When most people contemplate the obstacles to launching any vehicle into space, they think about the technical problems. While technical issues are obviously fundamental to any space venture, there are also a substantial number of legal and regulatory hurdles to address before any launch provider can become operational. In fact, as the number and variety of launch vehicles grows around the world, the legal and regulatory hurdles are in some cases more difficult to address than the technical hurdles.
While the launch market is global and the Corpus Juris Spatialis is based on international treaties, the regulatory issues are national. There are currently 10 states with national regulatory regimes dealing with the operation of private commercial launch vehicles. The degree of specificity in regulatory regimes varies dramatically between these many States, from the Swedish system, which simply requires licenses and vests an agency with authority and discretion over these licenses, to the United States, which specifically addresses minute details such as the distance required between various types of fuels while in storage.
A comprehensive analysis of all national licensing regimes is beyond the scope of this examination. Instead, this examination will focus on the licensing regime in the United States. The primary reason for this is the one cited above; namely the fact that the United States has the most fully developed, or at least complex, regulatory regime on the planet. This is a result of the mandates found in the statutes governing launches, the nature of the complex regulatory bureaucracy tasked with enforcing those statues, as well as the general U.S. business environment that is both heavily litigious and heavily based on the use of venture capitol that views certainty of legal ramifications as a requirement for the efficient allocation of capitol. Furthermore, the United States launch licensing regime is one of the most actively used, since about half of the worlds commercial launches require a U.S. license. These factors combine to make the U.S. launch licensing regime a valuable model for other States as they expand their space industries and move into the launch market with their own vehicles. As the licensing regime in the U.S. heavily influences the nature of the U.S. launch market, it is also has a strong influence over the competitive environment that the businesses of other nations will operate within. A final reason for focusing on the launch licensing regime in the U.S. is that it can offer information on how the corpus juris spatialis is applied in the U.S., and thus offers insight into the status of the customary international law governing outer space.
The examination will begin with a summary of the development of the U.S. launch licensing regime and the influence of international obligations on that development. Next, the procedural aspects of FAA licensing will be explained, including differences between particular licenses, the application process, the ability to alter elements of the license, the roles of the FAA and other entities, the ability of the FAA to enforce its requirements, and methods of settling disputes involving licensing decisions. Then some of the emerging issues in launch licensing will be discussed. This discussion will begin with problems in the application of risk allocation mechanisms to suborbital rockets, RLVs and missions involving human carrying launchers. It will then move on to new developments in legislation dealing with test vehicles, the authority of the FAA to regulate crewed and passenger carrying vehicles, and the impact of licensing procedures on RLV operations. Finally, the conclusion will analyze how the FAA and other licensing agencies should approach adapting licensing requirements and procedures to future space activities.
The states with current commercial licensing legislation regimes are Australia, Brazil, Hong Kong (China has allowed previous legislation dealing with space activities to remain in force), Norway, Russia, South Africa, Sweden, the United Kingdom., the United States, and the Ukraine. The Netherlands and Belgium are also in the process of passing national space laws.
The FAA licensed 56% of all commercial orbital licenses in 2004, and additionally licensed 4 suborbital flights. See FAA AST News Bulletin, Oct 27, 2004. In 2003, 47% of all commercial orbital launches required an FAA license. See FAA Commercial Space Transportation: 2003 Year in Review [both these links are PDFs].