Abstract

The integration of air and space traffic operations have created a unique challenge for international, regional, and national law. This challenge requires an evaluation of legal frameworks guiding the two industries operations parallel to one another. This paper synthesizes scholarly literature from both industries to define authority and assess its effectiveness in legislation. The current international method of deconflicting air and space traffic is via Notice to Air Missions, to forecast flight restrictions from space operations to pilots. Outside of this, there is limited mandatory regulations for the operations of spacecraft through airspace. Other gaps found in this research are the lack of a definition for the separation from higher airspace and outer space and a lack of international standards. The recommendation to solve this is to address the challenges that come from combining air and space operations and to come to a global consensus. This research provides a foundation for future research to begin defining legislation to govern the two industries.

Keywords: air traffic, space traffic, spacecraft, international law, airspace

Air and Space Traffic Deconfliction

Commercial space operations are seeing an unprecedented growth. The space industries economy report from Global Data’s Thematic Intelligence (GDTI) (2023) shows a valuation of $450 billion in 2022. GDTI predicts a growth rate between six and ten percent, which is a valuation growth to $1 trillion by 2030. The implication of this growth is a growing intrusion into air traffic. This necessitates an evaluation of air and space management laws to find opportunities to integrate the two industries.

At the core of the conflict is the need for deconfliction between air and space traffic. With both industries projecting growth, the legal frameworks governing their operations becomes the foundation for safe and efficient operations. This paper evaluates literature on the legal framework surrounding the industries. The dynamic structure of international, regional, national laws and regulations is emphasized to show the growth needed to support safety and efficiency.

For this paper, the definition of deconfliction will be the strategies used to prevent air traffic from colliding with spacecraft launches, recoveries, and the resulting debris. The scope of the paper is the international, regional, and national legal frameworks that govern safety and the efficiency of air and space operations.

This paper aims to supply a comprehensive review of literature around laws governing air and space traffic management and deconfliction. Additionally, this paper will evaluate the effectiveness of current laws and discuss potential innovations to the legal structures involved in air and space management. This is done to contribute a scholarly perspective on an aerospace conflict, which is paramount with current air and space industry growth projections.

Air and Space Law History

Air traffic international regulation began as a product from World War II with the Chicago Convention of 1944 and the creation of the International Civil Aviation Organization (ICAO). ICAO was developed into a specialized section of the United Nations (UN) (2017) to ensure air traffic safety through international regulation. ICAO has grown to represent 191 states, with most states having their own aviation law representation. According to Bartsch (2018), these states are further divided into two categories: monist and dualist states. Monist states declare international and national laws are equal and binding. Dualist states separate international and national law by making national law be all encompassing. In dualist states, international law that is binding will be added to national law. For the United States, they operate as a dualist state with the Federal Aviation Administration (FAA) is their representation through the Senate. Earl v. Boeing Co. (2020) proved that American law can be influenced by but is not subject to ICAO regulations until they are ratified into law. This is what makes the United States a dualist state.

ICAO (2023) has used a Global Aviation Safety Plan (GASP) to continuously set standards for aircraft since its inception. These are accompanied by Regional Aviation Safety Plans (RASP) and National Aviation Safety Plans (NASP) to ensure regional and national regulations align with the current GASP. This also ensures that international aviation law is constantly being amended to maintain currency with aviation industry growth and innovation.

Space law did not advance at the same rate as air traffic law. The first satellite, Sputnik 1, was launched in 1957 and the world began to posture for regulation. First, the Committee on the Peaceful Uses of Outer Space (COPOUS) was created by seventy-seven states for the world’s space affairs. The Treaty on Principles Governing the Activities of States in the Exploration and Use of outer space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”) was developed in 1967 to stand as the basis for international space law. It claimed that space is for everyone and cannot be claimed, states were responsible for damages in space originating from their state, and that no weapons of mass destruction are permitted in space (Howell, 2017).

This expanded to multiple agreements governing space law. The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (“Rescue Agreement”), stating that a state must assist and rescue spacecraft personnel in need. The 1972 Convention on International Liability for Damage Caused by Space Objects (“Liability Convention”), which declares states are liable for damages caused from objects launched from their jurisdiction. The 1975 Convention on Registration of Objects Launched into Outer Space (“Registration Convention”), which established a UN Office for Outer Space Affairs (UNOOSA) based system for tracking all launched objects. Finally, the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”) to set property rights for the moon and celestial bodies. The United States, Russia, and China have not signed the Moon Agreement (Howell, 2017).

These are the basis for space regulation and have not been added to or amended to incorporate the requirements for the present state of space affairs. These agreements were a sufficient response to the events of the 1960’s and 1970’s but require amendments for the present state of space affairs. For example, in 2019, the National Aeronautics and Space Administration (NASA) attempted the first criminal investigation in space crime with Astronaut Anne McClain. She was accused of illegally accessing bank accounts while onboard the International Space Station (ISS). During these proceedings, it was realized that there is a lack of legal framework describing authority over these jurisdictions (White, 2021).

Current Standards

The UN and ICAO establish regulations through annexes to the Chicago Convention governing aircraft and spacecraft flight best practices. ICAO sets the standard for the rest of the worlds aviation authorities to follow. Regional and national aviation authorities customize ICAOs standards to fit their specific needs. Since states geographical, economical, legal, and operational situations vary, the aviation regulations in each state may vary as well.

NASP and RASP set standards that align closer to regions and states than ICAOs. For example, FAA has an airspace integration plan setting standards for commercial space operations within the National Airspace System (NAS). The United States has more space operations than most countries, take the Netherlands for example (Airspace integration, 2024). The Netherlands fall under the European Space Agency (ESA) umbrella, so they follow regional standards set by EuroControl. These standards are set with countries like the United Kingdom in mind, where orbital and suborbital spaceports and missile launch areas are active. Dutch airspace does not have any domestic space related operations, so they have Maastricht Upper Area Control Center (MUAC) and Brussels Area Control Center (ACC) that sets national regulations tailored to airspace without space operations.

Internationally, Notice to Airmen (NOTAMs) are the standard way to communicate and separate from space operations. NOTAMs are a communication tool from air traffic management entities to pilots. They are used to inform pilots of deviations in aviation norms or potential hazards. There are nine types of NOTAMs: class I, class II, international, domestic, civil, military, flight data, center area, and distant (D). Class I and II refer to the means of communicating the NOTAM. Class I is via frequency or another telecommunication. Class II is communicated through the Notices to Airmen Publication (NTAP) that is issued every 28 days. International NOTAMs cover affect multiple states and domestic affects the United States. Civil NOTAMs are intended for civilians and military are intended for only military personnel. Flight data center NOTAMs are informational on changes to procedures, approaches, air traffic procedures, and other alerts that pilots would need. Center Area NOTAMs cover alerts that extend beyond a single airport. NOTAM (D) cover information coming from outside of flight services or air traffic (FAI FSS, 2021).

According to FAA Order 7930.2T (2023), air and space traffic deconfliction is done through a flight data NOTAM to issue a temporary flight restriction (TFR). These NOTAMs are issued up to seven days prior to the TFR to assist the pilot in planning flights. They also must be checked prior to flight to ensure the flight path is clear of any obstacles. The Aeronautical Fixed Telecommunication Network (AFTN) may place a short notice NOTAM for unforeseen events, like spacecraft debris expanding past NOTAM airspace. These can be seen in pre-flight checks and briefs to warn pilots of inflight hazards. NOTAMs become more relevant and frequent with the increase in space operations. Launches and recoveries are being broadcast via NOTAM with the take-off and landing area, flight corridor, and debris path all being protected from aircraft flight intrusions.

Literature Review

Bernelli-Zazzera et al. (2023) produced Re-entry Predictions of Space Debris for Collision Avoidance with Air Traffic to find a method to integrate spacecraft re-entries into the air traffic system. This research presents the FAA's Concept of Operations (ConOps) for the current state and future state of integrating air and space operations. The ConOps were derived from ICAO regulation and could be a foundation to build a legal framework for the United States. The findings of this research show that spacecraft debris hazards require further research to develop future regulation amendments.

Losensky and Kaltenhäuser (2023) evaluated principles to develop future operational concepts in Higher Airspace (HA). Their research realized there was a lack of global consensus on the defining characteristic that separates HA and outer space with the top three being methods being the Kármán line, Astronaut Badge Line, and Mission Intent Line. This complicates international aviation and space law, especially when setting a legal framework for increased space operations. This ambiguity affects regional and national aviation law as well. Without a defined border between HA and outer space, state sovereignty cannot be established, and aviation laws could be misconstrued as not applying to outer space vessels. A growing space industry includes new HA and sub-orbital flights that will demand clarification on current laws and to whom they apply. For example, space tourism and spaceplane flights.

In the United States, Marbury v. Madison (1803) set the precedence on when and if an authority can act based on unestablished jurisdiction. For judgement, the authority must have jurisdiction over the issue. Elliott v. Piersol (1828) adds that without such jurisdiction, “its judgments and orders are regarded as nullities. They are not voidable, but simply void… They constitute no justification; and all persons concerned in executing such judgments, or sentences, are considered, in law, as trespassers.” This means that without defining a boundary between HA and outer space and deciding its jurisdictional authority, there cannot be judgement passed (Li, 2021).

Extending this to the international governing bodies, UN COPUOS and UNOOSA manages the regulations involved in space. However, they have no inherent power to enforce any of the regulations. Instead, they rely on the regulations to be adopted into each countries domestic law to be enforced. These laws are then applied to operations based on their departure location, not the region of space they are in. No governing body has jurisdictional authority on the area, just on the vessels that originate in their sovereign territory. This means that the only international binding agreement are the overly generalized treaties mentioned in the beginning of this report (Kaul, 2021).

Air traffic does have regulations to follow internationally, regionally, and nationally. For spacecraft launch and recovery separation, air traffic must abide by NOTAMs on airspace and avoid. Spacecraft deviate from normal flight patterns, so they require a NOTAM to separate them from all other activities (FAA, 2023).

The United Kingdom’s Space Industry Act of 2018 does add regulation and liabilities to spaceport and spaceflight activities within the NOTAM airspaces. Requirements are set that operators must be licensed under the act to launch, return, or orbit spacecraft. It also requires spaceport and range control licenses to be valid for operations. This gives authority within the United Kingdom’s airspace to prosecute any organization operating in the United Kingdom and not abiding by the act (Stationary Office, 2018).

Methodology

This research is a qualitative review of the literature at the intersection of the air and space law industries. Past, current, and projected law and regulations are analyzed to find problems and limitations within the legal framework. The information gathered will be through a comparative analysis of literature in different jurisdictions. The selected literature has a basis relevant to air and space deconfliction laws.

The primary sources for the qualitative data are academic and legislative literature. Legislative literature consists of products of pivotal moments in law, like the Chicago Convention and the Outer Space Treaties. It continues to analyze current regulations in place from UNOOSA, UN COPUOS, ICAO, FAA, and other domestic regulations. There are also specific law cases that are analyzed that have set precedence in current United States law. The academic literature consists of peer-reviewed articles in prominent journals and other authoritative texts on air and space law.

The data gathered from the literature review will be analyzed to find themes and principles that guide air and space traffic law. The out will be a series of key findings and potential problems and limitations to be discussed.

Findings Discussion

The prominent finding for air and space deconfliction is that there is insufficient coordination between air and space management cells. The current method only uses NOTAMs to deconflict the two types of operations, which are set to block substantial portions of airspaces for set amounts of times. This is an opportunity for future research as it has potential for innovation that would reduce air traffic delays and make air traffic management more efficient and safer. The evaluation should include measures of efficiency and safety during current NOTAM based deconfliction practices. It should compare this result to an evaluation of efficiency and safety during alternate methods of deconfliction.

Another key finding in this research is that there is ambiguity in the airspace separating HA operations with outer space operations. Setting a legal framework for undefined airspace is challenging in the fact that no governing body can claim it as having authority over the jurisdiction. This is proven from Astronaut Anne McClain’s investigation of committing a crime in outer space being and being unable to prosecute due to no legal framework being able to address outer space crimes (White, 2021).

For air traffic management, there is international laws and regulations set to govern safe operations of aircraft. These laws can be interpreted as equal to domestic laws by monist states, or they can be interpreted as unbinding laws by dualist states. Dualist states require their state to implement the regulations into law before they become binding. Each nation and region also implement their own sets of laws in addition to international law. The diversity in legislation allows states to have independence over their airspace, but it has potential to leave gaps in laws covering sovereign airspaces.

Each nation has different requirements for their airspace, in the research the United States and the United Kingdom were found to have space operations originating from their country. They have requirements for space and air traffic to conduct operations but have slight variations in regulations. The Netherlands don’t have space operations based in their airspace or flying through Dutch airspace, so MAUC and Brussels ACC do not require laws policing space operations through their airspace. This could become problem if neighboring countries apply different regulations, and the operations require growth into the neighboring airspace. For example, a United Kingdom based launch that requires MAUC to block airspace for its operations.

Recommendations

The general recommendation is to find ways to bridge the gaps in legal frameworks at the intersection of space and air traffic to enhance safety and efficiency. International consensus needs to be a priority to ensure there are no holes in regulations allowing air and space traffic to conflict.

Create an international standard that defines exactly what the line separating HA and outer space is. This is the basis to begin defining who has authority in the jurisdiction. Countries can designate Flight Information Regions (FIRs) to cover regions up to the border of outer space and have all operations be liable to abide by that FIRs regulations. Past HA, there can be a treaty or agreement that sets who has authority over that jurisdiction. It could also be split up into regions like FIRs and have each section abide by their regulations.

The first two recommendations are focused on raising the authority up from established airspaces. However, there also could be amendments made to the established space treaties that take a top-down approach to separating the two types of operations. Defining space operations liability based off of its departure origin. The departure location and east of it will be the airspace the spacecraft will transit, so focusing on deconfliction there will be effective.

There also may not be a need to go away from separating via NOTAM. Air traffic deviations could be reduced by analyzing the exact dimensions required to safely separate from a launch or recovery. Reducing the NOTAM space would increase efficiency in air traffic, but the focus must then be not to reduce safety. Furthermore, a study should be done to see if there is a more streamline way to coordinate the activation and deactivation times of NOTAMs. Instead of them being active for hours, space traffic management could have a direct line to airspace sectors to give timelines of activation and then call them deactivated if an operation delays or cancels.

There are many organizations and stakeholders acting to improve their industry, either the space industry or the aviation industry. However, the space industry is facing an aviation problem and vice versa. Linking these two industries with an overarching organization may be beneficial to coordinating joint efforts. The FAA has started this with the office of Commercial Space Transportation but should be looked into for implementation internationally.

Personal Interests

The author has ten years air traffic control experience and four years of international aviation liaison experience as a North Atlantic Treaty Organization (NATO) asset in Europe coordinating Altitude Reservations (ALTRVs). They also spent a year coordinating aircraft movement throughout Afghanistan, Iraq, and surrounding countries. For their academic career, they have a Bachelor of Science in Aeronautics, a Master of Science in Space Studies (Aerospace Science) and are currently working on a Doctor of Philosophy in Aviation degree. This is all said to explain how their life has revolved around the intersection of air and space traffic. Their background can inform their current perspective and realize the need for evaluating air and space traffic’s legal framework.

Devoting their professional and academic careers to solving problems in aviation and to become a steward of the industry. Their long-term goal is to find the most efficient and safe method to deconflict air traffic from spacecraft launches and recoveries. Throughout the doctorate program, they plan to take advantage of assignments to research the nuances surrounding the problem. In this case, studying international air and space law is key to understanding the legal framework my dissertation will need to apply.

Biblical Integration

“I have the right to do anything,” you say—but not everything is beneficial. “I have the right to do anything”—but not everything is constructive (New International Version, 2011, 1 Corinthians 10:23).

The Bible verse stated above emphasizes that humans have freedom to do any action, but that all actions are not beneficial or constructive. This emphasizes that thoughtful decision making, and research to ensure safety and efficiency when creating the laws governing air and space traffic.

This biblical integration also raises ethical considerations that are needed when weighing the interests of a growing commercial aviation and space industry versus natural law, public safety, and global interest.

Conclusion

This research paper has evaluated the legal frameworks involved in developing the current landscape in air and space traffic deconfliction. What laws, regulations, and treaties have taken place to get the two industries where they are at today. Furthermore, international, regional, and national laws and regulations were compared to highlight the dynamic nature of air and space law across geographical areas.

The key findings of this research were insufficient coordination between air and space management authorities, ambiguity in the definition of the airspace dividing HA and outer space, and inconsistencies in international regulation implementation. The gaps in literature and legal structure are realized in this research, however, all will require additional research to find legal options to remedy the problems. From a surface level perspective, legal frameworks need to be evolved to accommodate increased space operations to maintain efficiency and safety.

Additionally, future research should evaluate the concept of spaceplanes, which are a combination of air and a spacecraft flying supersonic speeds on a slow trajectory to space and then gliding back to Earth. This research did not have the capacity to evaluate a new concept of spacecraft with varying applications and operations. Spaceplanes will be a challenge to integrate into air traffic with the current projected practice of using NOTAMs called “safety bubbles” that have gradual increases and decreases in altitude over larger areas than spacecraft launch and recovery NOTAMs (ESA, 2017).

Aircraft are not the sole owners of the sky anymore, there are missiles, drones, spacecraft, spaceplanes, and other vehicles sharing the sky. An increase in space operations mean an increase in the need to integrate. This can be considered an opportunity to evaluate the legal framework around air and space traffic deconfliction. Where the outcome can produce innovations within both industries to coexist safely and efficiently. This is a call to action for stakeholders in the aerospace community to be proactive in their efforts to address the challenges presented in this paper.

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