IAC-19-D6.1.

BEWARE OF THE HYBRIDS: LEGAL ISSUES OF AIR LAUNCHES

Dr. Michael Chatzipanagiotis*

Abstract

This paper addresses key challenges as to the legal regime applicable to air launches of space
objects. Air launches can have two forms: (a) a system composed of a mothership that operates as
an aircraft and carries a rocket-propelled vehicle, which is released at a specific altitude and
activates its own engines to reach outer space; (b) a vehicle carrying both air-breathing and rocket
engines activates the latter after reaching a certain altitude. From a legal perspective, it is unclear
if these systems/vehicles should be treated as aircraft or space objects before separation/activation
of rocket propulsion, and, in case of composite systems, after releasing the vehicle carried. The
question is of great importance, because it determines the applicable legal regime in a variety of
issues, such as safety, licensing, certification, air traffic control, crew qualification, liability etc. In
all these areas, will air law or space law apply? The former is complex and extensive, and its
application to the private space industry may be inappropriate. The latter may be too vague to
provide adequate legal solutions. This paper examines how national and international air law is
likely to apply to air launches and highlights some relevant legal ramifications. At the same time,
it underscores some of the drawbacks of the current space law regime. It is noted that even if
special national rules that cover certain aspects of such launches are enacted, qualification of a
vehicle as an aircraft might cause the complementary application of aviation rules. Moreover,
distinguishing between vehicles according to their flight specifications risks hampering
innovation. The paper argues that comprehensive, yet flexible, legal rules on private spaceflights
are needed, regardless the specifications of the vehicles used. It also makes suggestions on the
development and content of such rules.

INTRODUCTION: AIR LAUNCH AND significant operational advantages, including

ITS ADVANTAGES
Air launch is the method of launching objects
into outer space with the help of a
conventional aircraft. Air launch entails
lower launching cost.1 Air launches of
satellites have been conducted since 1990.2
More recently, there have been plans for air
launches of manned spacecraft with paying

*
Lecturer in Law, University of Cyprus, mchatz07@ucy.a.c.cy.

IAC-19-D6.1.4 Page 1 of 19
spaceflight participants, which entail greater
risks for human lives.3
The most usual form of air launch consists of
two vehicles: an air-breathing mother/ carrier
vehicle and a rocket-propelled launch
vehicle. The carrier vehicle transports the
launching rocket to a higher altitude, where it
is subsequently released to reach outer
space.4 Another form consists of a single-
stage to orbit (SSTO) vehicle that carries
engines able to operate both in air-breathing
and rocket-propelled mode, in which the
device flies in air-breathing mode up to a
specified altitude, where it changes to rocket-
propelled mode.5 There is also the concept of
a three staged, towed-glider launch system: a
conventional aircraft tows a glider, which
carries a rocket-propelled launch vehicle. The
glider is released at a specific altitude, where
it uses aerodynamic lift to reach a higher
altitude, from which the launch vehicle is
released in turn and activates its rocket
engines.6
After release of the launch vehicle, the carrier
vehicle returns to its base like a conventional
aircraft. However, in manned spaceflights
interesting is also the operation of the
space/passenger vehicle after re-entry in the
atmosphere, which in some cases glides
returns to its base in an aircraft-like manner,
i.e. either gliding in the atmosphere or using
air-breathing engines.
Currently, the only operational air-launch
system is the US Pegasus launcher, which is
launched by a modified L-1011 aircraft.7
IAC-19-D6.1.4
Nevertheless, there are numerous projects
under development, which underlines the
great potential of such systems.8
Air launches are challenging from a legal
point of view, because their operations
involve aspects of two distinct sets of rules,
air law and space law. If an air launch
involves persons or entities from different
States, then rules of international air law
and/or space law may be applicable alongside
national legislation. Legal complications
arise from the dichotomy between air and
space law.
1. DICHOTOMY BETWEEN AIR AND
SPACE LAW
Air law and space law were developed under
different circumstances and in view of
different operational requirements.
The main instrument of international air law
is the 1944 Chicago Convention (CC),9
whose central element is the principle of
sovereignty of States in the airspace above
their territory,10 as well as the establishment
of a specialized international organization for
air travel, the International Civil Aviation
Organization (ICAO). Noteworthy are the
Annexes to the Chicago Convention, which
are adopted by the Council of ICAO.11 The
Annexes contain technical rules and
procedures, which are called Standards and
Recommended Practices (SARPs) and aim to
ensure uniformity, to facilitate and improve
air travel. SARPs do not form an integral part
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of the CC and are not a binding source of
international law.12 The obligation to comply
with SARPs is limited to the highest possible
degree [Art. 37 (1) CC]. If a State finds it
impracticable to comply, it must immediately
notify ICAO (Art. 38 CC). However, SARPs
exert huge influence in practice.13
Air law rules bear in mind a well-organised,
air transport industry. Apart from the detailed
rules of the Annexes to the CC, one could
mention also the 1929 Warsaw Convention
(WC) on passenger liability of the
international air carriers14, whose aim was
initially to help that industry develop further
with the help of solid unified rules and which
has been replaced and modernized by the
1999 Montreal Convention (MC)15.
Space law is governed mainly by five basic
Treaties, the 1967 Outer Space Treaty
(OST)16, the 1969 Rescue Agreement (RA)17,
the 1972 Liability Convention (LC)18, the
1975 Registration Convention (RC)19 and the
1979 Moon Agreement (MA)20. The core of
space law is the free exploration and use of
outer space, and the non-appropriation of
outer space and the celestial bodies.21 The
Space Treaties were drafted at a time when
space activities were conducted mainly by
States, while private entities played only a
rudimentary role. Thus, space law rules are
addressed to States. Subsequently, States
undertake to implement such obligations
through national space legislation, which is
less detailed than national aviation
legislation. National space laws provide
mainly for the requirements for licensing,
IAC-19-D6.1.4
authorization and supervision of space
activities.
Generally speaking, air law will apply
whenever there is an ‘aircraft’ involved,
while space law applies to ‘space objects’
aimed at using and exploring outer space.
From the perspective of national law, there
are no common rules and each State has
adopted its own approach as to the scope of
its national air law rules. The same goes for
national space law rules – if such rules have
been enacted, given that many States lack
domestic space legislation.
In the following two sections, we will
examine how air launches could qualify as
‘aircraft’ and ‘space objects’, as well as some
consequences from such qualification.
2. AIR LAUNCHES AS OPERATIONS OF
‘AIRCRAFT’
2.1 The notion of ‘aircraft’
There are two possible definitions of an
‘aircraft’.
One possible definition is functional/
technical. The Annexes to the Chicago
Convention define an ‘aircraft’ as ‘any
machine that can derive support in the
atmosphere from the reactions of the air’.22 A
similar definition is used by NASA.23 The
functional definition has also been adopted
by some domestic laws24 and has found
acceptance in the legal literature.25 It has also
been suggested that the verb ‘can’ in the
Page 3 of 19
above-mentioned definition entails that the
device need not actually derive support from
the reactions of the air, it suffices that it
merely has such capability.26
Air launch systems also derive support from
the air at different stages of flight. This
happens while they use air-breathing engines
or glide in the atmosphere. Thus, during these
operational stages they are ‘aircraft’
according to international air law and some
domestic air laws.
The situation is different for flights
conducted with rocket engines. NASA
defines a rocket engine as a reaction engine
that contains within itself or carries along
with itself all the substances necessary for its
operation or for the consumption or
combustion of its fuel, not requiring intake of
any outside substance.27 The definition is not
authoritative, legally speaking, yet it
highlights the basic characteristics of a rocket
engine. Thus, vehicles using rocket engines
are not aircraft, because they do not derive
support from the reactions of the air. The
same goes for passenger capsules descending
with a parachute: they are not ‘aircraft’,
because the parachute does not help in
deriving support from the air, but merely
decelerates the fall.
The other possible definition is spatial:
‘aircraft’ is any machine able to operate in the
airspace, irrespective of its technical
configuration. The spatial definition has been
adopted by some domestic laws.28 As a result,
IAC-19-D6.1.4
in some States air launch systems qualify as
aircraft, as long as they fly in the airspace.
Consequently, regardless of the definition
used for ‘aircraft’, air launch systems are
‘aircraft’ for certain stages of flight. This has
a series of consequences, which are
exemplified, among others, in the following
domains.
2.2 Safety of operations
Air law ensures safety of operations through
procedures of certification.
Certification is any form of recognition that a
product, part or appliance, organization or
person complies with the applicable safety
requirements, as well as the issuance of the
relevant certificate attesting such
29
compliance. Certification focuses on
different domains of aviation, such as the
design of the aircraft, the conformity of each
aircraft to the approved type design, the
training of the personnel, the structure and
technical expertise of the aircraft
manufacturers, operators and maintenance,
etc. The international certification standards
are set in Annex 8 to the 1944 Chicago
Convention on International Civil Aviation
and are implemented by national laws. As a
result, certification is a rigorous, lengthy and
costly procedure, but, once made, is valid for
multiple flights. Furthermore, in the
certification process part of the
responsibility, and the liability arising
therefrom, rests with the certifying
authority.30
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2.3 Registration
Registration of aircraft is regulated in Arts
17-21 of the 1944 Chicago Convention and
Annex 17 to this Convention. Registration
confers nationality to aircraft. Multiple
registrations are not allowed, yet change of
registration is possible. Furthermore, there
are special international rules on registration
of leased aircraft (Art. 83bis CC).
Registration of aircraft follows national rules
(Art. 19 CC). Therefore, a device that is not
technically an ‘aircraft’ may be registered as
such, if national rules permit it.
In the framework of air launches, it is
noteworthy that not only carrier vehicles are
registered as aircraft in national registries,31
but sometimes also vehicles destined to reach
outer space32.
2.4 SAR operations and accident
investigation
International space law contains generic
provisions on Search and Rescue (SAR)
operations in the Rescue Agreement (RA).33
The RA provides for international
cooperation in SAR operations, notification
of the UN Secretary General and return of the
space object and its personnel to the
‘launching authority’, which is ‘the State
responsible for launching’. As to accident
investigation, there are no provisions at all.
International air law contains extensive
provisions on SAR in Annex 12 and on
accident investigation in Annex 13 to the
Chicago Convention. The former foresees
IAC-19-D6.1.4
organisational and operational measures to be
in place in each State, as well as principles of
international cooperation for incidents both
in national territory and over the High Seas.
The latter prescribes the methodology to
conduct accident investigation, the objective
of which is the enhancement of safety and not
the apportionment of blame or liability. There
are also rules on international cooperation
involving the States of Registry, Operator,
Design and Manufacture.
2.5 Liability
In air law, a distinction is made between
liability of the air carriers towards persons
who are recipients of the carrier services, i.e.
passengers and consignors of cargo
(passenger and cargo liability), and towards
persons uninvolved in the particular flight,
i.e. persons on the Earth surface and persons
on board other aircraft (third-party liability).
2.5.1 Passenger and cargo liability
In international air law, the most widely used
instrument on passenger liability of the air
carrier is the 1999 Montreal Convention
(MC99).34 It applies to aircraft performing
‘international carriage’, which exists when
the flights departs from a contracting State
with a final destination in another contracting
State. In case of round trips to another
country the place of departure is the same as
the place of destination.35
The MC99 provides for two-tiered passenger
liability. In the first tier the air carrier is
absolutely liable for death or bodily injury,
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but not for stand-alone mental injury, up to
128 821 Special Drawing Rights (SDR).36 In
the second tier, the carrier is unlimitedly
liable for presumed negligence.37
Cargo liability of the international air carrier
is based on presumed negligence and is
limited to 22 SDR.38 This limit cannot be
broken under any circumstances.39
It has been suggested that the air launch of a
passenger-carrying space vehicle may qualify
as international air carriage, even if the flight
destination is to reach outer space. Should the
separation from the mother vehicle occur in
the airspace of another State, then the place
of separation could be seen as the end of the
air travel and entail an ‘international
carriage’.40 From a legal perspective such
interpretation might find limited support in
the MC99’s wording. However, it disregards
the objective and the circumstances
surrounding the conclusion of the MC99,
which is to provide consumer protection in
highly developed and safe, massive air travel
and not apply to nascent, fragile industries.
National pieces of legislation have adopted
different approaches. In many cases, States
opt to extend the scope of the MC99 to
domestic flights too, at least regarding
commercial flights.41 In other cases, ordinary
contractual and tortious rules will apply to the
air carrier’s liability.
2.5.2 Third-party liability
In international air law, third-party liability of
aircraft operators is regulated by the 1952
IAC-19-D6.1.4
Rome Convention. It establishes strict
liability of the aircraft operator limited
according to the Maximum Take-Off Mass
(MTOM) of the aircraft. Few States have
ratified it and its international importance is
limited. However, some States have adopted
similar provisions in their domestic
legislation.42 In 2009 two new conventions
were signed, yet they have not yet entered
into force.43
National air laws tend to provide for either
strict liability of the aircraft operator, limited
depending on the MTOM of the aircraft44 or
unlimited liability based on negligence
following general tort rules.
3. AIR LAUNCHES AS OPERATIONS OF
‘SPACE OBJECTS’
3.1 The notion of ‘space object’
The notion of ‘space object’ comprises the
general definition of ‘space object’ and the
special issues of orbital capacity and of the
‘launch’.
3.1.1 Definition of ‘space object’
The Liability Convention (LC)45 and the
Registration Convention (RC)46 only state
that the term ‘space object’ includes
component parts of a space object as well as
its launch vehicle and parts thereof.47 This
definition has been taken over by national
space laws too.
Page 6 of 19
The context of the term can provide further
guidance. The OST refers repeatedly to the
exploration and use of outer space;48 thus, a
space object is intended to move and operate
in outer space. Furthermore, the wording of
the Space Treaties reveals that a space object
is launched.49 Besides, Art. I(b) LC clarifies
that the term ‘launching’ includes attempted
launching. Consequently, a space object is an
object launched or intended to be launched
into outer space and designed to move and
operate therein. Those elements of the space
object are generally accepted.50 The decisive
factor is the purpose of reaching outer space,
in order to exercise respective activities.51
In legal literature, it has been suggested that
the notion of ‘space object’ is generic and
comprises spacecraft, satellites and anything
that humans launch or attempt to launch into
space including their components and launch
vehicle.52 Moreover, a space object remains
such from the beginning to the end of its
mission.53
Consequently, the term space object as used
in the Space Treaties generally means any
artificial device launched or intended to be
launched into outer space, and designed to
move and operate in outer space, as well as
any component part and launch vehicle of
such device.
3.1.2 Orbital capacity
It is disputed whether a device flying into
outer space should have orbital capacity in
order to be classified as a ‘space object’.
IAC-19-D6.1.4
According to one point of view, space
objects can only be objects able to perform at
least one Earth orbit;54 nonetheless, some
authors do not exclude the application by
analogy of some space law rules to suborbital
vehicles.55 The opposing view rejects orbital
capacity as an essential characteristic of
space objects.56
It is submitted that orbital capacity is not a
requirement for ‘space objects’. First of all,
the wording of the OST, which is the main
framework for the international regulation of
space activities, mentions ‘objects launched
into outer space’ in general.57 The word
‘orbit’ is mentioned only in Art. IV (1) OST
regarding the prohibition of weapons of mass
destruction.
Second, the Space Treaties were meant to
regulate space activities of States. When they
were drafted, space activities involved
mainly sending objects into Earth orbit and
suborbital missions were of minor
importance.
Third, suborbital vehicles have been
explicitly included in the ambit of the
national space laws of South Africa58 and the
US59. Other countries refer to launches ‘into
outer space’ in general,60 which implies the
inclusion of suborbital vehicles. Thus, state
practice supports the view that suborbital
vehicles are space objects.
Fourth, the United Nations had from the very
beginning taken into account suborbital
objects in its work on international regulation
of space activities.61 There are no indices that
Page 7 of 19
UN COPUOS wanted to regulate only objects
with orbital capacity.62 On the contrary,
UNCOPUOS has been explicitly dealing
with legal issues of suborbital vehicles since
the circulation of the questionnaire on the
aerospace objects.63
As a result, the interpretation of the Space
Treaties reveals that orbital capacity is not a
requirement for the qualification as a space
object.
3.1.3 Launch
A central element in the notion of ‘space
object’ is that it is ‘launched’.
The ordinary technical meaning of ‘launch’
can be found in NASA Aerospace
Dictionary: ‘to send off a rocket vehicle
under its own rocket power’.64
An important issue is the moment the launch
begins. If a space object is launched, then its
quality as such begins with the
commencement of the launch.65 In general, it
has been accepted that a launch begins with
the ignition of the rocket engines, i.e. with
count-down 0.66 Nevertheless, the beginning
of the launch, and thus of the ‘space object’
quality, is disputed in hybrid systems.
Pursuant to a view, in these cases the launch
begins with the take-off of the entire system,
which is a space object throughout the
flight.67 This view implies that in two-stage
systems the carrier vehicle is a component of
the launch vehicle or perhaps a launching
facility, as it only facilitates the launch.
IAC-19-D6.1.4
This view has several advantages. First, it
finds support in the wording of the LC and
the RC, which state that the term ‘space
object’ includes its launch vehicle and its
component parts. Second, it enables potential
victims to identify an additional liable
launching State pursuant to the Liability
Convention.68 Third, it leads to the
application of a single legal regime to the
launching vehicle and can equally apply to
single-stage-to-orbit spacecraft.
Nonetheless, this view does not explain how
the carrier vehicle should be treated after
separation: is it a ‘space object’ or an
‘aircraft’? The former possibility might be
seen as illogical, because the carrier vehicle
as such is technically an aircraft. The latter
possibility appears absurd, for it would mean
that a space object is ‘transformed’ into an
aircraft, although its flight specifications
remain unchanged after separation.
According to another view, two-staged
systems should be treated as an aircraft
before separation.69 Until that moment, the
passenger/launch vehicle is part of the
aircraft-carrier vehicle. Only after separation
and ignition of the rocket engines does the
passenger vehicle become a space object -
and remains such until landing.
This view has the merit of technical
consistency, because it treats each flying
object in accordance with its technical
specifications. Nevertheless, it leads to the
application of two different legal regimes to
the same flight, which is highly
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impracticable. In addition, it does not provide
any solution to the problems of SSTO
vehicles.
The US has enacted special rules, which
provide that a launch includes with pre-flight
ground operations for the launch vehicle.70
State practice tends to consider as the
beginning of the launch the moment that the
aircraft takes off. States have registered air
launches in the UN register indicating a
terrestrial point as the place of launch.71 This
probably means that they have regarded the
aircraft as part of the space object.
Nevertheless, it may not be appropriate to
deduct a general legal principle therefrom:
only one air launch system has been
operational (Pegasus), State practice refers
only thereto and regards mostly the US.72
From a technical standpoint, the most
congruous solution is to regard the passenger
vehicle as an aircraft until separation and as a
space object thereafter; for until that moment
the passenger vehicle has no technical
autonomy. From a legal point of view,
however, it is preferable to have a single
regime applied.
3.2 Safety of operations
Art. VI OST imposes the duty on contracting
States to authorize and continuously
supervise space activities of non-
governmental activities. Licensing focuses
on the safety of each mission of the vehicle.
Although different aspects of the mission are
also considered, such as re-entry systems, life
IAC-19-D6.1.4
support systems, abort procedures etc.,
licensing adopts a more holistic approach to
the flight and is a more flexible procedure.
However, in most cases each mission
requires a separate license. There are no
international license requirements for space
operations; therefore, they are determined in
domestic space legislation. In the licensing
process responsibility belongs to the
operator.73
3.3 Registration
In space law, Art. VIII OST prescribes that
the State having registered the space object
shall retain jurisdiction and control over it,
and that the State of registry owns the space
object. Details on international registration of
space objects can be found in the 1974
Registration Convention (RC). However, the
RC lays down a duty of registration only for
orbital vehicles (Art. II (1) RC).
The RC obliges the launching State to
register the space object. The Convention
defines the launching State as (a) the State
that launches or procures the launching of a
space object and (b) the State from whose
territory or facilities the space object is
launched [Art. I(a)]. Thus, there can be up to
four ‘launching States’, but only one State of
registry. In such cases the Art. II (2) RC
clarifies that the launching States should
conclude a special agreement on which of
them will register the space object and which
one will exercise jurisdiction and control.
Thus, in case of more launching States
jurisdiction and control can be separated from
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registration.
The above space-law provisions entail that
separate registration is required for each
launch of a space object, even if it is a
reusable vehicle.74 Change of registration,
e.g. in case the ownership of the space object
is transferred to another State or a foreign
entity, is not foreseen in international space
law and complicated situations may arise.
Such issues can be resolved through special
agreements among the parties involved, i.e.
States and operators.75
National space laws contain diverse
provisions on registration of space objects.
3.4 SAR operations and accident
investigation
International space law contains generic
provisions on Search and Rescue (SAR) in
Art. V OST and in the Rescue Agreement
(RA). The RA provides for international
cooperation in assisting astronauts in distress,
notification of the UN Secretary General and
return of the space object and its personnel to
the ‘launching authority’, which is ‘the State
responsible for launching’. As to accident
investigation, there are no provisions at all.
3.5 Liability
3.5.1 Passenger and cargo liability
International space law regulates only third-
party liability. International space law does
not provide for passenger liability of the
vehicle operator. The scope of the Liability
IAC-19-D6.1.4
Convention does not encompass
76
passengers. However, there are national
pieces of space legislation, which provide
that operators of space vehicles will not be
liable to passengers, called space flight
participants, under condition that the latter
have signed a written informed consent
acknowledging and accepting the risks of
spaceflight.77
As to cargo, there are neither international
nor national rules regulating liability. Such
issues are arranged contractually between the
interested parties.
3.5.2 Third-party liability
International space law provides only for
liability of States.
Art. VII OST lays down the basis for State
liability. The 1972 Liability Convention (LC)
elaborates on such liability. It imposes strict
liability on the ‘launching State’ for damage
caused by a space object to third parties on
the surface of the Earth or to aircraft in flight,
while fault principles govern damage to space
objects of other States. Art. I(c) LC defines
the launching State as: (a) the State that
launches or procures the launching of a space
object and (b) the State from whose territory
or facilities the space object is launched.
Thus, there can be more than one ‘launching
State’ for a space activity. In such case they
will be jointly and severally liable to third
States, while internal apportionment of
liability will occur through special
agreements among them.
Page 10 of 19
For private space activities, important is Art.
VI OST. It provides for State responsibility
for the activities of also non-governmental
entities, which must be authorized and
supervised by the ‘appropriate’ State. In such
framework, Art. VI OST plays an important
role in determining State liability for private
space activities.
States regulate third-party liability arising
from space operations through domestic
legislation. Such legislation very often
requires operators to have third-party liability
insurance cover, to be granted authorization
for their activities. Operators have to
indemnify the government for any
compensation paid to another State in
connection with damage caused by the
authorized activity.78
4. INTERMEDIATE CONCLUSION AS
TO THE LEGAL NATURE OF AIR
LAUNCHES
Air launches are governed by both
international air law and space law. The same
is valid for domestic air and space law, in the
absence of special rules.
There can be no clear classification of air
launch systems vehicles as aircraft or space
objects.
According to the functional definition of
aircraft, air launch systems are aircraft, as
long as they use air-breathing engines or
glide in the atmosphere, and space object
IAC-19-D6.1.4
while using rocket propulsion. On the
contrary, the spatial definition of aircraft
considers as aircraft all vehicles during their
flight in the airspace.
‘Space objects’ under space law are defined
using functional criteria. From a legal aspect,
space objects begin to exist from the moment
of ‘launch’. In the absence of a special
definition in national space legislation, the
launch begins when the rocket engines are
ignited. However, for air launches it may be
more practicable to accept that the launch
begins when the (carrier) vehicle takes off.
Space objects remain such until completion
of the flight, which means also when they
glide in the atmosphere.
After re-entry of a space object in the
atmosphere, air law and space law may
contain contradicting provisions. According
to air law they are aircraft, to the extent that
they glide in the atmosphere or use air-
breathing engines. According to space law
they remain space objects. For reasons of
simplicity, it would be preferable to deem
them space objects and avoid a re-
classification at a later stage of the flight.
5. CONSEQUENCES OF THE
DICHOTOMY
The above-mentioned dichotomy has a series
of repercussions for the operation of air
launches, especially regarding commercial
human spaceflights.
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5.1 Legal uncertainty
The applicability of two different legal
regimes to air launches brings legal
uncertainty as to the exact provisions
applicable to the flight at a given moment. It
is unclear when or where air law applies and
the same goes for space law.
In addition, there is uncertainty as to
administrative competence for regulatory
oversight. Are civil aviation authorities
competent for oversight and in what domains
exactly?
Furthermore, legal uncertainty as to
regulatory compliance perplexes liability
issues, as it increases liability exposure and
the related insurance cover. Such uncertainty
also augments the risk of litigation in case of
an accident: claimants could attempt to
benefit from the grey areas in safety
regulations, to achieve higher compensation,
and might be less willing to reach an out-of-
court settlement.
5.2 Potential distortion of competition and
impediment to innovation
Regulatory uncertainty and its related effects
are caused by the existence of hybrid
characteristics in a given operation. Such
uncertainty surrounds only operators of
vehicles that use hybrid technology, and not
the ones that use purely ballistic methods of
launching and return to Earth. This means
that regulatory fragmentation could
discourage operators from adopting
technological solutions based on such
IAC-19-D6.1.4
characteristics, despite their otherwise
operational and economic benefits.
6. SUGGESTED WAY FORWARD
To overcome these shortcomings, an
integrated approach is required, i.e. a
comprehensive set of special rules. Such
approach would be particularly useful in
cases of human spaceflights, in which the risk
for human lives is far greater.
6.1 Integrated approach
Special rules should be enacted, which could
combine useful elements from both air law
and space law.
6.1.1 Scope of the special rules
The generic scope of these rules should
include all launches, so that regulation does
not impede technological development. The
technical particularities of air launches may
necessitate a separate chapter in such
legislation. Nevertheless, we need special
rules that are technology neutral to the
greatest extent feasible.
It is important that special rules regulate all
aspects of spaceflights. Patchwork regulation
risks creating regulatory ‘gaps’, which would
be filled applying either air law by analogy,
or general rules, e.g. rules on tortious and
contractual liability. Application by analogy
of some air law provisions appears
unavoidable in some cases, such as air traffic
rules. However, national legislators would
Page 12 of 19
enhance legal certainty, if, to the extent
possible, they indicated which rules should
be applied in which circumstances.79
In this regard, caution is also required to
avoid overregulation. Comprehensive
regulation does not mean too detailed
regulation, but regulation that will cover all
essential aspects of the spaceflight.80
In international law, uniform rules in the vein
of the Annexes to the Chicago Convention
would be highly desirable, but also highly
unlikely to be agreed upon at official state
level. Nevertheless, uniformity could be
achieved through the development of private
standards by international bodies, with the
participation of the space industry. In this
regard, the spaceflight safety standard is
worth mentioning, which has been developed
by the International Association for the
Advancement of Space Safety (IAASS) and
the Society of Automotive Engineers (SAE
Int.).81 The effectiveness of such private
standards will depend on the degree of their
enforcement.
In practice, it is expected that there will be
interactions between sophisticated national
pieces of legislation, such as the US
Commercial Space Launch Act and its
implementing regulations, with
internationally uniform private standards.
6.1.2 Supervision and enforcement
Uniform rules require integrated supervision
and enforcement.
IAC-19-D6.1.4
A ‘one-stop shop’ safety agency has to be
created.82 A single authority/agency should
be entrusted with safety issues, such as
licensing and certification, as well as with
regulatory supervision and enforcement of
these rules, at all stages of the flight. The US
has already proceeded in this direction by
creating a special office within the Federal
Aviation Administration (FAA), the Office of
Commercial Space Transportation.83
Such authority/agency could be assisted by
experts from other governmental agencies.
Yet, it is important that a single agency is in
charge. The direct involvement of more than
one agency risks leading to conflicting
competencies and increased bureaucratic
procedures, with all negative consequences
flowing therefrom.
6.1.3 International uniformity and
coordination
Given that outer space falls outside the
jurisdiction of any State (Art. 1 OST) and that
space operations become increasingly
international, international regulatory
uniformity would be very helpful, if not
necessary.
Such uniformity would be ensured ideally by
an international organization, just like ICAO
has done for air law through the Annexes to
the CC. However, in international space law
there is no organization with regulatory
powers. Thus, extensive amendments of
current international law would be required,
to vest an existing organization, or a new one
to be created, with the necessary regulatory
Page 13 of 19
powers. Yet, the reluctance of States to adopt
new internationally binding rules renders
such possibility unrealistic for the short and
mid term.
A more viable alternative would be to strive
for coordination, instead of uniformity.
Coordination at the global level is undertaken
by the UNCOPUOS, albeit at a generic level
and with not very satisfying results in recent
years. To produce more tangible results, there
are two possibilities.
First, to conclude bilateral (or even
multilateral) regulatory cooperation
agreements between national space agencies,
to share insights and experience. There are
already agreements of this kind in place,
mainly between the US and other countries.84
Second, to encourage and support private
international coordination activities. There
are organizations that have started
developing international space safety
standards, such as the International
Association for the Advancement of Space
Safety (IAASS) and the Society of
Automotive Engineers International (SAE
Int.), which have developed a Space Safety
Standard for Commercial Human-Rated
System.85 In this regard, the IAASS has
announced the intention to establish a
commercial Space Safety Institute to offer
safety certification services on a commercial
basis based on this Standard. Such initiatives
could fill the gap of global coordination and
ensure, to a certain extent, the desired
regulatory uniformity.
IAC-19-D6.1.4
6.2 Domain-specific proposals
Considering the early stage of manned
private spaceflight and the focus of the
missions to the exploration and use of outer
space, the core of the rules could be
provisions of space law, complemented by
modified provisions of air law and private
standards.
Special rules should prefer using technology-
neutral terms, such as ‘spacecraft’ or ‘launch
vehicle’, instead of ‘aircraft’ and ‘space
object’, to define their scope.86 At the same
time, all vehicles should be subject to air
traffic rules and management, when flying in
airspace used by air traffic.
Safety issues would be better regulated
through a combination of government
licensing with certification according to
performance-based standards. International
uniformity of standards would facilitate
international cooperation and technological
progress. Such uniformity could be achieved
through the development of international
private standards by neutral entities, which
will comprise persons with international
acknowledged expertise and will enjoy
support from both the industry and the States.
Strict application and enforcement of such
standards are necessary requirements for the
success of such mechanism. In the long term,
international standards and recommended
practices at the example of the Annexes to the
Chicago Convention may be necessary.
Registration in national space registries
should be preferred. For regulatory purposes,
Page 14 of 19
all components of air-launch systems should
be deemed ‘space objects’ throughout the
mission, following functional criteria. Such
suggestion is not unproblematic from a
purely technical perspective, but it has the
merit of regulatory simplicity and
technology-neutral application. In any case,
domestic rules should provide for change of
registration in case of transfer of ownership
or leasing.
SAR operations, at least regarding incidents
in the airspace and over the High Seas, and
accident investigation should be modeled to
air law. Air law has proved to be very
efficient in these domains.
As to passenger liability, the current
regulatory trend is to follow the US example
of informed consent. Rules similar to the ones
of the 1929 Warsaw Convention on the
liability of the air carrier would be an
alternative, perhaps at a later stage. The
WC29 imposes limited liability on the carrier
for presumed negligence, which becomes
unlimited if the claimant proves that the
carrier acted recklessly. In any case,
applying air law liability rules to manned
spaceflights requires great caution, because
the flight profile is significantly different.
Third-party liability at international level
could continue being governed by the
Liability Convention, while at national level
operator liability and related insurance
requirements according to space provisions
will keep playing a dominant role. The
current space-law regime has served well the
IAC-19-D6.1.4
international community by avoiding the
creation of ‘flags of convenience’. At the
same time, the failure to achieve wide
acceptance of an international convention on
the liability of aircraft operators indicates the
meager success chances of a respective future
instrument in space law. Therefore, there
appears to be no real necessity for
international regulation of the third-party
liability of operators.
CONCLUSION
Under the current international regulatory
regime, air-launch systems fall under both air
law and space law, which creates legal
uncertainty, distorts competition and impedes
innovation. Neither regime as such is
appropriate to provide adequate legal
solutions. The same applies to national pieces
of legislation to the extent that they contain
no comprehensive rules on spaceflights.
Therefore, an integrated approach is required.
New rules should be established, which will
be applicable to all spaceflights, throughout
the mission, irrespective of the technical
characteristics of the vehicles used.
Regulatory oversight of such rules should rest
with a single authority.
International uniform rules established by an
international organization would be
desirable, yet their creation appears
unrealistic under the current international
legal regime. A more realistic approach
would be, on the one hand, the promotion of
Page 15 of 19
bilateral regulatory cooperation agreements
between national space agencies; on the other
hand, supporting international private
1
Stephen A. Muir, Air-launch to orbit, Conference
paper, available at
https://www.colorado.edu/faculty/kantha/sites/default
/files/attached-files/56736-58722_-_stephen_muir_-
_may_3_2014_644_pm_-_final_report_muir.pdf
(Jan. 23, 2020).
2
Pegasus launch vehicle, which used to be carried by
a B-52 aircraft and is now carried by an L-1011 – see
https://www.northropgrumman.com/Capabilities/Peg
asus/Pages/default.aspx (Jan. 23, 2020).
3
E.g. Howell, Elizabeth, Virgin Galactic: Richard
Branson's Space Tourism Company,
https://www.space.com/18993-virgin-galactic.html,
posted Jan. 9, 2019 (Jan. 23, 2020).
4
See e.g. the Pegasus launch vehicle, supra note 2;
the Stratolaunch vehicle,
https://www.stratolaunch.com/how-we-launch/ (Jan.
23, 2020).
5
See e.g. the Synergetic Air-Breathing Rocket
Engine, currently under development by Reaction
Engines Ltd,
https://www.reactionengines.co.uk/sabre (Jan. 23,
2020).
6 17
NASA Towed-Glider Air Launch System,
https://www.nasa.gov/centers/armstrong/programs_pr
ojects/TGALS/index.html (Jan. 23, 2020).
7
Northrop Grumman Pegasus,
https://www.northropgrumman.com/Capabilities/Peg
asus/Pages/default.aspx (Jan. 23, 2020).
8 18
See the projects in Muir, supra note 1, 3-9.
9
Convention on International Civil Aviation,
signed at Chicago on 7 December 1944, entered into
force on 4 April 1947.
10
Art. 1 CC.
11
Art. 90 (a) CC stipulates that the Annexes are
adopted by a two-third majority of the ICAO Council
and come in force three months after their submission
to the Member States, unless in the meantime the
majority of the Members States register their
disapproval with the Council.
12
Hobe, Stephan, Aerospace vehicles: Questions of
registration, liability and institutions – a European
perspective, AASL 2004, 377 (388); Milde, Michael,
Enforcement of aviation safety standards – Problems
IAC-19-D6.1.4
initiatives for the establishment and
implementation of international standards.
of safety oversight, ZLW 1996, 3 (5); Weber,
Ludwig, Internationale Organisationen, in: Hobe,
Stephan/von Rucketschell, Nicolai (eds), Kölner
Kompedium Luftrecht, Vol. 1, Cologne-Munich 2008,
para 62.
13
Compare Milde, (supra note 12), p. 6, who states
that SARPs have practically “a persuasive objective
force comparable to the law of gravity”.
14
Convention for the Unification of Certain Rules
Relating to International Carriage by Air, signed at
Warsaw on 12 October 1929, entered into force on 13
February 1933.
15
Convention for the Unification of Certain Rules
for International Carriage by Air, signed at Montreal
on 28 May 1999, entered into force on 4 November
2003. The Montreal Convention has succeeded the
Warsaw Convention.
16
Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies [GA
Resolution 2222 (XXI), annex], adopted on 19
December 1966, opened for signature on 27 January
1967, entered into force on 10 October 1967.
Agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects
Launched into Outer Space [GA Resolution 2345
(XXII), annex], adopted on 19 December 1967,
opened for signature on 22 April 1968, entered into
force on 3 December 1968.
Convention on International Liability for
Damage Caused by Space Objects [GA Resolution
2777 (XXVI), annex], adopted on 29 November
1971, opened for signature on 29 March 1972,
entered into force on 1 September 1972
19
Convention on Registration of Objects Launched
into Outer Space [GA Resolution 3235 (XXIX),
annex], adopted on 12 November 1974, opened for
signature on 14 January 1975, entered into force on
15 September 1976.
20
Agreement Governing the Activities of States on
the Moon and Other Celestial Bodies (GA Resolution
34/68, annex), adopted on 5 December 1979, opened
for signature on 18 December 1979, entered into
force on 11 July 1984.
Page 16 of 19

21
Arts 1 and 2 OST.
22
This definition is provided in the Glossary of terms
of the Annexes to the Chicago Convention.
23
According to NASA aircraft is «any structure,
machine, or contrivance, especially a vehicle,
designed to be supported by the air, being borne up
either by the dynamic action of the air upon the
surfaces of the structure or object, or by its own
buoyancy. See NASA Dictionary of technical terms
for aerospace use, available at
https://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/1
9660001124.pdf (Jan. 23, 2020).
24
E.g. Art. 32 Russian Air Code; Art. 1(2) Swiss
LVG.
25
Hobe, Stephan / Cloppenburg, Jürgen, Towards a
new aerospace convention? Selected issues of „space
tourism“, 47 IISL-Proc. 2004, p. 377 (379);
Diederiks-Verschoor, Isabella H.Ph., An Introduction
to Air Law, 8th ed., The Hague et al. 2006, p. 6;
Dauses, Manfred, Die Begriffsbestimmung von
Luftfahrzeug und Raumfahrtzeug im Völkerrecht und
innerstaatlichen Recht, ZLW 1972, 75 (83). See also
Shawcross and Beaumont, para. V[1], who suggest
that this definition is part of international customary
law.
26
von der Dunk, Frans G., The integrated
approach—Regulating private human spaceflight as
space activity, aircraft operation, and high-risk
adventure tourism, 92 Acta Astronautica (2013) 199,
203.
27
NASA Dictionary of technical terms for
aerospace use (supra note 23).
28
E.g. 49 USC 40102(6); §11 (1) Austrian LFG
(Air Travel Act). See also §1(2) German LuftVG (Air
Traffic Act), which does not contain an abstract
definition of aircraft, yet considers aircraft all
machines moving in the air, expressly including
rockets and similar objects.
29
See Art. 2 of the Regulation (EC) No 216/2008 of
the European Parliament and of the Council of 20
February 2008 on common rules in the field of civil
aviation and establishing a European Aviation Safety
Agency, Official Journal L 079, 19/03/2008 pp. 1 – 49.
30
Marciacq, Jean-Bruno/ Morier, Yves et al.,
Accommodating suborbital flights into the EASA
regulatory system, in Jakhu, Ram and Pelton, Joseph
(eds), Space Safety Regulations and Standards, 2011,
187, https://doi.org/10.1016/B978-1-85617-752-
8.10016-9.
IAC-19-D6.1.4
31
E.g. the Stratolaunch vehicle of the Stratolaunch
Systems Corp., which has the registration number
N351SL in the US -
https://registry.faa.gov/aircraftinquiry/NNum_Results
.aspx?NNumbertxt=351SL (Jan. 23, 2020).
32
E.g. Virgin Galactic VSS Unity bears the aircraft
registration number N202VG in the US -
https://registry.faa.gov/aircraftinquiry/NNum_Results
.aspx?NNumbertxt=N202VG (Jan. 23, 2020).
33
Supra note 17.
34
Supra note 15.
35
Art. 1(2) MC99.
36
As the limit has been formed following successive
revisions in 2009 and 2019. See ICAO Secretariat,
2019 Revised Limits of Liability Under the Montreal
Convention of 1999,
https://www.icao.int/secretariat/legal/Pages/2019_Re
vised_Limits_of_Liability_Under_the_Montreal_Con
vention_1999.aspx (Jan. 23, 2020).
37
Arts 17(1) and 21 MC99.
38
As the limit has been revised, see supra note 36.
39
Arts 18 and 22(3) MC99.
40
Hobe, Stephan, Legal aspects of space tourism, 86
Nebraska Law Review (2007), 439, 449.
41
E.g. Regulation (EC) No 2027/97, as amended, as
to passenger liability of EU air carriers, §§ 44 et seq.
of the German LuftVG
42
E.g. §§ 33 et seq. of the German LuftVG.
43
Convention on Compensation for Damage to Third
Parties, Resulting from Acts of Unlawful Interference
Involving Aircraft, signed at Montréal on 2 May
2009; Convention on Compensation for Damage
Caused by Aircraft to Third Parties, signed at
Montréal on 2 May 2009.
44
Supra note 42.
45
Supra note 18.
46
Supra note 19.
47
Art. I (d) LC and Art. I(b) RC.
48
Arts I, III, IX, X, XI, XIII as well as its preamble.
49
E.g. Arts VII, VIII OST; Arts I, II LC; Arts I, II,
IV, V RC.
50
Cheng, Bin, Spacecraft, satellites and space
objects, in: Bernhardt, Rudolf (ed.), Encyclopedia of
Public International Law, Vol. IV, Amsterdam et al.
2000, p. 557; Gorove, Stephen, The Space Shuttle
and Some of its Legal Implications, in: Gorove,
Stephen (ed.), The Space Shuttle and the Law,
Mississippi 1980, p. 1 (4); Verplaetse, Julian G., On
the definition and legal status of spacecraft, JALC
Page 17 of 19

1963, p. 131(132); Wins, Elmar Weltraumhaftung im
Völkerrecht, Berlin 2000, p. 89.
51
Bueckling, Adrian, Völkerrechtliche Haftung für
Raumfahrtschδden nach dem
Weltraumhaftungsabkommen vom 29. März 1972,
Karlsruhe 1972, p. 23; Wins (supra note 50), p. 89.
52 Cheng (supra note 50), p. 577; Bittlinger, Horst,
Hoheitsgewalt und Kontrolle im Weltraum, Cologne
et al. 1988, p. 52; Hobe, Stephan, Die rechtlichen
Rahmenbedingungen der wirtschaftlichen Nutzung
des Weltraums, Kiel 1992, p. 134.
53
Bueckling (supra note 51), p. 23.
54
This view points to the wording of Art. IV (1)
OST, which prohibits States from “placing into orbit”
any objects carrying weapons of mass destruction,
and Art. II (1) RC, according to which a space object
“launched into Earth orbit or beyond” must be
registered. See Bueckling (supra note 51), pp.23-24;
Gál, G., Space Law, Leiden/New York 1969, p. 208;
Qizhi, He, Review of definitional issues in Space Law
in the light of development of space activities, 34
IISL-Proc 1991, p.32; Sztucki, Jerzy, Legal status of
space objects, 9 IISL-Proc. 1966, p. 108 (109);
Dauses (supra note 25), p. 84; Hashimoto, Yasuaki,
The space plane and international law, 35 IISL-Proc.
1992, p. 378 (379).
55
Qizhi (supra note 54), p.32; Sztucki (supra note
54), p. 109.
56
According to that view, the Space Treaties refer
to space objects in general and are not restricted to
objects being able to execute an Earth orbit. Art. IV
(1) OST and Art. II (1) RC are special provisions for
concrete categories of space objects, i.e. objects
carrying weapons of mass destructions and objects
that must be registered. Therefore, those articles
cannot be used to draw conclusions on the general
characteristics of space objects. See Kopal, Vladimir,
Issues involved in defining outer space, space object
and space debris, 34 IISL-Proc. 1991, p. 38 (40);
Cheng, Bin,“Space objects”, “astronauts” and
related expressions, 34 IISL-Proc. 1991, p. 17 (19);
Gorove, p. 21; Bittlinger (supra note 52), pp. 57-59.
57
Arts VII, VIII.
58
Section 1 of the Outer Space Act 1993, which
defines “launching” as “the placing or attempted
placing of any spacecraft into a sub- orbital trajectory
or into outer space”.
59
49 USC 70102.
IAC-19-D6.1.4
60
Part II of the Australian Space Activities Act
1998; Art. 3 Nr. 1 of the Belgian law on the activities
of launching, flight operations or guidance of space
objects; § 1 of the Norwegian Act on launching
objects from Norwegian territory etc. into outer
space; Section I of the Swedish Act on Space
Activities, which however excludes launching of
sounding rockets from its scope of application.
61
UN Assembly Resolution Nr. 1962 (XVIII) of 13
December 1963 International cooperation on the
peaceful uses of outer space, part II, Nr. 1 and 2(e)
which mentions explicitly sounding rockets; Report
of the Ad Hoc Committee on the Peaceful Uses of
Outer Space, UN Doc. A/4141/25 (1959), p. 39 and
47.
62
Bittlinger (supra note 52), p. 56.
63
Report of the legal subcommittee on the work of
its thirty-fourth session, UN Doc A/AC.105/607 (19
April 1995), para. 38 and Annex 1 to the Report.
64
Supra note 23.
65
Cheng, 34 IISL-Proc. 1991 (supra note 56), p. 17
(21-22); Gorove, Stephen, Towards a clarification of
the term “space object” – an international legal
imperative? JSL 1993, 11 (20).
66
Buekling, p. 24; Gorove (supra note 65), p. 19.
67
Schrogl, Kai-Uwe / Davies, Charles, A new look
at the concept of the “launching State”, ZLW 2002,
363 (367); Böckstiegel, Karl-Heinz, the term
launching State in international space law, 37 IISL-
Proc. 1994, p. 80 (82), who sees this view as a
possibility among more alternatives.
68
Schrogl,/Davies (supra note 67), p. 367. Art. I
(c)(ii) LC defines “launching State” as a State from
whose territory or facility a space object is launched.
69
Cloppenburg, Jürgen, Legal aspects of space
tourism, in: Benkö, Marietta / Schrögl, Kai-Uwe
(eds), Space Law: Current problems and perspectives
for future regulation, Utrecht 2005, p. 191 (196).
70
14 CFR §401.5 provides that (i) Under a license,
launch begins with the arrival of a launch vehicle or
payload at a U.S. launch site. (ii) Under a permit,
launch begins when any pre-flight ground operation
at a U.S. launch site meets all of the following
criteria:
(A) Is closely proximate in time to flight,
(B) Entails critical steps preparatory to initiating
flight,
(C) Is unique to space launch, and
Page 18 of 19

(D) Is inherently so hazardous as to warrant the
FAA's regulatory oversight.
71
UN Doc. A/AC.105/INF/397 (8 March 1993);UN
Doc. ST/SG/SER.E/489 (11 October 1996); UN Doc.
ST/SG/SER.E/317 (15 January 1997); UN Doc.
ST/SG/SER.E/326 (20 October 1997); UN Doc.
ST/SG/SER.E/489 (11 October 2006).
72
In all Pegasus launches the US is referred as the
launching State, while in very few occasions other
States are mentioned also as launching States.
73
Marciacq, Morier et al., supra note 30, 187.
74
Jakhu, Ram /Bhattacharya, Raja, Legal aspects of
space tourism, Proceedings of the 45th Colloquium
on the law of outer space (2003), p. 102 (119);
Cloppenburg (supra note 69), p. 209.
75
See details on this problem in Chatzipanagiotis,
Michael, Registration of space objects and transfer of
ownership in orbit, ZLW 2007, 239.
76
Hobe, supra note 12, 450.
77
E.g. 14 CFR §460.45 of the US; s. 17 Outer Space
Act 2018 for the UK.
78
See on these issues von der Dunk, supra note 26,
203, with further citations.
79
E.g. In the US, §460.5(e) CFR provides that each
crew member of a human space transportation vehicle,
who has a safety-critical role, must possess and carry
IAC-19-D6.1.4
an FAA second-class airman medical certificate issued
in accordance with 14 CFR part 67, no more than 12
months prior to the month of launch and reentry.
80
Cf. von der Dunk, supra note 26, 208, who points
that regulation should cover only issues that can and
need to be regulated in precise terms.
81
IAASS-SSI-1700 Safety Standard: Commercial
Human-Rated Space Systems http://iaass.space-
safety.org/publications/standards/ (Jan. 23, 2020).
82
See Chatzipanagiotis, Michael/ Kyriakopoulos,
George, One-stop shop safety regulation: Should we
do it and how?, 6 Journal of Space Safety
Engineering (2019)
https://doi.org/10.1016/j.jsse.2019.09.002.
83
FAA Office of Commercial Space Transportation
https://www.faa.gov/about/office_org/headquarters_o
ffices/ast/about/ (Jan. 23, 2020).
84
See FAA Office of Commercial Space
Transportation, International Affairs,
https://www.faa.gov/about/office_org/headquarters_o
ffices/ast/programs/international_affairs/ (Jan. 23,
2020).
85
Supra note 81.
86
E.g. in the US, 14 CFR §401.5 uses the notion of
‘launch vehicle’, which is defined a ‘vehicle built to
operate in, or place a payload in, outer space or a
suborbital rocket’.
Page 19 of 19