National Regulation of Private Suborbital Flights: A Fresh View
FIU Law Review
An analysis of international law applicable to air and space activities reveals a lack of regulation specifically addressed to suborbital flight. In the absence of any international rules, States interested in having private manned suborbital flights for "space tourism" and other purposes depart from their territories will regulate this activity within the framework of their national air or space law. The United States has been a pioneer in enacting legislation covering this activity. It did so
... by means of the 2004 Commercial Space Launch Amendments Act (CSLAA), which modified U.S. domestic space law. The CSLAA introduced a sui generis legal regime for all private spaceflight, which for the moment excludes certification of the vehicles and relies instead on the licensing of launches and on the "informed consent" of the participants. A different approach was proposed in 2008 by a number of European Union (EU) officials, whereby private suborbital flights would rather be considered as (mostly) a kind of aviation, and thus would fall under the control of EU law. However, recent events seem to indicate a willingness by certain EU Member States to regulate this activity by themselves, at least during the initial phases of operations. After providing a general background to the existing U.S. suborbital flight regulation, and a description of the 2008 EU regulatory proposal, the present paper will introduce the latest developments identified in the national regulation of human spaceflight, in particular the United Kingdom's government review of commercial spaceplane certification and operations (July 2014), and Spain's draft bill on Outer Space Activities (2014), which includes the domestic regulation of private human suborbital flight.