Houston, we have a problem: a call for alterations to space law in light of space tourism run by private enterprises
Technology is rapidly changing and space tourism will soon become a reality [1]. In 2021, a privately owned company- SpaceX- is going to send its first spacecraft with passengers on-board for purely commercial purposes [2]. Over the past decade, space law has been associated with governmental activities due to its main regard to nations, not private entities [3]. However, this could be the source of numerous issues. Therefore, there remains the need for a reassessment of current space law to adjust to the rapid shift from public to private space investments. This could be achieved by amending the international space law because treaties, which are main source of international law, are powerful tools [4] ‘to create legally binding rules’ [5] that can apply to space activities.
The first issue to consider is the lack of a clear legal definition which would draw the line between airspace and outer space. Despite many attempts, the United Nations Committee for the Peaceful Use of Outer Space has not been able to make the States agree on this dilemma. This is because many nations wish to protect the sovereignty of their territories. Thus, if there are no laws differentiating the airspace and outer space, will a private company be obliged to follow aviation law or space law? Hobe points out that any space activities between 80 km and 110 km are the most controversial [6]; which law would be applicable if space tourism took place within that range is thus disputable. This is a significant issue because space tourism is meant to operate approximately 100 km above the ground [7].
The second problematic area is whether the passengers can legally be regarded as astronauts. This is because international space law does not provide any definition of an astronaut [8]. Article 5 of the Outer Space Treaty makes clear that astronauts must be given ‘all possible assistance in the event of accident, distress, or emergency landing on the territory of another State party or the High Seas’ [9]. However, it seems unlikely that this will apply to passengers in the context of space tourism. Without this clarification, the rights and obligations of passengers in space will be difficult to determine.
If space tourism is to be regarded as safe and reliable by individuals other than astronauts, then it is time for international space law to step in and provide treaties which all States can comply with. Otherwise, the future of this industry might lay on shaky fundamentals.
Josh Andah, ‘Space tourism has become a reality thanks to startups’ (The Tartan, 6 March 2017)<https://thetartan.org/2017/3/6/scitech/wordview> accessed 15 November 2020.
Sean O'Kane, ‘SpaceX will send three tourists to the International Space Station next year’ (The Verge, 5 March 2020) <https://www.theverge.com/2020/3/5/21166657/spacex-tourists-iss-international-space-station-orbit-falcon-9-dragon> accessed 16 November 2020.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST) [1967] Art 1
Anders Henriksen, International Law (2nd edn, OUP 2019) 23
Bin Cheng, Studies in International Space Law (Oxford Scholarship Online 2012) 642