Conference 7.286::space

765.0. "Space Law" by ELIS::GARSON (V+F = E+2) Fri Nov 08 1991 07:21

ESA NEWSLETTER
ISSUE #5
MAY 1991

                        SPACE LAW AT THE HIGH FRONTIER

Is a spaceplane a space vehicle or a plane? From a legal point of view, this
simple question has important ramifications for the future of space flight. It
lies at the heart of an international colloquium this month, organised by the
French Society for Air and Space Law and supported by ESA.

Space law is an increasingly important area of international law. Like most
international organisations, ESA has its own legal affairs department which is
responsible for the development and implementation of legal policy, including
the negotiation of international agreements. ESA is prominent in promoting
space law amongst the legal community and was a prime mover behind the European
Centre for Space Law, which was founded in May 1989. "ECSL is Europe's research
tool for targeting high quality analysis on space law issues which affect
Europe's future, " says Kevin Madders of ESA's Legal Affairs Department.
"Promoting inquiry into manned space questions is naturally among ECSL's
interests."

To understand why new regulation is required for spaceplanes, the history of
air and space law must be considered. Air law came into existence at the start
of this century but in a very ad hoc way. Following the first World War, a
conference was held in Paris in 1919 to develop the law more fully.

The result was that the principle of sovereign rights was recognised: that is,
each country has its own territorial rights to the airspace above it. So when
the first airliners flew in the 1920s, permission to fly over other countries
had to be obtained first.

The rules governing air law were later formalised by the signing of the Chicago
Convention in 1944 which dealt with the status and registration of aircraft. In
effect, aeroplanes became "flying pieces of sovereign territory" so that
airline passengers have the right to transit over the host territory as well as
to embark and disembark there.

These agreements, however, do not precisely define how far airspace exists
upwards. It simply is not possible to say where the atmosphere "ends" in legal
terms. When the Space Age began in 1957, it became clear that new principles
concerning travel beyond the atmosphere had to be developed. Airspace cannot
extend upwards indefinitely because the Earth rotates.

For space, it became obvious that the principle of sovereignty was
inappropriate. In 1967, the Outer Space Treaty was concluded under the auspices
of the United Nations: its express declaration is that outer space is free to
all for peaceful research. The next year a further convention regarding
astronauts was signed which stipulated that astronauts should be treated as
envoys of all mankind. As a result, international authorities are obliged to
help astronauts in distress - in the event, say, of an emergency landing - as
they would aircraft in distress.

At present, aerospace law is based on two basic - but incompatible -
principles: sovereign rights for aircraft and freedom for outer space. The
question is: where does air law finish and space begin? As aircraft fly higher
and higher and spaceplanes perform sub-orbital journeys, the question of which
law applies is becoming increasingly important. "The purpose of this colloquium
is to start defining these terms more precisely with respect to spaceplanes,"
says Gabriel Lafferranderie, ESA's Legal Adviser.

For the present time, spaceplanes are considered to be space objects. Today
there are two kinds of spaceplane already in existence, NASA's Shuttle and the
Soviet Union's Buran. By the end of this decade, both ESA and Japan will also
operate shuttles, named Hermes and Hope respectively. In 1998, the Hermes
spaceplane with begin regular flight operations, servicing Columbus, ESA's
contribution to the international space station. Crews of three astronauts will
be launched aboard Hermes from a dedicated launch site in French Guiana. The
Ariane 5 launcher will head over the Atlantic, inserting Hermes into an orbit
inclined at 28� to the equator.

Given the safety requirements dictated by the presence of people on board,
emergency landing sites will be assigned around the west coast of Africa. This
is already the case for the US Space Shuttle: there are three emergency landing
sites, in Gambia, Morocco and Spain. According to Mr. Lafferranderie ESA will
develop similar arrangements, though the exact details have yet to be decided.
Only larger airports, having the technical facilities to handle as complex a
vehicle as Hermes, could be used. Bilateral agreements would be required with
the countries where the emergency landing sites are located.

Under such circumstances, normal rules concerning navigation and landing
procedure for aircraft would apply. The same is true when Hermes de-orbits and
returns to French Guiana. But as with the US Space Shuttle, air corridors will
have to be imposed in which no other aircraft are allowed.

The scope of the Colloquium in Paris is thus to consider basic issues for the
future of space travel. And, of course, to inform the legal community about the
challenge of the future. "We have to be prepared for the future when the
distinction between space objects and aircraft will become less precise,"
Mr. Lafferranderie says. "Space activities are a good example of future
collaboration between lawyers, scientists and engineers."