Space Industry Bill

Written evidence submitted by Thomas Cheney, PhD Candidate in Space Law, University of Sunderland (SIB01)

About Me:

I am a PhD candidate in space law at Sunderland University and am co-lead of the Space Generation Advisory Council’s Space Law and Policy Project Group. I have long had an interest in the regulation of spaceplanes and suborbital flight and helped draft SGAC’s response to the UN questionnaire on suborbital flights. [1] It is primarily this interest that has prompted this submission.

Executive Summary:

· The term "suborbital" as used in the Space Industry Bill is used inconsistent with its general use and use in foreign jurisdictions, particularly the United States

· The specification of the stratosphere in the definition of the term ‘suborbital’ could have unintended consequences

· Informed consent is a novel concept that needs further definition and could clash with the US ITAR legislation

· Winged suborbital craft are capable of being classed as both aircraft and space objects, this could have international ramifications that need to be clarified

Written Evidence:

1. The UK space industry is a vibrant and developing sector of the British economy, and it is good to see that this is being recognized and supported by the Government and Parliament. The Space Industry Bill is ambitious, but ambition is needed in order for the Innovation and Growth Strategy targets to be achieved, especially given the disruption that can be expected to arise as a result of the UK’s withdrawal from the European Union. However, it is not a perfect bill and there are some issues that need to be discussed and addressed, it is the intention of this paper to draw the committee’s attention to some of these issues.

2. The first issue to raise is with the distinction between "space activity" and "suborbital activity" as defined in section 1(4) and 1(5). First, section 1(5)(a) specifies that it applies to "a rocket or other craft that is capable of operating above the stratosphere." The stratosphere ends at approximately 50km [2] which is half the distance to the "von Karman line," [3] the commonly regarded, but legally meaningless, "air/space boundary." This is an odd approach to take, as most states, (with the notable exception of Australia which in its Space Activities Act 1998 define s space as beginning at 100km) avoid or even oppose defining and delimitating a boundary between air space (which is subject to national sovereignty) and outer space (which is not). Presumably this is not the intention of this section of the bill, but it could be interpreted as doing so. This is exacerbated by the peculiar use of the term "suborbital activity." "Suborbital" simply means a "trajectory that does not complete a full orbit of the earth or other celestial body." [4] The key aspect of a suborbital flight is not the height of the flight; indeed, it can reach many hundreds of kilometres above the "von Karman line," but the failure to go into orbit around the Earth. [5] The intention of the act seems to be to cover those "high altitude activities" occurring between the stratosphere and the "von Karman line," particularly as the definition of "space activity" does not require entry into orbit. Given the common usage of the term "suborbital" and the fact that "suborbital activity" can be a "space activity" (and indeed in US Federal Law it is regulated as such) [6] it seems unnecessarily confusing to ‘misuse’ the term as is done in the Space Industry Bill, a better approach would be "high altitude activities" as was done in New Zealand’s Outer Space and High-altitude Activities Act 2017.

3. The second issue is the concept of "informed consent" found in section 16 of the Space Industry Bill. This phrase has undoubtedly been borrowed from US law although US federal law does not utilize the term directly. It does provide for the waving of liability by "spaceflight participants" [7] which is what section 16 of the Space Industry Bill is also doing. What exactly constitutes "informed consent" will have to be developed and elaborated upon. Although, it seems generally agreed that it means that an explanation of the risks involved are "specific, obvious, and direct, unambiguous, easy to understand, simple and complete." Furthermore, the explanation will "have to be in clear understandable wording that any ‘average’ person, (the ‘reasonably prudent person’) can understand." [8] However whether the highly technical nature of spaceflight, particularly in these early, experimental phases, can be distilled in a way the average layperson can truly understand is a question worth asking, especially since the first spaceflight participants are likely to be enthusiasts who may be so eager to ‘go to space’ that they are willing to ignore whatever risks may be involved. Even space professionals can be afflicted by so-called ‘Go Fever,’ so it is certainly a risk for ‘civilians.’ There is also the risk that the facilitators of the spaceflights may downplay the risks involved. It is also important to note that a wavier cannot waive liability in the event of negligence [9] (trying to work out what constitutes reasonable measures in what is still, and will remain for some time, experimental spaceflight could prove interesting work).

4. There is another potential issue with the concept of "informed consent" that was raised by Sa’id Mosteshar of the London Institute of Space Policy and Law, he pointed out that in order to provide sufficient information to satisfy the ‘informed consent’ criteria the information provided to the spaceflight participant could constitute an export under the US International Traffic in Arms Regulations (ITAR) if the vehicle(s), spacecraft systems and/or associated equipment is operated or manufactured by a US firm or even if the spacecraft contains some US technology regulated by ITAR. If this was to be the case, there would be restrictions on what information could be provided to a foreign national even when the informing is being conducted in the UK. [10] This issue has been raised by the Civil Aviation Authority (CAA) in the past at it could be a barrier to importation of US systems such as Virgin Galactic’s SpaceShipTwo [11]

5. It is also worth noting that the UK is deviating from the approach the European Aviation Safety Administration (EASA), the European Union’s civil aviation body, has taken thus far in considering the question of suborbital flight regulation. EASA "considers the vehicles to be used for suborbital flights ‘aircraft,’ since they are winged and use the upward lift of the air…" [12] Which raises another potential issue. Spaceplanes are potentially both aircraft and space objects, the 2014 CAA report on spaceplanes [13] highlights this issue, particularly with regard to EASA. If spaceplanes have to be regulated as aircraft, there is no way that they can currently meet the required safety standards. Recognizing this the CAA’s 2014 report recommended coordination with EASA to regulate spaceplanes, essentially supporting creating some sort of experimental status or something similar to the US regime. Brexit will complicate matters, especially as it is unclear what relationship the UK will have with EU bodies such as EASA in the future. For now, at least, EASA regulations and requirements have to still be fully complied with which could effectively act as a moratorium on commercial spaceflight operations in the UK for the foreseeable future.

January 2018


[1] UNCOPUOS Questions on suborbital flights for scientific mission and/or for human transportation (21 January 2015) UN Doc A/AC.105/1039/add.4

[2] Concise Oxford English Dictionary, 1426

[3] I.H.PH. Diederiks-Verschoor and V. Kopal, An Introduction to Space Law (3rd edn., Kluwer Law International 2008), 17

[4] Concise Oxford English Dictionary, 1437

[5] For a more detailed discussion of the issues about regulating suborbital flights see Thomas Cheney and Lauren Napier (2015) ‘Policy Analysis: Air versus Space, Where do Suborbital Flights fit into International Regulation?’ 7 Journal of Science Policy and Governance 1

[6] 51 U.S. Code § 50501(5)

[7] 51 U.S. Code § 50914

[8] Tracey Knutson (2007) ‘What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry’ 33 Journal of Space Law 105, 118

[9] Unfair Contract Terms Act 1977, section 2

[10] Sa’id Mosteshar (2011) ‘An Academic Perspective on Commercial Spaceflight: Liability and Waivers’ Presented at ECSL Practitioners Forum, 18 March 2011, available at: http://www.space-institute.org/app/uploads/1399882859_Academic_Perspective_-_ver3.pdf

[11] Civil Aviation Authority UK Government Review of Commercial Spaceplane Certification and Operations: Summary and Conclusions (CAP 1198, 2014), 31, 43-45

[12] Frans G. von der Dunk (2011) ‘Space Tourism, Private Spaceflight and the Law: Key Aspects’ 27 Space Policy 146, 149

[13] Civil Aviation Authority UK Government Review of Commercial Spaceplane Certification and Operations: Summary and Conclusions (CAP 1198, 2014), 32-46

 

Prepared 24th January 2018