Space Flight Rules Rules of the Air for an Unlimited Sky Manfred Lachs Conference on the Regulation of Emerging Modes of Aerospace Transportation Montreal, Canada, 24-25 May 2013 Bradley Hayward BAv MCom LLB AMRAeS AvLaw Aviation Consultants Sydney, Australia

Introduction Traffic rules in aviation vs space Aviation: A century of development Space: Need to develop rules? Aerospace vehicles may be expected to participate in air traffic pattern Integrated traffic rules should apply to all vehicles in the traffic pattern

The Traffic Mix – Plenty of Activity! 110km - SpaceShipTwo 90km – Space Liner 300,000’ 100km Space Liner launcher 50km 150,000’ 60,000’ – WhiteKnightTwo launcher 60,000’

Use the Rules of the Air? Chicago Convention Annex 2 Rules of the Air are well developed and understood Does/can Annex 2 apply to spaceflight: legally? practically? Use Annex 2 as a (conceptual) model for developing rules for spaceflight?

Legal Applicability? The Law: Chicago Convention 1944 Article 1 – Sovereignty Article 12 – Rules of the Air Annex 2 Outer Space Treaty 1967 Article II – No Appropriation Article VIII – ‘jurisdiction and control’

Article 12 Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable.

Legal Applicability? Territory High Seas Airspace Contracting State Annex 2 Outer Space National State Problem: Different rules may apply to different vehicles in outer space above ‘territory’. Rules of national State apply to aircraft of that State ‘wherever such aircraft may be’... includes space?

Law Reform? Proposed Amendments: Annex 2 Definition of ‘Aircraft’ Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface, and any machine capable of flight beyond Earth’s atmosphere. Chicago Convention, Article 12: ... Over the high seas, and in outer space, the rules in force shall be those established under this Convention. Outer Space Treaty, Article VIII A State Party to the Treaty on whose registry an object launched into outer space is carried shall, subject to Article 12 of the Convention on International Civil Aviation, retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

Practical Applicability? Annex 2: Chapter 1 – Definitions Chapter 2 – Applicability Chapter 3 – General Rules Chapter 4 – Visual Flight Rules Chapter 5 – Instrument Flight Rules

The General Rules Chapter 3 Protection of Persons and Property Flight Plans & ATC Services Signals Unlawful Interference & Interception Avoidance of Collisions

The Specific Rules Chapter 4 – VFR Chapter 5 – IFR Low level, subsonic speed Not really adapted for aerospace vehicles, except when operating at very low level... Chapter 5 – IFR Sensible, but need to go further ‘Cruising levels’?

Proposal: The Space Flight Rules Chapter 4 Visual Flight Rules (VFR) Navigate by visual reference to land or water Low Level Low Speed ‘See and avoid’ Minimal ATC Services Chapter 5 Instrument Flight Rules (IFR) Navigate by reference to aircraft instruments Upper airspace Any Speed ‘See and avoid’, but also ‘sense and avoid’ (e.g., TCAS) Full ATC Services Chapter 6 Space Flight Rules (SFR) Vehicles destined for space General rules for all flights, and specific rules for ‘layers’ of space: Suborbital Orbital More? (Cislunar?) ‘Sense and avoid’ only Full ATC Services or ‘Space Situational Awareness’

Developing the SFR Reviewing Annex 2, it appears that Rules of the Air can be categorised into three classes: Applicability and Operational Prerequisites Operational Restrictions and Prohibitions Specific Behaviour

A (simple) Lawyer’s Questions... Applicability/Operational Prerequisites At what altitude should SFR apply? What equipment/systems should vehicles carry? Changing between SFR and IFR/VFR? Manoeuvrability? Special considerations for orbit?

A (simple) Lawyer’s Questions... Operational Restrictions/Prohibitions Time for launching? Altitude for ‘air launch’? Rules for launching in general? Position reports? ‘Controlled’ space, FIS/ATS Communication requirements? Should orbital levels be direction-specific, like ‘cruising levels’? Rules for rendezvous?

A (simple) Lawyer’s Questions... Specific Behaviour Protective clothing for crew and passengers? Pre-flight approvals and flight plans? ‘Right of way’ and collision avoidance rules? Steps to mitigate space debris? Issues related to extended missions? Environmental Human

Conclusion Rules of the Air can legally apply to outer space Some practical adaptation required Proposal: Space Flight Rules To operate alongside IFR and VFR Layered approach

Thank you! See you at www.avlawinternational.com