Acta Astronautica 66 (2010) 1597–1607

Contents lists available at ScienceDirect

Acta Astronautica
journal homepage: www.elsevier.com/locate/actaastro

Between heaven and earth: The legal challenges of human

space travel$
Tanja Masson-Zwaan a,,1, Steven Freeland b,2
a
International Institute of Air and Space Law, Leiden University, the Netherlands
b
School of Law, University of Western Sydney, Australia

a r t i c l e in fo abstract

Article history: Since the first space object was launched into orbit in 1957, humankind has been
Received 13 June 2009 engaged in a constant effort to realise ever more ambitious plans for space travel.
Received in revised form Probably the single most important element in this ongoing evolution is the
7 December 2009
development of technology capable of transporting large numbers of passengers into
Accepted 18 December 2009
outer space on a commercial basis. Within the foreseeable future, space will no longer
Available online 1 February 2010
be the sole domain of professionally trained astronauts or the exceptionally wealthy.
Keywords: The prospects for both suborbital and orbital private human access to space give rise
Space law to some interesting and difficult legal questions. It also opens up an exciting
Space tourism
opportunity to develop an adequate system of legal regulation to deal with these
Private human access to space
activities. The existing international legal regimes covering air and space activities are
not well suited to large-scale commercial access to space, largely because they were
developed at a time when such activities were not a principal consideration in the mind
of the drafters. The lack of legal clarity represents a major challenge and must be
addressed as soon as possible, to provide for appropriate standards and further
encourage (not discourage) such activities.
This article will examine some of the more pressing legal issues associated with the
regulation of space transportation of passengers on a commercial basis, seen in the light
of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use
of outer space [y] shall be carried out for the benefit and in the interests of all countries
[y] and shall be the province of all mankind’. An appropriate balance must be found
between the commercial and technological opportunities that will arise and the
principles upon which the development of international space law have thus far been
based.
& 2010 Elsevier Ltd. All rights reserved.

1. Introduction

Although the range of activities undertaken in outer

$
This article is an elaboration of the paper presented by the authors
space has grown exponentially since the launch of Sputnik
at the 1st IAA Symposium on Private Manned Access to Space held on
May 28–30, 2008 in Arcachon, France. All websites quoted in this article in 1957, we are only now on the threshold of the next
have been accessed in June 2009. Copyright& 2009 by the authors. great ‘leap’ to space. The realisation of affordable and safe
 Corresponding author.
commercial private human access to outer space may be
E-mail addresses: [email protected] (T. Masson-Zwaan), as significant to mankind as the Wright brothers’ Flyer,
[email protected] (S. Freeland).
1 Gagarin’s first spaceflight and the Saturn V ‘Moon rocket’
President, International Institute of Space Law (IISL), the Netherlands.
2
Visiting Professor of International Law, University of Copenhagen, that put Aldrin and Armstrong on the Moon. The
Denmark. successful ‘launch’ of SpaceShipOne from its mother plane

0094-5765/$ - see front matter & 2010 Elsevier Ltd. All rights reserved.
doi:10.1016/j.actaastro.2009.12.015
1598 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607

White Knight in October 2004, followed by its second 2. The limitations of existing international space law
return journey in 7 days to an altitude of over 100 km,
demonstrated that the technology for short-term human Before discussing the requirements for an adequate
suborbital flight has arrived. This remarkable event legal framework to regulate orbital or suborbital private
immediately seized the imagination of the public. Other human spaceflight, a few remarks can be made about the
companies started similar ventures; a new industry was existing corpus iuris spatialis. The five multilateral space
born. Thanks to SpaceShipOne and the Ansari Xprize, treaties elaborated within the United Nations Committee
space has gained renewed attention of the world. Perhaps on the Peaceful Uses of Outer Space (UNCOPUOS) were
this is the new boost we were all waiting for!3 largely formulated in the ‘Cold War’ era, when only a
Virgin Galactic is proceeding with plans to provide small number of countries had space-faring capability.7
passengers with the opportunity of a 21/2 h journey into Although the treaties are to be admired for their simple
space, for US$200,000 a seat, and hundreds of people have yet comprehensive coverage of potential human involve-
reportedly already signed up.4 Other even more ambitious ment in the realm of outer space, the treaties could not
proposals, involving orbital travel, hotels and various fully anticipate the extent to which humankind would one
space adventures, have captured widespread imagination day engage in commercial space tourism activities. The
as entrepreneurs, scientists and industrialists conceive of Outer Space Treaty, for instance, did foresee that private
further value-added products designed to enhance the entities would one day engage in space activities,8 yet one
overall space tourism experience.5 of the most essential topics for private operators, namely
Without a doubt the prospect of commercial ‘space their exposure to second- or third-party liability,9 is not
tourism’, not only suborbital but also orbital, has begun to addressed. Instead, the Treaty, as well as the Liability
generate widespread interest and excitement. It has also Convention, only addresses liability at the level of the
encouraged many millions of dollars of investment. Its States involved. There is no cap on liability of operators,
development represents a quantum leap from the ‘early’ and no opportunity for passengers or third parties to
days of private human access to space, which has largely present direct claims for compensation.10
been restricted to a few very wealthy individuals.6 Thus, even though the treaties maintain their rele-
vance even after several decades, the existing interna-
tional legal regime is not able to accommodate the
remarkable technological and commercial progress asso-
ciated with space activities. It needs to be supplemented
3
with additional and more specific rules, in order to
After the early days of excitement, space became just another
complement the general rules laid down in those early
everyday feat. The incredible achievement of a permanently inhabited
station in space, including the launches of ESA’s Columbus lab and ATV instruments. This represents a major challenge, all the
Jules Verne and the Japanese lab Kibo in 2008, did not by far have the more in view of the strategic, military and commercial
same impact as, for instance, the landing on the Moon in 1969, when importance of outer space, which always has been and
everyone was glued to their television to witness this ‘giant leap for will continue to be extremely influential.
mankind’.
4
See http://www.virgingalactic.com. Virgin Galactic is generally
expected to be the first operational provider of suborbital flights. Up to 3. What is space tourism?
300 Virgin Galactic ‘astronauts’ could venture to space in the foreseeable
future. Stephen Hawking is among them. Tickets cost $200,000 and
deposits start from $20,000. US export control requirements may cause The term ‘space tourism’ has been defined as ‘any
delays, see for instance Irene Mona, Red Tape for SpaceShipTwo at http:// commercial activity offering customers direct or indirect
www.spacedaily.com/news/spacetravel-05y.html. SpaceShipTwo was
unveiled in January 2008. See http://www.newscientist.com/article/
7
dn13219. See for market surveys the Futron report of 2002 and its (i) Treaty on principles governing the activities of States in the
update of 2006, http://www.futron.com/pdf/resource_center/white_pa- exploration and use of outer space, including the moon and other
pers/STMS_Suborbital.pdf and http://www.futron.com/pdf/resource_- celestial bodies 18 UST 2410 (1967) (Outer Space Treaty); (ii) agreement
center/white_papers/SpaceTourismRevisited.pdf/. on the rescue of astronauts, the return of astronauts and the return of
5
See for an overview, Jacqui Goddard, Up, up and Ka-Ching!, in objects launched into outer space (Rescue Agreement); (iii) convention
Newsweek, February 2, 2008, available at: http://www.newsweek.com/ on international liability for damage caused by space objects 672 United
id/107550. See also http://www.personalspaceflight.info/. Nations Treaty Series 119 (1968) 24 UST 2389 (1972) (Liability
6
In April 2001, the first ever space tourist Dennis Tito spent 6 days Convention); (iv) convention on registration of objects launched into
in the Russian section of the ISS, after extensive training at the Star City outer space 28 UST 695 (1975) (Registration Agreement); and (v)
complex. After him, five others have followed; Mark Shuttleworth in agreement governing the activities of States on the moon and other
2002, Gregory Olsen in 2005, Anousheh Ansari in 2006, Charles Simonyi celestial bodies 1363 United Nations Treaty Series 3 (1979) (Moon
in April 2007 (and again in 2009) and Richard Garriott in October 2008. Agreement). Texts of all of these treaties can be found at http://
The price for a flight brokered by Space Adventures to the ISS on board www.unoosa.org/oosa/en/SpaceLaw/treaties.html.
8
Soyuz is now around $35 million. Recent reports claimed that space Cf. Article VI Outer Space Treaty, which makes a State inter-
tourism seats will be unavailable on Soyuz spacecraft for the next few nationally responsible for activities carried out by non-governmental
years, since the International Space Station doubled its crew size up to entities, provided that it authorises and supervises such activities.
9
six people in May 2009. However it is now reported that Cirque du Soleil Second-party or contractual liability refers to liability of the
founder Guy Laliberté may fly to the ISS in September 2009, as operator vis-a -vis passengers and cargo, while third-party or non-
Kazakhstan cancelled its plans to send a trained cosmonaut, see http:// contractual (tort) liability refers to liability for damage to persons or
www.space.com/missionlaunches/090403-space-adventures-future. property on the ground, who have no contractual relations with the
html. After that, according to the Russians, this form of space tourism activities of the operators, they were just in the wrong place at the
will also continue. See http://uk.reuters.com/article/scienceNewsMolt/ wrong time.
10
idUKTRE54C48520090513. Liability is addressed in more detail below.
 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607 1599

experience with space travel’11 and a space tourist as 3.1. Suborbital spaceflight
‘someone who tours or travels into, to, or through space or
to a celestial body for pleasure and/or recreation’12. Suborbital spaceflight, which is what most current
But it is important to place this phenomenon into its projects will offer, covers flights in which orbital velocities
proper context. Since the sixties, approximately 500 are not achieved. After engine shutdown, 3–6 min of
persons have gone into outer space; they were without microgravity is achieved, after which the vehicle falls back
any doubt ‘Envoys of Mankind’.13 A mere six of these were to Earth and re-enters the atmosphere. They usually attain
tourists.14 As at 2008, NASA, with the largest astronaut an altitude of around 100 km, a fact that is also dictated by
corps worldwide, had 88 active astronauts.15 ESA had the relevant scientific principles. Numerous different
eight. With the advent of larger scale commercial space technologies are under consideration. Some concepts
tourism, these numbers will increase dramatically. How- involve a horizontal take-off or ‘launch’ (sometimes from
ever it is not expected that thousands of tourists will be an aircraft, like WhiteKnight2), while others take off
lining up at ticket counters to go into outer space.16 It will vertically. From ground to space, concepts can be Single
not involve hordes of tourists and any comparison with, Stage, Dual Stage, Multiple Stage, with a carrier, from an
for instance, a beach resort in Torremolinos or even a aircraft, from a balloon, or using rocket propulsion. One of
luxury cruise ship on the Nile seems inappropriate. Most the technology challenges is to get as many kg’s in (sub-
concepts developed today concern a maximum of 4–6 )orbit compared to kg’s needed for propulsion (and to do
seats for ‘tourists’. It will remain for a long time a risky that safely). From space to ground, they can vary from
and costly trip, for which a good physical condition is aircraft to parachute, and here, one of the technology
essential. Even professional astronauts have suffered challenges is thermal protection during re-entry into the
numerous medical problems related to their stay in outer atmosphere.18
space, more or less serious depending on the length and
distance of the mission, and much is probably still 3.2. Orbital spaceflight
unknown about long-term effects of space travel.
What is called ‘space tourism’ is more an opportunity The velocity required to stay in an orbit is called
for the happy few who are so eager to go up there that ‘orbital velocity’ and depends on the altitude of the orbit.
they are willing to accept certain risks. This may change in In orbital spaceflight, orbital velocity must be achieved for
the future, but the suggestion that thousands of people the vehicle to keep flying along the curvature of Earth and
will gain their ‘astronaut wings’, which the term ‘tourism’ not fall back to Earth. For a 200 km circular orbit, the
seems to imply, is still some way off. orbital velocity is 28,000 km/h, and it is this extremely
For the present time, therefore, perhaps ‘private space high speed which makes orbital space flight technically so
travel’ is a better term? complex and therefore expensive. Private orbital space-
Current developments in this area are often explained flight for human clients on a commercial basis is
as being part of a chronological and evolutionary chain, obviously much more demanding in terms of technology
starting with the relatively ‘simple’ suborbital space and economics (what will tickets cost?) than suborbital
tourism ventures (in some cases there is not even a pilot flight, but this has not prevented enterprises such as
on board and it resembles more a ride on Disney’s Excalibur Almaz and SpaceX from engaging in this
Spacemountain!) that appear to be technologically fea- business.
sible today, via long-range intercontinental transport
through outer space, to economically feasible fully
3.3. Intercontinental rocket transport
reusable orbital launch vehicles (RLV) in the future.17

Intercontinental rocket transport implies a transit

through space in order to substantially shorten the travel
11
Stephan Hobe and Jürgen Cloppenburg, Towards a New Aerospace time from one point on earth to another. It is an idea that
Convention?—Selected Legal Issues of ‘‘Space Tourism’’, in: Proceedings of has already existed for a long time-remember in the
the 47th Colloquium on the Law of Outer Space 377 (2004). 1980s the US National Aerospace Plane (NASP) or the UK
12
Zeldine O’Brien, Liability for Injury, Loss or Damage to the Space
Tourist, in: Proceedings of the 47th Colloquium on the Law of Outer
HOTOL (Horizontal Take-off and Landing) projects.19 This
Space 386 (2004). concept might be attractive for the military as well as
13
Cf. Article V Outer Space Treaty, and the Rescue Agreement. for commercial transportation of passengers and goods.
14
But the ‘tourists’ who went up to the ISS do not like to be called as However, the technical challenges are huge in terms of
such. Says Anousheh Ansari: ‘I was part of a six-month training program
the required velocity, the amount of propellant required,
along side the other crew members and I took an active role as a crew
member. I think the term ‘space tourist’ undermines what you have to and the need for a robust thermal protection system
do on the mission’, see http://www.anoushehansari.com/faqs/. Tito and (TPS) for safe re-entry. Cost is also a highly relevant
Olsen have expressed similar disapproval of the term.
15
See Jeff Foust, So you want to be a Rocket Pilot, 7 April 2008,
18
available at: http://www.thespacereview.com/article/1099/1. Cf. Erik Laan. Technological aspects of Space Tourism, presentation
16
Although some travel agents are already marketing space trips, made at the Leiden LLM programme in air and space law, May 2009.
19
http://www.personalspaceflight.info/2007/11/28/whats-in-it-for-spa- For an overview of legal issues of aerospace planes, see Tanja L.
ce-travel-agents/. See also the Futron reports, supra note 2. Masson-Zwaan, The aerospace plane: an object at the cross-roads between
17
See for an explanation of the concepts of suborbital vs. orbital, air and space law, in: Air and Space Law: de lege ferenda (Essays in
http://orbspace.com/background-information/suborbital-vs-orbital-spa- Honour of Henri A. Wassenbergh), (T. Masson-Zwaan/P. Mendes de Leon,
ce-flight.html. eds.), 247–261 (Nijhoff 1992).
1600 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607

consideration–witness the fact that the Concorde flights of some of the legal issues involved and make some
were always a ‘loss maker’ for both British Airways and proposals for solutions.
Air France (although, of course, they most likely generated It is important to remember that the United Nations
income in other indirect marketing and prestige-related space law treaties apply to the relations between different
ways). States with regard to space activities and space objects,
The bottom line is that a useful suborbital transport and that international air law conventions such as
would require many of the same design features of an Chicago, Warsaw or Montreal are concerned with inter-
orbital vehicle, and the cost for transporting a passenger national commercial carriage by air(craft). Many of the
or cargo would be similar for the cost of using an RLV. currently planned space tourism projects will operate
Therefore it has been suggested that the way forward for from one and the same territory. As long as the intended
RLV development would be to skip the prohibitive inter- vehicles will ‘take off’ and ‘land’ in that territory, the
continental rocket transport concepts, as perhaps the likelihood of cross-border damage is limited, and in
‘development of and operational experience with orbital principle that State’s national law will apply, whether it
RLV’s needs to pave the way for any future point-to-point concerns orbital or suborbital flight.
rocket transport, rather than the other way round’.20
It seems doubtful that tomorrow’s suborbital flight will
4.1. National legislation applying to non-cross-border space
eventually develop into point-to-point transportation, as
tourism
Virgin Galactic and others seem to envisage. This would
impact on the credibility of the planned V-Prize, in which
Several countries have enacted national space legisla-
spaceflight companies are to compete ‘to become the first
tion, but they have not always addressed ‘space tour-
in history to create a vehicle capable of launching from
ism’.23 In view of the limited scope of this article, we will
Virginia and land in Europe in approximately an hour’.
limit ourselves to a brief discussion of the national
The foundation realises that ‘regulatory problems will
regulation of private human spaceflight in the USA and
have to be settled and some international treaties
in Europe.
modified’ in order to authorise this type of interconti-
nental flight.21 It seems highly uncertain that this will
happen, at least in the short to medium term. 4.1.1. USA
In view of the current ‘remoteness’ of this possibility, Most of the current projects are being undertaken in
we do not intend to propose here choices as to the legal the USA and will ‘take off’ and ‘land’ there. The US
regime governing it. Time will tell if it is going to happen, Government has passed quite a substantive body of rules
and we can then think about the legal framework. It may governing private human spaceflight, mainly designed to
well be, for example, that a new branch of international enable entrepreneurs to go ahead with offering suborbital
law—‘Aerospace Law’—may emerge. It is simply too early flights under conditions which are less stringent than for
at this stage to know. classical transport. These rules apply at least until
December 2012, but will probably remain applicable
4. The law longer than that, because commercial space tourism has
not commenced as early as was initially expected. The
We have observed that many excellent and in-depth first commercial flights may not happen until 2012, and
academic papers have been written in recent years about therefore the expected initial experience will not have
the legal aspects of ‘private space travel’.22 We intend to been gained by then. The Government provides licences to
not duplicate these and will provide a summary overview build a number of spaceports across the country (propo-
sals for spaceports have been mooted for California,
Oklahoma, New Mexico, Virginia, Wisconsin, Alaska and
20
See David Hoerr, Point-to-point Suborbital Transportation: Sounds Florida), alleviates the rules for selling flights to humans
Good on Paper, Buty, May 5, 2008, available at: http://www.thespacer-
eview.com/article/1118/1.
and determines the rights and obligations of the operator,
21
See for details Paul de Brem, the V-Prize: one hour to Europe, the crew and the space flight participant. A company
August 27, 2007, available at: http://www.thespacereview.com/article/ proposing to launch paying passengers from US territory
940/1. The venture must be completed by July 1, 2013, when the on a suborbital rocket must receive a licence from
‘Spaceflight Liability and Immunity Act’ passed by the state of Virginia to
the FAA’s Office of Commercial Space Transportation
encourage the development of research on manned flights expires.
According to this Act, a company organizing a space voyage cannot be (FAA/AST). The licensing process mostly focuses on public
held liable for personal injury to passengers who have signed a safety and safety of property.24 What is striking is the way
disclaimer. Note that the V-prize website is no longer online, which
may cast doubt on its viability.
22 23
See for instance Stephan Hobe, Gerardine Goh and Julia Neumann, An overview and texts are available at: http://www.unoosa.org/
Space Tourism Activities—Emerging Challenges to Air and Space Law?, in: oosa/en/SpaceLaw/national/index.html.
24
33 Journal of Space Law 359 (2007), Frans von der Dunk, Passing the Buck Code of Federal Regulations (CFR), Title 14, Chapter III. This is in
to Rogers: International Liability Issues in Private Spaceflight, in 86 accordance with the commercial space launch amendments act (CSLAA)
Nebraska Law Review 400 (2007), Stephan Hobe, Legal Aspects of Space of 2004. See especially human space flight requirements (HSFR), 14 CFR
Tourism, ibid. at 439 and Steven Freeland, Up, up andy Back: The y460, which provides the rules for launch and reentry with crew, and
Emergence of Space Tourism and its Impact on the International Law of with space flight participants. The relevant parts are 14 CFR 401, 415,
Outer Space, in 6 Chicago Journal of International Law 1 (2005). These 431, 435, 440 and 460, accessible at http://ecfr.gpoaccess.gov/cgi/t/text/
recent articles contain extensive references to the majority of earlier text-idx?sid=6a5153b45a2675c8b05adfd8d7195483&c=ecfr&tpl=/ecfr-
publications in this field. browse/Title14/14cfrv4_02.tpl#300. See also Melanie Walker, Suborbital
 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607 1601

that many of the providers have more stringent require- 2004. This agreement establishes regular meetings of the
ments than is stipulated under existing law. EU and the ESA at ministerial level within a ‘Space
Council’, for coordinating and facilitating cooperative
4.1.2. Europe activities. In this context, in May 2007 the Commission
Europe lags behind. This is a problem, considering that, and the Director General of ESA jointly presented the
for instance, Virgin Galactic has concluded an agreement European Space Policy, which was endorsed by the Space
with the Swedish Space Corporation (SSC) to launch from Council and formally adopted by both organisations.29
Kiruna, Sweden in the future.25 Also, there are plans for a The Policy does not refer to space tourism.
spaceport in the Netherlands’ Antilles, (Spaceport ESA issued a press release in May 2008 about its
Caribbean), while the Netherlands has recently enacted position with regard to space tourism, after having
its national space legislation.26 Similarly in France, with published a position paper on privately-funded suborbital
plans for a spaceport in Montpellier (Spaceport France) spaceflight in April 200830 The press release states that
and a national law is being finalised.27 And there are ESA recognises the private sector’s efforts in the achieve-
others. Even though missions taking off from a European ment of suborbital flights and in the associated techno-
spaceport may not be intended to cross borders, the logical development, and it intends to help provide the
relatively small size of European states (as compared to necessary environment for this industry to flourish, for
the Mojave desert in the USA for instance!) may well instance, ‘by assisting in the setting up of legal frame-
imply that the chances of causing damage across borders works for operation across Europe, involving civil aviation
increases. Now that several countries in Europe have authorities and other relevant bodies in a debate on this
started to enact national space legislation, even though for matter.’ It also states that ‘ESA must be careful not to
the time being they do not concern ‘space tourism’28, interfere in a fully competitive market’; thus it is not to be
harmonisation is becoming urgent. These national laws expected that ESA will play a pioneering role–this being
show a patchwork of differing rules and regulations, and quite similar in approach to NASA in the USA.
the lack of harmonisation may result in a situation that The position paper provides the ESA definition of space
will not be beneficial for the industry. It may also lead to tourism: ‘the execution of suborbital flights by privately-
the undesirable practices of ‘flags of convenience’ or funded and/or privately operated vehicles and the
‘forum shopping’. associated technology development driven by the space
tourism market’. It observes that, since space tourism will
4.1.3. Attempts at harmonisation in Europe be substantially carried out in airspace, the civil aviation
Recently in Europe, not only ESA is active in space but authorities concerned and the competent agencies of the
the European Union (EU) has taken a role in projects such EU (i.e. the European Aviation Safety Agency, EASA, see
as Galileo and GMES, and the two organisations concluded below) should be at the forefront of setting up of a
a Framework Agreement which entered into force in May regulatory framework for space tourism in Europe. It then
observes that ‘since in the longer term space tourism will
involve travelling to outer space, some rules of space law
(footnote continued)
may find application for space tourism’. This seems to
space tourism flights: an overview of some regulatory issues at the interface
of air and space law, in 33 Journal of Space Law 375 (2007). imply that ESA sees suborbital flights as an aviation
25
Peter de Selding and Tarek Maliq, Virgin, Swedish Spaceport Sign activity to which air law must be applied (applying a
Deal for Suborbital Flights, Space News, February 5, 2007, available at: ‘spatialist’ rather than a ‘functionalist’ approach), and
http://www.space.com/spacenews/archive07/virginsweden_0205.html. would only look at space law for orbital space tourism.
See also http://www.ssc.se/?id=9500. Sweden has a national space law
but may soon remodel it after the US legislation. It may treat
The EU has so far not expressed its views on the issue.
SpaceShipTwo as a sounding rocket, which under the current act is not We agree that it would be desirable that the EU
regarded as a space activity. See for the text the website mentioned addresses the issue of regulating private human space-
supra note 21. See also von der Dunk’s discussion in his article quoted flight at the European level, possibly giving a role to
supra note 20 at 419. See also Blount, Jurisdiction in Outer Space,
EASA,31 Europe’s counterpart to the US FAA, with regard
Challenges of Private Individuals in Space, 33 Journal of Space Law 299 at
329 (2007). to safety and licensing issues of ‘space tourism’. Indeed,
26
See http://www.spacehorizon.com/spaceportpartners.html. The after ESA’s position-taking as described above, Marciacq
project intends to use the existing airport for suborbital air-launched et. al. of EASA have suggested a regulatory approach for
spaceflights. See for the Dutch Space Act, the website mentioned supra suborbital space tourism at the 3rd IAASS Conference held
note 21
27
See http://spatioportfrance.free.fr/. However, the project is re-
ported to be on hold. For the French ‘Loi no. 2008-518 du 3 juin 2008
29
relative aux opérations spatiales’, JO (Official Journal) 129, 4 June 2008, See regarding the Framework Agreement, http://eu.spaceref.com/
see http://www.senat.fr/dossierleg/pjl06-297.html. The implementing news/viewpr.html?pid=13111 and for its text, http://ec.europa.eu/
decree is still pending and full implementation is expected in mid-2010. enterprise/newsroom/cf/document.cfm?action=display&doc_id=2322
Another European spaceport is being planned in Scotland, see http:// &userservice_id=1. See for the Resolution on the European Space Policy,
www.spaceportscotland.org/, while the UK is also reforming its Outer ESA BR 269 22.05.07, http://esamultimedia.esa.int/docs/BR/ESA_BR_
Space Act of 1986. 269_22-05-07.pdf.
28 30
However, the Dutch law for instance contains a provision stating See the press release at http://www.esa.int/esaCP/SEM49X0YUF-
that it can also be declared ‘wholly or partly applicable to the F_index_0.html, and the position paper at http://esamultimedia.esa.int/
organization of outer space activities by a natural or juridical person docs/gsp/Suborbital_Spaceflight_ESA_Position_Paper_14April08.pdf.
31
from within the Netherlands’ (Section 2.2.b). The explanatory note EASA is an Agency of the EU charged with aviation safety. Its
states: ‘This might include the commercial organization of space tourism mission is to promote the highest common standards of safety and
activities’. environmental protection in civil aviation. See http://www.easa.eu.int.
1602 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607

in Rome in October 2008.32 In their conference paper, the to the ‘Basic Regulation’ establishing EASA.35 This exclu-
authors argue that EASA adopt the ESA definition quoted sion applies for instance to historic aircraft, research,
above, but, regarding its involvement, limit it to what they experimental or scientific aircraft, military or police
term ‘winged aircraft’, including rocket-powered air- aircraft; however EASA has apparently chosen not to use
planes, calling them ‘Sub-orbital Aeroplanes’ (SoA’s). This Annex II for SoA’s and prefers to require full certification
excludes rockets, and thus space tourism ventures using for commercial space tourism flights. This may have
the concept of a vertical take-off. The authors hold that significant consequences for the space tourism industry in
EASA has regulatory competence over SoA’s, which Europe.
could be treated as an aircraft in a similar way to
what EASA has done with Unmanned Aerial Systems 4.2. International law applying to cross-border space
(UAS), complementing existing rules to capture their tourism
specific features. The paper provides a detailed descrip-
tion of EASA procedures in the field of airworthiness We have already indicated that space tourism in
(type certificates), air operations and flight crew licensing Europe is likely to cross borders, which creates a need
and how they could be applied to space tourism within for harmonisation of national laws. But even generally,
the narrow definition of winged vehicles. One of the whenever ‘space tourism’ involves more than one jur-
reasons why the authors suggest that EASA should isdiction, international law will come into play, and the
adopt a more restrictive approach to space tourism than first question is, which law? Air law? Or space law? To
the FAA is that it issues certificates, whereas the FAA determine this, one of the oldest questions raises its head
issues licences. Certification entails responsibility of the once again: where does air end, and space begin? We will
agency, while licensing leaves the responsibility with the shortly address this issue and will then discuss a few
operator.33 other subjects that are relevant.
Marciacq et al. claim that EASA has no competence for
‘that (very short) outer space part of sub-orbital flight, 4.2.1. The boundary issue
unless it agrees with the States to enforce this responsi- From a strictly legal perspective, there is yet no clear
bility on their behalf’. The paper makes a surprising definition of outer space, or put another way, where (and
observation about the phase of the flight that takes place how) air space ends and outer space begins. While outer
in outer space, by saying that even though, for that part, space activities have continued to develop notwithstand-
space law would apply and the object would qualify as a ing this uncertainty, there are important practical reasons
‘space object’, it would not need to fulfill the requirement why a clear legal distinction between ‘commercial avia-
of registration under the space treaties, because registra- tion flights’ and ‘commercial space flights’36 may become
tion is only necessary for objects launched into an earth more pressing, given the possible advent of space tourism
orbit or beyond.34 The paper recognises that this might activities-particularly involving suborbital flights.
imply that no State has jurisdiction over the object while This is even more appropriate given the fundamental
in space (since the state of registry has jurisdiction and differences between air law and outer space law. The
control), but resolves this by observing that, under Article Outer Space Treaty provides that ‘[o]uter spaceyis not
VI of the Outer Space Treaty, the State would still have subject to national appropriation by claim of sovereignty,
control over the object. We do not believe this is a correct by means of use or occupation, or by any other means’.37
interpretation of the space treaties and would prefer to This also reflects a customary law principle evidenced by
apply one single regime to the entire sub-orbital space the practice of States as early as the launch of Sputnik 1.38
tourism flight, i.e. space law (cf. infra), rather than On the other hand, air law regards air space as part of
having different regimes apply to different phases of the the ‘territory’ of the underlying State. A well-established
mission, and in addition to that, different regimes body of Treaty law confirms that ‘every State has
according to whether it concerns a horizontal take-off complete and exclusive sovereignty over the airspace
concept or one using a vertical rocket launch but above its territory’.39 This is also reflected in customary
otherwise presenting similar mission characteristics. This international law.40 Of course, any space tourist activities
approach would not benefit the legal certainty and
uniformity that are required to sustain the nascent space
35
tourism industry. Regulation (EC) no. 216/2008 of 20 February 2008 on common
rules in the field of civil aviation and establishing a European Aviation
It must be noted that EASA does have the possibility to Safety Agency (OJ L79/1, 19.3.2008), available at: http://www.easa.eur-
exclude certain aircraft from its regulation, under Annex II opa.eu/ws_prod/g/rg_regulations.php#BR, Article 4.4 and Annex II.
36
R. Thomas Rankin, Note, Space Tourism: Pack, Ugly T-Shirts, and the
Law in Outer Space, 36 Suffolk University Law Review 695, 697 (2003).
32 37
International Association for the Advancement of Space Safety, Outer Space Treaty, Article II.
38
http://www.iaass.org/. The EASA paper is titled Accommodating sub-orbital North Sea Continental Shelf Cases (Germany vs.Denmark; Germany v
flights into the EASA regulatory system, by Marciacq et al., downloadable at Netherlands), 1969 ICJ 3, 230 (February 20, 1969) (separate opinion of
www.congrex.nl/08a11/presentations/day1_S09/S09_05_Marciacq.pdf. Judge Lachs).
39
EASA has in fact been approached by (unnamed) potential applicants, Convention on International Civil Aviation 59 Stat 1693 (1947)
which encouraged it to come forward with a proposed regulatory (Chicago Convention), Article 1.
40
framework. See also http://www.flightglobal.com/articles/2008/10/28/ In Case Concerning Military and Paramilitary Activities in and
317902/easas-space-tourism-approach-requires-certification.html. against Nicaragua (Nicaragua v United States) (merits), the International
33
Cf. Marciacq et al., supra note 30, in heading 2.3. Court of Justice noted that ‘[t]he principle of respect for territorial
34
Marciacq et al., supra note 30, in heading 5.2. sovereignty is also directly infringed by the unauthorised overflight of a
 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607 1603

requiring a launch from earth (or an air launch such as Notwithstanding these developments, the threshold
SpaceShipOne) and a return to earth will also involve a question remains, until the issue is determined unequi-
‘use’ of air space. In this respect, the law of air space may vocally, what laws should apply to space tourism in the
be relevant to the legal position. absence of an accepted demarcation between air space
Given the distinction in fundamental legal principles and outer space? Should, as seems to be happening in
between air law and the international law of outer space, Europe, air law apply for part of the journey and space law
it is important to determine what laws apply where. There then be applied at some (as yet undefined) point during
has, over the years, been controversy as to how far air the space tourism activity? Is the case different for
space extends above the surface of the earth,41 with none suborbital flights and for orbital flights? And then for
of the suggested methodologies having been accepted as a horizontal (single or multiple stage) take-off as opposed
legal definition through the UNCOPUOS process. to vertical rocket propelled take-off? Just imagine having
More recent developments in domestic space legisla- to apply two totally different regimes to one suborbital
tion may, however, herald the start of a move towards a flight, depending on where it flies at a certain given
more widely recognised demarcation point.42 This evolu- moment, or how it takes off or lands, and having to apply
tionary process was given significant impetus by the perhaps yet another regime for an orbital flight; this
inclusion of a the definition of ‘outer space’ in a draft would be highly unsatisfactory and impractical.44
document headed Treaty on the Prevention of the Placement Ideally, the development of a comprehensive and
of Weapons in Outer Space, the Threat or Use of Force Against uniform legal regime encompassing the complete launch
Outer Space Objects (PPWT) that had been presented in and return journey of private individuals should be
January 2008 to the 65 members attending the Plenary preferred. However, given the long time needed to agree
Meeting of the United Nations Conference on Disarma- on a new multilateral treaty, this is not a very realistic
ment (CD) in Geneva. The PPWT had been developed by response for the short term and will not solve the
Russia and China, two of the major space superpowers in immediate problems of today’s space tourism entrepre-
the world. An earlier draft had been informally circulated neurs.
the previous June, resulting in comments from a number Therefore, as an alternative, for the interim, we believe
of other countries. The PPWT defines outer space as ‘space that the best approach would be to apply space law to the
beyond the elevation of approximately 100 km above entire orbital or suborbital international flight, simply on
ocean level of the Earth’ (Article I(a)). Apart from the the basis of the proposed function of the vehicle—namely
curious use of the word ‘approximately’—the PPWT should that it involves a flight in(to) outer space.45 However,
perhaps have explained in what circumstances it would not space law does then need appropriate clarification,
be 100 km—this represents a rather revolutionary sugges- perhaps in the form of a code of conduct developed under
tion by two major superpowers, which, along with the the auspices of the UNCOPUOS, as has recently happened
USA, have previously tended to stifle attempts to with the guidelines on debris mitigation.46 Such guide-
designate a formal demarcation, primarily for strategic lines could seek to harmonise the rules governing the
and political reasons. Indeed, it was only a few years ago liability of the operator towards passengers and third
that a Chinese Foreign Ministry spokesperson referred to parties, including limits on that liability, as well as
outer space as the ‘Fourth Territory’.43 provisions to ensure safety, and could be modelled after
air law, which is well equipped in this field.

(footnote continued)
state’s territory by aircraft belonging to or under the control of the
4.2.2. The legal status of space tourists
government of another state’. 1986 ICJ 14, 128 (1986).
41
On 3 December 1976, eight equatorial States signed the Bogotá The existing corpus of international space law does not
Declaration (reprinted in English in 6:2 Journal of Space Law 193 refer to space ‘tourists’, but does contemplate space travel
(1978)), which asserted that, in the absence of any legally determined by ‘astronauts’ and ‘personnel of a spacecraft’. The Outer
upper limit to air space, those segments of the geostationary orbit above Space Treaty does not define an astronaut but stipulates
their territory constituted part of their respective sovereign territories.
This assertion has not been accepted by other States and is not
that they are ‘envoys of mankind’ to which States are
considered to properly reflect international law. required to render ‘all possible assistance’.47 These
42
The Australian Space Activities Act 1998 (Cth) (no 123 of 1998), as obligations are further developed in the Rescue Agree-
amended by the Space Activities Amendment Act 2002 (Cth) (no 100 of ment which, despite the use of the term ‘astronauts’ in its
2002), incorporates a reference to ‘the distance of 100 [kilometers]
title and preamble, refers in its substantive provisions to
above mean sea level’. This was the first example of domestic law that
refers to a specific ‘demarcation point’ for the purposes of applying the rescue and return of ‘personnel of a spacecraft’.48
space-related regulation. Should this approach eventually be extensively Moreover, the Moon Agreement confirms that ‘any
adopted and followed elsewhere, it may represent evidence tending
towards the eventual creation of a new customary international rule. See
44
Steven Freeland, When Laws are not Enough—The Stalled Development of See also Hobe, Goh and Neumann, supra note 20.
45
an Australian Space Launch Industry, 8 University of Western Sydney Law See Bin Cheng, International Responsibility and Liability for Launch
Review 79 (2004). Activities, 20:6 Air and Space Law 297, 299 (1995).
43 46
See Steven Freeland, The 2008 Russia/China Proposal for a Treaty to Report of the Scientific and Technical Subcommittee on its forty-
Ban Weapons in Space: A Missed Opportunity or an Opening Gambit?, fourth session, 2007, A/AC.105/890, Annex 4 at 42; available online at:
forthcoming in: Proceedings of the 51st Colloquium on the Law of Outer http://www.oosa.unvienna.org/pdf/reports/ac105/AC105_890E.pdf.
47
Space, 2009. See for the text of the PPWT, http://www.mfa.gov.cn/eng/ Outer Space Treaty, Article V.
48
wjb/zzjg/jks/jkxw/t408634.htm. Rescue Agreement, Articles 1–4.
1604 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607

person’ on the moon is to be regarded, at least by States be the case with human space travel; however the
Parties to the Treaty (currently 13), as an astronaut.49 enormous costs associated with addressing every foresee-
It is unclear whether a commercial space tourist would able contingency have meant that human space travel
(or should) fall within the ‘envoy of mankind’ status has, to date, involved trade-offs between design and what
accorded to an astronaut. It is, however, probable that are deemed as ‘acceptable’ risks. One thing is certain:
space tourists would constitute ‘personnel of a spacecraft’ accidents will happen.
(after all, they undergo some sort of training), bringing Not only must there be appropriate safety standards
them within the rescue and return obligations of the for the design, construction and operation of a space
Rescue Agreement, which is, after all, desirable in case of tourism vehicle, but a system of responsibility and
an accident, on purely humanitarian grounds—one could liability must be established at the international level-
hardly imagine returning the astronauts and leaving the supplemented by domestic law-to regulate those circum-
tourists behind. stances where, in an international context, a space tourist
Yet, the issue of the legal status of tourists should be suffers injury, loss or damage, so as to remove uncertain-
clarified. In late 2001, the partners in the ISS reached ties and ensure that proper risk avoidance procedures are
agreement as to who was allowed on the ISS. This covered in place.
both ‘professional astronauts/cosmonauts’ and ‘space- In this regard, existing international space law is
flight participants’, which included those on commercial, inadequate. All it does is create a State-based system of
scientific and other programmes, crewmembers of non- absolute liability for damage caused on earth or to aircraft
partner space agencies, engineers, scientists, teachers, in flight, and a similar system of fault liability for damage
journalists, filmmakers, or tourists.50 This can be a useful caused to other space objects in outer space or property or
model for space tourism. personnel on board.53 Although it was contemplated that
‘national activities in outer space’ might be undertaken by
4.2.3. Jurisdiction and control nongovernmental entities, the Outer Space Treaty pro-
The existing international law of outer space deals vides that responsibility will still lie with States. Even
with issues of jurisdiction through a system of registra- though the range of space activities and the number and
tion. Under the Outer Space Treaty, ‘jurisdiction and type of participants has grown exponentially, this remains
control’ over a space object and its personnel ‘while in the position today. States are required to authorise and
outer space or on a celestial body’ is vested in the State continually supervise national activities in outer space
that registers that object pursuant to the Registration undertaken by nongovernmental entities pursuant to
Agreement.51 The definition of a ‘space object’ is, how- Article VI of the Outer Space Treaty. This also reflects
ever, vague.52 Note that although in space law these customary international law and thus binds all States.
provisions are rather vague, in air law, the system of Following on from this ‘State-oriented’ system of
registration of aircraft is well defined. responsibility, Article VII of the Outer Space Treaty,
together with the more detailed regime in the Liability
4.2.4. Safety and liability towards passengers and third Convention, impose an international obligation of liability
parties on the ‘launching State(s)’ for certain specified damage
These are perhaps the two most important legal issues caused by a space object, on a joint and several basis.54
involved. The Columbia disaster again illustrated the This is one of the reasons behind the growing number of
hazardous nature of space travel and reinforced the need national space laws enacted by space faring States, the
for the highest possible safety regulation standards for terms of which pass financial responsibility to private
commercial space tourism. Of course, this should already entities for (at least a part of) the amount of compensation
for which the relevant State may be liable at the
international level.
49
Moon Agreement, Article 10. Even where damage is suffered by individuals, only the
50
See R. Veldhuyzen and T. Masson-Zwaan, ESA Policy and Impend-
relevant State(s) can institute the Liability Convention
ing Legal Framework for Commercial Utilisation of the European Columbus
Laboratory Module of the ISS, in: The International Space Station, procedures. This requires political will on the part of that
Commercial Utilisation from a European Legal Perspective 47, 54–55 State to present a claim to a launching State. To date, no
(F. von der Dunk/M. Brus, (Eds.), 2006). See the document setting out the such formal claim has been made. Space tourists them-
criteria for selection, assignment, training and certification of ISS selves are unable to claim for compensation under the
(expedition and visiting) crew members, prepared by the Multilateral
Crew Operations Panel (MCOP) of the Multilateral Coordination Board
Liability Convention. While they could institute legal
(MCB), ESA/C/IGA-CC(2001)1 of 7 September 2001 and its Annex 4. It proceedings under national laws, there are limitations,
was adopted on 28 November 2001. For the introduction of a distinction such as sovereign immunity, that may represent a bar to a
between different types of crew members, see the ISS Crew Code of
Conduct, ESA/C(2000)14 of 29 February 2000, Annex. At the time of
Dennis Tito, Russia had to agree to take additional insurance in case the
53
‘tourist’ would cause harm; after all tourists are less trained than Articles II and III of the Liability Convention.
54
professional astronauts and the chance of something going wrong is not Article 1(c) of the Liability Convention defines a launching State
unthinkable. as follows: ‘(i) a State which launches or procures the launching of a
51
Outer Space Treaty, Article VIII. See for an extensive overview of space object; (ii) a State from whose territory or facility a space object is
this issue, Blount, supra note 23. launched’. For a discussion of the terms of the Liability Convention, see
52
Article I(b) of the Registration Agreement provides that a space Steven Freeland, There’s a Satellite in my Backyard!—Mir and the
object ‘includes component parts of a space object as well as its launch Convention on International Liability For Damage Caused by Space Objects,
vehicle and parts thereof’. 24 University of New South Wales Law Journal 462 (2001).
 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607 1605

claim for compensation.55 In addition, given the private there have already been calls from a leading commentator
contractual nature by which most space tourism activities for a limited liability regime to be introduced for
will operate, it is likely that carefully drafted exclusion of launching States.59 Some may argue that space tourists
liability clauses, or some other contractual provision voluntarily accept the inherent risks associated with
analogous to the well known ‘cross waiver’ regime that space travel and that liability should therefore be limited.
generally applies to current commercial space activities, Whatever the final form of the regime, the existing
would be invoked. rules of space law, which rely solely on State responsi-
It is preferable that, in addition to relevant domestic bility and liability, are not entirely appropriate for an
legislation, a uniform and comprehensive regime for industry that will principally be undertaken as a private
passenger liability arising from space tourism activities commercial venture. A new Treaty may be required to
be developed at the international level. These rules should establish a system of liability that attaches to those
allow for direct claims by private passengers and operate private operators conducting space tourism activities. This
from the launch until the return to a final destination. Of new regime must also address third party liability.60 This
course, third party liability should also be regulated. will also necessitate the development of an adequate
It will be necessary to determine exactly how this new space tourism insurance market.
liability regime allows for effective private remedies. A
starting point would be to consider not only the provi- 5. Some ethical considerations
sions of the Liability Convention, but also the interna-
tional regime established in relation to liability for death Even if we assume that the expansion of our universe
or injury of passengers during commercial air travel. In (quite literally) through space tourism is a positive,
doing so, however, it must be remembered that the almost inevitable direction for humankind, it is not only
regime for the airline industry was structured specifically the ‘hard law’ provisions that require reassessment. There
to meet the peculiarities of that industry and, in any are complex ethical questions relevant to the direction of
event, experience has shown that it would not necessarily future developments of international (and national) space
be an ideal model for the unique characteristics and law, particularly as they apply to space tourism. A number
enormous costs associated with space tourism.56 of these are briefly raised below, although the authors
A consideration of both legal regimes immediately acknowledge that this is an area to be considered in far
gives rise to some fundamental questions. Should space greater detail than the confines of this article will permit.
tourism activities be subject to absolute liability, as is the
case for certain damage caused by a space object under
5.1. What are ‘appropriate’ space tourism activities?
the Liability Convention,57 or be based primarily upon
principles of negligence, as exists under the international
The ISS represents a first example of humankind’s
law of air space, although this may be a difficult concept
efforts to make the space environment part of its domain.
to ‘prove’ in many instances? Similarly, should the
The evolution of space tourism activities will not only
quantum of the liability be unlimited, as is the case under
make space more accessible to human beings, but will
the Liability Convention, or is it appropriate to prescribe
also reinforce this constant human presence in outer
upper limits of liability as specified in the Montreal
space. This is not of itself incompatible with the provi-
Convention?58 On the question of unlimited liability,
sions of the Outer Space Treaty, provided that the rules
regulating such activities ensure that the concepts set out
in the Treaty are properly protected.
55
In relation to the issue of sovereign immunity in United States In this regard, many questions arise that will influence
courts in respect of claims under the Federal Tort Claims Act, 28 USC yy
the way the international law of outer space should
1346(b), 2671–80 (1994), see Lauren S.-B. Bornemann, This Is Ground
Control to Major Tomy Your Wife Would Like to Sue but There’s Nothing regulate future space tourism activities. For example,
We Can Doy The Unlikelihood that the FTCA Waives Sovereign Immunity what types of space tourism ‘activities’ are ‘appropriate’?
for Torts Committed by United States Employees in Outer Space: A Call for
Preemptive Legislation, 63 Journal of Air Law and Commerce 517 (1998).
56
The limitation of liability has meant that claimants are often (footnote continued)
tempted to sue aircraft manufacturers instead, in an attempt to obtain a liability, by providing that the carrier was liable for the full amount of
higher level of compensation: Malcolm N Shaw, International Law 470 the damages, unless it could demonstrate that it was not negligent or
(Cambridge 5th ed. 2003). that a third party was solely responsible for the damage: Montreal
57
Article II of the Liability Convention provides that ‘[a] launching Convention, Article VI. See also Shaw, note 54 above at 471.
59
State shall be absolutely liable to pay compensation for damage caused See, for example, International Law Association, Report of the
by its space object on the surface of the earth or to aircraft in flight’. Seventieth Conference 209 (April 2002) (comment of C.Q. Christol).
60
However, if the damage is caused ‘elsewhere than on the surface of the The Rome Convention on damage caused by aircraft to third
earth’, liability only arises where the damage is due to ‘fault’ by those parties on the surface, 310 United Nations Treaty Series 181 (1952), and
responsible for the space object causing the damage. Id, Article III. the Montreal Protocol of 1978, deals with third party liability in respect
58
The Warsaw Convention of 1929, as amended, provides for upper of commercial air activities. It is intended ‘to ensure adequate
limits for liability in relation to the carriage of passengers and of baggage compensation for persons who suffer damage caused on the surface by
and cargo as well as dealing with areas of responsibility and insurance. foreign aircraft, while limiting in a reasonable manner the extent of the
Article 20(1) exonerates the carrier from liability where it or its servants liabilities incurred for such damage in order not to hinder the
and agents ‘have taken all necessary measures to avoid the damage or development of international civil air transport’. However the Rome
that it was impossible for him or them to take such measures’. The Convention is not widely ratified because of its low limits and its
Montreal Convention of 1999 was designed to supersede the Warsaw relevance is negligible. In most cases, national law will determine the
Convention and removed the system of arbitrary limits on air carrier compensation to third parties on the ground.
1606 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607

Should there be any restriction on the nature of these pristine areas. The control of human activities like
activities to preserve the ‘integrity’ of outer space? On littering would cost relatively little in dollar terms to
what basis, if any, should these restrictions be deter- regulate. It is imperative that this is done to minimise
mined? Would it be acceptable, for example, to allow disruption to the space environment.65
advertising billboards to be constructed, or casinos or
even brothels to be established on the moon to cater to 5.3. Protection of ‘heritage sites’ in space
space tourists? How do space tourism activities correlate
with the underlying philosophy of international space As well as protecting the space environment from
law, namely that the exploration and use of outer space pollution, it is also appropriate to consider important sites
‘shall be carried out for the benefit and in the interests of in outer space that are (and will be) historically
all countries’ and that they ‘shall be the province of all significant. Legal regulation will be required to provide
mankind’?61 for ‘heritage sites’ in order to protect particular areas, such
As the capability of space-related technology advances, as the site of the first lunar landing by humans, from
these qualitative questions must also be addressed in accidental or deliberate damage by space tourists.66
order to prioritise those activities that most closely accord An even more complex issue, whose heritage space is,
with the overall goals associated with humankind’s will need to be reassessed in the future. How should we
ongoing endeavours in space. regard human inhabitants of future space colonies,
particularly those born and who live their entire lives in
5.2. Pollution of the space environment outer space, perhaps in a settlement on the moon? What
are their rights and how do they relate to (or differ from)
The protection of the natural environment of outer those international legal rules for outer space that have
space is an important element of the ‘province of all evolved on earth?
mankind’ philosophy. The international law of outer space These are, obviously, difficult questions and will not
makes some reference to environmental protection, arise in the near future, though they represent important
though these provisions are neither sufficiently detailed elements in the overall planning of an appropriate
nor rigorous when compared to UNCLOS.62 The main international legal regime for human activities in outer
provision concerning environmental protection in the space, including space tourism. It will be important to
Outer Space Treaty (Article IX) is ill defined and imposes develop comprehensive and universal ethical standards
only minimal obligations on States. In addition, there is and practices to deal with the continued utilisation of
currently no definition of ‘space debris’ under interna- space in this way.
tional space law and thus no mechanisms to regulate it.
Relatively little has been done to tighten the legal 6. Concluding remarks
requirements relating to the environmental protection of
outer space, principally due to the significant costs The corpus of existing space law represents an
associated with ‘clean’ space technology and practice. important base from which to develop the legal tools to
Nevertheless, progress has recently been made with the properly regulate the next stage of space activities. Yet it
agreement on debris mitigation guidelines within the is not sufficient even for present purposes, let alone for
UNCOPUOS Scientific and Technical Subcommittee and the coming decades. The advent of space tourism raises
the IADC guidelines a few years earlier.63 many unanswered legal questions, some of which have
Space tourism activities will inevitably result in great- been highlighted in this article. Other legal issues will also
er pressures on the environment of earth—there are arise. As more space tourism (and other) activities take
claims that space tourist vehicles will one day become the place, appropriate dispute resolution procedures must be
world’s primary source of carbon dioxide emissions64— agreed to deal with conflicts that will inevitably arise,
and of space. They will lead to the pollution of previously both at the public and private international law level.
Detailed traffic management systems must be developed.
61
Outer Space Treaty, Article I.
62
The United Nations Convention on the Law of the Sea (UNCLOS) (footnote continued)
provides for an express obligation to protect the marine environment www.guardian.co.uk/environment/ethicallivingblog/2009/may/18/tra-
and facilitates this in relation to the high seas by providing for port-state vel-and-transport-carbon-emissions.
65
jurisdiction over pollution offences; see UNCLOS part XII, in particular The parties to the Antarctic Treaty have concluded a Protocol
Section 6. which, in part, imposes a ‘polluter pays’ regime. This will also be applied
63
Supra note 44. in relation to the 30,000 tourists to the region each year: Deal Reached on
64
George Monbiot, Lost in Space, The Guardian (November 13, Making Polluters Pay in Antarctica, Terra Daily (June 17, 2005), at http://
1999), available at: http://www.monbiot.com/archives/1999/11/13/los- www.terradaily.com/news/antarctic-05h.html. Indeed, commercial lu-
t-in-space/. He says on space tourism: ‘It is hard to think of a better nar efforts have the potential to interact with artifacts from the first era
designed project for maximum environmental destruction’. See also of lunar exploration and legal guidelines may be needed. The issue of
http://www.guardian.co.uk/environment/blog/2009/may/11/trave- protection of special regions is gaining scientific attention, for instance
l-and-transport-carbon-emissions, where space tourism is called ‘‘one of within COSPAR. See http://www.space.com/scienceastronomy/080725-
the most extravagant and self-centred uses of a fossil fuel imaginable’’. google-xprize.html.
66
In a reply, Virgin Galactic states that their concept results in ‘‘a very Article 7(3) of the Moon Agreement allows the designation of
low-energy and low environmental impact approach to getting humans, areas of the moon and other celestial bodies having ‘special scientific
scientific payload and eventually even small satellites into space’’ and interest’ as ‘international scientific preserves for which special protec-
will lead to an overdue industrial revolution in space, see http:// tive arrangements are to be agreed upon’.
 T. Masson-Zwaan, S. Freeland / Acta Astronautica 66 (2010) 1597–1607 1607

A comprehensive legal framework must be established at time. Should we adopt this ‘efficiency’ approach to the
the international level to reflect the wishes of the wider exploitation of outer space—doing it as quickly as we can,
(global) community and to provide certainty. irrespective of the longer-term consequences?
At the same time, however, the broader philosophical Or, rather, should our future activities in outer
and ethical aspects of human activities in outer space, space—and ultimately on earth—be considered and
indeed the place of human beings in the universe, demand measured, taking into account the differing expectations
that we continually reassess the why and what in relation and capabilities of the various countries on earth.
to our ongoing exploration and use of outer space. In this way, how we adapt to the rapidly developing
Moreover, just as our use and exploration of outer spheres of space-related technology will be important not
space is impacted by terrestrial concerns—including only for outer space itself, but also (possibly) for future
economics, politics, social and fundamental human rights generations living on earth. Outer space belongs to all of
—it also serves as a model for our future activities on earth us. Our use of it should reflect underlying notions of
as well. There are many lessons that we can learn from our cooperation and shared benefit, which must remain as
(over)exploitation of the earth’s natural resources, our cornerstones in this next phase of human achievement.
thirst to have the biggest and best in the fastest possible Perhaps also this will shape our future life on earth.