The Privatisation of Space Tourism: Space Law and its Failure to Launch

In 2001, Dennis Tito became the first non-astronaut to travel to space (although classifying him as a non-astronaut is contentious, it will become clear why). He was taken on board a Russian Soyuz capsule by a private space vehicle provider. Since then, the launch of private space tourism has become a marked feature in the privitisation of space. Last month for instance, Virgin Spaceship Unity developed by Virgin Galactic, an arm of the Virgin Group, took to the skies and successfully completed its first flight test across the Mojave Desert. It is anticipated that it will become the first private space vehicle to send tourists into sub-orbital spaceflight by 2017. Fuelled by growing public interest and rapid advancements in space technology, the privitisation of space is growing beyond space tourism. Private companies are also developing satellites; space imagery vehicles; intelligence systems; and asteroid mining technologies.

However, while a testament to remarkable achievements in space innovation, these developments also raise a number of legal concerns. The current legal regime for space-related activity was designed to regulate only governmental activities. Consequently, it is not entirely adequate to sustain and account for the legality of private activities. The concern is thus that, while the technology is almost ready to launch, space law is not. The absence of a legal framework to capture liabilities, responsibilities and expectations relating to private space companies may sound alarms for state security, as space becomes a new domain for their security projections and a new landscape in which they search for security. Thus, space law may need revision to bring legal certainty to the private space industry and its customers, while equally establishing rules to alleviate various security concerns of states.

NASA's Marshall Space Flight Center

Image courtesy of NASA’s Marshall Space Flight Center, © 2010, some rights reserved.

A possible view from a space tour: a crescent moon above Earth’s horizon

Space law is described as the ‘body of law governing space-related activities’. It can be found in five treaties, together called the ‘Five United Nations (UN) Treaties on Outer Space,’ comprising the Outer Space Treaty (1967), the Rescue Agreement (1968) the Liability Convention (1972), the Registration Convention (1976), and the Moon Agreement (1984). The language of these documents quickly demonstrates that they were drafted to address only states; after all, states signed and ratified them, not private space companies. Consequently, there are a number of outstanding questions that need to be answered in order to assess how applicable these documents are to private space companies. For instance, while the Rescue Agreement makes provisions for the immediate rescue of astronauts, do customers of private space flights qualify as such? The Outer Space Treaty endows astronauts with symbolic value, regarding them as, ‘envoys of mankind in outer space’. This status is given to them because, after rigorous training and instruction on the personal risks involved, they nonetheless enter space for the benefit of science. Space tourists however do so for personal leisure. Thus, it is unlikely that customers of private space flights will fall under the ambit of the term, ‘astronaut’. However, questions of classification are not important merely in and of themselves. Rather, the classificatory status of an individual entering space has several repercussions. For instance, if they are not protected by the Rescue Agreement because they are not ‘astronauts’, then what rescue protocols, recognised at the urgency of the international level, do they benefit from?

In addition to the Five UN Treaties on Outer Space, states have their own national legislation to regulate private space-related activities. This may provide some answers. In the United States, for instance, the Commercial Space Launch Act (1984), and the subsequent Amendment Act (2004) were drafted to address these problems. With this, there is now certainty that customers of private spaceflights, or space tourists, are categorically ‘spaceflight participants’. In addition, the legislation stipulates that space flight participants boarding private space vehicles in the U.S. must undergo and pass training, confirm informed consent and receive certain qualification to enter space.

While there may be some certainty with regards to classification, the corpus of space law has still not addressed all aspects of liability. Space exploration is dangerous; thus, identifying what private space companies are liable for, to whom and how much, ought to be priority in regulating and monitoring their activities. Otherwise, this may present security concerns for states that could be struck by this legal vacuum. To illustrate this, take for instance the Cosmos 954 accident. In 1978, a Soviet nuclear-powered surveillance satellite crashed in Canada, scattering radioactive debris over 124,000 square kilometers of foreign territory. This provoked fears of a nuclear explosion and unknown hazards to human health and the environment. The Liability Convention, which is applicable to state-launched space activity, enabled Canada to bill the Soviet Union over $6 million (CAD) for compensation and damages. Suppose, however, that a private Russian company owned the satellite. Who would be liable here? The Liability Convention has no particular provisions for private entities, because it was not designed for them. Consequently, the liabilities of private space companies become the liabilities of the state from which their space vehicles are launched (i.e. the ‘launching state’). To this effect, Article VI of the Outer Space Treaty renders states liable for both governmental and non-governmental space-related activities.

Nonetheless, states may resist this, as they generally cannot be held responsible for private activities. In aviation law, for instance, states are only responsible for regulating private entities, such as airlines, but they are not responsible for damages caused by them. However, this brings no security to states that have to manage the accidents caused by private space companies launched by other states. In response to this problem, launching states have found innovative ways to make their domestic space legislation compatible with international space law to reduce the burden of liability that is imposed on them by the latter. These innovations involve, for instance, requiring private space companies to buy insurance worth up to a certain threshold (calculated on a complex assessment of risk), above which the state will effectively serve as the insurance provider. The threshold is overestimated to nearly eliminate the possibility that dual-liability will be needed. With this, states can have more security and confidence in the activities of private space companies associated with fellow launching states because, in the very least, they are able to point towards who is responsible for accidents.

However, while this may bring security to states in one domain, it subtracts security in others. The point here is as follows. Different states have different systems in place to reduce the burden of liability. This means that self-interested private companies may establish themselves in states whose liability programmes are more attractive (where, for instance, it may be easier to acquire insurance and perhaps even more cheaply). Consequently, those states, or launching states, now benefit from the economic and scientific contributions private space companies bring to them. With time, those launching states can accumulate the majority of private space companies; gain a monopoly over the industry with; and subsequently reduce competition (monopolies make it more difficult for other companies to compete). However, competition is needed to keep prices moderate for the consumer. These dynamics raise serious anti-trust issues from an international commercial law perspective, signaling grave economic security concerns for states at the international level.

Equally serious, there is nothing to prevent states from deliberately lowering their standards and thresholds to make themselves comparably more attractive to private space companies. This has the effect of undermining the importance of those measures altogether. The consequences of this are twofold: (1) states sacrifice alleviating the burden of liability for the purposes of attracting private space companies and thus, in the event of an accident, have to pay the price for an accident they may not have caused; and (2) lower standards and thresholds means weaker regulation, and this does not protect spaceflight participants. This in turn raises serious concerns for human security, regardless of whether or not a waiver form has been signed.

The real concern is that these are all possible scenarios. They are not intended to undermine the tremendous achievement of private space companies, nor deem them negligible when militated against the risks they pose (nor are they intended, for that matter, to deter readers from space tourism). Rather, they are intended as illustrations of what could happen, and thus to prompt action for the overall safety of space flight participants, launching states, and states who could be affected by accidents. Space law needs to develop to support the industry and its growth, not render it uncertain and insecure. Thus, to end, this article seeks to remind readers of the memorable campaign of the Great Western Railway (circa 1900) – “Safety First.” Because without safety measures in place, much could be at stake.