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The Aerospace Plane: Collisions and Damage to a Third Party on the Surface of the Earth: Which Liability Regime will Rule?

Published online by Cambridge University Press:  21 July 2009

Lousewies S.A.L.B van der Laan
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Extract

The article addresses the establishment of a legal regime concerning liability questions of the aerospace plane. The existing air and space law, as laid down for example in the Chicago Convention and the Outer Space Treaty -especially the definition of the words ‘aircraft’ and ‘space object’-is used as a starting point. The applicability of the existing regimes to the aerospace plane is then evaluated. Two concrete cases, namely liability resulting from damage to third parties on the suiface of the earth and liability after collisions, are presented in depth to illustrate the legal questions that this new hybrid craft will raise. Finally some modest suggestions are made as to the resolution of the conflicts.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 4 , Issue 2 , September 1991 , pp. 249 - 280
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1991

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References

1. For private enterprise aspects see, van Traa-Engelman, H.L., Commercial Utilization of Outer Space:Legal Aspects (1989).Google Scholar

2. This liability in light of the Warsaw system is discussed at length in the original thesis.

3. For remarks concerning the military applications see, I.I. Kuskuvelis, Implications of the Military Aerospace Plane Development, in Proceedings of the Thirty–Second Colloquium on the Law of Outer Space, IISL, 1989, Malaga, Spain.

4. I.I. , Kuskuvelis, The Aerospaceplane: in the Directionofan Aerospace law, in Proceedingsof the Twenty-Ninth Colloquium on the Law of Outer Space, IISL, 1986, Innsbruck, Austria, at 178.Google Scholar

5. Id., at 175.

6. It is not yet technically clear what sort of noise pollution the ASP will bring, since realistic testing is difficult as long as the ASP is not flying. It is hoped that the extreme flight altitudes will lessen the noise to a negligible level.

7. HOTOL stands for Horizontal Take-off and Landing. For an elaborate presentation of the state of the art see the original thesis.

8. NASP stands for National Aerospace Plane.

9. ‘Envoys of mankind’ is the expression used in An. V of the Outer Space Treaty

10. Preamble of the Convention on the Registration of Objects Launched into Outer Space (The Registration Convention), Jan. 14,1975., T.I.A.S. No. 8480.

11. Convention on International Civil Aviation, Chicago 1944, 15 U.N.T.S. 295, ICAO Doc. n7300/5, hereinafter referred to as the Chicago Convention.

12. Art. I of the Chicago Convention.

13. Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141, at 63.

14. By G.A. Res. 1472(XIV).

15. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies, Jan. 27,1967,610 U.N.T.S. 206 (hereinafter referred to as. the Outer Space Treaty).

16. Art. I of the Outer Space Treaty.

17. Art. II of the Outer Space Treaty.

18. Art. IV of the Outer Space Treaty.

19. Liability Convention, Arts. II and III.

20. In air law, as we will see below, the case of a collision between two aircrafts has not been regulated internationally.

21. Revised and amended text of Annex 7 to the Chicago Convention. See also, ICAO Lexicon (1980), ICAO Doc. No. 9294. Vol. II.

22. Cheng, B., The Law of International Air Transport 111 (1962).Google Scholar

23. Unofficial translation of the Federal ministry of Traffic.

24. Cheng, B., supra note 22, at 112.Google Scholar

25. Art. 1, Para. 2 of the 1952 Rome Convention.

26. This point will be elaborated in part 7.4..

27. Revised and amended text of Annex 7 to the Chicago Convention.

28. Report of the 53rd Conference of the International Law Association, Buenos Aires, 1968, at 81–102,170–186.

29. Hungary-Draft Convention. A/AC.I05/C.2/L.10/Rev.l.

30. A/AC.1O5/C.2/L.2–WG 11/20.

31. See. e.g.. the proposals of the following nations: Australia/Canada, A/AC. 105/C.2/L.2; Hungary, A/AC. 105/C.2/L.2/Rev. I and A/AC. 105/C.2/L.24 and Add. I; Argentina, A/AC. 105/C.2/L.22; Belgium, A/AC.105/C.2/L.7/Rev.3.

32. Gal, G., Space Treaties and Space Technology: Questions of Interpretations, in Proceedings of the Fifteenth Colloquium on the Law of Outer Space, IISL, 1972, Vienna, Austria, at 105.Google Scholar

33. 1.H.Ph. Diederiks–Verschoor, The Convention on the International Liability for Damage Caused by Space Objects, in Proceedings of the Fifteenth Colloquium on the Law of Outer Space, IISL, 1972, Vienna, Austria, at 97.

34. Reader Air and Space Law, University of Leiden, 1989 edition.

35. Forkosch., M.D. Outer Space and Legal Liability 111 (1982).Google Scholar

36. For a very detailed and extensive historical overview of the delimitation problems see, Christol, C.Q., The Modern International Law of Outer Space (1982), ch. 10.Google Scholar

37. As noted before: Art. 1 of the Chicago Convention.

38. U.N. Doc. A/AC.105/C.2/7/Add.l, Jan. 21,1977.

39. See, e.g.,Goedhuis, D., The Problems of the Frontiers of Outer Space and Air Space, Recueil des Cours 392 (1982) t.174,;Google ScholarPerek, L., Scientific Criteria for the delimitation of Outer Space, Journal of Space Law 119(1977).Google Scholar

40. U.N. Doc. A/4141 of July 14,1959.

41. Jager, C.,Reijnen, G.C.M., Mesospace: the Region between Air Space and Outer Space, Proceedings of the Eighteenth Colloquium on the Law of Outer Space, 1976, at 107.Google Scholar

42. The classic example is the exploitation of nuclear installations

43. See, e.g., I.H.Ph. Diederiks-Verschoor, An Introduction to Air Law (1983).

44. Hereinafter referred to as the 1952 Rome Convention.

45. Hereinafter referred to as the 1978 Montreal Protocol.

46. For a more elaborate discussion concerning the failure of the Rome Convention see, Nillson, B.G.,Liability and Insurance for Damage Caused by Foreign Aircraft to Third Parties on the Surface - A Possible New Approach to an Old Problem,Google Scholar in Kean, A. (ed.), Essays in Air Law 181–193 (1982); I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law (1983);Google ScholarWassenberg, H.A., Third Party Liability: the Netherlands and the Rome Convention of 1952 /178, in Privaat Luchtrecht (1989).Google Scholar

47. Milde, M., Tenth International Conference on Air Law, 4 Air Law 44 (1979).Google Scholar

48. Art. 23, 1952 Rome Convention.

49. Art. 25, 1952 Rome Convention.

50. Art. 3 of the Chicago Convention.

51. Arts. 1 and 2, 1952 Rome Convention.

52. See, Minutes and Documents of the Fifth Session of the ICAO Legal Committee, Taormina-Rome, Jan. 1950, ICAO Doc. 6029–LC/126, at 281–296 (provisions of national laws concerning liability for damage to third parties on the surface).

53. Those interested in the numbers may wish to read Drion, H., Limitation of Liabilities in Air Law (1954), Para. 153.Google Scholar

54. Nillson, B.G., Liability and Insurance for Damage Caused by Foreign Aircraft to Third Parties on the Surface – A Possible New Approach to an Old Problem, in A. Kean (ed.), Essays in Air Law 158 (1982).Google Scholar

55. Wassenbergh, H.A., Third Party Liability: the Netherlands and the Rome Convention of 1952 /78, in Privaat Luchtrecht 43 (1989).Google Scholar

56. Art. 23 of the Rome Convention.

57. Art. 23 of the Rome Convention deals with the scope. This was extended by the Montreal Protocol to include aircraft, whatever its place of registration may be, whose operator has his principle place of business, or, if he has no such place of business, his permanent state of residence in another contracting state (Art. XII of the Montreal Protocol).

58. Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, 24 U.N.T.S. 2389, T.I.A.S. 7762.

59. Art. II Liability Convention.

60. Art. XII Liability Convention.

61. Status as of March 1989, Leiden Faculty of Law, Syllabus Ruimterecht (1989).

62. An elaborate account of the flaws of the Liability Convention is given by Forkosch, M.O., Outer Space and Legal Liability (1982).Google Scholar

63. See, Art. XIX, Para. 2 of the Liability Convention.

64. I.e. the United States in the Nicaragua Case

65. For an elaborate discussion of these problems see, L. W.S.A.L.B. van der Laan, What Goes up Does not Always Come down: Can Current Space Law Handle the Space Debris Problem?, not yet published.

66. I.H.Ph. Diederiks–Verschoor, An Introduction to Air Law (1983).

67. Art. 7 of the Rome Convention.

68. Of the same opinion: I.H.Ph. Diederiks–Verschoor, id., at 114.

69. The Draft Convention adopted at the Xlth Session of the CITEJA, Beme, Sept. 1936 in: 1937 JALC, at 320–325.

70. The first ICAO Draft can be found in the Minutes and Documents of the tenth Session of the ICAO Legal Committee, Montreal, Sept. 1954, ICAO Doc. 7601 – LC/138.

71. Minutes and Documents of the Fifteenth Session of the ICAO Legal Committee, Montreal, September 1964, ICAO Doc. 8582 LC/153 and 153–2.

72. The final draft may be found in Matte, N.M., Treatise on Airaeronautical law (1981), App. XXII. For commentaryGoogle Scholarsee, Mankiewicz, R.H., The ICAO Draft Convention on Aerial Collisions, 1964 JALC, at 375–389.Google Scholar

73. Collins, P.Q., Williams, T.W., Towards Traffic Systems for near-Earth Space, in Proceedings of the Twenty-ninth Colloquium on the Law of Outer Space, IISL, 1986, Innsbruck, Austria, at 161–170.Google Scholar