2021 was a significant milestone for space tourism. In July of that year, two leading industry figures, Sir Richard Branson (Virgin Galactic) and Jeff Bezos (Blue Origin) completed suborbital flights, along with a handful of 'space tourists'. In September, SpaceX launched Inspiration4, the first all-civilian mission, which orbited Earth for three days before returning home. In April 2022, Axiom Space and SpaceX completed the first all-private astronaut mission to the International Space Station.
As the space race expands into space tourism, consumer demand continues to fuel space travel. A survey conducted by Cowen in 2020 found that 39% of individuals with a net worth of more than USD 5 million were interested in and willing to fly to space at a cost of USD 250,000 or more, and of those interested, 78% expressed an interest in going more than once.
In January 2022, it was reported that Blue Origin had already sold nearly USD$100 million worth of space-travel tickets and in May 2022, Virgin Galactic reported that the demand for tickets remained consistently strong in the first quarter, with 800 future space travel reservations booked.
For those that cannot yet afford the high-priced ticket for orbital or sub-orbital space travel (starting at USD 250,000 a ticket), there are lower-cost alternatives emerging, such as World View's and Space Perspective's space-ballooning experiences that bring space tourists to the edge of space (ranging from USD 50,000 to USD 125,000 per ticket). It seems safe to say that space tourism is an industry that's here to stay and is due to shape the future of tourism as space technology advances and new, lower-cost alternatives become more accessible.
Although the horizon looks bright, these opportunities raise a number of complex legal questions with regard to the regulation of space tourists, their safety and protection, and issues of contract and liability faced by the industry.
Regulating space tourism
International and domestic civil aviation laws set out clear consumer protection and regulatory frameworks within which traditional airline carriers and travel agencies must operate. However, it remains unclear whether all aspects of space tourism will fall under these rules, or under outer space laws instead. For example, as Louis de Gouyon Matignon queried in his 2019 article, should hybrid space vehicles qualify as traditional airplanes governed by civil aviation rules, or should they be deemed space vehicles regulated by international space law and conventions?
The classification of aircraft vehicles often turns on the altitude at which the craft travels and the material it uses to travel. Traditional commercial aircrafts often travel through both the troposphere and stratosphere (but never higher) and are often defined as any device that can support itself during travel through these layers of Earth's atmosphere. By contrast, space vehicles often use rockets for a vertical thrust and travel high into the Earth's atmosphere and can penetrate all the way to the exosphere.
The significance for safety and protection purposes is that it remains unclear at what point space tourists will be covered by civil aviation laws as opposed to international space law: at what point does protection under civil aviation end and space law begin, if at all? What happens if there is an accident on-board a space vehicle while the craft is still in the troposphere: would civil aviation laws apply? What about vehicles that resemble winged space vehicles but are carried to a certain altitude with the assistance of a commercial aircraft and then engage their own rocket engines to accelerate into sub-orbital or orbital travel?
The answers to these questions will assist commercial entities to have a better understandig of the applicable regulatory framework and what guidance to follow, should any issues arise.
Astronaut, customer, or space tourist?
Another key consideration is whether customers or space tourists would be considered as 'astronauts' or 'personnel' for the purposes of the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement). The Rescue Agreement, currently ratified by 98 Nation States, requires any contracting State that becomes aware of any distress of "personnel of a spacecraft" to provide all possible assistance to rescue and assist those in distress and return them to their launch country. The question that follows is whether space tourists fall within the definitions of 'astronaut' or the 'personnel' of a spacecraft.
Under international public law, the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), 'astronauts' are defined as "envoys of mankind in outer space" and according to international space policy, normally carry out professional activities while exploring outer space or celestial bodies.
Under domestic laws different names have been used, often depending on the space vehicle that is used to travel into outer space; for example, America has traditionally used the popular term 'astronaut', but has recently begun using 'space flight participants' in domestic legislation; while Russia traditionally uses 'cosmonaut'; China uses 'taikonaut'; European countries refer to 'spationaut'; while some African countries use 'afronaut'. Additionally, private companies have recently coined the term 'touronaut' to distinguish space tourists from astronauts.
Although the diverse nomenclature is welcome from the perspective of international relations, these varied ways of defining a human being travelling into space create further uncertainty from a legal perspective as it brings into question whether commercial entities launching individuals into space will benefit from the protection granted to 'personnel of a spacecraft' launched by Nation States under the Rescue Agreement; and whether their customers would be deemed as 'astronauts' under the Outer Space Treaty and afforded protections under that Treaty. These differences in terminology also bring into question what protection would be afforded to a space tourist who suffers incidents of distress, either mid-flight in Earth's atmosphere or in any emergency situation on Earth, pre or post-flight; not to mention issues around who is responsible for providing assistance under international conventions, like the Rescue Agreement.
Contractual liability for space travel
What about the contract between the space tourist and the entity offering space travel? Under American law, the Commercial Space Launch Amendments Act of 2004 and the Federal Aviation Administration's (FAA) Human Space Flight Requirements for Crew and Space Flight Participants govern space tourism and set out the general requirements for acceptable levels of safety to which commercial entities must adhere and the required qualifications for crew operating the space vehicles. Both legal texts refer to the need for space participants to give "informed consent" to all known hazards and risks of the spaceflight activity, which mitigates the liability of these commercial entities.
The State of New Mexico, which is home to budding space tourism companies, as well as other US States such as Virginia, have also recently passed legislation which prevent participants in space tourism (and their representatives) from pursuing legal action against any space tourism entity for loss, damage or death resulting from any risks that are deemed to be inherent to spaceflights.
Similarly, in the United Kingdom, launch operators carrying out space-faring activities will not face unlimited liability if they have acted in compliance with the Space Industry Act 2018 and have been compliant with the conditions set out in their licence (which may also contain an express limit of liability). There therefore appears to be a move towards capping the liability of commercial space entities facing legal action from space tourists, provided such entities have adhered to certain conditions and government guidelines.
A legal launchpad
As international negotiations continue to try and establish a conclusive demarcation between airspace and outer space, and ‘space tourist’ remains an unharmonised and ambiguous term, legal uncertainty remains as to which laws space tourists can turn to in order to seek protection or assistance. Although current international space treaties and conventions are a helpful starting point, new multilateral agreements and harmonised domestic laws are needed immediately to address some of the issues, as commercial entities continue unabatedly to innovate and make significant strides towards bringing humanity into outer space.
