Legal Aspects of Space Tourism

• Publication year: 2021

86 Nebraska L. Rev. 439. Legal Aspects of Space Tourism

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Professor Stephan Hobe, L.L.M.*

Legal Aspects of Space Tourism

TABLE OF CONTENTS

I. Introduction ................................................... 439 R
II. Applicability of Air or Space Law .............................. 441 R
A. Delimitation of Airspace and Outer Space .................... 441 R
B. Status of the Vehicle ....................................... 442 R
III. Authorization .................................................. 444 R
IV. Registration ................................................... 446 R
V. Liability ...................................................... 448 R
A. Passenger Liability ............................................ 449 R
B. Third-Party Liability .......................................... 452 R
VI. The Status of Space Tourists ................................... 454 R
VII. Conclusion ..................................................... 458 R

I. INTRODUCTION

Broadly speaking, "space tourism" denotes any commercial activity that offers customers direct or indirect experience with space travel.(fn1) Such activities have many different designs, ranging from long-term stays in orbital facilities to short-term orbital or suborbital flights, and even parabolic flights in an aircraft exposing passengers to short periods of weightlessness.(fn2)

Flights into outer space by private individuals are finding increased attention in the public. While there are not yet chartered flights, occasional orbital flights with "space tourists" have taken place. So far, five "space tourists" have been taken to the International Space Station ("ISS"), all of whom were charged large sums of money for the experience. The fifth "tourist," Charles Simonyi, recently flew to the ISS in April 2007.(fn3) However, interest seems to be

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shifting to providing "cheaper flights" which are not aimed at the ISS but remain "suborbital" so that they are affordable for a somewhat broader public.

Yet, even with such short-term flights, a space tourist has different options. One option, modelled after SpaceShipOne,(fn4) uses an aircraft to lift a space cabin to a certain altitude. The cabin then separates from the aircraft and continues its suborbital flight to higher altitudes. There are two possibilities for return when this method is used: (a) the space vehicle returns to where it started from, or (b) it returns to a different location on Earth ("space transportation"). A second option, which is modelled on the "Delta Clipper Experimen-tal,"(fn5) uses a rocket with a space capsule on top which is launched, and then the capsule separates from the rocket at a certain altitude. As a result, the passengers of the space capsule are exposed to Zero-G gravity and both vehicles return to Earth independent from each other. It is expected that Blue Origin's "New Shepard" will use this method.(fn6)

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"Space tourism" activities may thus include the use of an aircraft and/or spacecraft. Depending on where such activities actually take place, either air law or space law, or even both, may apply. The two legal regimes have historically evolved independently from each other and accordingly show some major differences. A variety of legal issues regarding the conduct of space tourism activities arise as a result. This Article focuses on some of the most problematic issues of relevance such as the delimitation of airspace and outer space, authorization to conduct space tourism, registration of the aircraft or

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spacecraft, liability to passengers and third parties, and the status of passengers.

Regarding air law, there are comprehensive regulations for passenger transportation in both international and national law. International space law, however, does not yet contain detailed regulations of passenger transport. In terms of national space laws, the United States was the first country to include specific reference to "space flight participants" in its national space law. Even if these U.S. regulatory activities are only of national character, however, they may indicate a tendency toward the regulation of space tourism activities on both the international and the national level. In this respect, it is interesting to note that on January 26, 2007, the Swedish government announced an agreement with Virgin Galactic concerning mid-sum-mer and mid-winter flights of Virgin's "SpaceShipTwo" from Sweden's spaceport in Kiruna.(fn7) Their Memorandum of Understanding calls for Swedish authorities to prepare a regulatory regime modelled on that of the U.S. Federal Aviation Administration ("FAA").(fn8) Accordingly, a closer look at the respective recent U.S. regulatory initiatives seems most interesting.(fn9)

When examining these legal aspects, the question naturally arises whether existing laws are sufficient for future space tourism activities, or whether new international legal instruments or an amendment to an existing law or legal structure will become necessary.

II. APPLICABILITY OF AIR OR SPACE LAW

First, one must determine which legal regime - air law or space law - applies to space tourism activities. The delimitation of outer space is a recurring theme in every legal examination of issues regarding space tourism.

A. Delimitation of Airspace and Outer Space

There is no clear physical line between airspace and outer space. Nevertheless, the area above 110 km is generally regarded as being part of outer space. The status of the zone between 80 km and 110 km is highly controversial, however.(fn10) Thus, if the parameters of a subor

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bital flight are such that the space vehicle's maximum altitude is between 80 and 110 km, the issue of delimitation is crucial.

There are two common approaches to addressing this boundary issue. The "functional" approach makes a fixed boundary irrelevant, instead advertising a single legal regime for "spatial activities" depending on the nature or purpose of the activity.(fn11) On the other hand, the "spatial" approach attempts to determine a fixed boundary between airspace and outer space. The exact location of this boundary is controversial, however. The majority viewpoint seems to be that airspace extends to the point where the aerodynamic lift is exceeded by the centrifugal force, the von Karman line, at an altitude of about 84 km. More recent state practice suggests that customary international law may emerge to the effect that the lowest perigee orbit of artificial earth satellites (approximately 95-110 km(fn12) above sea level) lies in outer space.(fn13) It is interesting to note that Australia's Space Activities Act, as amended in 2002, requires a license for a launch from Australian territory only if the launch vehicle and/or payload are intended to reach an altitude of at least 100 km above sea level.(fn14) Although national legislation cannot have a direct influence on international law, it might be regarded as an expression of an opinio juris.(fn15)

In the future, a boundary might be commonly accepted (or designed) at an altitude between 84 km and 100 km above sea level.(fn16) For now, however, the legal status of the area between 80 and 110 km is not clear. Nevertheless, a distinct statement on the applicability of air or space law may be given in another context - such as the status of the vehicle.

B. Status of the Vehicle

The applicable legal regime in the doubtful area between 80 and 100 km above sea level might be established by qualifying the vehicles used in the space tourism activities. Here, the specific characteristics

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of the foreseen activities are crucial. This cannot be discussed in detail within the framework of this Article. It shall suffice to discuss the two main possibilities in broad terms as they seem to be developing today: a suborbital flight launched from an airplane and a suborbital flight in a capsule separated from a rocket launched from the ground or the High Seas.

If space tourism activities are modelled on SpaceShipOne, two objects must be distinguished: the aircraft and the space vehicle attached to the aircraft until the time of separation. Quite obviously, air law applies to the aircraft used both before and after separation. The question then is whether the space vehicle can be considered either an aircraft or a part of the aircraft before and after separation.

The term "aircraft" is mentioned in the Annexes to the Chicago Convention(fn17) as well as in some national air laws, such as Article 1 of the German Air Traffic Code. Aircrafts are defined as "all machines which can derive support in the atmosphere from the reactions of the air."(fn18) Until separation, the combined vehicle has the characteristics of an aircraft in terms of technical functions such as flight pattern and maneuverability: the space vehicle constitutes merely an additional cabin. Indeed, before separation, the space vehicle does not contribute to the propulsion and is fully dependent on the aircraft. Also, the dangers related to space missions are typically connected with the time of the launch, not with the transport by aircraft. Therefore, the aircraft and the attached space vehicle should be considered an "aircraft" until separation and air law should apply both to the aircraft and the space vehicle before separation. After separation, however, the space vehicle does not "derive support in the atmosphere from the reactions of the air" and should not be considered an aircraft. The vehicle may use the "reactions of the air" in the landing process, but it may be argued that partial fulfillment of the definition is not sufficient to qualify the vehicle as an aircraft. The purpose of the vehicle at that point further supports the conclusion that the vehicle should not be regarded as an "aircraft."

Instead, the suborbital vehicle may be regarded as a...