A Regulatory Scheme for the Dawn of Space Tourism.

• Author: McCue, Molly M.

TABLE OF CONTENTS I. INTRODUCTION 1088 II. BACKGROUND 1090 A. The Emergence of Space Tourism 1090 B. Current International Agreements Regulating Spaceflight 1091 1. The Outer Space Treaty 1092 2. The Rescue Agreement of 1968 1093 3. The Liability Convention of 1971 1093 4. The Registration Convention of 1976 1094 5. The Moon Treaty of 1979 1095 III. ANALYSIS: HOLES IN THE INTERNATIONAL REGULATORY SCHEME 1096 A. Environmental Protections 1096 B. Protections for Space Tourists 1099 C. Regulations for Commercial Spaceflight Operators 1101 D. Current Proposed Regulations for 1087 Space Tourism 1104 IV SOLUTION 1107 A. Utilizing Approaches from Other International Agreements 1107 1. The Antarctic Treaty and the Antarctic Environmental Protocol 1107 2. The United Nations Convention on the Law of the Sea 1109 3. The Treaty for Amazonian Cooperation 1110 B. Application to the Space Tourism Industry: A New International Agreement 1111 C. Potential Vulnerabilities of This Solution 1114 V. CONCLUSION 1115 I. INTRODUCTION

Since the launch of Sputnik in 1957, activity in space has grown exponentially, paving the way for space tourism to become a reality. (1) Space tourism is any commercial activity that offers the public direct or indirect experiences of space travel. (2) Once thought of as a distant possibility, the recent commercial spaceflights operated by Jeff Bezos's Blue Origin and Richard Branson's Virgin Galactic confirm that space tourism is now a reality. (3) While companies are gearing up to take advantage of space tourism, the international community remains illequipped to respond to the variety of problems posed by its expansion.

The majority of treaties regulating space activity today were enacted during the Cold War era and do not contemplate the expansion of tourist activity in space. (4) These treaties focus on regulating the activity of states, not commercial entities like Blue Origin and Virgin Galactic. (5) Consequently, there are no international agreements that regulate commercial spaceflight operators to ensure the safety of space tourists and mitigate possible environmental damage caused by increased traffic in space. The international community must create a regulatory scheme for space tourism to ensure this up-and-coming industry is safe for future space tourists and for those who remain back on Earth.

Currently, space tourism is limited to short-term flights, barely meeting the definition of space travel. (6) However, this is only the beginning of this industry. SpaceX successfully launched and returned its Crew Dragon capsule, which sent four civilians on a three-day trip orbiting around the Earth. (7) SpaceX will continue to grow its space tourism activities in the future and has already contracted to complete five more private missions. (8) Space tourism today is a pastime for the exceedingly wealthy, but as companies are able to reduce costs in the future, space tourism may be available to more individuals. The industry will undoubtedly expand beyond the current short-term flights into enterprises that could allow visitors to walk on the moon or visit farther celestial bodies like Mars.

The opportunities created by space tourism are not without their drawbacks. Increased rocket use could cause damage to layers of the atmosphere and deposit air pollutants like black carbon into the atmosphere. (9) Space tourism could also harm the environments of potential destinations. While the current space treaties do instruct states to prevent the disruption of the celestial environment during missions, they do not specifically contemplate tourism activities by non-state actors and how those could also need regulation to protect the moon's scientific and historical value. (10) Other celestial bodies remain without any treaties to protect them from future harm. The issue of environmental disruption is especially salient for travels to Mars, as scientists continue to search for evidence of life there.

Space tourism poses other legal challenges, such as how to protect the individuals who chose to embark on space travel, especially considering that they lack the knowledge and specialized training routinely given to state-sponsored astronauts. Current international agreements assign liability based on states, leaving open questions about how states should regulate commercial flight companies that launch from within their borders. (11) A state-by-state system of regulation is not well suited to regulating space activity because it has broad international effects. Thus, the international community must convene to create a new regulatory scheme for space tourism, while the industry is in its early stages, to prevent confusion and harm as it grows.

This Note advocates for a new international agreement focused on regulating space tourism activity. Part II surveys the emergence of space tourism and the current international agreements governing activity in space. Part III analyzes the gaps in the current regulatory scheme governing activity in space. Part IV proposes a novel solution for filling these gaps by looking at the examples of other international agreements, which focus on balancing commercial use of historicallyand environmentally-significant destinations with the protection of these sites for the benefit of future generations. These agreements provide a model for how the international community can enjoy the benefits of space tourism while protecting Earth's environment and the environments of celestial destinations.

2. BACKGROUND

   1. The Emergence of Space Tourism

      Blue Origin and Virgin Galactic were not the first companies to provide flights for space tourists. In 2001, Dennis Tito became the first space tourist, spending millions to fly to the International Space Station (ISS) alongside Russian cosmonauts for a week-long visit. (12) Several others followed in Tito's footsteps, utilizing the services of the space tourism agency, Space Adventures, to take their own trips to the International Space Station. (13) Today, SpaceX, Blue Origin, and Virgin Galactic are at the forefront of space tourism. With their successful commercial passenger flights in late 2021 and 2022, these companies are poised to strengthen their capabilities to continue to offer these short-term flights and longer experiences to more space tourists in the near future. (14)

      Blue Origin's first commercial space flight crossed the Karman line, a boundary defined by the Federation Aeronautique Internationale as the demarcation between outer space and Earth's atmosphere. (15) While Virgin Galactic's flight did not travel as far, it surpassed the fifty-mile altitude recognized as the boundary by both the National Aeronautics and Space Administration (NASA) and the Federal Aviation Administration (FAA). (16) Both flights provided only minutes of weightlessness to their passengers, a lucky few paying customers and other passengers invited by the companies' respective founders. (17) On October 13, 2021, William Shatner became the oldest person to visit space on a free trip provided by Blue Origin. (18) He was accompanied by other guests, one of whom paid $28 million at auction for a ticket. (19) Virgin Galactic's tickets cost about $450,000, an amount above the median home price in the United States. (20) The costs of commercial spaceflight tickets reveal that the industry is currently only focused on catering to exceedingly wealthy or well-connected individuals. In the future, the market may support economies of scale that will allow for lower prices, making spaceflights a reality for more individuals.

      The short flight experiences offered by Blue Origin, Virgin Galactic, and SpaceX are only the beginning of space tourism. Soon. companies could provide opportunities to visit the moon. Mars, and other celestial bodies in our solar system as the technology becomes less cost prohibitive.

   2. Current International Agreements Regulating Spaceflight

      The current international regime regulating space activity is comprised of five agreements. Each of these agreements contemplate a different aspect of space travel, yet none specifically consider how nonstate actors such as commercial spaceflight companies fit into the regime they create. The regulation of outer space began when, in 1959, the United Nations General Assembly created the United Nations Committee on the Peaceful Uses of Outer Space. (21) Since its creation, the UN Committee on the Peaceful Uses of Outer Space has played an instrumental role in the formulation of each international agreement concerning activity in outer space. (22)

      (1.) The Outer Space Treaty

      The bedrock of international space law is the Outer Space Treaty (OST), which took effect in 1967. (23) One hundred twelve states ratified the treaty, while another twenty-three signed the treaty but did not complete the ratification process. (24) The treaty calls for all activities carried out in space to be for peaceful purposes and in the interests of all countries regardless of their level of economic or scientific development. (25) The OST also aims to ensure that all countries cooperate to allow for the free use and exploration of space. (26) Under the terms of the treaty, nations cannot appropriate outer space or any celestial bodies through occupation or other means. (27) Parties must follow international law and abstain from orbiting, carrying, or installing weapons in outer space or on any celestial body. (28) Under the OST, astronauts are considered envoys of mankind and are entitled to assistance when participating in an activity in outer space. (29) The treaty also sought to promote cooperation internationally by requiring states to make their space activities public and requiring that their installations and equipment placed on celestial bodies be open to the other parties on the basis of reciprocity. (30)

      The OST assigns responsibility to individual states for ensuring the compliance of all government agencies...