vehicles could be considered as not falling under the classification of aircraft.
All of this developments and impending commercial space travel at significant proportions compellingly call for a separate legal regime through a multilateral treaty. Commercial space transportation is a relatively new area that would bring people together and widen their vistas. As any other enterprise, this should flourish in an environment that protects human rights and the dignity of the person while ensuring safety and security. A treaty should therefore bring to bear laws and practices which are the glue that keeps commercial space travel secure and safe, fuelled by political will which will ignite its progress and development. The thrust of political will essentially lies in a security culture that must be visible in every State. A security culture would make States aware of their rights and duties, and, more importantly, enable States to assert them. Those who belong to a security culture also know which conduct would compromise security and they are quick to educate and caution those who, out of ignorance, forgetfulness, or personal weakness, partake in insecure conduct. They inculcate a culture of good governance and encourage States to enact legislation to this effect.
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