Is space tourism travelling faster than space law?

View from the hotel balcony? NASA's Marshall Space Flight Center, CC BY-NC

Space tourism is fast becoming the new frontier in the transportation business. Driven by profit-making private venture capital, the push to offer customers some direct or indirect experience with space travel is no longer the stuff of comic books or science fiction. The worry is that the legal architecture for this nascent industry has barely got its foundations in order.

There seems to be a sound business case for the industry. Market studies indicate that there are more than one thousand sub-orbital passengers per year and this is capable of generating global market figures topping $1 billion by the end of this decade.

Virgin Galactic has signed up more than 200 prospective space tourists out of a potential pool of 30,000. Spaceships such as XCOR’s suborbital vehicle designed specifically for space tourist flights have been built. The Ansari X-Prize continues to spur competition for new flight modes, and hundreds of tickets have been sold at around $100,000 apiece.

Supporting infrastructure for space tourism has already been installed in New Mexico, Oklahoma, Texas, Wisconsin and Florida. The United Kingdom has recently also unveiled eight potential space ports. The UK has invested $90 million into development of a revolutionary, hybrid UK spacecraft Skylon.

Virgin Galactic’s Spaceport America. Land Rover MENA, CC BY

The United Arab Emirates (UAE) and Singapore have forwarded plans to establish spaceports. Nigeria, meanwhile, seeks to put a person in space.

Brotherly love

Developments are hurtling ahead with dizzying speed whereas the body of space law upon which space tourism must be based remains clunky, and is designed by and large to apply only between sovereign states. A rare spirit of international legal and scientific socialism has infused space law since its inception by statesmen, international bureaucrats and enthusiastic scientific advisors who were awe-struck by the rapid achievement and prospects of space travel.

Hence space law proceeds commendably under brotherly ideals such as the “province of mankind” and the “common heritage of mankind” principles found in the Outer Space Treaty (1967) and Moon Treaty (1979) respectively. Astronauts and space objects have to be returned to their respective states even when they land in hostile territory under the Astronaut Treaty (1968).

Space-active states on the other hand are liable for cost of repair and compensation for all accidents or damage caused by their objects according to the Space Liability Convention of 1971. In fact all appeared quite settled in the little known world of space lawyers until the advent of space tourism.

A simpler time. John Young on the Moon. NASA's Marshall Space Flight Cente, CC BY-NC

Ironically enough, it fell upon post-communist Russia to pioneer the advent of space tourism well ahead of the runaway free market space power the US. In 2001 Russia, launched the first space tourist, American millionaire Dennis Tito, by allowing him to visit and stay on International Space Station Alpha as a commercial space tourist. NASA opposed the move saying that the passenger would be a safety risk. The US emphasised that Tito’s trip was to be considered a one-time exemption and he had to sign an agreement that he would not wander through American segments of the station without an escort.

Since then space tourism has been largely designed around the idea of private participation in outer space activities. This is unsettling certain legal concepts and categories that took painstaking effort to put into place over the last 60 years of international regulation of outer space affairs.

Responsibility

The language of space law is such that it expects, if not requires only states to play prominent roles in outer space. Ultimately states are responsible for the actions of their nationals in space. And this is just the start of the terminological, ideological and other socio-legal confusion which afflicts the law and practice of space tourism.

Where does outer space legally begin? Where does airspace end? Are low orbit flights or weightlessness experiences generated by parabolic flights a mis-sold service given that penetration of outer space may not have occurred? Who is an astronaut? Are tourists protected by space treaties written for astronauts and scientific personnel? What happens when one tourist smashes a bottle of rum on the head of another? Thousands of combinations of criminal and civil jurisdictional nightmares will cascade down from the heavens over the next few years.

Way too much fun to be legal. Steve Jurvetson, CC BY

Some states may indeed opt to prohibit the exploration of outer space by private bodies within their territories so as not to be liable in the event of damage caused by their actions. Some states have already drawn particular attention to the need for adaptation of the Montreal Convention rules on International Air Carrier Liability to include cover for space tourism.

There are also other clear dangers inherent in a no-holds-barred, liberal capitalistic agenda for space tourism championed by business interests from a few states. Atmospheric and outer space pollution will inexorably increase. Space debris, space accidents, airspace collusion are all clear possibilities. There will be an increase of political tensions as a result of trespass in airspace.

Economic competition, financial disasters and intellectual property issues are just a few of the potential avenues for disputes among states and their corporate interests. And this is all in the relatively close embrace of our earth’s orbit; once tourists set their sights on Mars then the lawyers will really start earning their stripes.

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