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M Wollersheim, April 21-23 1999, "Considerations Towards the Legal Framework of Space Tourism", 2nd International Symposium on Space Tourism, Bremen, April 21-23 1999.
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Considerations Towards the Legal Framework of Space Tourism
Michael Wollersheim
- Attorney at Law -
1. Abstract

With space tourism and law it is a typical situation. Every time somebody develops a vision and plans to make it feasible, it is just a question of time until lawyers show up to complicate the situation. It is inherent to law, that it is lacking behind innovations in some respect. Complex undertakings require a legal framework to manage its complexity. Space tourism promises to become a multi-billion-dollar-business, and it is certainly a challenge to create or arrange a legal environment for this undertaking. This short paper tries to touch on some of the essential topics regarding space tourism under the viewpoint of public international law.

2. Legal framework for commercial activities in space - present situation

Without a doubt, space tourism will become the domain of private enterprises. Not that commercial activities necessarily need non-governmental or private participation. But for some reason it has always been the private enterprises who have enforced the idea of space tourism until now. And this should - at least in the countries with a private economy - be considered as useful, because the basic rule of private economy is eversince to achieve economic and social benefit with less governmental control, and with more private economical engagement. Without a doubt space tourism is in the public interest for many reasons. One of these is the option to create a whole new part of industry, which consequently creates a tremendous need for man-power. Bearing this in mind, it should be mandatory for states to support private enterprises in their activities.

Private enterprises first of all have to conform with their respective national law. This here is not the right forum to discuss the details about questions related to this, because the several and different national legal situations would require too much of our time. But private enterprises that perform space tourism in outer space also have to conform to international regulations, since international interests are touched. It is not new that private enterprises participate in space activities. This mainly takes place in an indirect way, which means that governmental or non-governmental entities delegate certain tasks on private enterprises. Space tourism will require another dimension: direct or leading participation. Therefore the legal conditions regarding private activities in outer space have to be examined.

3. International space law / treaties
3.1 Outer Space Treaty of 1967

The Outer Space Treaty can be considered the backbone of international space law. When the Outer Space Treaty was created and went into force, nobody would have wasted a thought about direct private activities in outer space. Due to this remarkably not any provision of the Outer Space Treaty even mentions the word "commercial". Nevertheless the Outer Space Treaty does not reject private activities in outer space in principle. This could be concluded from Art. VI and Art. IX Outer Space Treaty. This follows as well from the freedom-principle (Art. I Outer Space Treaty). Finally the Outer Space Treaty stipulates the principle of "exploration and use of outer space". Space tourism falls in the scope of "use" in this respect=2E The Outer Space Treaty appears a bit old-fashioned regarding commercial activities like space tourism, when Art. VIII Outer Space Treaty gives jurisdiction, ownership and control over the space object and its personnel in outer space into state's hands. Although the Outer Space Treaty mainly addresses States Parties it is out of question that it also has a completely ruling effect on activities by private enterprises. In Art. VI Outer Space Treaty stipulates a national State responsibility for outer-space-activities, no matter if a governmental or private organization carries out these activities. The striking criterion for the jurisdiction of a state for national activities in outer space is the launching-state-criterion in reference to the Liability Convention. In respect of space tourism state responsibility means practically that these activities touch State Parties' interests in general. Risks of space tourism could finally fall back on state responsibility (and liability). Consequently - in the worst case - a state that is not interested in commercial activities with space objects in outer space is legally able to block these activities, since the Registration Convention gives states a proper tool for that. This legal situation is of course not satisfying, neither for the State Parties, nor for the private enterprises engaged in space tourism. In other words: the backbone of international space law is too inflexible to be a stabile basis for space tourism.

3.2 Liability Convention

In consequence of Art. VI Outer Space Treaty, the responsibility-principle, the Liability Convention was created. Art. II of the Liability Convention provides that any launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. In case of damage caused elsewhere than on the surface of the earth, the launching state shall be liable only, if the damage is due to its fault or the fault of persons for whom it is responsible (Art. III Liability Convention), and this counts as well for non-governmental entities (Art. VI Outer Space Treaty). The launching state is absolutely liable and is liable in different degrees of fault, but in final consequence the state is liable for damage caused by a private enterprise. This certainly affects space tourism. It is imaginable that states refuse to allow private enterprises to perform space tourism, or that states set up exaggerated requirements just because of the above mentioned state-liability. This could lead to some kind of forum-shopping towards launching states that either cannot or do not want to grant sufficient control over space activities, or that - in case of damage - would not pay compensation anyway, because of the lack of legal tools for enforcement. However, the Liability Convention must be considered as insufficient concerning the aspect of settlement of claims. An execution of the regulations of the Liability Convention is not secured. Therefore my point of view is, that the potentially unlimited liability of states according to the Liability Convention should be cut by an international agreement that stipulates a limited but guaranteed maximum-amount-liability for space tourism=2E

Another gap of the Liability Convention is that nationals of the launching state are excluded from the scope of the Liability Convention. Furthermore it should be mentioned that environmental questions are not part of the Liability Convention so that damage caused to outer space is not covered.

3.3 Registration Convention

The Registration Convention has on one hand the function to coordinate launches, and on the other hand to ensure identification of the launching state in respect of the Liability Convention. Private enterprises that want to perform space tourism have to comply to this procedure. This could lead to practical difficulties that cannot be avoided: taking into consideration that in long-term-scenarios at least two space touristic launches per day are considered to be necessary for a space tourism enterprise to work profitable, and borne in mind that not only one space tourism enterprise will perform activities in outer space, this could lead to a lot of registrations, and consequently to launches that need to be coordinated and eventually have to be cancelled. Another problem occurs when a launching state is not a Member State of the Registration Convention. This is a gap that needs to be closed for legal and practical security reasons considering that space tourism expects high flight-frequency.

According to the Moon Agreement, celestial bodies and their resources shall not be subject to sovereignty claims. The Moon Agreement refers expressis verbis to the surface, which could be interpreted in such manner, that buildings or facilities on e.g. the moon's surface remain national property and consequently underfall national sovereignty. Lunar bases are subject to state jurisdiction and are legally treated as space objects. But jurisdiction means the implementation of national law, and thus is a correlating "minus" to sovereignty.

The Moon Agreement does not have a high practical relevance because the few Contracting States do not even perform significant space activities. However, the Moon Agreement does not prevent states other than the Contracting States from claiming national sovereignty for the respective celestial body. This brings up infringements with space-touristic projects like a hotel on the moon.

The problem that occurs regarding the Rescue Agreement is the definition of the person that needs to be rescued, because the Rescue Agreement does not include passengers. So, space-tourists may not fall into the scope of the Rescue Agreement and therefore may not take advantage of the rules stipulated there. On the other hand it would be a wrongful interpretation to assume the exclusion of passengers, just because they are not mentioned expressis verbis. This gap stems from the time-period in which the Rescue Agreement was created, when a touristic participation was not even considered.

4. Alternatives / Outlook

Taking into consideration that national states are mandatorily held responsible for any activities in outer space carried out by their governmental entities or private enterprises, a state must choose between two options: no direct private activities in outer space at all - or establishing best-possible preparations and control-mechanisms to avoid damage from private enterprises' activities and to prevent states from practical responsibility. The first option would infringe with several other legal rules (in Germany e.g. with Art. 14 of the German Constitution - Freedom of property) and could not be regarded as an appropriate solution in a private economy. The second option could only be solved and realized by national regulatory efforts or the development of an international treaty, such as an "Outer Space Commercialization Act", for example. There is certainly a need to enact a legislation for commercial activities in outer space and to ensure that states supervise the outer-space-activities of their governmental organizations or private enterprises. Plus there are several other legal fields that need to be covered since modern space law must be qualified to deal with such problems like e.g. fiscal law and insurance law=2E The USA preferred to establish national law dealing with the problems of quality and risk management towards space activities by private enterprises, the "Commercial Space Launch Act". I tend to the opinion that a variety of national regulations will lead to totally different levels of quality and standards, which can in final consequence not be in the natural interest of the international community and states, whether they promote space activities or not. Space tourism will not benefit from a situation such as in the maritime sector where "cheap-flag-states" tolerate ships and crews that are beyond all sensible safety-requirements. So - in my eyes - it will be the most appropriate solution to create an international treaty that grants an equal standardization and leads to more transparency and reliability for private enterprises in space tourism or any other commercial activity in outer space. Without any doubt a national legislation could be established according to the principles of such a treaty.

5. The different space tourism projects and their legal implications

The main aspect of space tourism is transportation, which means transportation within outer space and transportation to outer space and back as well. So, there are different approaches of space tourism with different stages and therefore with different legal implications.

5.1 Earth's surface

Space tourism starts and ends on earth's surface. This concerns - apart from the region of the high seas that is covered by the law of the sea and is specified in several provisions of space law - sovereign territory of states. So mainly domestic law rules this part of space tourism. Thus, there are some exemptions by international space law that interfere. Just to mention some: continuous supervision of non-governmental activities in outer space by states, obligation for the launching state to register space objects and to inform the Secretary General of the United Nations, absolute state-liability for damage on theearth's surface or to aircraft in flight (Art. II Liability Convention), and the obligation to undertake consultations in case of expected harmful interference from planned space activities.

5.2 Airspace

Since space tourism of course does not restrict itself to the earth's surface, the next region touched is airspace. Airspace is basically subject to state's territory and sovereignty. In respect of space objects this rule is limited and an international right of passage is out of question. This is justified considering that airspace is just a necessary stage to get into or back from the next region, outer space. The breaking-point for space tourism could be the definition of space objects. Since the planned vehicles resemble aircrafts with outer-space-ability, it is highly questionable, whether these vehicles can be considered as space objects. This was already in doubt with the Space Shuttle and will be even more discussed when space-tourism-vehicles will be used just for sub-orbital-flights and start from "ordinary" airports and not necessarily vertically in a rocket-style (as it was desirable for a frequent traffic with one or two starts per day).

5.3 Residence in orbit - ISS


One project of space tourism plans to establish a hotel-module linked to the International Space Station ( ISS). The questions of jurisdiction have to be regarded under the viewpoint of the ISS-Agreement (International Government Agreement on the Space Station), which basically follows the link-up-principle. Liable in respect of the ISS-Agreement could be a contractor or subcontractor of a Partner State, a user or customer of a Partner State, and a contractor or subcontractor of a user or customer of a Partner State. Partner States are enabled to exclude by domestic law the applicability of the Liability Convention concerning the ISS with effect against third parties.

In general:

A problem that may become important is space debris. In orbit there is a growing probability of being hit by a piece of debris, which can cause severe damages to man and material because these pieces can reach a speed of some thousand kilometers per hour. It is up to the technical engineers to solve this question of security, but it is also up to insurances to deal with this. Debris must be considered as well under the aspect of the Liability Convention; if the responsible state can be identified, it can be held liable. The other side of the coin is the value of this possible claim, because practically efficient tools for law-enforcement do not really exist ex lege since dispute settlement is practically up to good-will of the parties involved.

5.4 Outer space

A significant provision is Art. VIII Outer Space Treaty, that says that a state party to the treaty on whose registry an object launched into outer space is carried, shall retain jurisdiction and control over such object, and over any personnel thereof while in outer space or on a celestial body. Here state and private interests are affected as well. It is quite clear that this provision means that national law, and consequently principles of inherent private international law, is applicable on space objects. This corresponds with the link-up-principle that can be found in air- and sea-law. Remarkable in respect to space tourism is just that the above mentioned provision obviously does not cover passengers, but only personnel.

5.5 Residence on celestial bodies

This stage is mainly regulated by the above mentioned Moon Agreement. Additional provisions can be found in the Outer Space Treaty, but these are rather broad and unprecise. Without a doubt the basic rules of space law, like the freedom-principle and the common-heritage-principle, are fully applicable. An additional aspect is of the ecological and ethical kind, because permanent bases or colonies on celestial bodies will have to deal with weather-conditions that are rather different from earth. The aspect of terraforming - to establish an earth-like atmosphere and environment on a celestial body - is apart from technical difficulties less of a legal problem, but merely an ethical question.

6. Air law

There are manifold reasons to take air law into consideration, e.g. the used transport-technology that will probably be a space plane with the capability to be used for space and air transportation as well the planned high frequency of flights that imply to use infrastructure of modern airports, horizontal take-off and landing, just to mention a few. Striking criteria for the law applicable could be - as proposed by Vereshchetin - purpose and function, technical configuration and capabilities, and the medium where the operation predominantly takes place. Another point is the conformity to the aircraft definition that can be found in the Chicago Convention. So a transport-system which conforms to this aircraft definition but also has the purpose and function to be used for space-flights could fall into the scope of air law as well as into the scope of space law. It is out of question that space flights that necessarily cross airspace do not violate the sovereignty of the respective states. This right of passage through airspace is not applicable for aircrafts that predominantly are used to move in airspace. It would not be tolerable if the use of enhanced hypersonic flight systems could avoid consequences of air law (sovereignty), although being used for transports from one point on earth to the other. As far as I can see, this problem is not solved yet. However, in my opinion the purpose/function-principle in conjunction to the individual purpose (from case to case) seems to be the most sufficient tool to make a decision towards the applicable law.

There are other elements of air law that make it attractive to use air law at least as a source of legal configurations that might fit to space tourism. One of these elements is the safety-standard stipulated by the Chicago Convention. Certification and standardization is crucial to make risks calculable, e.g. as well for the safety of life, health and property on one hand, and for risk-management for insurances and the involved launching state on the other hand. The USA created the Space Launch Act, that regulates the requirement of a license to launch a space vehicle and the requirement to monitor activities of such licensees. This is a good model for corresponding regulations of other states or an international agreement on commercial use of outer space.

Another element is the limitation on compensations to a maximum amount, as can be found in the Warsaw Convention. Everybody who travels by airplane knows about remaining risks and compromises by putting up with the maximum-amount-limit of the Warsaw Convention that covers a range from damage and loss of luggage up to loss of life. This limitation is in my eyes not just a welcome solution, but a mandatory one for space tourism, last but not least for liability-insurance-reasons. The practical realization of this could e.g. take place in form of an amendment of the Warsaw Convention (which would be under the systematical viewpoint be dubious, because air and space law were mixed), or by implementing this into a new international agreement, dealing with commercial use of outer space. Once again the Space Launch Act provides models for concrete regulatory contents.

7. Criminal law and space tourism

Criminal law until now has not been considered as highly relevant to outer space activities. This is due to the fact that the participating crews of space-missions are especially trained for their missions and are embedded in a clear system of competencies, to mention an example, the NASA gave the shuttle commander the authority to enforce order and discipline during all flight phases ... among all on board personnel. Because of the long-term-character of the ISS, which will be the home for crew-members for a long time, and because of the international and multi-cultural character of the crews, the ISS-Agreement contains some provisions towards criminal law. Since passengers of space-touristic missions are potentially less prepared and controlled than professional astronauts, the danger of criminal activities must be estimated as relevant. Regarding the ISS a sufficient system of criminal-law-provisions exists, but conflicts could occur in other environments than the ISS. Just to give an example: if a passenger commits a severe crime on board of a space object that falls under the jurisdiction and control of another state, whose national law and which state will have the authority and jurisdiction in the end? The deciding argument is not necessarily "jurisdiction and control" since another aspect is the nationality of the person, that committed a crime.

8. Environmental law and space tourism

This is a complex subject-matter that deserves to be investigated. Space-touristic traffic could have effect on the environment on earth. But apart from the fact that new-developed transport-systems, which resemble aircrafts rather than space-objects will work more efficiently and therefore less polluting, outer space could be polluted as well, e.g. by debris. Another aspect is the preservation of celestial bodies' environment (Art. IX Outer Space Treaty, Art. 7 Moon Agreement) that might be interfered by space tourism. Bearing in mind the common-heritage-principle, it is clear that space tourism has to and will comply to environmental standards.

9. Procedural law

It is a well-known problem of public international law, that a violation of its rules does not necessarily lead to an enforceable claim against a state. Of course there are rules dealing with procedure and dispute settlement. The Outer Space Treaty provides rules on dispute settlement by relating to consultations (Art. IX Outer Space Treaty).

The Liability Convention contains such rules as well, for the case of a failure of diplomatic negotiations Art. XIV Liability Convention stipulates that a Claims Commission shall be established. The decision of the Commission shall be final and binding if the parties have so agreed, otherwise the Commission renders a recommendatory award (Art. XIX Liability Convention). So this procedure is rather soft and appeals to the good faith of the parties.

The Moon Agreement as well refers to consultations (Art. VIII and XV Moon Agreement).

However, a mandatory and effective system for dispute settlement in space law does not exist. Dispute settlement and the realization of claims is mainly up to the good-will of the participated states. It is obvious, that space tourism, just like every commercial activity in space, needs legal security because otherwise the investments would be in the danger of becoming playthings of state's will that could be led by any motives, e.g. diplomatic, political or simply financial ones. Although a profound Draft Convention on the Settlement of Space Law Disputes exists, it has not come to a binding international agreement yet. On a contractual level it will not be as difficult as on the level of public international law to find a sufficient system that provides mandatory settlement, whether adjudication or arbitration, with the obligation to accept and obey the decision made.

Especially for private enterprises that perform commercial space activities such as space tourism, legal security - on a level of private and public international law - is a mandatory requirement.

10. Conclusions

Space tourism necessarily contains inter alia aspects of space transportation, manned space flight, and commercialization of outer space. Related to existing space law treaties there is a need for an international agreement to prevent space tourism and other commercial projects in space from severe conflicts with these treaties. There have been efforts made to create such an agreement, to mention one, e.g. the Draft Convention on Manned Space Flight that deals with basic aspects of above mentioned topics. The approach of international space law needs to be deeply reconsidered and re-defined to enable private enterprises to (directly) perform outer space activities like space tourism. Otherwise space tourism will have to be performed by private enterprises under the regime of states, which provokes conflicts that can be avoided. In my opinion it is quite clear that neither pure air law nor pure space law could solve the existing problems with space tourism. The most desirable solution could be a differentiating stage-to-stage system, that makes e.g. air law applicable in air space and space law for outer space, or a strictly purpose oriented system, or a completely new legislation that combines all these elements in an especially for the needs of commercial use designed legal code.

M Wollersheim, April 21-23 1999, "Considerations Towards the Legal Framework of Space Tourism", 2nd International Symposium on Space Tourism, Bremen, April 21-23 1999.
Also downloadable from towards the legal framework of space tourism.shtml

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