Space Tourism & Its Legal Implications
B.A LL.B V Sem.
Univ. of Petroleum & Energy Studies
Space tourism, as it involves a huge amount of money will be new trend in the business industry. Space is a place which belongs to no country, but when it will be used for commercial purpose then every step is required to be regulated. It is assumed that when the space tourism industry finally takes off there will be legal issues that will need to be addressed first. Disclaimers and releases will need to be signed by participants deciding to hurl themselves into space. But, there is also a question of law in outer space, such as if someone breaks the law or is thought to have broken the law, who decides guilt or innocence? For instance, if a Russian spacecraft is passing over the United States when an alleged crime occurs, whose jurisdiction is it? If a space plane collides with a satellite who has the right of way? Since space tourism is such a new endeavor, these international legal questions regarding the proliferation of humans in space have not yet been worked out. But, they will need to be worked out since the space tourism is set to commence in a couple of short years.
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 ever since 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. For this purpose there should be Governmental support to the Private Players.
Private enterprises first of all have to conform with their respective national law and after that with the international regulations, since international interests are touched.
Existing Space Laws:-
Outer Space Treaty, Liability Convention, Moon agreement and rescue agreement are the major convention and treaties which govern the International space law. When these were created and went into force, nobody would have wasted a thought about direct private activities in outer space. 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. 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 and this counts as well for non-governmental entities. 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. In my point of view, 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. It should be noted that environmental questions are not part of the Liability Convention so that damage caused to outer space is not covered.
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 . The first option would infringe with several other legal rules (in India e.g. with Art. 19(1) (f) of the Indian Constitution - Freedom of profession) 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 legislation for commercial activities in outer space and to ensure that states supervise the outer-space-activities of their governmental organizations or private enterprises.
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 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 with environmental standards.
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. 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.