Space tourism is a hot topic; it has left the status of prospective and is definitely anchored in positive law. The different issues are important from the point of view of liability, applicable law and the safety of passengers. Stay in space station, ports and space hotels… Despite its exorbitant cost, space tourism is developing considerably. Halfway between space and air activity, suborbital tourism cannot remain a legal UFO. Here are elements of analysis for a legal framework of this tourism of a new kind.
Space tourism is space travel for recreational, leisure or business purposes. There are several different types of space tourism, including orbital, suborbital and lunar space tourism. To date, orbital space tourism has been performed only by the Russian Aviation and Space Agency known as the Roscosmos State Corporation for Space Activities or Roscosmos. Work also continues towards developing suborbital space tourism vehicles. This is mainly being done by the Virgin Galactic company. In addition, SpaceX announced that it is planning on sending two space tourists on a free-return trajectory around the Moon.
Tourism venture Virgin Galactic sent its spaceplane into space for the second time in February 2019, qualifying all three people on the flight for their commercial astronaut wings. One of those riders was Virgin Galactic’s first test passenger, Beth Moses, the chief astronaut instructor at Virgin Galactic, who flew along with the vehicle’s two pilots. She’s also Virgin Galactic’s first female flyer. Virgin Galactic’s spaceplane, the VSS Unity, is designed to take passengers to the edge of space where they can experience a few minutes of weightlessness. But up until the end of last year, the vehicle had yet to breach Earth’s atmosphere. That changed in December 2018 when Virgin Galactic made history by sending VSS Unity to a height of almost eighty-three kilometres, an altitude that many (but not all) consider to be the start of outer space. For those who adhere to that definition, it was the first time that people had launched to space from the U.S. since 2011. As a result, the two pilots of the December flight received astronaut wings from the Federal Aviation Administration in early February.
If the idea of space tourism was born in the heart of the readers of Jules Verne and Hergé, its technical realization is a preoccupation already old within the aeronautical industry. As early as 1990, two British researchers outlined the technical aspects of what would become space tourism. Since 2001, a few tourists have already travelled into space and some others have done suborbital flights. From two hundred thousand to twenty-five million dollars, these experiences of a new kind seem to attract more and more people. Space tourism tends to develop considerably around two major types of services.
In the first place, it is the premium type trip with a departure from Baikonur in the Soyuz rocket and a stay of a few weeks in the International Space Station (ISS) that orbits the Earth at an altitude of four hundred kilometres. The second type of formula that has been marketed since a few years is suborbital flight. Those flights involve the use of vehicles (rockets or aircraft) which will take-off from a base (airports or spaceports) and climb to an altitude of one hundred to two hundred kilometres, before landing, allowing a handful of passengers to escape gravity for about five minutes. Those flight will approximately cost two hundred thousand dollars. Virgin Galactic is already claiming a thousand customers, each of whom has already paid a deposit of twenty thousand dollars.
Other medium-term projects already exist and envisage the creation of hotels with breathtaking views built with modules modelled on the International Space Station (ISS). These activities are a very close reality. The United States of America is already leading this buoyant market and is making progress in building four spaceports in Florida, New Mexico, Alaska and California.
These upcoming activities raise a number of questions, including those of the law applicable, halfway between air and space law. Finally, in addition to public international law, national and local space laws create a race for the attractiveness of their territories to attract new spaceports. On the contractual level, it is necessary to specify the relationship between the transport company and its customers in terms of liability in case of accidents, information of risks incurred, damage to both the passenger and third parties. Finally, the companies themselves must certify their devices and meet the most stringent certifications. The U.S. lawmaker wanted to mark these commercial activities in outer space and passed two federal laws and several local laws, while European legislators are just beginning their reflections on these new activities.
The law applicable to space tourism
The law applicable to space tourism is very diversified and subject to two main criteria: the first, rationae loci, linked to the place where transport is provided (airspace or outer space); the second, rationae materiae, is linked to the means of transport. Finally, we will qualify the legal situation of the client to determine the rights he enjoys.
No agreement has conclusively identified a demarcation line between airspace and outer space. Two criteria make it possible to apprehend the applicable law: that of the altitude and that of the material. Since the beginnings of outer space exploration, States and the United Nations have never been able to agree on a boundary between airspace and outer space. For several decades, the United Nations Committee for the Peaceful Use of Outer Space (COPUOS) has been trying to continue negotiations to delimit airspace and outer space. The reasons for the disagreement between States are related to their sovereignty over their territories. Civil aviation law is very favourable to the sovereignty of States. Thus, Article 1 of the 1944 Chicago Convention states that “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”. Space law has an opposite logic and provides for a total freedom of movement of States and proscribes any sovereignty over the celestial bodies. In some meetings, specialists have considered that the limit should be between one hundred to one hundred and thirty kilometres. Scientifically, researchers at the University of Calgary evaluated this celestial boundary at one hundred and eighteen kilometres. However, at a diplomatic level, no criterion of distinction is unanimous among the States, nor the lack of gravity, nor that of finding an upper limit to airspace. COPUOS can only continue to consult with its members and allow States to regulate national space activities from their respective territories. For example, in a law passed in 1998, Australia wrote that outer space began at an altitude of one hundred kilometres.
According to Professor Dr. Stephan Hobe, it is on the side of the means of transport that the criterion of distinction of the applicable law is found. Indeed, if an airplane is a “device able to support itself in the atmosphere thanks to reactions of the air”, the rockets, which only use their engines for a vertical thrust, are space object, which means that space law would therefore apply. Astrium Space Transportation, a subsidiary of EADS, is developing a suborbital device that will be approved in the category of aircraft. Its private jet-sized aircraft works with traditional aircraft engines and, for the space-climbing phase, a rocket engine that remains attached to the fuselage. This hybrid vehicle will carry four passengers in a kind of hammock to limit the effects of acceleration on the body. Approval in the “aircraft” category is very likely since more than ninety percent of the flights take place in airspace at an altitude similar to airliners. The European Economic Area (EEA) industries must have their equipment certified by the European Union Aviation Safety Agency (EASA). In the future, EASA might create a specific category for suborbital flights.
The qualification of Virgin Galactic’s aircraft is more uncertain. It is a winged space vehicle, equipped with a rocket engine, carried at altitude by a carrier aircraft. At an airliner flight altitude, the spacecraft, which houses passengers, disengages from the rest of the aircraft to take a vertical ascent up to one hundred kilometres before flying back to its home port.
Legally, the U.S. Commercial Space Launch Amendments Act of 2004 defines the suborbital device in paragraph 19 which states that “suborbital rocket means a vehicle, rocket-propelled in whole or in part, intended for flight on a suborbital trajectory, and the thrust of which is greater than its lift for the majority of the rocket-powered portion of its ascent”. The choice of the legislator to assimilate the transport device to a rocket and not to an aircraft will facilitate approval procedures that will be less stringent than those of civil aviation. For André Farand, Head Programme Legal Services division at ESA, the United States of America has “made the choice to support the development of space transport vehicles in order to reap the full benefits of the significant investments made by the private sector in space tourism activity”.
The status of a space tourist
The words “tourists”, “passengers” and “astronauts” (or “spationauts”, “cosmonauts”…), if they seem to be able to indiscriminately qualify future customers of travel agencies, refer, in fact to different legal situations. The U.S. Commercial Space Launch Amendments Act of 2004 designates in paragraph 17 the customer of the travel agencies or “space flight participant” as “an individual, who is not crew, carried within a launch vehicle or re-entry vehicle”. The choice of the word “participant” word is unequivocal on the will of the legislator to create a special law outside the traditional scope of air tourism and its guarantees of compensation in case of accident. Is it possible to qualify customers as astronauts? Again, there is a distinction between suborbital flights and long stays. The former only remains a few minutes in outer space and, therefore, considering that the altitude of one hundred kilometres belongs to the outer space sphere, can only benefit the rights of astronauts for a short period of time. The latter can be considered “envoys of mankind” within the meaning of the 1967 Outer Space Treaty (which is not without effect for third parties).
Customers of companies based in the area of the European Union Aviation Safety Agency will be passengers of airlines. It will nevertheless be for the European Union to regulate, if it considers it necessary, the specific rights for this type of transport and to specify the compulsory safety equipment, the crew and the pilots’ qualifications, the frequencies to be used, the, interactions with the air traffic control (ATC) system (or Space Traffic Management), flight plans and noise pollution.
Contractual relations between the transport company and its passenger
The contract between the customer and the travel operator will be one of the key elements. Space tourism, whether it is suborbital or into outer space, is not a simple shift from point A to point B. Entry into outer space and re-entry into the atmosphere are very delicate points of passage in which the risks of flaring capsules or the fuselage are real and require to control the operator / customer relations to ensure that tourists are informed of the risks; to also limit as much as possible unfair terms of the professional. The American legislator has taken here too an advance on its European counterpart and tends to establish a lex specialis very favourable to the operators.
In the United States of America, at the federal level, two texts govern the organization of space tourism. The first is the Commercial Space Launch Amendments Act of 2004 and the second are regulations adopted on December 15, 2006 by the Federal Aviation Administration (FAA): “The FAA is establishing requirements for human space flight as required by the Commercial Space Launch Amendments Act of 2004, including rules on crew qualifications and training, and informed consent for crew and space flight participants. The requirements should provide an acceptable level of safety to the general public and ensure individuals on board are aware of the risks associated with a launch or re-entry. The rule also applies existing financial responsibility and waiver of liability requirements to human space flight and experimental permits. Experimental permits are the subject of a separate rulemaking”.
The United States Congress and the FAA have set a main obligation as the guiding thread of the contract between the operator and the participant in the trip: the information of the different risks. Both texts retain the term “informed consent”. This notion for the least subjective has been specified by the FAA which details precisely the different types of information to pass on to passengers. The key element of this regulation requires operators, prior to the conclusion of the contract, to inform all known hazards and risks of serious injury, death, disability and total or partial loss of mental or physical functions. The company is also required to notify that there are unknown hazards, that the United States of America has not certified any public or private aircraft launching or re-entering the atmosphere. The written document must also include figures relating to the re-entry into the atmosphere of aircraft carrying the crew or participants. In addition, the operator must provide his client with statistics on the number of flights, the number of fatalities or serious injuries on suborbital flights, with an explanation of any corrective measures taken to correct the causes of accidents.
To implement these legislative requirements, companies will have to act as a “reasonable person” and place their future contractors in conditions allowing them to understand the risks to which they expose themselves. Thus, for the U.S. Congress, the information provided must be understandable even for people who have no scientific or technical background. The FAA rules also require that consent be in writing and that individuals under the age of eighteen cannot produce “informed consent”. In terms of health, U.S. standards do not require any medical examination prior to the flight. The only pre-training must lead future tourists to emergency situations.
The state of New Mexico, from which Virgin Galactic will operate, has developed a law on “informed consent for spaceflight”. The legislator wished in a section entitled “Civil immunity for space flight entities” that “a space flight entity is not liable for a participant injury resulting from the risks of space flight activities, provided that the participant has been informed of the risks of space flight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent that he is voluntarily participating in space flight activities after having been informed of the risks of those activities as required by federal law and this article”. The law therefore provides, subject to the obligation of information, that an entity organizing spaceflight is not responsible for the injury or death of a participant resulting from the risks inherent of the spaceflight activity. A participant or one of its representatives may not pursue an action against an entity for the loss, damage, or death of a participant resulting exclusively from any of the risks inherent in spaceflights. The usefulness of this legislative precaution appears to us quite relative. If it prevents actions on the territory of New Mexico, the headquarters of Virgin Galactic still remains in the United Kingdom. In addition, the company markets the flight through a website and via a network of accredited agencies throughout the world that are windows of firing for liability action by customers or their beneficiaries.
In Europe, the situation is much less readable. While many European countries have also adopted national space laws over the past decade, none have anticipated the short-term development of space tourism activities. For Astrium Space Transportation, it is inconceivable that a European operator demands liability waivers (a legal document that a person who participates in an activity may sign to acknowledge the risks involved in his or her participation) from its customers. Medical requirements could also be strengthened and allow companies to refuse certain clients.
Effects on third parties
Contracts and space activities organized by private persons have an immediate effect on third parties as a result of international treaties and agreements governing outer space activities. On the status of the tourist himself, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) is important. Liability for damage caused by space activities by private entities will concern the States of the private entities’ nationality and the launching State.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) both create obligations for States to rescue on Earth, at sea or in outer space, astronauts of all origins. Article V of the Outer Space Treaty states that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.
Article 2 of the Rescue Agreement states that “If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party, it shall immediately take all possible steps to rescue them and render them all necessary assistance. It shall inform the launching authority and also the Secretary-General of the United Nations of the steps it is taking and of their progress. If assistance by the launching authority would help to effect a prompt rescue or would contribute substantially to the effectiveness of search and rescue operations, the launching authority shall cooperate with the Contracting Party with a view to the effective conduct of search and rescue operations. Such operations shall be subject to the direction and control of the Contracting Party, which shall act in close and continuing consultation with the launching authority”. Applied to space tourism, these principles fully benefit tourists staying in the International Space Station (ISS) both during their stay and in case of accident occurring during the return to Earth. With regard to suborbital flights, the situation is once again uncertain. The States are nonetheless bound by their international commitments.
Article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies states that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. This article lays down the principle that States are responsible for the outer space activities of their nationals.
This means that in the event of damage caused by the fall of a capsule or an aircraft transiting through outer space, a prejudiced State may claim compensation from the State of origin for the activities of its nationals. This article is at the origin of most of the national laws in which States provide for recourse actions against companies and authorization processes prior to carrying out the activity. In the case of suborbital space tourism in the United States of America, the FAA considered that companies must insure for themselves and the State up to five hundred million dollars.
Concluding remarks on space tourism
If an accident and damage occur before entry into outer space, it seems quite plausible to use the CONVENTION ON DAMAGE CAUSED BY FOREIGN AIRCRAFT TO THIRD PARTIES ON THE SURFACE SIGNED AT ROME ON OCTOBER 7, 1952. However, this convention has only been ratified by forty-nine States and most space powers (the United States of America, the United Kingdom, Japan, France, Germany, India or China) have not yet signed or ratified this Convention.