SpaceShipTwo, the space vehicle designed for Sir Richard Branson’s space tourism venture, Virgin Galactic, is a step closer to its first commercial space flight after a successful series of high altitude test flights in 2010. The company has also entered an agreement to take scientists into space for the purpose of conducting low-gravity experiments. Commercial flights could commence as early as next year. This means that the legal issues confronting suborbital space tourism, considered fanciful not too long ago, are now very real.
SpaceShipTwo attached to the mothership, White Knight: Virgin Galactic.
A spaceport is presently under construction in New Mexico, USA where Virgin Galactic will launch operations. The spaceport will double as a training centre for space tourists, of which there are presently ‘several hundred’ signed up to experience space for $200,000 each. SpaceShipTwo will be ferried to a height of 50,000ft (15km) by a purpose-built, conventional aircraft: the Virgin MotherShip (“White Knight”). Once released, the ship’s rocket will propel it to a maximum altitude of 110km and passengers will experience weightlessness for a number of minutes before re-entry into the earth’s atmosphere.
Preliminary complications with the law occur in identifying whether SpaceShipTwo will be an aircraft, spacecraft, or both.
A “space object”?
First, it is necessary to characterize the term “suborbital”. A suborbital flight is one which reaches an altitude of approximately 100km but does not attain enough speed to remain in orbit (“orbital velocity”). As a comparison, low earth orbit satellites typically orbit the earth at an altitude of 200 to 1500km. This raises a problem: at what altitude does space begin? While there is no international agreement on the delimitation line between air and outer space, there is support in some jurisdictions for demarcation at 100km above mean sea level. This is the approach Australia has adopted (Space Activities Act 1998, s 8).
Therefore, as things presently stand, a suborbital space launch from an aircraft will necessarily involve a transition from “air” to “space”. It certainly seems clear that space law will be engaged; whether or not the whole journey of the spacecraft module, SpaceShipTwo, should be considered an outer space flight is not so clear.
Some academics contend for a practical approach, that is, apply space law to SpaceShipTwo from the moment it launches from the mother ship to the moment it touches down. But this application is not without difficulties. Article I(b) of the Registration Convention states that ‘[t]he term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof’ (Convention on the Registration of Objects Launched into Outer Space). But the term “space object” is largely undefined.
Consequences – regulation and liability
The consequences of this important clarification include registration under the Registration Convention which requires a space object to be registered. Article VIII of the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) provides:
“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”
In the US, the Federal Aviation Administration (FAA) issued applicable regulations in 2006 (Human Space Flight Requirements, 70 Fed Reg 75643-45). These cover flight crew qualifications and training (both of crew and participants), cabin environment control and life support systems, flight testing, providing information on risks to participants, and security. Additionally, there are licensing requirements for the organisation and each member of the crew and space flight participant must sign a waiver of claims against the FAA and Department of Transport. Whether or not these broad waivers will be enforceable remains to be seen, especially in the event of negligence by the operator.
Passenger and third party liability is critical to operators. An immediate problem with the applicability of the Montreal Convention is that it refers to the international carriage of persons by aircraft (Convention for the Unification of Certain Rules for International Carriage by Air). At this stage Virgin Galactic’s flights will be completed within the US. Hobe, Goh and Neumann note, however, that ‘this may in practice not create much of a problem’ because national air laws should be in conformity with the Montreal Convention (Stephen Hobe, Gerardine Meishan Goh and Julia Neumann, ‘Space Tourism Activities – Emerging challenges to Air and Space Law?’ (2007) 33 Journal of Space Law 359, 368).
As far as liability for the space component of the voyage is concerned, the Liability Convention clearly makes a “launching state” liable for various forms of damage, but it does not extend to commercial passengers (Convention on International Liability for Damage Caused by Space Objects). The Commercial Space Launch Activities code requires a licenced company to obtain insurance to compensate for claims by third parties and claims against the US government (49 USC § 70112 (2004)). This national legislation endeavours to fill the void in uncertainty in liability for space tourism.
The Rome Convention will apply to damage to third parties on the surface caused by the “aircraft” (Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface). As soon as space law applies to the object, the Liability Convention will be invoked. It specifically excludes liability for damage caused to the nationals of the launching state (Art VII). Nonetheless the US legislation requires licensed companies to demonstrate financial capacity to pay third party claims and does not appear to restrict third party rights.
The legal status of persons aboard a commercial space flight is unknown and may have critical implications for rescue operations (especially in respect to the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space).
The uncertainty surrounding many legal issues in suborbital space tourism compounds difficulties for insurers and legislators alike. Although the US has taken significant steps to set up a legislative regime for space tourism, many important questions remain unanswered such as the delineation between space object and aircraft for suborbital launches. Safety must always be prioritized in space flight; however, the importance of the law in protecting space tourists, third parties, and states cannot be overlooked.
For further information, see Steven Freeland, ‘Fly me to the moon: How will international law cope with commercial space tourism?’ (2010) 11 Melbourne Journal of International Law 90 and the Virgin Galactic website: http://www.virgingalactic.com/.