Space Tourism
INTRODUCTION
By Frans von der Dunk
‘Tourism’ is about leisure activities and/or visiting interesting sites – so what about ‘space tourism’? Indeed, one needs to distinguish fundamentally between various destinations in outer space, which also clarifies which operators are in the business and what (other) activities they have on offer. The international legal framework is principally provided by space treaties such as the Outer Space Treaty and the Liability Convention, and (to some extent) the Chicago Convention. At a national level, only the United States has adopted detailed legislation on ‘space tourism’. In the European Union, in the absence of EU competence, individual Member States’ laws rule. However, the only European country that has national law at least addressing ‘space tourism’, is the United Kingdom.
by Frans von der Dunk
by Milton “Skip” Smith
A new era of human spaceflight was launched when Axiom Space announced it is sending four private astronauts to the ISS early in 2022. The Axiom “Ax-1” mission will be the first purely commercial mission to the space station. SpaceX is also sending four civilians to earth orbit later in 2021. The SpaceX “Inspiration4” mission will be the first all- civilian mission to earth orbit. Furthermore, Virgin Galactic and Blue Origin are expected to start suborbital flights for space tourists in 2021. In addition to creating new opportunities for space travel, these missions create new challenges for space lawyers – representing the private astronauts who will spend around $250,000 for a suborbital flight or up to the $55 million estimated by industry sources for missions to the ISS. Private Astronaut Mission providers (“PAM Providers”) like Axiom deliver essential services to private astronauts such as training, mission planning, life and medical support, on-orbit operations, and they manage the mission. PAM Providers contract with NASA (and perhaps Roscosmos) as well as a launch provider to secure to/from transportation and accommodations aboard the ISS. PAM Providers contract with private astronauts for each mission. The contract terms and conditions address multifaceted state, national, and international laws. Key contract terms include basic contract provisions on price, scope of work, termination, force majeure events, refund conditions, and warranties. The interaction of insurance and cross-waivers of liability to risk management is critical to understand and articulate clearly. Cross-waivers of liability may apply to training activities occurring in multiple states, as well as to national and international operations for launch, recovery and operations in space. Lawyers must also evaluate the ISS Crew Code of Conduct and its applications to private astronauts. The contract must also clarify how NASA’s commercialization policies interact with the ISS Intergovernmental Agreement, specify private astronaut duties on the ISS, and detail: sponsorship opportunities, rights to media, access to voice and video communications while on the ISS, and many other such issues. International law issues include the applicability of the Rescue and Return Agreement. The responsibilities and potential liabilities of the PAM Provider must be negotiated. Finally, whether the contract and related agreements can be structured to provide any tax advantages must be evaluated. The contracts related to space tourists are truly complex and will provide space lawyers representing space tourists with challenges for years to come.
by Michael Chatzipanagiotis
Space tourism has the potential to revolutionize space travel from many aspects. Heavy private investment has led to significant technological advancements. Moreover, it is likely to lead to greater inclusivity of persons flying to outer space while raising environmental consciousness. From a legal perspective, there are many issues involved in space tourism flights. Below are some of them. First, the delimitation of outer space is important, not only for the definition of ‘spaceflight’, but mainly regarding issues of exclusive national sovereignty in the airspace, as opposed to the freedom of use of outer space. There are also issues regarding the safety of flights, e.g., licensing and potential certification of vehicles, and the organizations and physical persons involved, such as operators, personnel, maintenance providers, etc. Traffic management arrangements concerning other space objects and aircraft are also important. In case of contingencies, problems of search and rescue and accident investigation will appear. This is partly related to the question of qualification of space tourists as ‘astronauts’, which triggers the applicability of the provisions of the 1969 Rescue Agreement. However, air law provisions might be able to provide for more appropriate solutions. Passenger liability and product liability issues, and related insurance coverage, will almost certainly arise, as with all modes of transportation in their initial stages. The current regulatory model of informed consent releases operators and manufacturers from liability provided that spaceflight participants, i.e., passengers, have been informed of the extreme risks of spaceflight and have assumed the risk of flying. Whether this model will indeed shield from liability for accidents or provoke protracted litigation remains to be seen. International jurisdiction and applicable law, especially for orbital flights and potential point-to-point suborbital flights, also need to be determined. Usually, this is resolved through registration of the vehicle so that jurisdiction rests with the State of registry, combined with contractual clauses on the choice of law and jurisdiction. Furthermore, there are issues related to spaceports, ranging from planning to operations. Here too, the experience of air law could be useful. In the future, when private commercial spaceflight becomes more frequent, international regulation will also be needed under the auspices of an international organization. Overall, space tourism flights are connected to a series of legal questions, which current space law may not be able to answer. Using the experience of air law and combining technological with legal innovation is probably the way forward.