Authored By: Andile Princess Mpofu
Unisa
Introduction
Commercial Aviation is expanding with Airlines entering Urban Airspace, Higher Stratosphere Regions, and Sub-Orbit Regions. With this expansion comes pressure on Regulatory Mechanisms that were designed for a Slower Era of Piloted Altitude Restricted Flight. The Chicago Convention of 1944 and Montreal Convention of 1999 established the foundation for Traditional Civil Aviation. However, these Conventions do not include Private Space Tourism or eVTOL Aircraft. National Efforts to Enforce Environmental Accountability are Fragmented; therefore there is a Disjoint Legal Environment. This Article will examine Jurisdictional and Certification Voids in Emerging Aerospace Technologies. This Analysis will evaluate Transatlantic Climate Liability and the Potential for Sovereign Legislative Reform.
The Technological Frontier: Sovereignty and Certification Challenges
Beginning with the legal challenges surrounding the vertical separation between national airspace and outer space, the lack of an internationally agreed vertical border has created two schools of thought regarding how to define the point at which national airspace transitions to outer space. Spatialists support defining a border such as the Kármán line. Functionalists believe that we should establish legal boundaries based on what is reasonable for the use of the vehicle. The existing lack of a universally accepted definition of a vertical limit to national airspace causes operational problems. For example, both modern suborbital transportation systems and high-altitude pseudo-satellite systems are being used by companies operating in a gray area of law. Both types of systems create risks to passengers and crew of these systems.
In addition, they also raise concerns about the safety and security of countries whose airspace will be traversed during flights. Currently, the laws governing liability for accidents involving passengers and crew traveling on space tourism flights can vary depending upon where each leg of the trip takes place. When passengers leave a domestic space port, they fall outside of the protections afforded by liability law that governs most commercial aviation. Liability for passengers traveling on space tourism flights depends upon whether state law provides for coverage for injury and/or death caused by the actions of a space tourist operator. If so, then passengers may have some recourse for claims against a space tour company if injured during a flight. However, in many cases, space tourism operators provide limited or no insurance coverage for passengers and/or crew members.
Therefore, passengers and/or crew members may not be able to recover compensation for injuries sustained during travel when flying using commercial space tourism services. In parallel with these jurisdictional disputes related to the use of commercial space tourism services, another barrier exists in obtaining necessary certifications for the use of urban airspace using electric Vertical Takeoff and Landing (eVTOL) aircraft. Because eVTOL aircraft employ novel propulsion technologies and automated control systems, it is difficult to obtain certification under the conventional airworthiness standards applicable to most commercially operated aircraft.
Due to the fact that the certification standards have varied greatly among the several different government regulatory organizations; there are huge regulatory divergences existing between The United States Federal Aviation Administration (FAA) and the European Union Aviation Safety Agency (EASA); The FAA is employing a flexible, performance based method for certifying eVTOL Aircrafts as “Powered Lift” Aircrafts while EASA is employing a very restrictive framework titled Special Condition VTOL (SC-VTOL), which mandates that every single eVTOL Aircraft will be required to satisfy a catastrophic failure probability of $10^{-9}$ (one in one billion) per flight hour.
The fact that the FAA’s framework is less burdensome than that employed by EASA has resulted in duplicated certification processes across the Atlantic Ocean. These duplicate processes impose heavy financial burdens on manufacturers attempting to certify the same type of aircraft in multiple jurisdictions.
Liability, Marketing, and Sovereign Legislative Reform
The need to achieve net zero emissions is increasingly being felt throughout the world’s growing aerospace industry. However, due to a split in regulatory policies and procedures concerning consumers that exist across Europe and the U.S., these aerospace companies are struggling to meet both their net zero emission targets, while also protecting consumers.
As the new Empowering Consumers for the Green Transition (ECGT) Directive within the EU will prohibit any carbon-neutral advertising that is created by using offsets to create those ads; this regulatory change was driven largely by the recent Amsterdam District Court decision in Fossil Free NL vs. KLM. Consequently, it has established an extremely rigid “strict liability” requirement, which does not allow carriers to use disclaimers or other language to excuse their environmental marketing claims. Within the U.S. legal system, there are provisions contained in the Airline Deregulation Act of 1978 (ADA) that provide a significant structural barrier to air carriers against climate-washing class action lawsuits. As evidenced by decisions such as Zajac v. United Airlines, Inc. virtually every court decision has used the ADA’s pre-emptive clause to dismiss climate-washing class action lawsuits filed by airlines. While there are still some jurisdictional disputes, such as in Berrin v. Delta Air Lines, Inc. where California courts have permitted some claims to proceed; overall, the lack of uniformity presents operational risks to all global carriers.
Therefore, these challenges require a transition away from the reactive, state-by-state litigation process toward a pro-active legislative approach to update laws in each country. Recently, India passed the Vayu Yan Adhiniyam 2024 (BVA), which repealed India’s outdated Aircraft Act of 1934. The BVA expanded the Director-General of Civil Aviation authority to include regulation of the four major areas of the Fourth Industrial Revolution (4IR) in aviation — i.e., drones and electric Vertical Takeoff & Landing aircraft. Specifically, the BVA changed the focus of compliance from paper-based documentation toward active and risk-based safety oversight by requiring real time technology monitoring. Further, by incorporating real-time data analysis into the primary statutes governing aviation, India demonstrated how rapidly innovating countries can balance their need for rapid innovation with the need for absolute public safety.
Conclusion
Fragmentation in the 2026 aviation regulatory environment has the potential for massive instability. With respect to the regulation of atmospheric flight and space flight, there is no longer a clear distinction. Certification standards continue to be fragmented, particularly as it relates to urban mobility; because certification standards are now being set by both the Federal Aviation Administration (FAA) and the European Aviation Safety Agency (EASA). The lack of clarity with regard to who bears responsibility for “greenwashing” liability creates uncertainty that makes it difficult for carbon credit systems to develop. These problems are entirely structural.
To resolve these systemic distortions in global aviation, international regulators must collaborate on three targeted reforms. First, they must create an International Commercial Space Organization. This would enable them to draw up guidelines regarding the appropriate vertical boundaries within which passengers will operate and provide consistent treatment of passenger liability. Second, the U.S. and the EU need to finalize their bilateral agreement to have similar or identical airworthiness categories. This would eliminate redundant certification backlogs. Ultimately, the Department of Transportation must leverage its regulatory power to establish a uniform, science-driven national framework for carbon reporting. By collaborating globally to build this regulatory structure, aviation laws can adapt to reflect modern twenty-first-century innovations.
Reference(S):
International Treaties and Legislation
The Vayuyan Adhiniyam, 2024 (Act No. 32 of 2024) (India).
Judicial Decisions
