Regulation of the space tourism sector

Regulation of the space tourism sector Yanal Abul Failat* LXL LLP Anél Ferreira-Snyman** University of South Africa 1. Introduction We live in an epoch in which the experience of space travel is quickly becoming a form of private commercial activity. When the first artificial satellite, Sputnik 1, was launched in 1957, the possibility of commercial space tourist flights was at most a distant dream. The launch of Sputnik 1 introduced the Cold War space era, in which space activities were intrinsically linked with the political objectives and priorities as well as with the national security or military concerns of the two superpowers, the United States (US) and the then Soviet Union (USSR).1 Due to the strategic and political importance of space, the two space powers were reluctant to allow any non-governmental actors to explore outer space. In addition, the high cost and technological risks involved hampered private investment in outer space projects.2 Since then, the space arena has also increasingly evolved to include non-State entities, which are becoming actively involved in outer space activities. Since the Russian Space Agency began to take persons to the International Space Station (ISS) in 2001,3 a number of private space tourism companies have been established, particularly in recent years.4 As a result, there has been an increase in the development of sub-orbital space travel and a rise in public interest that have paved the way for the growth of this industry.5 To provide a more accessible service, companies have made efforts to develop the necessary technology to venture into space and to reduce the price of such trips.6 * ** 1 2 3 4 5 6 Sections of this chapter are based on research for an earlier article by the author, Space tourism: A synopsis on its legal challenges, (2012) 1 Irish Law Journal 120–151. Sections of this chapter are based on research for an earlier article by the author, Legal problems relating to the commercial use of outer space, with specific reference to ‘space tourism’ (2014) Potchefstroom Electronic Law Journal 2–50. C Venet, ‘The ‘Political Dimension’, in C Brünner & A Soucek (Eds), Outer Space in Society, Politics and Law (2011) pp 73–74. E Walter, ‘The Privatisation and Commercialisation of Outer Space’, in Brünner & Soucek, op cit (note ), p 493. To date, seven space tourists have travelled to the ISS on board the Russian Soyuz spacecraft. See List of Space Tourists, available at https://didyouknow.org/lists/spacetourists/ (accessed 27 May 2017). MJ Sundahl, The Duty to Rescue Space Tourists and Return Private Spacecraft, 35 Journal of Space Law 163–200 at 163, n 2 (2009) contends that “[s]pace tourism could be said to have truly begun in 1990 when Toyohiro Akiyama, a Japanese journalist who spent almost eight days on the Russian space station, Mir, became the first private person to go into space”. Organisation for Economic Co-operation and Development (OECD), International Futures Programme Space 2030: Tackling Society’s Challenges (2005, OECD Publishing), p 304. At present, the cost of such flights ranges from $95,000 to $200,000. The cost is, however, expected to drop to $20,000 within the first few years of operation. See Paramount Business Jets, Space Tourism, available at https://www.paramountbusinessjets.com/space-tourism.html (accessed 24 May 2017). 203 Regulation of the space tourism sector In October 2004, one such company, Scaled Composites, won the Ansari XPRIZE7 with its space vehicle, SpaceShipOne, by flying past the altitude of 100 kilometres above the Earth’s surface twice within two weeks while being operated by a civilian pilot and carrying extra weight equivalent to two other passengers.8 Subsequently, Sir Richard Branson’s company, Virgin Galactic, announced its plans to take tourists on a 90-minute long journey, costing $200,000, into sub-orbital space at three times the speed of sound with its spacecraft, SpaceShipTwo, launching from Spaceport America.9 SpaceShipTwo performed a successful maiden flight in 2010 and a fleet of these space vehicles is currently under construction.10 Space tourism operator XCOR Aerospace is developing a rocket-propelled winged vehicle, the Lynx, for passengers who wish to experience an ‘individualised’ half-hour long sub-orbital flight by sitting alongside the pilot and travelling to an altitude of 100 kilometres.11 Armadillo Aerospace has plans to develop a sub-orbital two-seater space vehicle called Hyperion.12 A capsulestyled spacecraft is being developed by Blue Origin, a company owned by Amazon.com co-founder Jeff Bezos.13 Two other companies, Bigelow Aerospace and Axion Space, plan to launch private space stations into orbit as soon as 2020. These ‘habitat modules’ could host a variety of inhabitants, including space tourists, scientists and National Aeronautical and Space Administration (NASA) astronauts.14 Other potential space tourism operators include Rocketplane,15 which plans to offer sub-orbital flights launched from Dubai, and SpaceX, owned by South African-born 7 8 9 10 11 12 13 14 15 204 The XPRIZE Foundation awarded the largest prize in history, namely the $10 million Ansari XPRIZE (sponsored by the Ansari family) to Scaled Composites for building and launching a three-person spacecraft which flew 100 kilometres above the Earth’s surface twice within a period of two weeks. The prize is modelled on the Orteig Prize that was awarded to Charles Lindbergh in 1927 for being the first person to fly continuously from New York to Paris. According to the XPRIZE Foundation, the spaceflight by Scaled Composites meant that “[s]paceflight was no longer the exclusive realm of government. With that single flight, and the winning of the $10 million Ansari XPRIZE, a new industry was born”. See Ansari XPRIZE/XPRIZE Foundation http://space.xprize.org/ansari-x-prize (accessed 20 June 2013). SpaceShipOne Wins $10 million Ansari X Prize in historic 2nd trip to space, Space.Com, available at http://ansari.xprize.org/news/media-mention/spaceshipone-wins-10-million-ansari-x-prize-historic2nd-trip-space (accessed 10 August 2017). MJ Kleiman, JK Lamie & M-V Carminati, The Laws of Spaceflight: A Guidebook for New Space Lawyers (2012, American Bar Association), p 49; T Masson-Zwaan ‘Article VI of the Outer Space Treaty and Private Human Access to Space’, in 2008 Proceedings of the International Institute of Space Law: 51st Colloquium on the Law of Outer Space 536–546 at 539; T Masson-Zwaan & S Freeland, Between heaven and earth: Legal challenges of human space flight (2010) 66 Acta Astronautica 1597–1607 at 1598; S Freeland, ‘Fly Me to the Moon: How will International Law Cope with Commercial Space Tourism?’ (2010) 11 Melbourne Journal of International Law 1–29 at 3. Walter, op cit (note 2), p 501. See further Virgin Galactic, Our Vehicles and Spaceships, available at www.virgingalactic.com/human-spaceflight/our-vehicles/ (accessed 24 May 2017). Kleiman, Lamie & Carminati, op cit (note 9), pp 49–50; Masson-Zwaan, op cit (note 9), p 539. See further, About Lynx http://xcor.com/lynx/ (accessed 3 September 2013). However, according to media reports, the project has been placed on hold indefinitely. See in this regard J Pappalardo, The XCor Lynx space plane might be down for the count (31 May 2016), available at www.popularmechanics.com/space/a21103/thexcor-lynx-spaceplane-might-be -down-for-the-count/ (accessed 24 May 2017). Kleiman, Lamie & Carminati, op cit (note 9), p 50. Due to a lack of funding, the project is currently on hold. See further Citizens in Space, www.citizensinspace.org/2013/08/armadillo-in-hibernation/ (accessed 26 May 2017). Kleiman, Lamie & Carminati, op cit (note 9), p 50. See Jeff Bezos Reveals ‘Sneak Peek’ of Blue Origin’s Space Tourism Capsule, Space.Com (29 March 2017) available at www.space.com/36267-blue-origin-spacecapsule-interior-sneak-peek.html (accessed 26 May 2017). M Wall, Private Space Stations May Take Flight in 2020, Space.Com (13 October 2016) available at www.space.com/34377-private-space-stations-may-take-flight-in-2020.html (accessed 26 May 2017). See The Space Experience, available at http://rocketplane.ca/the_space_experience.html (accessed 26 May 2017). Yanal Abul Failat, Anél Ferreira-Snyman Elon Musk, which has created a new type of rocket to deliver cargo on behalf of NASA to the ISS16 and plans to take private persons into space.17 European aerospace company EADS Astrium has also announced plans to provide space tourist flights for groups of four passengers to an altitude of 100 kilometres in a space vehicle named Spaceplane, which will take off and land on a runway.18 To launch the envisaged commercial space vehicles, the first commercial spaceport, Spaceport America,19 was constructed in New Mexico. A number of other spaceports are planned in countries and territories such as the United Arab Emirates, Singapore, Sweden, Scotland and the Netherlands Antilles.20 Significant financial investment is also being made to develop reusable launch vehicle technology for the space tourism industry.21 Although space tourism is still in its infancy, it is estimated that the number of space tourists will reach into the hundreds (or, according to Virgin Galactic’s predictions, even into the thousands) within the next few years.22 As space tourist activities increase, some legal and regulatory concerns arise in relation to commercial space travel and space tourism. Consequently, the development of this innovative industry has created a need for a suitable legal framework to regulate its activities. 2. Defining ‘space tourism’ In a broad sense, the term ‘space tourism’ (or “personal space flight”23) denotes “any commercial activity offering customers [a] direct or indirect experience with space travel”.24 A ‘space tourist’ has been defined as “someone who tours or travels into, to, or through space or to a celestial body for pleasure and recreation”.25 Possible space tourist activities include long-term stays in orbital facilities for research or entertainment purposes, short-term orbital or sub-orbital flights, and parabolic 16 SpaceX developed the Dragon spacecraft and Falcon 9 launch vehicle, which was launched from Cape Canaveral Air Force Station in Florida. In May 2012, the Dragon became the first commercial spacecraft to dock successfully with the ISS. See Kleiman, Lamie & Carminati, op cit (note 9), p 53. See further SpaceX, available at www.spacex.com (accessed 26 May 2017). Freeland, op cit (note 9), p 3. See also E Howell, Spaceplane: Suborbital Vehicle for Space Tourism & Science, Space.com (24 March 2016, available at www.space.com/19279-eads-astrium.html (accessed 3 September 2013). See Spaceport America, available at http://spaceportamerica.com/ (accessed 26 May 2017). Masson-Zwaan, op cit (note 9), p 539. Freeland, op cit (note 9), p 3. Sundahl, op cit (note 4), p 164. The European Space Agency (ESA) envisages that “space tourism offers the potential for sustained progress similar to what happened in the early days of aviation”. In this regard, see A Galvéz & G Naja-Corbin, Space Tourism: ESA’s view on private suborbital spaceflights, ESA Bulletin (August 2008), 19–24 at 19. J Loizou, Turning space tourism into commercial reality, 22 Space Policy 289–290 at 289 (2006). S Hobe & J Cloppenburg, ‘Toward a new aerospace convention? – Selected legal issues of ‘space tourism’’, in 2004 Proceedings of the 47th Colloquium on the Law of Outer Space: International Institute of Space Law of the International Astronautical Federation, p 377; Loizou, op cit (note 24), p 289. Kleiman, Lamie & Carminati, op cit (note 9) at p 26 merely define ‘space tourism’ as “space travel for recreational purposes”. The ESA defines ‘space tourism’ as “suborbital flights by privately funded and/or privately operated vehicles and the associated technology development driven by the space tourism market”: See Galvéz & Naja-Corbin, op cit (note 22), p 19. Masson-Zwaan & Freeland, op cit (note 9) at p 1599, however, suggest that ‘private space travel’ might be a better term, for the present at least, since this kind of space travel is still reserved for very few people and so can not yet be regarded as a mass tourist operation in which large groups of people are taken on space tours. See also Masson-Zwaan (n 9) at p 536, n 2. Z O’Brien, ‘Liability for injury, loss or damage to the space tourist’, in 2004 Proceedings of the 47th Colloquium on the Law of Outer Space: International Institute of Space Law of the International Astronautical Federation at p 386, as quoted by Masson-Zwaan & Freeland, op cit (note 9), p 1599. 17 18 19 20 21 22 23 24 25 205 Regulation of the space tourism sector flights in aircraft in which space tourists are exposed to conditions of weightlessness.26 • In the instance of sub-orbital spaceflight,27 orbital velocity is not achieved as the space vehicle re-enters the Earth’s atmosphere after three to six minutes of microgravity has been reached. The passengers therefore experience a few minutes of weightlessness and the launch vehicle is re-used later. The space vehicle is launched either horizontally or vertically and attains an altitude of around 100 kilometres.28 • With orbital spaceflight,29 orbital velocity must be reached to allow the space vehicle to fly along the curvature of the Earth without falling back to Earth, making it much more energy-intensive; it is therefore technically more challenging and more expensive than sub-orbital spaceflight.30 Depending on atmospheric factors, an orbital spacecraft can remain in space for a period of between a few days and up to a few years.31 • In the case of intercontinental rocket transport, the idea is to shorten the travel time substantially from one point on Earth to another by transiting through outer space.32 This form of transport would be specifically useful for military purposes, as well as for the transport of persons and goods. Technical difficulties and safety risks are, however, associated with this form of transport.33 Because of the technological and cost demands of orbital spaceflight and intercontinental rocket transport, most personal spaceflights currently on offer will be sub-orbital.34 Article I of the Outer Space Treaty35 requires that the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries. Private human spaceflight may be regarded as a (mostly) recreational activity36 and, 26 27 28 29 30 31 32 33 34 35 206 Hobe & Cloppenburg, op cit (note 24), p 377; S Hobe, Legal Aspects of Space Tourism, 86) Nebraska Law Review 439–458 at 439 (2007). The term ‘sub-orbital spaceflight’ is defined as “[s]paceflight where the spacecraft reaches outer space, but does not have sufficient energy to complete a full revolution around the Earth before reentering the atmosphere”: see Kleiman, Lamie & Carminati, op cit (note 9), p 30. See also F Tronchetti, ‘Regulating sub-orbital flights traffic: Using air traffic control as a model?, in 2011 Proceedings of the International Institute of Space Law: 54th Colloquium on the Law of Outer Space, p 177. Masson-Zwaan, op cit (note 9), 538; Masson-Zwaan & Freeland, op cit (note 9) p 1599; Kleiman, Lamie & Carminati, op cit (note 9), p 49; Freeland, op cit (note 9), p 9. ‘Orbital spaceflight’ is defined as “spaceflight where the spacecraft is launched with sufficient energy to complete at least one revolution around the earth”: see Kleiman, Lamie & Carminati, op cit (note 9), p 29. See also Tronchetti, op cit (note 27), p 177. Masson-Zwaan, op cit (note 9), p 538; Masson-Zwaan & Freeland, op cit (note 9), p 1599; Kleiman, Lamie & Carminati, op cit (note 9), p 51; Freeland, op cit (note 9), p 9. Kleiman, Lamie & Carminati, op cit (note 9), pp 51–52. Masson-Zwaan, op cit (note 9) p 538. Freeland, op cit (note 9), p 10. Masson-Zwaan, op cit (note 9), p 538; Masson-Zwaan & Freeland, op cit (note 9), p 1599. Companies such as Excalibur and SpaceX are, however, planning orbital space tourist flights. Space Adventures is already planning to take two space tourists beyond low Earth orbit on a circumlunar trip to the Moon in the near future, using a modified Soyuz spacecraft. One ticket has already been sold for $150 million. See further Kleiman, Lamie & Carminati, op cit (note 9), p 54; Masson-Zwaan & Freeland, op cit (note 9), p 1599. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies 1967, 610 UNTS 205 (Outer Space Treaty). Yanal Abul Failat, Anél Ferreira-Snyman due to the high cost involved, space tourism is currently reserved mainly for the wealthy space travel enthusiast, which makes its benefit for all of mankind unclear.37 Space tourism may, however, have certain long-term social and economic advantages:38 • • • it will most probably lead eventually to more affordable access to space, which could be seen as beneficial for all mankind;39 private human spaceflight may have certain social and economic advantages, such as the development of new technologies in the area of human space travel and the boosting of private investment, which could alleviate pressure on the use of public funds for near-Earth space exploration;40 and if private spaceflights also serve a scientific purpose by making it possible to carry out scientific experiments under certain space conditions, the benefit for mankind would be obvious.41 However, to ensure that space tourism activities do indeed serve the benefit of all mankind, they must be undertaken in a legally regulated as well as an ethical manner.42 It is self-evident that space tourism activities would significantly add to the pollution of both the Earth and outer space environments.43 In this regard, MassonZwaan and Freeland point out that it has been claimed44 that space tourist vehicles will eventually become the world’s primary source of carbon dioxide emissions.45 An even more pressing problem is that of space debris. No legally binding definition of ‘space debris’ has, however, been formulated yet.46 In addition, the core United Nations (UN) space treaties pay very little attention to environmental issues, and the problem of space debris is not specifically addressed in the Outer Space Treaty (nor in any other space treaties), as these matters were not high on the agenda of the spacefaring nations at the time of the conclusion of the treaties.47 At present, the mitigation of space debris is a matter of voluntary compliance by States with the 36 37 38 39 40 41 42 43 44 45 46 47 M Chatzipanagiotis, ‘The impact of liability rules on the development of private commercial human spaceflight’, in 2011 Proceedings of the International Institute of Space Law: 54th Colloquium on the Law of Outer Space, p 56. Chatzipanagiotis describes space tourism as “a kind of extreme sport”. Masson-Zwaan, op cit (note 9), p 536. Masson-Zwaan observes at p 545 that – “[s]afe, efficient private human access to space at reasonable cost will boost space activity, the global economy, and thus will benefit Mankind as a whole. Article 1 of the Outer Space Treaty therefore does not stand in the way of seeing space tourism as a legitimate use of space.” Chatzipanagiotis, op cit (note 36), p 56. Masson-Zwaan, op cit (note 9), p 536. Referring to a tourism market study conducted by a US-based consultancy firm in 2002, the ESA envisages that the cost of space tourist flights will gradually decrease. The projected cost of $200,000 for a seat on SpaceShipTwo (with 200 people who have already made advanced payments in 2008) is expected to drop to $50,000 in 2021 (with approximately 16,000 interested passengers by 2021): see Galvéz & Naja-Corbin, op cit (note 22), p 20. Chatzipanagiotis, op cit (note 36), p 56. Ibid. For a further discussion of these ethical considerations, see Freeland, op cit (note 9), pp 25–28. Masson-Zwaan & Freeland, op cit (note 9), p 1606. Ibid. In addition to the protection of the space environment from pollution, Masson-Zwaan & Freeland, op cit (note 9), p 1606 submit that legal regulation for the protection of so-called ‘heritage sites’ in outer space will be needed. These areas would, for example, include the site of the first manned Moon landing. See Anél Ferreira-Snyman, Environmental liability for space debris (pp 263-289 below). F Lyall & PB Larsen Space Law: A Treatise (2009) p 303; L Viikari, The Environmental Element in Space Law – Assessing the Present and Charting the Future (2008), p 32. 207 Regulation of the space tourism sector space debris mitigation guidelines48 and national legal rules in this regard. Given the increasing commercial use of outer space, including the planned space tourism ventures, it is imperative that this problem is addressed as a matter of urgency, as it could significantly hamper the future exploration and use of space.49 3. Delimiting ‘outer space’ The term ‘outer space’ generally refers to the entire universe: in other words, any area beyond the Earth’s atmosphere. However, since spaceflight can be undertaken in only a very limited part of outer space, this general meaning is too broad for legal purposes. In a legal sense, ‘outer space’ refers to that part of the universe in which human activities are practically possible or feasible.50 Some activities that are based on Earth are, however, intrinsically linked with outer space activities and the question remains whether or not space law should also apply to these activities.51 The delimitation of outer space essentially concerns the question of where airspace ends and where outer space begins. The answer to this question is significant in determining which activities are indeed space activities under international space law, and which activities are governed by other legal regimes. By contrast with airspace, which falls under the territorial sovereignty of underlying States, international law determines that outer space is not subject to the sovereignty of any particular State.52 The latter may therefore be regarded as part of customary international law that States do not need the prior consent of other countries to conduct activities in outer space.53 A private entity therefore does not need prior permission from any sovereign State to carry out tourist activities in outer space. As will be discussed below, the only authorisation required is that of the launching State, which also has an obligation to supervise continuously the commercial activities of the private entity. Formal international consensus on the definition of ‘outer space’ has, however, not yet been reached.54 Although some commentators are of the opinion that the demarcation of outer space would be premature or even unnecessary, the need for a 48 49 50 51 52 53 54 208 The Space Debris Mitigation Guidelines of the Committee of the Peaceful Uses of Outer Space (2010, United Nations Office for Outer Space Affairs (UNOOSA)), available at www.unoosa.org/pdf/ publications/st_space_49E.pdf (accessed 27 May 2017). A Ferreira-Snyman, Legal challenges relating to the commercial use of outer space, with specific reference to space tourism, 2014 (17) Potchefstroom Electronic Law Journal 1–52, at 8. T Neger & E Walter ‘Space law – An Independent Branch of the Legal System’, in C Brünner & A Soucek (Eds), Outer Space in Society, Politics and Law (2011), p 238. Ibid, pp 238–239. According to the authors, these activities include those which “can be considered as facilitating access to and the return from outer space, like all kinds of launching and return facilities (spaceports as well as spacecrafts)” and those activities which “regulate the operation and control of human conduct in outer space, like all activities concerning the functioning of satellites and other outer space systems (eg ISS)” (at p 239). Neger & Walter, op cit (note 50), p 239. In the North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), Merits, 1969 ICJ Rep 3 at 230, it was stated by Lachs J that “[t]he first instruments that man sent into outer space traversed the airspace of States and circled above them in outer space, yet the launching States sought no permission, nor did the States protest. This is how the freedom of movement into outer space, and in it, came to be established and recognized as law within a remarkably short period of time.” See also Freeland, op cit (note 9), pp 10–11. See Olavo Bittencourt, Delimitation of outer space and Earth orbits (pp 49-60 above). Yanal Abul Failat, Anél Ferreira-Snyman well-defined borderline to avoid uncertainties and conflict situations is self-evident.55 At present it is accepted, as a matter of customary international law, that the altitude of 100 kilometres above sea level (the so-called ‘Von Kármán line’56) can be considered as the legally relevant “edge of space”.57 This means that activities executed and objects placed beyond 100 kilometres above sea level are space activities and space objects. Although this delimitation continues to be debated in theory, and may constantly vary as a result of the development of new technology, States (such as Australia) and international organisations (such as the Fédération Aéronautique Internationale) often refer in practice to this boundary to distinguish activities and objects that fall under national air laws from others.58 When a vehicle carrying space tourists is launched from Earth (or in the air) and returns to Earth, the journey will obviously involve both airspace and outer space.59 The delimitation of airspace and outer space therefore has significant implications for the issue of liability for damage caused by space tourism activities, as such liability may be premised on different legal regimes, namely either air law or space law.60 The point at which the incident occurs will therefore determine the legal position of the parties involved. This will lead to uncertainty and inconsistency as to rights and obligations that could arise during commercial flights on, in particular, hybrid vehicles.61 The air law62 and space law regimes address liability in different ways and neither fully nor adequately regulate sub-orbital flights.63 For example, in relation to private claims, the air law regime clearly has an advantage since, unlike space law; direct claims by individuals are possible. Furthermore, claims under the air law regime are preferable as decisions are reached through binding court decisions under either national tort laws or international conventions. Nonetheless, the limits provided by the air law regime are not consistent, owing to the absence of international harmonisation in this regard.64 Consensus on the criteria to be used to identify the applicable legal regime has yet to be reached. Different theories have been developed in this regard. 55 56 57 58 59 60 61 62 63 64 IHP Diederiks-Verschoor & V Kopal, An Introduction to Space Law (3rd Edn, 1999), p 15. See further Neger & Walter, op cit (note 50), p 240; Lyall & Larsen, op cit (note 47), pp 167–168; DiederiksVerschoor & Kopal, op cit (note 55), p 17. Neger & Walter, op cit (note 50), pp 240–241. See also Diederiks-Verschoor & Kopal, op cit (note 55), pp 19–20. B Cheng, International responsibility and liability for launch activities 20 Air and Space Law 297–310 at 299 (1995) explains that “[i]n absolute terms, this point may be put 94 km from the surface of the earth. Conservatively, the figure may be put at 100 or 110 km.” He also points out that States may, as they have done with regard to the delimitation of the territorial sea, decide to claim a higher or lower limit, or tacitly or expressly agree on a specific border separating national air space from outer space. Neger & Walter, op cit (note 50), p 241. South Africa’s Space Affairs Act 84 of 1993 defines ‘outer space’ as “the space above the surface of the earth from the height at which it is in practice possible to operate an object in an orbit around the earth”. Freeland, op cit (note 9), p 11. Hobe & Cloppenburg, op cit (note 24), p 377; Masson-Zwaan & Freeland, op cit (note 9), pp 1602–1603. S Freeland, Up, Up and … Back: The Emergence of Space Tourism and its Impact on the International Law of Outer Space, 6 Chicago Journal of International Law 1–22 at 9 (2005). Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929, 137 LNTS 11 (Warsaw Convention), as amended by the Convention for the Unification of Certain Rules for International Carriage by Air 1999, ICAO Doc No 4698 (Montreal Convention). M Chatzipanagiotis, ‘Criminal and disciplinary issues pertaining to suborbital space tourism flights’, in Proceedings of the International Institute of Space Law – 50th Colloquium on the Law of Outer Space, pp 212–215. DJ Bederman, The Spirit of International Law (2002), p 84. 209 Regulation of the space tourism sector • According to the spatialist approach, the relevant legal regime will depend on the location of the spacecraft – thus, whether it is in airspace or outer space.65 However, due to the prevailing uncertainty regarding the delimitation of outer space, this theory is not of any great assistance.66 • The functional theory, by contrast, focuses on the nature of the activity carried out. If the aerospace vehicle is designed for missions in orbit, space law will be applicable, as it also will when the vehicle travels through air space.67 Even if the space vehicle does not reach orbit after it has been launched, space law would still apply, since the flight would be regarded as a space activity.68 If the purpose of the activity is to connect two points on Earth by flying through outer space (as in the case of intercontinental rocket transport), air law would apply.69 • A third theory proposes the creation of a special regime by agreement among States, to adapt the existing rules of air law and space law to aerospace planes.70 Sgrosso71 considers the functional theory the most suitable to be applied to the different types of space transportation vehicle. Thus: • a space shuttle, which “takes off like a rocket, orbits the Earth like a satellite and lands like an airplane”,72 carries out its function in outer space and must therefore be regarded as a space object governed by international space law with regard to its registration, liability for damage and the rescue and return of astronauts and space objects;73 • 65 66 67 68 69 70 71 72 73 74 75 210 by contrast, supersonic space planes with the mission of transporting passengers from one point on Earth to another by passing through outer space are not designed to be placed into orbit. Such a plane takes off like an airplane and might reach sub-orbital altitude for only a few seconds due to its technological needs.74 Since these planes have the same function as aircraft, they will be subject to the domestic air law regulations of the States over whose territory they fly, as well as to the different international air law conventions.75 GC Sgrosso, International Space Law (2011), p 283. According to the ESA, space tourism will be carried out substantially in the airspace of a given country and will therefore be subject to its domestic air laws. The ESA foresees, however, that since space tourism should in the long term also involve travelling into space, space law may also be applicable to it: see Galvéz & Naja-Corbin, op cit (note 22), p 23. MassonZwaan & Freeland, op cit (note 9), p 1601 submit that this implies that the ESA follows a spatialist approach by regarding sub-orbital flights as an aviation activity to which air law must be applied and that outer space law would apply only in the event of orbital space tourism. See also T Masson-Zwaan, Regulation of Sub-orbital Space Tourism in Europe: A Role for EU/EASA?, 35 Air and Space Law 263–272 at 263 (2010). Sgrosso, op cit (note 65), pp 283–284. Ibid. See also Lyall & Larsen, op cit (note 47), pp 169–170; Diederiks-Verschoor & Kopal, op cit (note 55), pp 18–20. Lyall & Larsen, op cit (note 47), p 170. Sgrosso, op cit (note 65), p 283. Ibid. Ibid, p 284. Ibid, p 275. Ibid, p 284. Ibid, p 280. Ibid, pp 284–288. See also Hobe & Cloppenburg, op cit (note 24), p 379. Yanal Abul Failat, Anél Ferreira-Snyman In the case of multi-stage hybrid aerospace planes76 (such as SpaceShipOne and SpaceShipTwo77), the situation is more complex, as various flight stages can be identified during a single space tourism journey. The space vehicle is attached to an aircraft and launched from the aircraft in the air.78 Different arguments have been raised about the law that should apply to the journey, which takes place in both airspace and outer space. On the one hand, it is submitted that outer space law should apply already during the first stage, which entails transportation through air space, as the aircraft from which the space vehicle is launched must be regarded as a launch vehicle with the status of a space object.79 There has not, however, been any universally accepted definition of the term ‘space object’ by international space law or its related texts.80 Thus, any hybrid vehicle travelling in both airspace and outer space may also be included in definitions of the term ‘space object’.81 Furthermore, ‘space object’ generally refers to “any vehicle intended to be active in outer space”.82 Commercial sub-orbital flights offered by space travel agencies fall under this general classification, as the terms they use in their advertisements, such as ‘space tourism’, ‘space travel’, and ‘spaceflight’, illustrate the obvious purpose of the flight.83 Nevertheless, this may be disputed, as the general definition appears to be too narrow. Some commentators believe that the term ‘space object’ refers not only to vehicles but also to objects such as aerolites and cosmic dust.84 On the other hand, it is argued that the aerospace plane has both the technical characteristics and function of an aircraft that carries out its function in airspace, as well as that of a space object carrying out its mission in outer space.85 It is therefore contended that during the first flight stage, when the combined vehicle serves the function of transporting passengers through airspace over the sovereign territories of States, it should be regarded as an aircraft governed by national and international air law.86 In the annexes to the Chicago Convention,87 the term ‘aircraft’ is defined as “all 76 77 78 79 80 81 82 83 84 85 Sgrosso, op cit (note 65), p 281. Tronchetti, op cit (note 27), p 176; Freeland, op cit (note 9), pp 13–14. Hobe, op cit (note 26), p 441. Sgrosso, op cit (note 65), p 288. There is currently uncertainty on the precise meaning of the term ‘space object’. The Liability Convention rather vaguely defines this term as including the “component parts of a space object as well as its launch vehicle and parts thereof”. Hobe, op cit (note 26) at pp 443–444 regards a space object as “any object that is launched or attempted to be launched into outer space”. See further Ferreira-Snyman, op cit (note 46). OO Ogunbanwo, International Law and Outer Space Activities (1975), p 61. HA Wassenbergh, Principles of Outer Space Law in Hindsight (1991), p 52. Hobe, op cit (note 26), p 444. International Law Association, Report of the Fifty-Third Conference of the International Law Association (Buenos Aires, August 1968), p 95. Sgrosso, op cit (note 65), p 281; Y Abul Failat Space Tourism: A Synopsis on its Legal Challenges (2012) 1 Irish Law Journal 120–151 at 147. For example, SpaceShipOne is lifted to an altitude of 15.24 kilometres by its carrier, the mother ship, WhiteKnightOne. At that point, the two components separate, the mother ship returns and lands at the spaceport, while SpaceShipOne launches its rocket vertically to an altitude of approximately 100 kilometres above sea level. The vehicle therefore operates as an aircraft for the first stage of the trip, as it does in fact “derive support from the reactions of air”, whereas for the other stages of the trip, the vehicle assumes the status of a ‘space object’ as it can only operate on rocket-mode propulsion: See RS Jakhu, Space Tourism in India: A Report of an Interdisciplinary Research Study by the University of Petroleum and Energy Studies (Dehradun, 2010), available at https://www.yumpu.com/en/ document/view/7086152/space-tourism-in-india-cce-upes (accessed 28 May 2017), p 18. FG van der Dunk, Passing the Buck to Rogers: International Liability Issues in Private Spaceflight, 86 Nebraska Law Review 400–428 at 432 (2007). 211 Regulation of the space tourism sector machines which can derive support in the atmosphere from the reactions of the air”.88 On the basis of this definition, it is therefore argued that, during the first stage, the space vehicle is merely an additional cabin that does not contribute to propulsion but is entirely dependent on the aircraft.89 The point of separation of the aircraft and the space vehicle is regarded as the “place of destination” under the terms of the Montreal Convention, making that convention applicable to the first stage of the journey only.90 During the second stage, after the space vehicle has separated from the aircraft, it no longer makes use of the reactions of the air and should therefore be regarded as a ‘space object’91 subject to outer space law.92 So far as the registration of a hybrid space vehicle is concerned, this approach would require that the two components of the space vehicle are registered separately according to their classification.93 The registration of the component classified as an ‘aircraft’ would need to conform with the Chicago Convention, article 17 of which requires an aircraft to be registered with its country of nationality. Such registration must comply with the requirements of the national laws and regulations of the relevant Chicago Convention contracting State.94 By contrast, the registration of the component classified as a ‘space object’ should be made under the Registration Convention.95 Although, in principle, article II(1) of that convention imposes registration as an obligation, it offers flexibility of choice in relation to the State exercising jurisdiction and control over the space object. In situations involving more than one launching State, the parties shall “jointly determine which one of them shall register the object” and agree on terms regarding jurisdiction and control of the objects in question.96 This must be done in conformity with article VIII of the Outer Space Treaty, which provides that, “a State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and 86 87 88 89 90 91 92 93 94 95 96 212 Sgrosso, op cit (note 65), p 289. Hobe, op cit (note 26) at p 443 finds it self-evident that air law applies to the aircraft both before and after separation from the space vehicle. Convention on International Civil Aviation 1944, ICAO Doc 7300 (Chicago Convention). The current 18 annexes to the Chicago Convention can be found at www.infrastructure.goc.au/ aviation/international/icao/annexes/ (accessed 28 May 2017). Hobe, op cit (note 26), p 443. Hobe & Cloppenburg, op cit (note 24) p 379 therefore argue that sub-orbital vehicles which use rocket propulsion for thrust cannot be regarded as aircraft. The Montreal Convention (note 62) applies to “all international carriage of persons” by aircraft (see article 1(2)). Under the Convention, carriage by aircraft is international if, “according to the agreement between the parties, the place of destination … [is] situated within the territories of two different states parties …” In this regard Hobe & Cloppenburg, op cit (note 24) p 379 submit: “[I]n the case of an air launch, the Convention is applicable to the first part of the carriage, as the position where the separation takes place would constitute a ‘place of destination’, provided that this place of destination is located in a different State to make the carriage international.” They further contend that should the separation take place over a territory not under the jurisdiction of a State party to the Montreal Convention (such as the high seas), the air carriage cannot be regarded as international and the Montreal Convention would therefore not be applicable. In such an instance, the liability regime would be determined by the relevant principles of private international law (at p 380). See note 85 above. Hobe, op cit (note 26), p 443. See also Tronchetti, op cit (note 27), p 178; Abul Failat, op cit (note 85), p 147. S Hobe, The Legal Regime for Private Space Tourism Activities – An Overview, (2010) 66 Acta Astronautica 1593–1596 at 1594. Article 19. Convention on Registration of Launched Objects into Outer Space 1974, 1023 UNTS 15 (the Registration Convention). Article II(2). Yanal Abul Failat, Anél Ferreira-Snyman control over such object, and over any personnel thereof, while in outer space or on a celestial body”.97 Some experts maintain that the two systems discussed above can operate simultaneously.98 Other commentators, however, are of the opinion that this approach is unworkable and argue that both regimes are not compatible as they relate to two separate industries of different status and nature.99 This is supported by the fact that the aviation industry, unlike the space industry, is already fully established, regulated, and deals with nominal risks. To address this incompatibility, it has been suggested that only one registration should be allocated per vehicle under a de lege ferenda (ie, future law) paradigm of the Chicago Convention.100 Freeland101 submits that although the two-stage approach is pragmatic, it is still unsatisfactory since, in the event of an accident, the applicable legal regime will depend on “fortuitous circumstances”, namely the specific moment that the accident occurs.102 What is also not clear from this approach is which legal regime would apply where a space vehicle returns to Earth without any assistance from an aircraft. Since there is no international agreement on the boundary between airspace and outer space, it would be difficult to determine when outer space law should apply and when air law should apply. It seems illogical, however, to apply both air law and outer space law to the journey into space while one legal system (either air law or outer space law) would apply to the return journey to Earth.103 It seems that the two-stage approach, as explained above, results in the application of both the spatial and functional approaches. The authors agree with the submission of Masson-Zwaan and Freeland104 that the application of two legal systems during a single space tourism activity is “highly unsatisfactory and impractical”. This is especially so because of the lack of international consensus on the border between air space and outer space.105 Since the development of a comprehensive multilateral treaty to regulate complete journeys by space tourists would take a significant length of time, Masson-Zwaan and Freeland106 propose that, as an interim measure, space law should be applied to the entire sub-orbital or orbital flight. They also base their argument on the function of the activity carried out by the vehicle, “namely that it involves a flight in (to) outer space”.107 To clarify and supplement the current space treaties, they propose the development of a code of conduct under the auspices of the United Nations Committee on the Peaceful Uses 97 98 99 100 101 102 103 104 105 106 107 Article VIII. Van der Dunk, op cit (note 85), pp 431–435. J Cloppenburg, ‘Legal Aspects of Space Tourism’, in M Benkö & K-U Schrogl (Eds) Space Law: Current Problems and Perspectives for Future Regulation (2005, Eleven International Publishing), p 210. See further, S Hobe, GM Goh & J Neuman, Space Tourism Activities – Emerging Challenges to Air and Space Law?, 33 Journal of Space Law 359–373 (2007). Cloppenburg, op cit (note 99), p 210. Freeland, op cit (note 9), p 14. Ibid. See also Hobe & Cloppenburg, op cit (note 24), p 382, who find the application of air law to only a part of the journey to be an unconvincing solution. Ferreira-Snyman, op cit (note 49), p 14. Masson-Zwaan & Freeland, op cit (note 9), p 1603; Freeland, op cit (note 9), 13. See Bittencourt, op cit (note 54). Masson-Zwaan & Freeland, op cit (note 9), p 1603. Ibid. See also Freeland, op cit (note 9), p 13. 213 Regulation of the space tourism sector of Outer Space (UNCOPUOS), similar to the space debris mitigation guidelines. This code, which could be modelled after air law, would also serve the purpose of harmonising different national laws concerning liability and safety issues.108 It should be noted that the code of conduct along the lines proposed by MassonZwaan and Freeland would have the status of soft law109 and would therefore not be legally binding on States. However, as with the non-binding space debris mitigation guidelines, it could be argued that such a code would have a moral and political value as there would be an expectation that States would comply with its provisions.110 Non-compliance by a State might be viewed in a negative light by international partners and therefore damage its political reputation.111 Particularly in instances in which there is an urgent need for legal clarity – as is undeniably the case with space tourism – the development of a soft law instrument would offer a solution as it could be negotiated in a relatively short period of time and implemented immediately because its application would not be dependent on ratification by States.112 It could therefore be argued further that soft law guidelines have a legal value as they impact on the international law-making process by providing the premise on which customary international law may develop, which in turn could eventually lead to the conclusion of a treaty.113 As with the spatial theory, various objections can also be raised against the application of the functional theory, as proposed by Masson-Zwaan and Freeland.114 Apart from the fact that States may find it difficult to agree on the particular purpose of the activity, the location of the vehicle cannot simply be ignored. As also noted above, there is as yet no international agreement on the boundary between airspace and outer space115 and, in order to determine the function of the activity, it is still necessary to know where airspace ends and outer space begins. It is clear that legal certainty with regard to the applicable legal regime during a single space tourist journey cannot be achieved until States agree on the boundary between airspace and outer space. It is therefore agreed with Masson-Zwaan and Freeland116 that a single legal regime should be applied to the entire space tourism journey. It is submitted, however, that this legal regime should not be based on the application of either the 108 109 110 111 112 113 114 115 116 214 Masson-Zwaan & Freeland, op cit (note 9), p 1603. See also Masson-Zwaan, op cit (note 9), p 542. J Dugard International Law: A South African Perspective (4th Edn, 2011) at p 33 describes ‘soft law’ as “imprecise standards, generated by declarations adopted by diplomatic conferences or resolutions of international organizations, that are intended to serve as guidelines to states in their conduct, but which lack the status of ‘law’.” J Klabbers An Introduction to International Institutional Law (2nd Edn, 2009) at p 202 is of the opinion that the concept of soft law should be discarded mainly because it is premised on the jurisprudentially dubious notion that legal rules can be more or less binding, which is not really supported by international tribunals. Furthermore, the fact that soft law is often conceived of as a process of informal standards-setting without any control makes it a convenient tool for the exercise of pure political power. In the context of space debris mitigation, see ND Welly, Enlightened State Interest – A Legal Framework for Protecting the Common Heritage of Mankind from Hardinian Tragedy, 36 Journal of Space Law 273–313 at 307 (2010); F Tronchetti, ‘Soft Law’, Brünner & Soucek, op cit (note 1), p 620. Welly, op cit (note 110), p 307. Tronchetti, op cit (note 116), p 626. Ibid, p 621; Welly, op cit (note 110), p 311. See also Walter, op cit (note 2), p 503. Lyall & Larsen, op cit (note 47), p 170. Ibid. Masson-Zwaan & Freeland, op cit (note 9), p 1603. Yanal Abul Failat, Anél Ferreira-Snyman spatial or the functional theory as both theories are to a greater or lesser extent dependent on the existence of a fixed boundary between airspace and outer space. Rather, it is submitted that, for the sake of legal certainty, States should agree on a specific single legal system that would apply to the entire space tourism journey, ie, to and from outer space. However, until States have agreed on the creation of a special regime by adapting the existing rules of air law and space law to space tourism activities,117 it is agreed with Masson-Zwaan and Freeland118 that existing outer space law should, in the interim, be applied as supplemented by a code or guidelines in order to provide clarity and legal certainty on issues such as liability and the status of space tourists. As noted previously, such a code or guidelines would not be legally binding. Alternatively, the space treaties could be supplemented by binding protocols.119 Due to the urgent need for legal clarity on space tourism activities, however, a soft law instrument would seem to offer a better solution in the interim.120 4. The legal definition and status of a ‘space tourist’ 4.1 Regulation under the space treaties When the core UN space treaties were formulated, the status of spacecraft passengers presented no challenge, as only astronauts and cosmonauts121 participated in space flights. International space law does not provide a definition of ‘space tourist’, nor does it determine their status.122 Due to the rapidly developing commercial space industry, however, questions now arise with regard to the legal status of, rights of and obligations owed to commercial space flight passengers. It is unclear whether terms used in the space treaties, such as “astronaut”, “personnel of a spacecraft”, and “envoys123 of mankind”, should apply to space tourists. The possible inclusion of space tourists within the ambit of these terms is further complicated by the fact that the treaties often define these terms in differing ways, resulting in different implications in employing them.124 Article V of the Outer Space Treaty describes astronauts as “envoys of mankind”125 117 118 119 120 121 122 123 124 125 Ibid; Sgrosso, op cit, (note 65), p 289. Masson-Zwaan & Freeland, op cit (note 9), p 1603. Sundahl, op cit (note 4) p 199. Ferreira-Snyman, op cit (note 49), p 17. Lyall & Larsen, op cit (note 47) at p 130, n 1 point out that the Russian term is ‘cosmonaut’, while the Western notion is ‘astronaut’. GC Sgrosso, ‘Legal Aspects of the Astronaut in Extravehicular Activity and the ‘Space Tourist’’, in Legal and Ethical Framework for Astronauts in Space Sojourns Symposium (Paris, October 2004), available at http://unesdoc.unesco.org/images/0013/001397/139752m.pdf (accessed 28 May 2017) 57; 63. The word ‘envoy’ originates from diplomatic law and customarily relates to privileges and immunities of the relevant persons: AS Piradov & B Belitskïï, International Space Law (1976), p 103. R Jakhu & R Bhattacharya, ‘Legal aspects of space tourism’, in 2002 Proceedings of the International Institute of Space Law: 45th Colloquium on the Law of Outer Space, pp 112, 119. This does not imply, however, that astronauts have diplomatic immunity and privileges: see Sgrosso, op cit (note 65), p 306; L Yan, ‘Does the Rescue Agreement apply to space tourists?’, in 2011 Proceedings of the International Institute of Space Law: 54th Colloquium on the Law of Outer Space, pp 193–194. Yan points out that the description of astronauts as “envoys of mankind” may be regarded as of symbolic value only, without any legal rights or duties attached to it. Conversely, it may be contended that since astronauts face the risks of entering an unknown world, they play an important role in the development of humankind. The fact that the obligation on States to render assistance to astronauts is placed directly after the phrase “envoys of mankind” (in the second paragraph of the Outer Space Treaty) rather seems to suggest, according to Yan, that the phrase has some legal value (at p 194). 215 Regulation of the space tourism sector and obliges States to provide astronauts with “all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas”. Should astronauts make such an emergency landing, they must be safely and promptly returned to the State of registry of the space vehicle. By contrast with this qualified duty of States, article V places a broader duty on astronauts by obliging them to provide “all possible assistance to each other” – thus, in any location and under any circumstances.126 In this regard, Lachs submits, “[t]he mission they [astronauts] perform and the risks they incur justify the special standing and legal protection afforded to them”.127 The Rescue Agreement of 1968,128 which is based on sentiments of humanity,129 develops and gives further concrete expression to the rescue provisions in the Outer Space Treaty130 and specifically deals with the rendering of assistance to astronauts in the event of an accident, distress or emergency landing, the prompt and safe return of astronauts and the return of objects launched into outer space.131 It should be noted that the title of and preamble to the Rescue Agreement refer to “astronauts”, while its text employs the broader term “personnel of a spacecraft”, which may, according to Yun,132 include astronauts, space engineers and scientists. It is doubtful, however, whether the terms “astronaut” and “space personnel” in the Rescue Agreement also embrace space tourists, since neither of these terms is formally defined in any of the outer space treaties, nor in any domestic laws.133 As noted previously, at the time of the drafting of the outer space treaties, space tourism had not yet been envisaged and the treaties were formulated with the interests specifically of astronauts in mind.134 These terms do not as easily apply to space tourists as they cover astronauts, who venture into space for the benefit of the public interest rather than for personal pleasure.135 As Lyall and Larsen136 aptly observe, the 126 127 128 129 130 131 132 133 134 135 136 137 216 Sundahl, op cit (note 4), pp 167–168. M Lachs, The Law of Outer Space (1972), p 72. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968, 672 UNTS 119 (the Rescue Agreement). Preamble to the Rescue Agreement. Sundahl, op cit (note 4), p 168. Preamble to the Rescue Agreement. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979, 1363 UNTS 3 (the Moon Agreement) also contains certain rescue provisions that are much more comprehensive than those contained in the Outer Space Treaty and the Rescue Agreement. See Sundahl, op cit (note 4), p 170. However, as Sundahl points out at p 170, since the Moon Agreement is restricted to the Moon only, it cannot be applied to sub-orbital and orbital private spaceflight. Furthermore, the Moon Agreement has been ratified by only a small number of States. For the list of ratifications, see UNOOSA, Status of International Agreements relating to Activities in Outer Space, available at www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html (accessed 28 May 2017). Y Zhao, A Legal Regime for Space Tourism: Creating Legal Certainty in Outer Space, 74 Journal of Air Law and Commerce 959–982 at 978. According to Yun, “by using a broader concept in the text, the Rescue Agreement applies to broader categories of people on board spacecraft” (at 978). Article 10 of the Moon Agreement stipulates that “[s]tates parties shall adopt all practicable measures to safeguard the life and health of persons on the Moon.” For this purpose, any person on the Moon shall be regarded as an “astronaut” within the meaning of article V of the Outer Space Treaty and as part of the “personnel of a spacecraft” within the meaning of the Rescue Agreement. Lyall & Larsen, op cit (note 47), pp 129–130. Yan, op cit (note 125), pp 192, 199. Yun, op cit (note 132), pp 959, 979. Lyall & Larsen, op cit (note 47), p 129. Ibid. Yanal Abul Failat, Anél Ferreira-Snyman term “[a]stronaut cannot easily fit the non-professional that is likely to enter space in the coming years whether on a limited flight or in a space hotel”.137 This uncertainty leads to the question of whether or not States have a duty to rescue space tourists as passengers (as opposed to astronauts and personnel) on a spacecraft and whether visitors to the ISS enjoy the special standing and protection afforded to astronauts. A related question is whether the duty to rescue applies only to State-sponsored missions or to commercial spaceflights as well.138 To determine whether a space tourist falls within the definition of an ‘astronaut’ for legal purposes, three elements need to be considered: training, altitude and selection.139 (a) Training It seems that, in a purely literal sense, space tourists cannot be regarded as astronauts, or even as personnel of a spacecraft, as they are not trained as specialists on a space mission and their main objective is one of personal pleasure, as opposed to contributing to the interest of mankind.140 This is, however, not always as simple as it seems, since different categories of space tourist can be identified and most space tourism operators require their passengers to undergo at least some training.141 The first space tourist, Dennis Tito, who visited the ISS on board the Russian Soyuz spacecraft, was allowed to stay in the Russian space module only. He was regarded as a “guest cosmonaut” by the Russians and an “amateur astronaut” by the Americans.142 In contrast, the second space tourist on board the Soyuz, Mark Shuttleworth, agreed to abide by certain common ‘rules of the road’ applicable to commercial space tourists to the ISS143 and was therefore allowed to move freely around the station. Furthermore, he actively participated in the space programme by carrying out certain experiments relating to genetic engineering and microgravity.144 As a result, he was considered a “non-professional astronaut”, thereby giving him a higher status than that of a mere guest or visitor to the ISS.145 138 139 140 141 142 143 144 Sundahl, op cit (note 4), pp 170–171. Lyall & Larson, op cit (note 47), p 131. Yan, op cit (note 125) at p 193 refers to two elements only for a person to be qualified as an astronaut: professional training and operating a spacecraft. On the basis of these elements, the definition of ‘astronaut’ may be formulated in a narrow or a broad sense. The author explains: “[S]ome scholars construe the term in a narrow sense: only those persons who pilot or operate a spacecraft are considered as astronauts. Therefore, persons like space engineers and scientists, are not astronauts. Others [have] construed the term in a broad way. According to them, a person who is employed on a spacecraft on a mission and who is serving some purpose in aid of the voyage, such as an engineer and a scientist capable of carrying out scientific experiments and of knowing his and his colleagues’ work in the event of a replacement, shall be considered an astronaut.” Yun, op cit (note 132), pp 978–979; Yan, op cit (note 4), p 195; Abul Failat, op cit (note 85), p 123. In this regard, Sgrosso, op cit (note 65) at p 271 points out that, unlike astronauts (as envoys of mankind), space tourists “are not representatives of their State of nationality for scientific or research purposes and do not carry out any activity on behalf of national entities.” Abul Failat, op cit (note 85), p 124. Sgrosso, op cit (note 65), p 266. In 2002 the Multilateral Coordination Board of the International Space Station, which comprises officials from NASA and other ISS partners, including the Russian, Canadian, Japanese and European space agencies, agreed to a set of criteria known as ‘The Rules of the Road for Travelers to the International Space Station’. These rules apply to all travellers to the ISS, whether they are professional astronauts or spaceflight participants such as scientists, researchers, teachers, tourists or astronauts from non-partner space agencies: see A Boyle, Rules set for space tourism trade, Space on NBCNEWS.com available at www.nbcnews.com/id/3077960/ns/technology_and_science-space/t/rules-set-space-tourism-trade (accessed 28 May 2017), which sets out several of the salient criteria; Sgrosso, op cit (note 65), p 264. Sgrosso, op cit (note 65) at p 266. 217 Regulation of the space tourism sector Various providers of space tourist services require and provide training for their customers. For example, programmes such as the Atlas Aerospace Crew Training Program146 and Project Odyssey147 provide medical screening, centrifuge and astronaut training for prospective space tourists. Tourists undertaking this type of training are more likely than others to be considered astronauts. However, if training is an element of achieving the status of an astronaut, then an assessment of the longevity and the extent of the training may also be required. All visitors to the ISS thus far have had to undergo some training.148 However, the extent of the training required of space tourists may differ, depending on the space tourism operator and the activities to be undertaken in space. For example, before a space tourist can visit the ISS, he/she is required to have at least six months’ training.149 Further training is necessary if tourists decide to enjoy additional activities, such as spacewalks, which are offered by providers such as Space Adventures.150 By contrast, Virgin Galactic customers undertake only one week of training151 and, in some cases, as few as three days.152 As a result, it is generally uncertain what type of training a passenger on a space vehicle must have undergone to be considered an astronaut.153 It has been suggested by some commentators that, since space tourists undergo some training, they could be classified as personnel of a spacecraft in order to ensure that they receive the humanitarian protection offered by the Rescue Agreement.154 However, others have doubted the correctness of this submission because personal space travel is undertaken mainly for the individual’s pleasure and not to contribute to the public interest.155 While the term ‘personnel’ is generally defined as “people employed in an organisation or engaged in a service or undertaking”, the term 145 146 147 148 149 150 151 152 153 154 218 Ibid. Masson-Zwaan & Freeland, op cit (note 9), at p 1599, n 14 point out that some of the travellers to the ISS, including Ansari, Tito and Olsen, have expressed their disapproval of being called space tourists because they had undergone extensive training and had actively participated in activities as crew members. See further, Specialized Space Training (SST), in Atlas Aerospace, available at www.thelivingmoon.com/ 45jack_files/03files/Other_Astronauts_Specialized_Space_Training_SST.html (accessed 26 May 2017). See further J Foust, A New Training Option for Space Tourists, NewSpace Journal (5 December 2008), available at www.newspacejournal.com/2008/12/05/a-new-training-option-for-space-tourists/ (accessed 26 May 2017). Lyall & Larsen, op cit (note 47), p 132. UNOOSA, International Astronautical Federation, and International Institute of Space Law, Highlights in Space 2006: Progress in Space Science, Technology and Applications, International Cooperation and Space Law (2007, United Nations Publications), p 37. The Multilateral Crew Operations Panel’s Principles regarding Processes and Criteria for Selection, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers (November 2001) (MCOP Agreement), available at www.spaceref.com/news/ viewsr.html?pid=4578 (accessed 28 May 2017) requires that professional expedition crew members should “begin advanced training approximately 12 months before the start of increment-specific training”. Visiting crew and spaceflight participants, which include space tourists, must undergo a “minimum training program [which] will be defined by the International Control Board (ITCB)” (at paragraph VI). See further, Spacewalk, in Space Adventures www.spaceadventures.com/experiences/spacewalk/ (accessed 10 August 2017). Virgin Boss in Space Tourism Bid,, BBC News (24 September 2004), available at http://news.bbc.co.uk/ 2/hi/science/nature/3693020.stm (accessed 28 May 2017). Virgin Galactic, Astronaut Training, available at www.virgingalactic.com/overview/training/ (28 May 2017). Abul Failat, op cit (note 85), p 125. Freeland, op cit (note 9), p 14; Masson-Zwaan & Freeland, op cit (note 9), p 1604; Abul Failat, op cit (note 85), p 125; Hobe, op cit (note 26), pp 455–456. Yanal Abul Failat, Anél Ferreira-Snyman “personnel” (along with the terms “astronaut” and “envoy of mankind”) in the Outer Space Treaty has no specifically defined meaning in outer space law.156 Hobe157 refers in this regard to the different connotations that these terms bear: the term ‘astronaut’ “has a more explorative or scientific meaning”, while ‘personnel’ “has a more functional meaning” and the phrase “envoy of mankind has a more humane meaning”.158 It may therefore be argued that since space tourists do not perform functions relating to the operation of a spacecraft during their relatively short period in outer space, they cannot be considered as ‘personnel’ of it. The “profile of these passengers” is therefore not what the drafters of the Rescue Agreement intended,159 which still leaves it uncertain whether they enjoy the same privileges and immunities as astronauts.160 (b) Altitude The element of altitude relates to the question of how high a person must travel in a space vehicle to be considered an astronaut.161 This question is complicated by the fact that there is not yet international consensus on the boundary between airspace and outer space. It is also at present uncertain whether participants in a commercial sub-orbital spaceflight, who experience only a few minutes of weightlessness, may be considered to be astronauts.162 At present, the altitude of 100 km above sea level is widely regarded as the legal boundary between airspace and outer space.163 Some national laws, however, suggest alternative delimitations. The US, for example, regards the altitude of 80 km above sea level164 as the edge of outer space. As a result, the Office of Commercial Space Transportation has awarded astronaut wings165 to commercial travellers.166 Thus, although a demarcation limit exists in practice,167 it remains necessary to establish a legally defined boundary to resolve some challenges related to space activities, particularly the problem of distinguishing between an astronaut and a space tourist.168 155 156 157 158 159 160 161 162 163 164 165 166 167 168 Yun, op cit (note 132), p 979. Abul Failat, op cit (note 85) at p 125 points out that “even if … passengers and non-crew members were deemed ‘personnel’, it would still be uncertain whether privileges and immunities enjoyed by astronauts would be available for space tourists as it was ‘not the intention of the treaty makers to cater for this group’”. According to Yan, op cit (note 125) at p 196, “[i]t is unreasonable to gather that the drafters intended to include space tourists in the category of personnel of spacecrafts [sic] in the Rescue Agreement”. Abul Failat, op cit (note 85), p 125. Hobe, op cit (note 26), p 455. Ibid. Ibid, p 456. LJ Smith & K-U Hörl, ‘Legal parameters of space tourism’ in 2003 Proceedings of the International Institute of Space Law: 46th Colloquium on the Law of Outer Space, pp 1, 3. Lyall & Larsen, op cit (note 47), pp 132–133. Ibid, p 132. See Bittencourt, op cit, (note 54). WD Reed, The Outer Space Treaty: Freedom – Prohibitions – Duties, 5 US Air Force JAG Law Review 26–37, 29 (1967) (who defines a ‘pilot astronaut’ as “[a] pilot who is qualified to operate or control powered vehicles in flight above 50 miles from the earth’s surface”). Astronaut wings are badges that are awarded to civilian pilots who have completed training and performed a successful spaceflight. Lyall & Larsen, op cit (note 47), pp 133–134. Hobe, op cit (note 93), pp 1593–1594. Abul Failat, op cit (note 85), p 125. 219 Regulation of the space tourism sector (c) Selection To be included in the astronaut corps of, for example, the European Space Agency (ESA) or the crew of the ISS, certain selection criteria and processes need to be complied with.169 In the case of the ESA, applicants have to show (among other things) competence in relevant scientific principles, engineering or piloting skills, a certain level of language proficiency, and emotional stability. In addition, medical records similar to those of pilots need to be provided during the selection process.170 The selection criteria for ISS crew members are set out in the Multilateral Crew Operations Panel Agreement of 2001 (MCOP Agreement).171 The agreement divides crew members into “professional astronauts/cosmonauts” and “spaceflight participants” (including space tourists), who can be designated as “expedition (increment) crewmembers” and “visiting crewmembers”.172 Each ISS partner applies its own selection criteria for its astronaut corps, whereas other crew members listed above must comply with the requirements set out in the MCOP Agreement. These criteria include behavioural suitability, linguistic ability and medical requirements.173 Since space tourists visiting the ISS are regarded as spaceflight participants, they are required to comply with the criteria as set out in the MCOP Agreement.174 It is, however, still unclear whether or not space tourism operators will have set selection criteria (except for medical screening in some instances)175 with which space tourists who wish to undertake a shorter sub-orbital (or eventually longer orbital) spaceflights should comply. The preceding discussion of the elements relating to the definition of an ‘astronaut’ clearly indicates that the current space law regime needs to be amended by a new treaty or at least supplemented by means of a protocol to provide clarity regarding the legal status of space tourists.176 In formulating a legal framework for space tourism, it has been suggested by some commentators that the ISS Intergovernmental Agreement (IGA)177 and the MCOP Agreement may serve as examples to clarify the legal status of the different participants in a commercial spaceflight.178 169 170 171 172 173 174 175 176 177 178 220 For the ESA’s criteria, see ESA: Astronauts: Human Spaceflight and Exploration – Astronaut Training Requirements, available at www.esa.int/Our_Activities/Human_Spaceflight/Astronauts/Astronaut_ training_requirements (accessed 28 May 2017). See further Lyall & Larsen, op cit (note 47), p 131, n 9. MCOP Agreement (note 149 above). See also Lyall & Larsen, op cit (note 47), p 146, n 62. MCOP Agreement (note 149 above), paragraph III. Ibid, paragraph IV. Freeland, op cit (note 9) at p 15 points out that “[t]he Agreement has not gone so far as to require these participants to sign a code of conduct – as is required for crew members of the ISS – but the inclusion of non-professional persons, such as tourists, on board space vehicles will necessitate acceptance by them of some minimum standard of care.” Abul Failat, op cit (note 85), p 124. See in this regard Sundahl, op cit (note 4), p 199; Abul Failat, op cit (note 85), p 129; Yun, op cit (note 132), p 979. Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station 1998, TIAS 12927, available at https://www.state.gov/documents/organization/107683.pdf (accessed 28 May 2017). Yun, op cit (note 132), p 980; Abul Failat, op cit (note 85), pp 126–127; Masson-Zwaan & Freeland, op cit (note 9), p 1604; Hobe, op cit (note 26), p 457. Yanal Abul Failat, Anél Ferreira-Snyman 4.2 Regulation under the International Space Station IGA Efforts to clarify the legal status of crew and passengers can be found in legal documents concerning space travel to the ISS. As noted at 4.1 above, both the ISS IGA, which is an agreement reached between the space agencies participating in the ISS project,179 and the MCOP Agreement180 have divided crew members into two main classes: space flight participants and professional astronauts or cosmonauts.181 “Space flight participants” are defined in the MCOP Agreement as: [I]ndividuals (eg commercial, scientific and other programs; crewmembers of nonpartner space agencies, engineers, scientists, teachers, journalists, filmmakers or tourists) sponsored by one or more partner(s). Normally, this is a temporary assignment that is covered under a short-term contract.182 A “professional astronaut or cosmonaut” is: an individual who has completed the official selection and has been qualified as such at the space agency of one of the ISS partners and is employed on the staff of the crew office of that agency.183 The crew members defined above may be designated as “expedition or increment crewmembers” who are the “main crew of the ISS” and “visiting crewmembers” who “travel to and from the ISS” and who are not expedition crew members, but may either be professional astronauts/cosmonauts or spaceflight participants.184 The latter may include a visiting scientist, commercial user or tourist with specific functions.185 In this regard, Hobe186 submits that it could be argued that space tourists fall under the command of the commander of the space vehicle on which they are passengers. However, their functions on the space mission are minor, if they have any at all. Thus, whether they are regarded as crewmembers or not, “their subordinate function in space travel should be clearly reflected in their status”.187 Articles 8.3 and 11 of the Memorandum of Understanding between NASA and the Russian Space Agency188 regulate the rights and assignment of these two types of crewmember, thereby allowing non-partners to be included in the ISS crew if they have met the criteria regarding selection, assignment, training and certification.189 179 180 181 182 183 184 185 186 187 188 189 Note 177 above. Note 149 above. RP Veldhuyzen & TL Masson-Zwaan, ‘ESA Policy and Impending Legal Framework for Commercial Utilisation of the European Columbus Laboratory Module of the ISS’, in FG van der Dunk & MMTA Brus (Eds), The International Space Station: Commercial Utilisation from a European Legal Perspective (2006), pp 47, 54. Although these definitions only apply to the ISS, Van der Dunk submits that this distinction may constitute a “trendsetting, if not an industry standard”: see F van der Dunk, A Sleeping Beauty Awakens: The 1968 Rescue Agreement After Forty Years, 34 Journal of Space Law 411–434 at 411, 433 (2008). MCOP Agreement (note 149), paragraph III. Ibid, paragraph III. Ibid. Abul Failat, op cit (note 85), pp 126–127. Hobe, op cit (note 26), p 458. Sundahl, op cit (note 4) at p 168 refers to passengers on board a space vehicle as “non-crew members”. Hobe, op cit (note 26), p 444. Memorandum of Understanding between the National Aeronautics and Space Administration of the United States of America and the Russian Space Agency Concerning Cooperation on the Civil International Space Station 1998 (NASA-RSA Agreement), available at www.nasa.gov/mission_pages/ station/structure/elements/nasa_rsa.html (accessed 28 May 2017). MCOP Agreement (note 149), articles III–VII. 221 Regulation of the space tourism sector The IGA describes crew as “qualified personnel”.190 However, as stated previously, it is uncertain whether space tourists may be regarded as ‘personnel’ on a space vehicle. Moreover, due to the limited training that a space tourist receives, it is highly doubtful whether such a person has the same level of qualification as a professional crew member.191 This is also evident from the MCOP Agreement, which provides: Only professional astronauts/cosmonauts will be eligible to be assigned as crew commanders, pilots, flight engineers, station scientists or mission specialists in either expedition or visiting crews. Spaceflight participants will be eligible to be assigned as visiting scientists, commercial users, or tourists. Task assignments for spaceflight participants will not include ISS assembly, operations and maintenance activities.192 Although the ISS and MCOP agreements may be instructive in eventually formulating the different categories of space traveller and their respective rights and duties, they do not provide legal certainty as to whether or not the Rescue Agreement, as currently drafted, should also apply to space tourists. In fact, a reading of the different categories of space traveller in the MCOP Agreement shows a clear distinction between professional crew members (professional astronauts/cosmonauts) and spaceflight participants, who include space tourists. This may therefore imply that the Rescue Agreement, which specifically refers to “astronauts” and “space personnel”, will not apply to space tourists.193 Yan194 points out that, for a number of reasons, non-spacefaring States in particular may be unwilling to extend the provisions of the Rescue Agreement to space tourists. • Firstly, the obligation in the Rescue Agreement to provide “all possible assistance” to astronauts in distress is broader than the obligation in the Chicago Convention, which requires only that “practicable” assistance must be provided to passengers on an aircraft in distress. It is therefore debatable whether States would be willing to provide such greater assistance to space tourists, who travel to outer space for their personal interest and pleasure, like commercial aircraft passengers.195 190 191 192 193 194 195 196 222 • Secondly, States may contend that the obligation to return space tourists to the launching State is subject to their national laws concerning foreigners and that they are therefore not obliged to return space tourists unconditionally.196 • Thirdly, although the Rescue Agreement provides that the expenses of recovering and returning a space object will be paid by the launching State, there is no similar provision relating to the expenses incurred when an Article 11(1). See Yun, op cit (note 132), p 980. As Lyall & Larsen, op cit (note 47) at p 128 point out: “We do not consider all those on a cruise-liner to be sailors, or passengers on aircraft to be pilots, flight engineers or cabin staff, and there is a clear parallel between such cases and touristic space-flight.” MCOP Agreement (note 149), paragraph V. Sgrosso, op cit (note 65) at p 270 suggests that a distinction between crew members and passengers can be made by following air law, by virtue of which the Chicago Convention (note 87) requires crew members to have licences in order to carry out their functions. Ferreira-Snyman, op cit (note 49), p 25. Yan, op cit (note 125), p 197. Ibid. Ibid. Yanal Abul Failat, Anél Ferreira-Snyman astronaut is rescued and returned. Since astronauts are considered envoys of mankind, States are obliged to render assistance without any subsequent financial claim.197 Thus, it is again doubtful that States would be willing to incur expenses in rescuing and returning space tourists, who cannot be regarded as envoys of mankind. By analogy with the suggestion that an international fund should be created to compensate victims who have suffered damage caused by unidentified space debris,198 an international fund could be created which would be used for the rescue and return of space tourists in distress. It is unlikely, however, that States would be willing to contribute to such a fund, since space tourists are not considered astronauts who undertake space activities for the benefit of mankind.199 It is submitted that the rationale behind the Rescue Agreement may motivate its extended application to space tourists, at least until a new convention or protocol on the commercial use of space has been drafted which clarifies the legal status of space tourists. Although it could be argued that the drafters of the Rescue Agreement had only astronauts in mind,200 it should also be considered that the agreement was “prompted by sentiments of humanity”.201 In view of this, it is inconceivable that only the astronauts would be rescued in the case of an emergency, without assisting space tourists on board the space vehicle as well.202 For this reason, a broad interpretation of the Rescue Agreement is necessary.203 Different arguments have been raised as to how the agreement could be interpreted in order to provide space tourists with the protection offered by it. • Firstly, by employing the interpretational guidelines in the Vienna Convention,204 Sundahl205 concludes that the duty to rescue in the outer space treaties should be interpreted broadly in order to include the rescue of space tourists. According to him, the use of the term “personnel” in the text of the Rescue Agreement (as opposed to the term “astronaut”) and the omission of the phrase “envoys of mankind” (as used in the Outer Space Treaty) broaden the scope of the duty to rescue, thereby including space tourists and commercial spaceflights. In terms of the lex posteriori rule, this broader scope of the Rescue Agreement supersedes the narrower language of the Outer Space Treaty.206 197 198 199 200 201 202 203 204 205 206 Ibid. See Sgrosso, op cit (note 65), p 136; Viikari, op cit (note 47), pp 183–184. Ferreira-Snyman, op cit (note 49), p 26. Yan, op cit (note 125), p 199. Preamble to the Rescue Agreement (note 128). Masson-Zwaan & Freeland, op cit (note 9), p 1604; Abul Failat, op cit (note 85), p 129. Ferreira-Snyman, op cit (note 49), p 26. Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331. Sundahl, op cit (note 4), p 174. Ibid, p 78. Sundahl explains: “Under the lex posteriori rule in Article 30 of the Vienna Convention, the OST applies – “only to the extent that its provisions are compatible” with the Rescue Agreement. That the Rescue Agreement was intended to supersede the Outer Space Agreement with respect to the duty to rescue and return is clear. … Therefore, under the operation of the lex posteriori rule, the Rescue Agreement must trump the OST where the terms are inconsistent.” Other authors have also suggested that the provisions of the Rescue Agreement should be extended to space tourists. See in this regard Yun, op cit (note 132), p 979. 223 Regulation of the space tourism sector • Secondly, Yan207 in turn proposes that a broad interpretation of the Rescue Agreement is possible by reference to article 31(3)(a) and (b) of the Vienna Convention.208 Under article 31(3)(a), States parties to the Rescue Agreement can reach an agreement that the interpretation of the terms “astronaut” and “personnel of a spacecraft” should include space tourists. Alternatively, under article 31(3)(b) of the Vienna Convention, such agreement may be established through the practice of the parties in their subsequent application of the Rescue Agreement. It is submitted, however, that by merely employing the teleological approach to treaty interpretation, the provisions of the Rescue Agreement can be extended to space tourists. According to this approach, the treaty should be interpreted in the light of its object and purpose.209 As noted earlier; the Rescue Agreement is based on a concern for human life. It is therefore evident that the object and purpose of the treaty is to save the lives of people in distress while they are undertaking an outer space activity, irrespective of their status and their function on board the spacecraft. If space tourists were to be left in distress without any attempt by States to rescue them, it would constitute a grave infringement of their rights to human dignity and life.210 To give effect to the teleological interpretation of the Rescue Agreement, States could be requested to submit declarations indicating that the protection offered by the agreement is also applicable to space tourists. Alternatively, States could adopt a protocol in this regard.211 However, since the adoption and ratification of a protocol may take time, it is proposed that, given the urgency of the matter, an advisory opinion on the interpretation of the Rescue Agreement be sought from the International Court of Justice. Although it would not be binding on States, such an authoritative opinion would at least provide legal certainty on the status of space tourists. Depending on subsequent State practice in this regard, the duty to rescue space tourists may eventually become an erga omnes obligation, binding also on nonStates parties to the Rescue Agreement. 212 4.3 Regulation under US domestic law In addition to the ISS regulations, domestic legislation enacted by the US in the form of the Commercial Space Launch Act 1984 (the 1984 Act) and the Commercial Space Launch Amendments Act of 2004 (the 2004 Act) may be instructive in determining the legal status of crew members and passengers on space flights.213 The 1984 Act as 207 208 Yan, op cit (note 125), pp 198–199. The article reads: “There shall be taken into account, together with the context (a) any subsequent agreement between the parties regarding interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. Dugard, op cit (note 109), p 425. Ferreira-Snyman, op cit (note 49), p 28. Yun, op cit (note 132) at p 979 submits that extending or establishing a new protocol for the Rescue Agreement is a reasonable solution Ferreira-Snyman, op cit (note 49), p 28. Commercial Space Launch Amendments Act 2004, section 2(a)(5). 209 210 211 212 213 224 Yanal Abul Failat, Anél Ferreira-Snyman amended, in particular, has provided a vital legal classification by defining “crew” and “space flight participants”.214 The requirements for assignment are similar to those relating to the ISS, but the definitions are slightly different. The 2004 Act defines “crew” as any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to the launch, re-entry, or other operation of or in a launch vehicle or re-entry vehicle that carries human beings.215 A “space flight participant” is defined as “an individual, who is not crew, carried within a launch vehicle or re-entry vehicle”.216 In accordance with the 1984 Act and its 2004 amendment, the Federal Aviation Administration introduced the Human Space Flight Requirements for Crew and Space Flight Participants in 2006,217 which concerned the qualification, training, and informed consent of both crew and space flight participants.218 The requirements aided operators in determining the training and medical certifications for their crew and passengers but failed to elaborate on issues of insurance and liability that might have aided in delineating the status of space tourists.219 The categorisations provided by the ISS IGA and the 1984 Act as amended, which are aimed at differentiating between a career astronaut and a space flight participant, offer some degree of legal certainty (within the limits of domestic law and so far as it concerns the ISS) for space tourists.220 Furthermore, it helped to address both the marketing221 and political pressure to refer to non-astronaut passengers on spacecraft as astronauts. An example of this controversy arose when NASA called Sheikh Muszaphar Shukor — the first Malaysian to travel into space — a space flight participant instead of an astronaut.222 While NASA maintained its position, others have argued that Shukor was a fully-fledged cosmonaut/astronaut and not a ‘mere’ spaceflight participant. Captain Robert Gibson, a former American astronaut, said that Shukor trained in Russia for a year and that “he is eminently qualified to function as a cosmonaut or an astronaut”.223 These types of difficulty in terminology have created uncertainties about the extent of the protections and obligations owed to space flight participants. For example, as discussed previously, travellers defined as 214 215 216 217 218 219 220 221 222 223 Ibid. See generally M Blasingame, Nurturing the United States Commercial Space Industry in an International World: Conflicting State, Federal, and International Law, 80 Mississippi Law Journal 741–788 (2010) for a critical discussion of the CSLAA. 2004 Act, section 2(b)(2). Ibid, section 2(b)(9). See further Federal Aviation Administration, New Regulations Govern Private Human Space Flight Requirements for Crew and Space Flight Participants, available at www.faa.gov/about/office_org/ headquarters_offices/ast/human_space_flight_reqs/ (accessed 28 May 2017). E Seedhouse, Tourists in Space: A Practical Guide (2008), p 7. Ibid. Smith & Hörl, op cit (note 160), p 8. F Lyall, Who is an astronaut? The inadequacy of current international law (2010) 66 Acta Astronautica 1613–1617 at 1613, 1615. J Ooi, ‘Astronaut’? ‘Spaceflight Participant’?, Asian Correspondent (11 October 2007), available at http://asiancorrespondent.com/5656/astronaut-spaceflight-participant/ (accessed 12 Feb 2011). Malaysian a full-fledged cosmonaut, says ex-astronaut, The Star Online (11 October 2007) available at www.thestar.com.my/news/nation/2007/10/11/malaysian-a-fullfledged-cosmonaut-says-exastronaut/ (accessed 28 May 2017). 225 Regulation of the space tourism sector ‘space flight participants’ may be excluded from the protection of the Rescue Agreement, which is problematic,224 especially given the “sentiments of humanity” referred to in the preface to the Outer Space Treaty. 5. Liability Space activities are risky and dangerous. As space tourist activities increase, accidents will inevitably occur,225 which will give rise to legal questions relating to liability for damage. As has already been discussed, the current outer space treaty regime, which focuses on the use of outer space by States, is largely outdated and and therefore unable to deal with the questions concerning the private commercial use of space. Thus, when considering space tourism from a legal perspective, addressing the issues of and challenges to the current liability regime under the corpus iuris spatialis in iuri gentium should be prioritised in terms of space development and regulation. Since the formulation of the UN Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 1963, the Outer Space Treaty and the Liability Convention of 1972,226 regulating liability has been a crucial element in regulating space activities. The current liability regime, which is narrowly defined,227 was not designed to meet the requirements of the economic evolution that has occurred in the past two decades.228 Furthermore, while current national and international regimes have enacted several sets of provisions to regulate liability for commercial space activities, legal issues continue to arise.229 Generally, States cannot be held responsible for the actions of private individuals.230 In space law, however, there is no formal distinction between governmental and nongovernmental entities.231 Furthermore, the Liability Convention makes no specific provision for private individuals. Thus, when a private enterprise or person launches or procures the launch of an object, the State of nationality of the private person,232 or rather the State providing the licence for the launch, will be deemed the launching State on their behalf.233 The following sections will discuss this aspect of liability by examining the State-oriented responsibility system under the Outer Space Treaty, the dual liability system under the Liability Convention, and the applicability of these concepts under parallel regimes found in domestic law. 224 225 226 227 228 229 230 231 232 226 Masson-Zwaan & Freeland, op cit (note 9), p 1604. Masson-Zwaan, op cit (note 9), p 539. Convention on International Liability for Damage Caused by Space Objects 1972, 961 UNTS 187 (the Liability Convention). A Kerrest, ‘Liability for Damage Caused by Space Activities’, in Benkö & Schrogl, op cit (note 99), pp 91, 104. D Buhalis & C Costa, Consumers, Products and Industry (2006), p 157. P Malanczuk, Akehurst’s Modern Introduction to International Law (7th Edn, 1997), p 205. See International Law Commission (ILC), ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (Supplement No 10 (A/56/10), November 2001) (ILC Draft Articles); James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). Article 8 provides that States will only be responsible for private acts if a private person or group of persons act on the instructions of, or under the direction or control of, a State in carrying out the relevant conduct. See A Kerrest, ‘The need to implement the OST in national law in the light of current and foreseeable space activities’, in The Space Law Symposium on National Space Legislation – Crafting Legal Engines for the Growth of Space Activities (London, March 2010), p 9, available at www.unoosa.org/pdf/pres/lsc2010/symp01.pdf (accessed 26 June 2017). Kerrest, op cit (note 227), p 103. Yanal Abul Failat, Anél Ferreira-Snyman 5.1 The Outer Space Treaty The challenges in applying both air law and outer space law to a single space tourism journey, as discussed in section 4, are particularly evident in the context of liability. By contrast with air law, which has clear and tested rules on passenger, operator and third party liability, the outer space legal rules relating to liability are State-oriented and have not yet been interpreted by the courts.234 Article VI of the Outer Space Treaty currently sets out the liability regime for outer space by providing: States Parties to the Treaty shall bear international responsibility for national activities in space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities,235 and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. This provision furthermore stipulates: The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorisation and continuing supervision236 by the appropriate State Party to the treaty. States therefore bear responsibility for their space activities, as well as for activities undertaken by non-governmental entities that launch space objects from their territories. Additionally, the activities of non-governmental entities must be authorised and continuously supervised by the relevant State. Space law is unique by comparison with other branches of international law in adopting this broader form of accountability. For example, in other branches of international law, such as international aviation law, the State is only responsible for the regulation of, but not for damage caused by, a private entity, such as an airline.237 Article VI of the Outer Space Treaty is therefore significant as space activities carried out by private entities are rapidly increasing.238 According to Freeland, the principles stated in article VI of the Outer Space Treaty have already attained the status of customary international law, which binds all States.239 Article VI of the Outer Space Treaty further stipulates that States are responsible for conducting outer space activities in conformity with the provisions of that treaty and international law.240 The implication of this is that any breach, even if 233 234 235 236 237 238 239 240 Article I(c) defines a ‘launching state’ as: “(i) a State which launches or procures the launching of a space object; (ii) a State from whose territory or facility a space object is launched”. See generally, KF Wong, Collaboration in the Exploration of Outer Space: Using ADR to Resolve Conflicts in Space, 7 Cardozo Journal of Conflict Resolution 445–472 at 445 (2007); 453–54 for an overview of the procedure for bringing a claim under the Liability Convention. Masson-Zwaan, op cit (note 9), p 541. See also C Ronan-Heath, ‘A new international convention to govern liability in relation to commercial space tourism – is it really necessary?’, in 2011 Proceedings of the International Institute of Space Law – 54th Colloquium on the Law of Outer Space, p 203. Authors’ emphasis. Authors’ emphasis. X Hanqin, Transboundary Damage in International Law (2003), pp 77–78. Sgrosso, op cit (note 65), p 110. Freeland, op cit (note 9), p 17. See further F Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime (2009), pp 33–37. See also Article III of the Outer Space Treaty, which provides: “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” 227 Regulation of the space tourism sector committed by a private entity, would be treated as a wrongful act of the relevant State under international law. This liability is governed by the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts241 (ILC Draft Articles). Under the ILC Draft Articles, any internationally wrongful act or omission by a State “constitutes a breach of an international obligation of the State”242 and is actionable per se.243 If the breach resulted in actual harm, the offending State would be compelled to provide full reparation, either through restitutio in integrum or, where more practical, monetary compensation.244 Finally, regardless of the type of liability imposed, the ILC Draft Articles require the offending State “to cease that act [and] to offer appropriate assurances and guarantees of nonrepetition”.245 These requirements were established to restore any rapport that could have been adversely affected as a result of the breach.246 There are, however, some uncertainties about the due diligence obligations247 in article VI of the Outer Space Treaty. Apart from lack of clarity on the meaning of terms such as ‘national activities’ and ‘appropriate State party’ in the context of space tourism,248 it is not clear how States will implement their obligations under article VI in a uniform manner.249 Some States (such as South Africa),250 authorise private space activities using a statutory licensing system. Other countries, by contrast, do not explicitly provide for a licensing system in their domestic space legislation; even France, a major space power, has for many years functioned well without such a system.251 Supervision mechanisms may, for example, include periodical reviews or audits once a licence has been granted to a private operator. However, since the meaning of the term ‘continuous supervision’ has not been clarified, the manner and frequency of supervision is currently also left to the discretion of States.252 In addition, smaller countries that are not major space actors may lack the necessary expertise to evaluate properly the private space activities concerned.253 Because of the diverse manner in which States may implement the generally framed obligations in article VI of the Outer Space Treaty, Masson-Zwaan254 stresses that there is a need for 241 242 243 244 245 246 247 248 249 250 251 252 253 254 228 International Law Commission (ILC), ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (Supplement No 10 (A/56/10), November 2001) (ILC Draft Articles). Article 2. Article 12 further provides that “[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character”. See F van der Dunk, ‘Liability Versus Responsibility in Space Law: Misconception or Misconstruction?’, in 1991 Proceedings of the International Institute of Space Law – 34th Colloquium on the Law of Outer Space, pp 363, 364, who notes that the intrusion of a foreign aircraft in the sovereign airspace of another State is an example of liability per se and that an ‘official apology’ is an example of a typical remedy in such a case. PG Dembling, A Liability Treaty for Outer Space Activities, 19 American University Law Review 33–47 at 33, 41 (1970). ILC Draft Articles (note 230), article 30. M Zwanenburg, Accountability of Peace Support Operations (2005), p 210. Masson-Zwaan, op cit (note 9), p 546. See in this regard Masson-Zwaan, op cit (note 9), pp 542–543. Ibid, p 543. See articles 11–14 of the Space Affairs Act 84 of 1993. Masson-Zwaan, op cit (note 9), p 543. Ibid. Ibid, pp 543–544. Ibid. Yanal Abul Failat, Anél Ferreira-Snyman the continuous global harmonisation of domestic space legislation through the UNCOPUOS, as well as on a regional level, such as in Europe and Africa.255 The international liability of a launching State is provided for as follows in article VII of the Outer Space Treaty: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or outer space, including the Moon and celestial bodies.256 The Outer Space Treaty therefore makes provision for both the international responsibility and liability of States for outer space activities. There are, however, different scholarly opinions on how these terms should be used,257 and sometimes they are even used interchangeably.258 In international law, the term ‘State responsibility’ refers to a State’s responsibility for an internationally wrongful act and arises upon a breach of an international obligation (an objective fault) in instances where such a breach is attributable to that State.259 The domestic law elements for wrongfulness, namely subjective fault (culpa) and damage are therefore not required in order for a State to incur international responsibility.260 A State commits an internationally wrongful act when it uses or allows its territory to be used in a manner that causes harm to the territory of another State or the persons or the property of the latter state.261 As remarked previously, the remedies for an internationally wrongful act are restitution, satisfaction and non-repetition.262 Liability, in turn, relates to the remedying of harm committed, irrespective of whether or not it has been caused by the violation of an international rule.263 The element of damage is thus an indispensable criterion for international liability.264 255 256 257 258 259 260 261 262 263 264 Due to the socio-economic benefits associated with space exploration, a number of African States have developed modest space programmes and formulated space policies and legislation. Apart from a number of already existing national space agencies, the possible establishment of an African Space Agency is being investigated by the African Union. For further discussion on the use of outer space by developing States in Africa, see Ferreira-Snyman, op cit (note 6). Authors’ emphasis. The ILC has proposed that, in relation to internationally wrongful acts resulting in injurious outcomes, the appropriate term would be’”responsibility’ (see ILC, Report of the Commission on the work of its twenty-fifth session, in (1973) Yearbook of the International Law Commission, chapter II). K Zemanek, ‘Causes and Forms of International Liability’, in B Cheng & ED Brown (Eds) Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on his Eightieth Birthday (1988) at p 319 suggest that it should be used to outline a “duty to repair damage” not necessarily resulting from an unlawful act or wrongdoing. Tronchetti, op cit (note 240) at p 37 explains that such a differentiation does not exist in three of the official languages of the Outer Space Treaty – they use instead only the term ‘liability’. The three languages to which Tronchetti refers are French (responsabilité), Spanish (responsabilidad), and Russian (ответственность). Viikari, op cit (note 47), p 65; Abul Failat, op cit (note 85), p 132. See article 2 of the ILC Draft Articles (note 230). Van der Dunk, op cit (note 243), p 363. Dugard, op cit (note 109), p 402. Articles 30, 31 and 34–37 of the ILC Draft Articles (note 230). See further Van der Dunk, op cit (note 243) at p 364; Dugard, op cit (note 109), p 402; Abul Failat, op cit (note 85), pp 131–132. Viikari, op cit (note 47), p 65, n 40. Van der Dunk, op cit (note 243), p 364. 229 Regulation of the space tourism sector According to Van der Dunk there is, however, a partial overlap between the terms ‘responsibility’ and ‘liability’, as an internationally wrongful act by one State can often cause damage to another State and/or its nationals or its property.265 States could therefore theoretically be held responsible for damage simultaneously under articles VI and VII of the Outer Space Treaty as well as under the Liability Convention (see 5.2 below).266 5.2 The Liability Convention The Liability Convention provides more detailed rules in instances where States cause damage as a result of their space activities. Article II of the convention makes provision for absolute liability in the case of damage caused by a space object “on the surface of the Earth or to aircraft in flight”. Article III of the Convention furthermore provides: In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.267 The Liability Convention therefore makes provision for a two-fold liability regime: in an instance where damage is caused by a space object on the Earth or to an aircraft in flight, the State will incur absolute objective liability based not on fault but on risk. The existence of damage and the causal relationship between the damage and the space object establishes liability and entitles the victim to compensation. By contrast with air law, there are no upper limits to the amount of compensation that the launching State may be liable to pay in the case of damage.268 Currently, however, compensation is measured in the light of principles of justice and equity rather than a fixed legal mechanism for regulating such recovery.269 Such “abandonment of wrongfulness as a liability generating condition”270 likens the liability regime used in space to that used at sea.271 Nonetheless, some consider this standard to be a trendsetting innovation in international space law.272 If the damage is caused in outer space, liability will arise if fault is proved on the part of the State committing it or the persons for whom it is responsible.273 Thus, for example, if a space hotel and a space vehicle carrying space tourists collide in outer space, the launching States would be held liable if fault can be proved. Moreover, if the space vehicle should fall on the territory of a non-launching State, the launching 265 266 267 268 269 270 271 272 273 230 Ibid. Van der Dunk points out that: “This became already clear in cases of transboundary environmental pollution, where the causation of damage or harm through pollution to another state’s territory (and not the actual activity causing the harm) was the quintessence of the violation of an international obligation not to do so”. Ibid, p 367. Authors’ emphasis. A Ito, ‘The advent of a new era of commercial space tourism and associated legal problems’, in 2009 Proceedings of the International Institute of Space Law – 52nd Colloquium on the Law of Outer Space, p 314. Julian Hermida, International Space Law, available at www.julianhermida.com/algoma/ intlawreadingsspacelaw.pdf (accessed 28 June 2017). R Lefeber, Transboundary Environmental Interference and the Origin of State Liability (1996), p 148. Geneva Convention on the High Seas 1958, 450 UNTS 11, article 22(3). See, for example, Malanczuk, op cit (note 229), p 205. Sgrosso, op cit (note 65), p 112. Yanal Abul Failat, Anél Ferreira-Snyman State would be held absolutely liable for damage incurred.274 In similar terms to article II, there are no limitations on monetary compensation.275 Although the Liability Convention does not specifically echo the contents of article VI of the Outer Space Treaty with regard to non-governmental entities, it may be argued that the launching State must be held liable for the activities of private entities, as is the situation in international nuclear law, since States would be able to comply with the obligation to use outer space for peaceful purposes only if they were to assume liability for all activities carried out in outer space.276 Despite some positive features of the Liability Convention, such as its provisions relating to exoneration277 and dispute resolution,278 it unfortunately fails to cap the amount of compensation.279 The seemingly unlimited compensation can have a chilling effect on the development of private space programmes, as the State would likely seek reimbursement from private entities for any loss suffered.280 Moreover, this can also affect the development of national programmes because States themselves may be fearful of the associated financial risks. It may, however, also be argued that since space tourists voluntarily accept the inherent risks of space travel, liability for damage incurred during a space activity should be limited in accordance with the assumption of risk.281 This results in the need for States to monitor closely their authorisation of private activities on a case-by-case basis and requires them to evaluate private operators’ technical capabilities, stability, solidity and financial capacity. It is clear from the exposition above that the Outer Space Treaty and the Liability Convention, as a result of their State-centric character,282 do not make provision for the liability of private entities undertaking space activities.283 Responsibility for such activities resides with the launching State,284 which must authorise and continuously supervise the outer space activities of private entities, and which incurs liability for damage285 caused by these activities.286 If States continue to allow private entities to 274 275 276 277 278 279 280 281 282 283 284 285 286 Ito, op cit (note 268), p 314. Malanczuk, op cit (note 229), p 205. Sgrosso, op cit (note 65), p 110. Article VI. Article XIV. B Cheng, ‘International Responsibility and Liability for Launch Activities’, in C-J Cheng (Ed) The Use of Air and Outer Space Cooperation and Competition (1998), pp 159, 189. Kerrest, op cit (note 227), p 100. Freeland, op cit (note 9), p 19. Masson-Zwaan & Freeland, op cit (note 9), p 1604. Yun, op cit (note 132), p 966. As Sgrosso, op cit (note 65) at p 290 points out, there could be some difficulty in identifying the launching State in instances where the space vehicle is launched in the air from the back of an aircraft. In terms of article I(c) of the Liability Convention, the ‘launching State’ means “(i) A State which launches or procures the launching of a space object; or (ii) A State from whose territory or facility a space object is launched”. On the basis of this definition, Sgrosso argues that multiple launching States could be identified during different stages of the journey: namely (1) the State that launches the space vehicle from the aircraft into outer space; (2) the State that owns the aircraft; and (3) the State that has sovereignty over the airspace in which the space vehicle is launched. Since there is more than one launching State in these circumstances, these States would have to reach a joint agreement in terms of article II of the Registration Convention (note 95 above) as to which one of them would register the space object. Article I(a) of the Liability Convention defines ‘damage’ as “loss of life, personal injury or other impairment of health; or loss of damage to property of States or of persons, natural or juridical, or property of intergovernmental organizations”. See also Freeland, op cit (note 9), p 17. 231 Regulation of the space tourism sector perform private space endeavours, they may impose strict rules and regulations upon their authorisation.287 This could encourage private entities to launch from a State that is incapable of controlling or unwilling to control and supervise their activities. Ultimately, this may lead to victims of the same type of accident receiving different compensation as a result of forum shopping.288 The absence of uniformity in such situations leads to uncertainty in international law.289 As Beck notes, [t]he Liability Convention’s complete failure to hold private entities accountable poses problems for all commercial space developments.290 Accordingly, some commentators and specialists contend that a new liability regime is needed and that the creation of a new convention or treaty would offer a solution to the inadequacies of the current system.291 The Warsaw Convention of 1929 has been suggested as a suitable model for this form of development.292 Under such a model, private entities would be liable as well as launching States.293 Moreover, such an advance would help create a clear and coherent legal regime and eliminate issues such as forum shopping and any unbalanced or disproportionate compensation levels.294 Finally, such an approach would regulate and provide a remedy for direct private claims in a sufficient and efficient manner.295 Others contend that the current international liability framework is adequate and maintain instead that there is a need to implement national legislation to work side by side with the current international regime. For example, Kerrest asserts that the treaties “have shown that they maintain a good international legal framework”296 and emphasises that it is important to facilitate the implementation of the current liability regime on a domestic level.297 Hermida suggests that for States to protect themselves, they must consider two solutions: • firstly, they should create new national legislation to minimise the risk posed by the space activities conducted by their nationals;298 And • secondly, they should establish legal measures that enable them to recover, at the very least, a portion of any compensation paid by them on behalf of their nationals.299 In other words, a risk distribution suitable for the State must be made available. 287 288 289 290 291 292 293 294 295 296 297 298 299 232 M Wollersheim, ‘Considerations towards the legal framework of space tourism’, Proceedings of the 2nd International Symposium on Space Tourism (Bremen, April 1999), paragraph 3.2. Hanqin, op cit (note 237), p 32. Abul Failat, op cit (note 85), p 134. B Beck The Next, Small, Step for Mankind: Fixing the Inadequacies of the International Space Law Treaty Regime to Accommodate the Modern Space Flight Industry, 19 Albany Law Journal of Science and Technology 1–37 at 36. Yun, op cit (note 132), p 964. S Kaiser & M Mejía-Kaiser, ‘Space Passenger Liability’, in Proceedings of the International Institute of Space Law – 48th Colloquium on the Law of Outer Space, p 207. Warsaw Convention, note 62 above. Diederiks-Verschoor & Kopal, op cit (note 55), p 16. Kerrest, op cit (note 227), p 106. Freeland, op cit (note 9), p 17. Kerrest, op cit (note 231), p 9. Ibid. Julian Hermida, Law Reform and National Space Law: A Participatory Approach to Space Law Making in Developing Countries, 34 Annals of Air and Space Law 895–912 (2009). Julian Hermida, Legal Basis for a National Space Legislation (doctoral thesis, McGill University, Montreal, 2003), p 47, available at http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs= 1501139150405~408 (accessed 27 July 2017). Yanal Abul Failat, Anél Ferreira-Snyman 5.3 Domestic liability arrangements The regulation of liability under national legislation can function in conjunction with international law to protect the State and the space tourism industry from the legal inadequacies of the Outer Space Treaty and the Liability Convention. This ultimately protects the public’s interest in the development of commercial space activities. This has resulted, to an extent, in the fragmentation of the outer space legal framework as States have established differing regimes. While in most jurisdictions regulating space activities, States are indemnified against any liability under the space treaties arising due to private space activity, the requirements and levels for third party insurance vary.300 The creation of adequate and universal domestic space legislation across all spacefaring countries would, however, be a demanding task with uncertain results, particularly in such a complex, risky, and innovative enterprise. The formulation of a new international convention is clearly, therefore, a more realistic and practical solution to the inadequacies of the current regime. 5.4 The International Space Station Space activities related to the ISS are also becoming more commercial in nature and raise a number of legal issues. The commercial use of the ISS commenced with the orbital journey of Russian national Dennis Tito on the Soyuz 2 capsule in 2001. This journey raised several legal issues with regard to the ISS. Tito’s visit was of concern to the other ISS partners as he might have caused damage to their modules of the ISS. In the case of the US, NASA would, under the previously existing liability regimes, have been unable to impose liability on Russia or its space agency for any damage Tito may have caused.301 It was no surprise, therefore, that Tito’s visit to the ISS was subject to approval by the Multilateral Coordination Board, which requested that he assume personal liability to pay monetary compensation for any damage caused by him on the ISS.302 Tito was also under pressure from the partners, particularly NASA, not to claim in the event of any personal injury suffered by him on the ISS.303 Satisfied by the successful result of Tito’s trip to the ISS, however, NASA has since become more supportive of such commercial journeys.304 As discussed in section 4, the IGA and the MCOP Agreement regulate the requirements for space tourists intending to visit the ISS and provide a code of conduct to which tourists must adhere. Associated activities are governed at an interState level by the IGA, which serves as a binding guide to space agencies, contractors, sub-contractors and even customers.305 It establishes a crucial risk management system which, through a cross-waiver of liability, allocates risks and responsibilities 300 301 302 303 304 305 See Yanal Abul Failat, Licensing of outer space activities (pp 119-140 above). Von der Dunk, op cit (note 85), pp 415–416. NASA HQ press release, Decision Paper on Rosaviakosmos request of [sic] exemption to fly Mr Dennis Tito, SpaceRef (24 April 2001), available at www.spaceref.com/news/viewpr.html?pid=4604 (accessed 28 May 2017). M van Pelt, Space Tourism: Adventures in Earth’s Orbit and Beyond (2005), p 7. Freeland, op cit (note 56), p 3. Van der Dunk, op cit (note 181), p 414. 233 Regulation of the space tourism sector for all parties involved.306 The main premise of such a waiver is to provide a limitation for launch-related claims and insurance.307 Waivers of liability and insurance are considered simultaneously when dealing with any costs of and liabilities for accidents that arise in relation to the ISS’s space ventures.308 Article 16 of the IGA provides for a cross-waiver of liability, which applies to the partner States and is aimed at “encouraging participation in the exploration, exploitation, and use of outer space through the Space Station”.309 The cross-waiver will only apply if a person, entity or property causes damage “by virtue of its involvement in Protected Space Operations”.310 This protection applies to any other partner States, their related entities and employees of the entities or related entities of another partner State.311 The activities covered by the cross-waiver of liability are activities falling under the definition of “Protected Space Operations” and which include all activities relating to the launch, the space station and the payload.312 Also included within the scope of these protected operations are “all activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services”.313 Moreover, any activities which concern the development of the ISS, as provided for by article 14 of the IGA, are also protected.314 Nevertheless, article 16(2)(f) of the IGA directly excludes any “activities on Earth which are conducted on return from the Space Station to develop further a payload’s product or process for use other than for Space Station related activities in implementation of this Agreement”.315 The cross-waiver of liability under the IGA does not apply to: • any claims between the partner State and its entities or related entities; • any claims by natural persons and their estate for death, damage, or impairment of health; • any claims for damage caused by wilful misconduct; • any intellectual property claims; or • any claims for damage resulting from a failure of a partner State to extend the cross-waiver of liability to its related entities.316 To avoid any complications arising from such scenarios, insurance is a necessity for all stakeholders. Obtaining insurance to cover actions such as wilful misconduct may, however, prove to be quite difficult and would drastically increase premiums.317 Moreover, in relation to international third party liability, article 17 of the IGA 306 307 308 309 310 311 312 313 314 315 316 317 234 Hermida, op cit (note 299), p 40, n 175. Julian Hermida, Risk Management in Arianespace Space Launch Agreements, 25 Annals of Air and Space Law 143–156 (2000). Smith and Hörl, op cit (note 160), p 3. Article 16(1). Article 16(3)(a). Ibid. Article 16(2)(f). ‘Activity’ in this context is defined as, but not limited to, “research, design, development, test, manufacture, assembly, integration, operation or use”: see article 16(2)(f)(1). Article 16(2)(f)(2). Article 16(2)(f). Ibid. Article 16(3)(d). Smith and Hörl, op cit (note 160), p 46. Yanal Abul Failat, Anél Ferreira-Snyman provides that the liability regime under the Liability Convention is applicable, rendering partner States and the ESA internationally liable in case of such damage. As this does not conflict with the cross-waiver of liability, States would still be protected in the event of any damage caused by a tourist or any other related entity.318 In legal practice, this aspect of the IGA means that any person intending to use the ISS (ie, a commercial person or entity) will be required to agree contractually to waive inter-party liability with the relevant space agency.319 However, the parties to the contract can choose the applicable law should any legal issues arise. By virtue of article 23(4) of the IGA, disputes are settled by an arbitral tribunal, which normally sits in the country where the customer has its legal seat or the place where the contract is executed.320 By limiting the liabilities imposed on States, the cross-waiver allows commercial persons or entities to enjoy reduced insurance costs.321 Moreover, fault liability under the Liability Convention may only be imposed on States if the damage is caused to the ISS or its crew. Nevertheless, it has been indicated that there is room to develop further umbrella insurance provisions that might tackle liability in such situations.322 Other commentators are of the opinion that such disagreements should instead be settled by adhering to the already-established framework of international law and international legal dispute settlement.323 In conclusion, the liability framework underpinning the ISS certainly presents a significant development in the context of liability in outer space. This development has not, however, altered the current liability situation under article 16 of the IGA or even under the Liability Convention when dealing with third party liability.324 Consequently, in the event of liability resulting from damage caused on the ISS by a space tourist, the cross-waiver may prevent the space tourist’s State from seeking reparation or compensation. Nevertheless, this does not necessarily negate the possibility of the space tourist being held personally responsible if his or her actions harm ISS personnel or property.325 5.4 Damage suffered by space tourists Owing to the number of risks associated with space travel, there is a need to consider the implications of damage and injury that space tourists participating in commercial space activities could suffer. As discussed earlier, the legal status of space tourists remains uncertain. Unless space tourists are given the status of an astronaut, the current space law regime does not provide a sufficient degree of regulation in 318 Mary Catherine Devlin & William G Schmidt, Legal Issues Continue to Surround the International Space Station, 8 US Air Force Academy Journal of Legal Studies, 237–254 at 243–246 (1998). European Space Agency, International Space Station Legal Framework (24 October 2008), available at www.esa.int/esaHS/ESAH7O0VMOC_iss_2.html (accessed 7 April 2011). European Space Agency, European Users Guide to Low Gravity Platforms [2001] UIC-ESA-UM-0001 Issue 2, paragraph 7.10.2.3, available at http://wsn.spaceflight.esa.int/docs/EuropeanUserGuide/chapter_7 _iss.pdf (accessed 9 May 2011). Smith & Hörl, op cit (note 160), p 7. Ibid. KM Gorove, Settlement of Space Law Disputes, 21 Journal of Space Law 64–65 at 65 (1993). A Farand, ‘Jurisdiction and liability issues in carrying out commercial activities in the International Space Station (ISS) Programme’, in Van der Dunk & Brus, op cit (note 181), pp 87, 92. Abul Failat, op cit (note 85), p 142. 319 320 321 322 323 324 325 235 Regulation of the space tourism sector relation to their rights and obligations.326 Moreover, from the earlier exposition on the liability framework, it is clear that the OST and the Liability Convention, due to their State-centric character,327 do not make provision for the liability of private entities undertaking space activities.328 Responsibility for such activities therefore resides with the launching State, which must authorise and continuously supervise the outer space activities of private entities, and which incurs liability for damage329 caused by these activities.330 There are, however, exceptions to the liability of the launching State. The Liability Convention specifically states in article VII that it will not apply to damage caused by the space object of the launching State to: • nationals of that launching State; and • foreign nationals during such time as they are participating in the operation of that space object, from the time of its launching or at any stage thereafter until its descent or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State. Article VII(a), which excludes the liability of the launching State for damage suffered by its nationals, was initially formulated with astronauts on board a space vehicle of their own State of nationality in mind. Masson-Zwaan,331 however, questions the appropriateness of this provision for paying space tourists who are nationals of the launching State. At first glance, it appears that space tourists would not fall within the exception in article VII(b), as they would usually not be involved in the operation of a space vehicle.332 The launching State would therefore still be liable for damage caused by its space object to a space tourist. However, as previously noted, the legal status of space tourists is not always clear, as some private space travellers may actively participate in certain technical and scientific activities during a space mission.333 In such an instance, it could be argued that the space tourist is included in the exception under article VII(b), which means that the launching State would not be liable for damage suffered by a private space traveller. In this regard, Hobe and Cloppenburg334 are of the opinion that since space tourists put themselves at risk as passengers on a space vehicle, they should not benefit from the provisions of the Liability Convention. Liability must, therefore, be determined in terms of domestic laws. Due to the obvious importance of passengers for the success of the commercial space tourism industry, the exclusion of space tourists from the protection of the Liability Convention may be criticised. However, as private commercial space 326 327 328 329 330 331 332 333 334 236 Freeland, op cit (note 9), p 16. Masson-Zwaan & Freeland, op cit (note 9), p 1604. Yun, op cit (note 132), p 966. See the definition of ‘damage’ in article II of the Liability Convention at note 285 above. See also Freeland, op cit (note 9), p 17. Masson-Zwaan, op cit (note 9), p 544. Freeland, op cit (note 9), p 15. Ibid. Hobe & Cloppenburg, op cit (note 24), p 380. Yanal Abul Failat, Anél Ferreira-Snyman transportation evolves, State liability for these activities may become increasingly unacceptable.335 The institution of a claim for damages by a space tourist presents some challenges. Since a legal action for damages suffered by individuals can be submitted to the launching State only by another relevant State, space tourists or third parties themselves cannot claim compensation under the Liability Convention.336 It is, of course, dependent on the political will of a State to institute legal proceedings on behalf of the individual – a decision that would often be influenced by diplomatic considerations.337 A claim for compensation for damage must be presented to a launching State through diplomatic channels within one year of the occurrence of the damage.338 If the claim cannot be settled through diplomatic negotiations, the parties concerned shall establish a Claims Commission at the request of either party.339 It is important to note, however, that despite the custom described above, no permanent dispute resolution fora have been established under the space law regime provided by either the Outer Space Treaty or the Liability Convention. Instead, article III of the Outer Space Treaty enables its signatories to pursue dispute resolution methods via international law, including through the methods prescribed in the Charter of the United Nations (UN Charter). Accordingly, where claims are made for on a State to State basis for personal injury and damage to property, article 33 of the UN Charter provides that the parties should “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means”. If this is ineffective in resolving the dispute, the conflict must be referred to the UN Security Council. The Security Council will have to assess whether the issue affects the “maintenance of international peace and security”. If the Security Council concludes that it does, then article 36 of the UN Charter is engaged. This article provides that such “legal disputes should as a general rule be referred … to the International Court of Justice” for final resolution. Alternatively, a space tourist may bring a claim directly against a private space tourism operator under relevant domestic laws. There may, however, be certain national legal limitations, such as, provisions relating to sovereign immunity340 or capped liability limits,341 which could hamper the making of such a claim. Moreover, 335 336 337 338 339 340 341 Ibid. Freeland, op cit (note 9), p 18; Masson-Zwaan, op cit (note 9), p 540. Freeland, op cit (note 9), p 18. Freeland points out that “[t]o date no such claim has been made and it is by no means certain that a state would decide to bring such an action, unless the circumstances were of such a magnitude that it would be politically expedient to do so”. See also Masson-Zwaan & Freeland, op cit (note 9), p 1604. Article IX of the Liability Convention. Ibid, article XIV. The requirement that disputes must be resolved through diplomatic channels is in conformity with article 33(1) of the United Nations Charter, 1 UNTS XVI, which provides that parties must seek a peaceful solution through extra-judicial means, such as “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means.” See Abul Failat, op cit (note 85), pp 143–144. Freeland, op cit (note 9), p 18. See also Masson-Zwaan & Freeland, op cit (note 9), p 1605. PS Dempsey, ‘Liability for damage caused by space objects under international and national law’, in 2011 Proceedings of the International Institute of Space Law – 54th Colloquium on the law of Outer Space, at pp 173–174 points out that certain States have already capped the liability of private permit or certificate holders in order to enable their nationals to engage in space activities and to protect private investors from loss. 237 Regulation of the space tourism sector private space tourism operators will in all probability include clauses in their service contracts to limit or exclude their liability for damages suffered by space tourists. Liability limitations will generally be incorporated as warnings on tickets or as exclusion clauses in contracts and booking forms of space tourist operators.342 Consequently, space tourists will not necessarily be eligible for full reparation for any losses suffered.343 The enforceability of these provisions will naturally be subject to the relevant national laws.344 However, some jurisdictions do allow such limitations.345 This results in a lack of uniformity in the iuris corpus spatialis and poses more challenges to the regulation of the commercial space flight industry. In jurisdictions where such exclusion clauses are allowed, it would be appropriate to offer some form of protection to space tourists that renders space carriers unable to avoid liability.346 It has been suggested that this could be dealt with by supplementing the terms and conditions of passengers and operators with proper insurance coverage.347 Like any industry, the risks of space tourism will be estimated more accurately as it develops. If the risks revolving around space activities are reduced, limitations on liability will not be deemed necessary and will eventually harmonise to an extent with general consumer law.348 It is self-evident that States would also seek to limit or exclude their liability for the actions of these private entities. As previously discussed, a number of countries (including the UK and the US) have already adopted space-related legislation as part of their domestic law.349 To escape the financial liability for damage suffered by space 342 343 344 345 346 347 348 349 238 For example, the space tourist operator Space Adventures includes a clause in its reservation agreement stating that “Space Adventures acts only to represent the space vehicle owners and masters, so there is no liability in case of damage suffered by passengers or their properties.” (E-mail to authors from Tom Shelley, President of Space Adventures, 19 November 2011). Yun, op cit (note 132) at p 968 maintains that this will not necessarily deter prospective customers as they have an option, as in the case of aviation, to purchase additional insurance for death and injury. Freeland, op cit (note 9), p 18. For example, under South African law a private company will not be able to exclude its own negligent behaviour contractually in order to escape liability. Under English law, a business may not exclude liability for death and personal injury caused by its employees’ negligence: see the Unfair Contract Terms Act 1977, section 2(1). Such principles are also present in aviation law by virtue of the Montreal Convention (note 62 above). Article 17 of the convention states that a carrier is liable for death or injury on board, embarking, or disembarking from an aircraft. Moreover, article 26 of the convention outlaws any exclusion of liability in such cases. This position is also supported by European Union law, as Council Directive 90/314/EEC of 13 June 1990 prevents travel agencies from excluding liability in cases of death or injury: see Abul Failat, op cit (note 85), pp 144–146; Sgrosso, op cit (note 65), p 293; Masson-Zwaan & Freeland, op cit (note 9), p 1605. X Chen, Limitation of Liability for Maritime Claims: A Study of US Law, Chinese Law and International Conventions (2001), pp 30–31. Z O’Brien, Fly Me to the Moon, but is my Carrier Liable if I have an Accident? (2006) 5 Trinity College Journal of Postgraduate Research 20–33 at 21. Freeland, op cit (note 9) at p 20 notes that “[i]t is by no means certain that they [insurance providers] would have sufficient capacity or enthusiasm to actively [sic] enter into another space related insurance market, particularly in the early days of space tourism with (at least in relative terms) untested technology”. P Collins, Implications of Reduced Launch Costs for Commercial Space Law, Space Future, available at www.spacefuture.com/archive/implications_of_reduced_launch_cost_for_commercial_space_law_shtml (accessed 29 May 2017). The National Space Law Database of the United Nations Office for Outer Space Affairs (UNOOSA) lists the countries that have adopted space legislation. It is available at www.oosaunvienna.org/oosa/ en/SpaceLaw/national/state-index.html (accessed 29 May 2017). See also J-A van Wyk, Overview of the implementation status of the five United Nations treaties on outer space in African countries, 2008 African Skies/Cieux Africains 91–92. Freeland, op cit (note 9) at p 17, n 74 points out that “there is no doubt that the development of a significant body of domestic legislation represents one of the real ‘growth areas’ of space law”. Yanal Abul Failat, Anél Ferreira-Snyman tourists, these national laws may in some instances provide that the launching State can recover the amount of damages for which it is internationally liable from the private launching operator.350 As previously noted, a number of States (such as the UK) already oblige private actors engaging in space activities to indemnify the State should it become liable for damages.351 Furthermore, a number of States already require private companies who have launch and operational certificates or permits to obtain the necessary insurance to cover their space objects and launch facilities, as well as third party and product liability.352 Private companies engaging in space tourism will therefore most probably also have to acquire the necessary insurance to indemnify them in instances of future claims by States to recover damages awarded against them for losses suffered by space tourists and third parties.353 In the same way as with any new aircraft, therefore, there is a need to encourage the confidence of insurance companies with regard to the extent of the risks involved with the new space tourism services. This confidence is generally achieved through the establishment of agreed standards. At the outset of these commercial space flights, insurance quotes were difficult to calculate, due to the size of the potential market and the limited statistical information available. This resulted in the incorporation of liability caps.354 It is, however, doubtful at this stage whether the existing space insurance industry355 will have the capacity or even the willingness to insure space tourism ventures, given especially the high risks involved.356 Given the fact that individuals are already acquiring seats on commercial spaceflights, the urgent need for a new space tourism insurance model to assess the unique risks involved and to ensure the payment of compensation is self-evident.357 This area of space law does not promote self-regulation and, accordingly, informal methods have been used to provide further protection to operators in terms of exculpation from potential damage suffered by space tourists.358 In the US, federal law requires space tourists to provide a signed waiver for any damage or loss caused 350 351 352 353 354 355 356 357 358 Hobe & Cloppenburg, op cit (note 24), p 383. See Dempsey, op cit (note 351) at p 171 for a discussion of these indemnity provisions in different jurisdictions. Ibid at pp 172–173 for a discussion of the different national provisions in this regard. Sgrosso, op cit (note 65), p 293. P Collins & K Yonemoto, ‘Legal and regulatory issues for passenger space travel’, in 1998 Proceedings of the International Institute of Space Law: 54th Colloquium on the Law of Outer Space, p 224. Freeland, op cit (note 9) at p 20 points out that there is already a well-established space insurance industry that offers insurance cover for launch and in-orbit operations of both government and commercial satellites. Ibid. See also Ronin-Heath, op cit (note 243), p 208, who points out that insurers are, for a number of reasons, currently unable to assess the risk and calculate appropriate premiums for the space tourism industry. Some commentators are, however, of the opinion that while there remains a degree of uncertainty surrounding the accuracy of the estimations, it appears that the objective risks are likely to be smaller than in cases of aviation: see Collins & Yonemoto, op cit (note 355), p 224; R Goehlich, ‘Suitability of future trans-atmospheric vehicles for mass space tourism flights’, in 24th International Congress of the Aeronautical Sciences (Yokohama, November 2004). See also Collins, op cit (note 359) at p 20 who notes that “a scenario involving tens of flights per day, and hundreds of thousands of passengers per year is still much smaller than other existing travel industries”. See, in this regard, Freeland, op cit (note 9), p 20. See further, Miguel Calvete, Insuring outer space activities (pp 141-162 above). RA Yates, Informal Regulation of Space Activities, 87 Nebraska Law Review 530–537 at 530 (2008). 239 Regulation of the space tourism sector during the space flight.359 Moreover, federal law requires the completion of an informed consent form containing a declaration that space flight participants recognise that risks, including death and injury, are involved in the journey and that their participation is voluntary.360 This kind of limitation allows the operator to proceed without any legal concerns.361 Sgrosso is of the opinion that informed consent “favours the operator only”.362 In a similar vein, Haanappel states that informed consent forms are only used in medical law and do not necessarily exculpate operators from all claims, particularly in cases of wilful misconduct.363 He therefore proposes that the informed consent system should be replaced by compulsory insurance.364 It is clear from the above discussion that the current outer space legal regime does not adequately address the unique challenges relating to liability for damage suffered by space tourists. Liability issues are therefore increasingly regulated in national space legislation, which unfortunately exacerbates international legal uncertainty in this regard.365 6. The way forward? It should be clear from the exposition above that the current space treaties are largely outdated and that they cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This is, furthermore, exacerbated by the fact that the outer space legal framework is very fragmented – consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements (both general and specific), as well as national guidelines and legislation. In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism be formulated, with standards set for the authorisation and supervision of these 359 TL Hardy, ‘Risk perception and communication in commercial reusable launch vehicle operations’, in The 1st International Association for the Advancement of Space Safety Conference (Nice, October 2005), available at www.systemsafetyskeptic.com/yahoo_site_admin/assets/docs/IAASS_Risk_Perception_Paper_ final.26865903.pdf (accessed 12 December 2011), p 1. 14 Code of Federal Regulation, section 460.45(f) states that: “[b]efore flight, an operator must provide each space flight participant an opportunity to ask questions orally to acquire a better understanding of the hazards and risks of the mission, and each space flight participant must then provide consent in writing to participate in a launch or reentry. The consent must – (1) Identify the specific launch vehicle the consent covers; (2) State that the space flight participant understands the risk, and his or her presence on board the launch vehicle is voluntary; and (3) Be signed and dated by the space flight participant.” See, for example, J Brownlee, Space tourism industry gets legal insurance with informed consent ruling, Geek.com (11 March 2010), available at www.geek.com/articles/news/space-tourism-industry-gets-legalinsurance-with-informed-consent-ruling-20100311/ (accessed 2 April 2011), who notes that “[o]perators like Virgin Galactic have won a legal reprieve against potential litigation by surviving family members in the event of injury or death.” International Institute of Air and Space Law report, Symposium on the Regulation of Sub-Orbital Flights in the European Context (Leiden, September 2010), available at http://law.leiden.edu/organisation/ publiclaw/iiasl/conferences/sub-orbital-space-tourism-regulation-in-the-european-context.html (accessed 29 May 2017), p 4. Ibid, p 5. Masson-Zwaan, op cit (note 9) at p 544, n 23 contends that it is doubtful that the legal representative of a deceased space tourist would be bound by a letter in which the space tourist gave his/her so-called ‘informed consent’ to waive the right to claim damages. International Institute of Air and Space Law Report (note 362 above, p 544, n 23) Freeland, op cit (note 9), p 18. 360 361 362 363 364 365 240 Yanal Abul Failat, Anél Ferreira-Snyman activities, and the balancing of the interests of States, passengers and private actors, so far as possible. A number of different suggestions have been made by commentators on the manner in which legal rules dealing with space tourism aspects of space law should be formulated and adopted. • Some have suggested the adoption of protocols to clarify uncertainties in the existing space treaties.366 It is argued that the entry into force of such a protocol following a limited number of ratifications would allow the necessary changes to go into effect.367 This means, however, that the protocol would apply to a small number of States only. • Conversely, others have suggested the creation and adoption of an entirely new binding legal framework broadly based on the principles of both air and space law.368 It has therefore been suggested by some commentators that the relevant provisions of the air law treaties, in the form of the Warsaw, Montreal and Rome369 conventions, may be instructive in formulating uniform legal rules relating to liability arising from space tourism activities. Specifically, the provisions on carrier liability, passenger liability, limits on liability and third party liability may provide a valuable framework for the creation of such a legal regime. It should be noted, however, that due to the unique characteristics of and risks involved in space tourism, the air law model cannot merely be extended to space tourism, but would have to be adapted to address the very specific needs of this new space travel industry. Ideally, a legal instrument that would be binding on signatory States should be adopted to deal with the unique legal questions posed by space tourism. • The creation of a single treaty dealing with space tourism matters has also been considered. Again, however, this may give rise to contradictions and the inconsistent use of terminology. • Suggestions for the creation of soft law instruments in the form of nonbinding codes and guidelines have also been advanced.370 In view of the urgent need to address the relevant legal questions and the consequent lack of time to negotiate a detailed binding legal instrument, the authors agree with this suggestion and submit that, as an interim measure, soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space. In this regard, the UN Convention on the Law of the Sea371 could serve as a valuable example. It is very likely that such a consolidated outer space treaty may very rapidly attain the status of customary international law.372 To 366 367 368 369 370 371 See, for example, Sundahl, op cit (note 4), p 199. Ibid. See, for example, Yun, op cit (note 132), p 982. In this regard Hobe & Cloppenburg, op cit (note 24) at p 383 ask if the development of “a uniform legal aerospace regime” can be identified. Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface 1952, 310 UNTS 182 (the Rome Convention). See, for example, Masson-Zwaan & Freeland, op cit (note 9), p 1603. UN Convention on the Law of the Sea 1982, 1833 UNTS 3 (UNCLOS). 241 Regulation of the space tourism sector mediate the fragmented nature of the current outer space legal regime, States should also be encouraged to formulate their national and regional space legislation in accordance with such soft law guidelines. In the words of Colin B Picker,373 “technology operates as an invisible hand on international law, guiding and shaping its development”. It is, however, clear that the current international outer space law regime is significantly underdeveloped in relation to outer space technology. It is, therefore, imperative that an international dialogue on space tourism be facilitated under the auspices of the UNCOPUOS to address the legal challenges discussed in this chapter. This chapter ‘Regulation of the space tourism sector’ by Yanal Abul Failat is from the title Outer Space Law: Legal Policy and Practice, published by Globe Law and Business. 372 373 242 Dugard, op cit (note 109) at pp 27–28 notes: “In most cases some passage of time is required for a practice to crystallize into a customary rule. In some cases, however, where little practice is needed to establish a rule, it may come into existence very rapidly. When the General Assembly unanimously approved a resolution in 1963 declaring the legal principles governing the activities in outer space – which was promoted by the only two states capable of placing objects in outer space (the Soviet Union and the United States) – there was widespread agreement that a new rule of customary law had been created.” CB Picker, A View from 40,000 Feet: International Law and the Invisible Hand of Technology, 23 Cardozo Law Review 149–219 at 201 (2001–2002).