Suborbital Flights: A Comparative Analysis of National and International Law

The nature of suborbital space flight activities inherently involves multiple regimes of regulation and international agreements. It also traverses established spheres and governing bodies, from land to air to space, giving rise to a complex system of inter-regulation. The purpose of suborbital flights is another issue. While commercial suborbital flights are commonly referred to as “space tourism” this term is legally dissatisfactory on several accounts. First, there is no uniformly accepted definition of “space tourism.” As such, it represents more of a cultural interpretation of private space access than an industry term of art. Secondly, suborbital flight transcends pure entertainment value, with the expectation that commercial suborbital activities will provide transportation services in the near future, not to mention providing scientific opportunities in a microgravity environment. Lastly, launch licensing regulations are not concerned with in-space activities, only the launch and reentry operations. Thus, a distinction amongst commercial customers (tourist versus experimenter for example) is not legally relevant. Consequently, this article will address the legal implications of commercial suborbital flights as a whole, not merely for entertainment purposes. In addition, air launched suborbital flights implicate more complex legal issues over traditional rocket launches. As a result, the following analysis is geared toward clarifying these issues. Beginning with the relevant international law, treaties, and State obligations, this article will highlight the pertinent air and space treaties applicable to commercial suborbital flights. A comparative analysis will then follow addressing the relevant regulatory mechanisms of five States Parties to the air and space law regimes, namely, the United States, Australia, the United Kingdom (on behalf of the Isle of Man), the Netherlands (on behalf of the former Dutch Antilles), and Sweden. These national legislations were particularly selected due to the national and industry interest in conducting commercial human space flight from these jurisdictions for tourism and other commercial interests