Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards

Abstract

Commercial space transportation (CST) will occur in the foreseeable future. After the success of Virgin Galactic's first suborbital commercial human spaceflight in 2004, many believed that our generation will explore another frontier of technology. Despite technological advancements, however, the international law currently in place is not prepared to regulate and secure the safety of CST including human spaceflights. Previous legal studies mainly focused on finding ways to accommodate CST under existing international laws, air law, or space law regime. Nevertheless, more than fifty years of legal discussion have yet to yield a decisive solution. Against the odds, CST will commence its business sooner or later. While national laws would be sufficient in many CST operations, some operations (e.g., international flight) would require international rules to secure a safe CST operation akin to what the aviation community developed for international air transport. That mechanism is encompassed in the technical standards created by the International Civil Aviation Organization. In this respect, this study aims to analyze a way to generate internationally harmonized technical standards on CST activities, with or without achieving an international law for CST. First, the article analyzes past legal discussion to understand the landscape of future aerospace activities. Then, the study reviews the history of the international aviation legal regime to find the implications of creating internationally harmonized technical standards for CSTs. The study suggests to the international community first, to forge a common ground across countries and second, that qualitative (not quantitative) international technical standards should arise based on this mutual understanding.