Two companies carried private citizens to the edge of space in July 2021. Although suborbital flights have so far taken place within one jurisdiction—they start and end in the same state, do not pass through foreign airspace, or meet both criteria—they will become international when transportation between two points in different states via outer space becomes a reality. International law is ambiguous about the regulation of suborbital flights; neither international air law nor international space law explicitly apply. It is also unclear which organization or institution should be mandated with the international regulation of suborbital flights. The legal uncertainties must be solved to ensure a safe environment and a healthy industry. The characterization of suborbital flights as either aviation or spaceflight has important consequences, such as whether it concerns aspects of public law (e.g., safety) or private law (e.g., second- and third- party liability and insurance).
This Article focuses on the latter—the private law issues of second- and third-party liability insurance against such liability in the fields of both air and space law, illustrating the differences between the two and underlining the need for a solution.
When taking place within one jurisdiction, suborbital flights operating within a state’s territory are properly subject to state regulation through national law, as this would purely be a national activity falling within a state’s sovereign jurisdiction. Thus, states could decide to consider this activity as either aviation or spaceflight and apply air or space law accordingly. This may, however, lead to fragmentation and legal uncertainty. When flights become international by crossing borders on Earth, international agreement about what law should govern suborbital flights becomes critical and should be developed in close cooperation between the International Civil Aviation Organization (ICAO) and the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). A new sui generis regime will likely borrow from both air and space law and insurance practices. Until such a regime under international law is adopted, national law will govern these issues. The only available model is U.S. law, which seems suitable for the short- to medium-term until an international regime emerges and the industry matures.
This Article will analyze current regimes and formulate recommendations for the way forward. Pursuant to that analysis, this Article concludes that a new international agreement on the operation of suborbital flights is required. For the time being, national law, harmonized to the maximum extent, should provide a solution. The Article further aims to identify relevant points for the establishment of national legislation and, in the longer term, an international agreement. Whether or not this will take the form of a legally binding instrument remains to be seen, although the latter seems more realistic in the current geopolitical context.
Tanja Masson-Zwaan, Private Law Aspects of Suborbital Flights: Second- and Third-party Liability and Insurance,
J. Air L. & Com.