Passing the Buck to Rogers: International Liability Issues in Private Spaceflight

• Publication year: 2021

86 Nebraska L. Rev. 400. Passing the Buck to Rogers: International Liability Issues in Private Spaceflight

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Dr. Frans G. von der Dunk*

Passing the Buck to Rogers: International Liability Issues in Private Spaceflight

TABLE OF CONTENTS

I. Introduction ................................................... 401 R
II. "Private Spaceflight" versus "Space Tourism" ................... 402 R
III. Surveying the Scene: Five Types of Private
Spaceflight .................................................... 403 R
A. Orbital Space Tourism ....................................... 404 R
B. Sub-orbital Space Tourism ................................... 405 R
C. Sub-orbital Private Spaceflight ............................. 407 R
D. Hotels in Orbit ............................................. 408 R
E. Private Flights to the Moon ................................. 409 R
IV. The Liability Convention ....................................... 410 R
A. The System of State Liability under the
Liability Convention ........................................ 410 R
B. The Main Elements of the Liability Convention's
Regime ...................................................... 412 R
V. Liability Issues in Orbital Space Tourism ...................... 413 R
A. The Liability Convention and Orbital Space
Tourism ..................................................... 414 R
B. The ISS Legal Framework and Orbital Space
Tourism ..................................................... 414 R
VI. Liability Issues in Sub-orbital Space Tourism .................. 417 R
A. Applying Air Law or Space Law to Sub-orbital
Space Tourism? .............................................. 417 R
B. National Law and Sub-orbital Space Tourism .................. 418 R
C. Applying the Liability Convention to Sub-orbital
Space Tourism? .............................................. 420 R
VII. Liability Issues in Sub-orbital Private Spaceflight ............ 422 R

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A. Earth-to-Earth, Earth-to-Space, and Space-to-Earth
Transportation and Liability ................................ 422 R
B. The Boundary Question Revisited: Air Space versus
Outer Space ................................................. 423 R
C. Traffic Management in Outer Space with a View to
Liability ................................................... 427 R
D. The Key Elements of Air Law Liability Regime ................ 429 R
E. Applying the Air Law Liability Regime to Suborbital
Private Spaceflight ......................................... 431 R
VIII. Liability Issues with Regard to Hotels in Orbit ............... 435 R
A. The Private Character of Hotels in Orbit ................... 435 R
B. The Private Character of Guests in Orbit ................... 436 R
C. A Special Case: Docking Activities ......................... 437 R
IX. Concluding Remarks ............................................ 437 R

I. INTRODUCTION

One of the most exciting recent developments in outer space, especially from a legal standpoint, is the advent of space tourism. Within the legal issues surrounding that development, liability is of prime importance.

Liability is, of course, always about "passing the buck," or, more precisely, about who should pay compensation for damage caused by the activities concerned. At both the international level and in the field of space law, however, a large measure of confusion has often arisen as to the scope, meaning, and consequences of liability. This confusion is partly the consequence of liability's intricate relationship to the concept of "[state] responsibility,"(fn1) where Article VI of the Outer Space Treaty(fn2) has applied this concept to the specific context of outer space and space activities. Further confusion results from the fact that liability itself is a concept and a term used in numerous national as well as international legal regimes, but may have different interpretations and applications in the separate contexts.

Thus, space law liability, especially of the international brand, which is the core subject of this Article, depends upon a specific legal regime, the boundaries of which will depend on questions such as: where does liability apply, who is a potential claimant, who is potentially liable, what type of liability is provided, how will compensation be distributed, etc.

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As will be seen, liability issues in this specific field are very much about "passing the buck" to those daring individuals who are trying to make space tourism and private spaceflight actually happen - to the Buck Rogerses of real life.

II. "PRIVATE SPACEFLIGHT" VERSUS "SPACE TOURISM"

A few introductory points should be briefly discussed here concerning the terminology that will be used. While many of these issues have been brought to the attention of the public essentially under the heading of "space tourism," the term "private spaceflight" will be used in this article as the main captive label for the activities under consideration.

"Space tourism" has been defined as "any commercial activity offering customers direct or indirect experience with space travel."(fn3) The "official" definition of tourism offered by the World Tourist Organization ("WTO") and the U.N. Statistical Committee in 1994 reads: "The activities of persons travelling to and staying in places outside their usual environment for not more than one consecutive year for leisure . . . ."(fn4) Tourism, hence, requires the availability of three distinct elements:

(1) a discretionary income available for leisure travel; (2) ample leisure time tospend on both preparations for and taking the trips themselves; and (3) an infrastructure supporting tourism that offers accommodations, food and amenities, transportation systems, and attractions to see and do at the place visited.(fn5)

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For one part, the above definition of space tourism encompasses "indirect experience," which refers to activities such as parabolic flights for the sake of enjoying a few seconds of weightlessness - con-sidered the ultimate "space experience." However while these flights come close to the edge of outer space, they never enter outer space.(fn6)

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Thus, from most angles indirect experiences such as parabolic flights do not legally encompass issues of space law.

For the other part, space tourism refers to the reason for private individuals to undertake the activity: the wish to enjoy space travel is not altogether a legally-decisive criterion. For instance, "typical" aircraft will carry both tourists (persons taking a flight because they love flying or want to spend their holidays away far from home) as well as passengers who merely need to go to another place for business reasons. Yet, legally speaking, all passengers on such a flight are equal in terms of aviation law - whether it concerns contractual liability, consumer rights, or the need to bring a valid passport.

Furthermore, it should be pointed out that Mr. Will Whitehorn, the CEO of Virgin Galactic (the company most likely to first start offering sub-orbital flights to tourists), has stated that the ultimate purpose of private spaceflight activity is not to undertake tourism, but to demonstrate the safety of the technology used.(fn7) This would enable companies to begin offering flights between various points on earth, where passengers will be solicited regardless of whether they want to fly that stretch for fun or for professional reasons.(fn8)

It is submitted, therefore, that "private spaceflight" is the more precise and more helpful term for the purpose of legal analysis. The level of private participation in these new types of space activities requires analysis and, likely, adaptation of the current legal environment for undertaking space activities, whether national or international.

III. SURVEYING THE SCENE: FIVE TYPES OF PRIVATE SPACEFLIGHT

Having thus outlined the scope of the present article as focusing essentially on private spaceflight, whether at the service of tourists or otherwise, upon closer scrutiny, five distinct types of private participation in spaceflight may be discerned. These five types will each be slightly more elaborated upon as to their main technical, operational, and economic characteristics before the specific legal ramifications and parameters involved in those activities are discussed.

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A. Orbital Space Tourism

The first type of private spaceflight, chronologically speaking, is that of "orbital space tourism." Its immediate precursor dates back to 1990, when a Japanese journalist spent a week on the all-Russian space station Mir, followed the next year by an English engineer.(fn9) These two men, although neither were employees of the Russian Space Agency, were professionally-trained astronauts and were able to go to outer space as a spectacular consequence of their own - other-wise non-astronautic - professional assignments.

Regular space tourism took off only in April 2001, when U.S. citizen Dennis Tito was launched to the Russian part of the International Space Station ("ISS") for no other reasons than that he desired to fly in outer space and that he had the money privately available to fulfil that desire.(fn10)

Originally, Tito - through the brokerage of a small, private company called MirCorp that was established specifically for bringing self-financed private persons into space - was supposed to be sent on a Russian launch vehicle to the Russian space station Mir. At the time, the overall price tag of Tito's trip was estimated to be approximately $20,000,000 U.S. In the course of his preparations, however, one incident too many befell Mir, and the space station had to be de-orbited over the Pacific Ocean in March 2001.(fn11) In order to honor their contractual commitment, the Russians had but one opportunity: change Tito's destination to the Russian module of the ISS.

A second...