AN OVERVIEW OF SPACE TOURISM AND LEGAL LIABILITY ISSUES
Click to View Full-Size Image Space tourism, once reserved for science fiction novels and movies is becoming increasingly more of a reality. Companies such as SpaceX, Blue Origin and Virgin Galactic have worked to establish commercial spaceflight — a future that’s no longer light-years away. But of course, with this new frontier comes a bag of legal worms — namely who is responsible if someone gets run over out there? The limits of human activity stretch into outer space, and with them, the current legal frameworks are being challenged as well as new rules to meet specific needs that arise from a practice like tourism.
The liability issues arise in many forms when it comes to space tourism. This includes not only the statutes and rules of individual nations applicable here on Earth but also international agreements that regulate conduct throughout outer space. The central legal document outlining these rules is the 1967 Outer Space Treaty, which sets a framework for space activity but was not intended to address commercial space tourism. This begs the question as to whether it is even wide enough in volume and scope to solve all of the indemnity issues that arise when space tourists have an accident.
Additionally, space tourism is the first to offer an array of hazards and uncertainties that are unaccounted for in most present contractual forms. It cited risks such as catastrophic accidents during lift-off or re-entry, and the dangers posed by long-term exposure to the space environment. Therefore, the question of who would be at fault if a self-driving car causes an accident necessitates a consideration of all types of factors including responsibilities and obligations that fall on different parties involved in legal contexts as well as aspects related to how the crash happened.
LEGAL REGIME FOR SPACE TOURISM AND LIABILITY.
The legal regime governing space activities is essentially based on international treaties and conventions, essentially the Outer Space Treaty, 1967,[1] the Liability Convention, 1972,[2] and the Registration Convention, 1976.[3] Though these treaties had provided a framework for regulating activities in space, they were drafted in the Cold War era and mostly focused on state-sponsored activities. As such, they do not specifically address the issues related to commercial space tourism, which has only recently emerged as a viable industry.
The Outer Space Treaty, which most spacefaring nations are signatories to, established basic principles for the use and exploration of outer space. Under Article VI of the OST, ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities’.[4] This thus entails that within the context of space tourism, the state from which spaceflight is launched is responsible for the activities of private space companies operating within its jurisdiction.
However, it does not provide how liability shall be addressed in case of an accident accruing to the space tourist. It is concerning this that the Liability Convention applies. The Liability Convention enumerates the regime that may be applied regarding the liability for damage accruing from space objects. Under this convention, a launching state shall be held liable for damage caused by its space objects on the surface of the Earth or to aircraft in flight, and liable for damage caused elsewhere, such as in outer space, if the damage is due to its fault or the fault of persons for whom it is responsible.[5]
Again, on space tourism, the question arises as to who will be liable in the event of an accident and how the liability can be ascertained. If a space tourist is injured during a commercial spaceflight, who will then be liable for the damages: the launching state or the private company operating the spacecraft? Answers to these questions will not be straightforward and will be based on the facts that pertain to each single accident and the laws that govern such liability. Regarding determining the liability, one of the greatest challenges facing space tourism accidents is fault. Liability, by tradition, is based on fault in general aviation law. The one who caused the accident will be liable for the damage done. In space tourism, however, the assignment of fault may be extremely difficult due to some peculiar risks and uncertainties that characterise space travel. For instance, in the case of malfunctioning because of a technical fault not able to be foreseen or controlled by the operator, it would be difficult to establish a fault.
While the liability regime, established by the Liability Convention, is triggered by damage caused by space objects—like satellites or spacecraft—it takes little regard for personal injury or death arising from space tourism activities. There is hence a question of the applicability of the Liability Convention to space tourism accidents and whether further legal frameworks are required to tack specific risks associated with this new industry.
In addition to these international agreements governing space tourism and laying down provisions for liability in the event of an accident, there are also national laws. To this day, many countries with active space programs—in fact, all of them, including the United States—have put in place domestic legislation designed to regulate commercial space activities. For instance, the Commercial Space Launch Act of the United States requires space tourism companies to have a license from the Federal Aviation Administration and insurance liability coverage in case of an accident.[6]
However, national laws vary, and the approach to regulating space tourism within specific jurisdictions lacks uniformity. This could present a dilemma for space tourists who do not know which jurisprudence and safeguards to apply, particularly when they fly with a company from another country. In addition, due to the international nature of space tourism, accidents could include multiple jurisdictions, making it even more difficult to determine liability in case of an accident.
CONCLUSION AND THE WAY FORWARD.
One of the possible ways to deal with these challenges is to develop a fully-fledged international legal framework for the unique risks and challenges of space tourism. The latter would provide for the determination of liability in case of an accident, establish a mechanism for control over space tourism activities, and ensure due protection for space tourists. The likelihood of reaching such a framework at an international level may, however, be at stake due to the diverging interests and priorities of countries involved in space activities.
Space tourism companies are beginning to address the issue of liability, although adequately developed provisions in this regard are absent from the international legal framework. These provisions tend to come through customer contracts, typically in the form of a responsibility waiver, whereby space tourists waive the right to sue a company in the event of an accident. Such waivers, therefore, can, in essence, provide some protection for the company, based on enforceability in the jurisdiction; therefore, in practice, may not be able to effort meaning shield from liability in all situations.
The waivers of liability also raise very crucial ethical issues insofar as they should demand that space tourists be liable for the hazards of taking a space journey. While the visitors to space would be undoubtedly exposing themselves to very high risks, there is a very strong argument to put some responsibility on the companies involved to make sure that the visitors are safe. This is especially the case because of technical challenges and challenges entwined with the uncertainty of spacing travel, and it will, in every essence, be impossible for the tourists themselves to understand the risks they would be taking.
In other words, there is now the challenge of liability for space tourism accidents, which may be considered a complex and emerging part of the law that shall be based on many factors. Existing international treaties and national legislation have laid down principles to conduct space activities, but they were not designed for commercial space tourism and may be inadequate for meeting new challenges posed by this sector. To be the most specifically prepared for development in space tourism, governments will need to specify and put in place clear, concise rules on liability determination in case of an accident that is sufficient to protect the space tourist and help the industry achieve growth safely and sustainably.
Author(s) Name: Suhani Jain (Faculty of Law, Jagran Lakecity University, Bhopal)
References:
[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205
[2] Convention on International Liability for Damage Caused by Space Objects (adopted 29 November 1971, entered into force 1 September 1972) 961 UNTS 187 (Liability Convention)
[3] Convention on Registration of Objects Launched into Outer Space (adopted 12 November 1974, entered into force 15 September 1976) 1023 UNTS 15 (Registration Convention)
[4] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty) art VI
[5] Convention on International Liability for Damage Caused by Space Objects (adopted 29 March 1972, entered into force 1 September 1972) 961 UNTS 187 (Liability Convention) art II
[6] US Commercial Space Launch Act 51 USC §50901 et seq.
