| The fact that private entities have put sub-orbital flights into commercial applications in large numbers poses challenges to the current international legal system.Due to the particularity of sub-orbit commercial flight activity itself,it has caused controversy as to whether to apply aviation law or space law.In addition,there are relatively large differences between international aviation law and international space law in terms of liability issues,thus the liability of sub-orbit private spaceflight needs to be clarified urgently.Spatialist approach and functionalist approach were proposed to solve the application issue of sub-orbital private spaceflight.The space delimitation problem and the theory of “near space”,which are closely related to Spatialist pproach,are vague.So,Spatialist approach cannot effectively solve the problem of law application.According to the functionalist approach,the sub-orbital flights are defined as “space activities”,the vehicles of sub-orbital spaceflights are regarded as “space objects”,thus sub-orbital commercial flight activities shall be regulated by space legal system.The existing international space law has not been able to solve the liability issue of sub-orbital commercial spaceflight,which is manifested in the lack of liability subject of private entity,the lacking of “rider” liability,the ambiguity of the third-party liability and the lack of other type liabilities(such as environment liability and space resources liability).The international space liability system shall be improved from the following aspects: the subject of liability,the type of liability,the scope and limitation of compensation,the doctrine of liability fixation and the claim methods of compensation.As far as liability subjects are concerned,the liability subjects of the international space law are states,intergovernmental organizations,and private entities(including non-governmental organizations).As far as the type of liability is concerned,three types of liability should be determined based on different objects,namely,the “rider” liability,the third-party liability and other liabilities.Based on the above classification,the scope and limitation of compensation,the doctrine of liability fixation and the claim methods of compensation can be discussed.With regard to the “rider” liability,if the operator has caused personal injury or death or property damage to the “rider” deliberately or due to negligence,the operator should bear the liability with presumption of fault,but for the damage to mental and the right of rider,the operator bear no liabilities.The compensation should be subject to a clear upper limit.The rider will lose the right to win the case when the operator has no fault or the rider is dissatisfied with de amount of compensation.Those clauses which are obviously unfairly in the protection of the life and property of rider shall be void.Riders can use local remedies,diplomatic protection,and arbitration to seek compensation.The state can provide diplomatic protection with no need of exhaustion of the principle of local remedies.As far as the third-party liability is concerned,the scope of damage shall include direct damage and indirect damage.The scope of third-party liability includes right damage,mental damage,personal injury and property damage to the third-party.The amount of compensation shall abide by “International law and the principles of justice and equity” under the Liability Convention,namely,the amount of compensation shall be determined by the principle of equivalence.As far as the other liabilities(such as environment liability and space resources liability)are concerned,the operator should bear the liability with fault when space environment and celestial resources has been damaged by space activities.If there is no specific states or individuals of damage,the operator shall restore the space environment or the celestial resources to its original condition.Besides,authorizing the UNOOSA the claim right of space environment pollution and space celestial resources destruction by perfecting its legal basis,or following the International Seabed Authority,establishing an executive and specialized international organization to represent the interests of all mankind to manage the space resources and the environment in a unified manner.The organization shall claim compensation of environment pollution and space resources destruction from the operators.Currently,ICAO,COPUOUS,EU,and USA have made various attempts to regulate the liability of sub-orbital commercial flight activities.The United States has established an industrial interest-oriented legal system including informed consent,reciprocal waiver of claims,insurance and indemnification.Article 3 of the EU Directive 93/13 protects the interests of participants.China can adopt the merits of the legislation of USA and EU to establish a system in the form of specific provisions in special laws or comprehensive legislation including informed consent and reciprocal waiver of claims for the protection of national and industrial interests,a regulation for confirming the clause that is obviously unfair to the “rider” is invalid to protect the basic interests of consumers,an astronautical entity compulsory insurance and indemnification to coordinate the rights and obligations of the state,private entities,and space activities participants(consumer groups).This liability regime will provide a reliable,powerful,practical and effective legal support and promote a healthy and sustainable development to the aerospace industry. |
