Mission to Space – an Interesting read by Jennifer

An evaluation of the current law governing Commercial Space Tourism and exploration in the UK

 by Jennifer Arkell

Paralegal

Contents

  1. Abbreviations
  2. An introduction to space law
  3. A brief history of the UK space industry
  4. Key issue: vertical sovereignty
  5. Key issue: the principle of non-appropriation
  6. Space tourism
  7. An assessment of current space law in the UK
  8. The Outer Space Treaty 1967
  9. The Outer Space Act 1986
  10. The Space Industry Act 2018
  11. International liability for space tourists
  12. Law governing commercial space flight in the UK
  13. European space law and potential issues that impact upon UK commercial space flight
  14. Licences and the impact of the Space industry Act 2018 on space tourists
  15. Consent
  16. The Chicago Convention 1944
  17. Conclusion
  18. Bibliography

Abbreviations

CST: Commercial space tourism

ESA: European Space Agency

OSA: The Outer Space Act 1987

UKSA: United Kingdom Space Agency

OST: The Outer Space Treaty 1967

SIA: The Space Industry Act 2018

SS: Secretary of State

CC: The Chicago Convention

ICAO: International Civil Aviation Organisation

EASA: European Union Aviation Safety Agency

An introduction to space law

Exploration of space is purported to be for the benefit of all humankind. The peaceful cooperation we’ve so far enjoyed is unlikely to survive when space travel becomes economically attractive. It cannot be ignored that so far, only four countries can be considered to be ‘spacefaring’, which naturally encompasses extraordinary financial investment. The prospect of commercial space tourism (CST) provided mainly by private companies led by unfathomably wealthy individuals, seems a daunting one with glaring issues of competition law, and a tremendous step into a new world of potentially unlimited resources to plunder.[1] Considering the UK’s involvement in the European Space Agency (ESA) and the UK’s huge contributions to the space industry, how will the imminent launch of CST craft by the likes of SpaceX affect the laws governing space in the UK and internationally?

A brief history of the UK space industry

British involvement in outer space activities began in 1933 with the founding of the British Interplanetary Society; to ‘promote the exploration and use of space for the benefit of humanity’.[2] Driven by technological advances of WW2, the British Space Program was initiated by the government, with the first British satellite launched in 1962, Ariel 1. The Outer Space Act 1986 (OSA) followed the founding of the British National Space Centre in 1985 (later replaced by the UK Space Agency (UKSA), which combined a myriad of pre-existing bodies for UK space activities in 2010).

Key Issue: vertical sovereignty

A notable legal issue of space is where, and if, national sovereignty of airspace ends. Presently there’s no consensus as to where the limit lies; in the Paris Treaty 1919, sovereignty of airspace was determined to be absolute, but this was dismissed during WW2.[3] As space exploration becomes more common, this issue will necessitate consensus to facilitate international cooperation. However, it’s generally accepted that above 110 km is outer space for the purposes of space law.[4] It’s not anticipated that a definite boundary to national sovereignty will be decided soon, hence any development of new law should bear this in mind.[5]

Key issue: the principle of non-appropriation

Article 2 of the Outer Space Treaty 1967 (OST) forbids the exclusive appropriation of space by earth bound nations.[6] Which resources this encompasses will soon be of great importance; either that natural resources include all resources of space, or that resources can be divided into sub-categories. Whether rich, space faring nations and individuals can see a return on their investment will be contentious, and to the detriment of less fortunate countries.[7]

Space Tourism

 Space Tourism is defined as commercial activity that offers customers experience with space travel.[8] The US was the first country to include provisions for ‘lay people’ in national legislation however, as with aviation law, provision must be made for the marrying of national and international law to protect the space tourist.[9] The imminent launch of private space tourism vessels means the urgency for updating the law increases daily. International law especially, seems to have fallen behind and offers little consensus on space tourism. The characterisation in the Rescue Agreement of astronauts as ‘envoys of mankind’ is surely not applicable to wealthy joyriders.[10] Hence new provision should be made, particularly as innovations have made space exploration safer since 1967 and space tourists are made aware of the risks.

An assessment of current law on space in the UK

The OSA was the first piece of primary legislation on space activities enacted by the UK government, but the UK is subject to many legal sources, including: international agreements, European Union law (currently) and law provided by the UK’s membership of the ESA.

The Outer Space Treaty 1967

The OST is arguably the most important international law concerning the exploration of space. Mainly covering the issues of nationalism, spreading of resources that may come from space and peacekeeping. It’s been ratified by all spacefaring nations and 109 countries in total. It imposes third party liability upon the nations and, vicariously, any non-governmental organisations based in that country under article 6, as well as the obligation of keeping a register of space objects launched from any given nation.[11]

 The international treaties need replacing/updating, as they’re not fit for purpose in the modern space era. A more realistic framework for the claiming of resources is needed, as well as the new law regarding CST, as the treaties were created when the only capacity for space exploration was state led.

 

The Outer Space Act 1986

This was enacted to formalise the UK’s treaty obligations from the OST.[12] Importantly it outlines the process of obtaining a licence for UK space activities but also incorporates treaty obligations from the four other international treaties on space.[13] These licences impose many conditions upon licensees.[14] The licensing regime was designed prior to the development of reusable commercial spaceplanes, and hence it’s not adequate for reusable spacecraft completing multiple flights.[15]

 This act was a good base for the UK space industry which until recently was fairly limited. However, it isn’t fit for purpose if the UK wishes to keep up with other leading nations, and profit from the space industry. Legislation on the licencing of private companies was needed and clear structures for drafting regulations.

 

The Space Industry Act 2018 (SIA)

This was enacted in order to help the UK to catch up in the space industry and ‘in the best spirit of British innovation…by enabling commercial markets for small-satellite launch and sub-orbital flight from UK spaceports’.[16] It also expands upon the legislation on licences in sch 1 and S13, of the OSA.

This act filled many gaps left by the OSA, and provides a workable base from which to issue regulations and licences, to facilitate the UK space industry. However, CST is new territory for all nations hence the effectiveness of the frameworks provided will be determined with application.

 

International liability for space tourists

Article 7 OST and the Liability Convention imposes international liability on the ‘launching state’ for particular damages caused by space objects, and (bar certain exceptions in the Liability Convention) this is on a joint and several basis.[17] This has contributed to the growth of domestic legislation regarding space exploration, in order to pass financial liability onto the private companies whose activities laid the burden of risk at the state’s feet, due to international liability.[18] This must change, the risk and investment involved in space travel for individual gain must also bear the penalty of damages. Additionally, space tourists cannot claim compensation under the Liability Convention, hence provision must be made under domestic legislation.[19] As below, a universal passenger liability system (as in aviation) should be developed. But the question remains, should liability for damages follow the Warsaw Convention for commercial air traffic, and for what type of damages should it be established?[20]

The SIA clears up some ambiguity left by the international treaties, S36 states a licensee (to carry out commercial space operations in the UK) must indemnify the government where a claim is brought, in respect of loss, in connection with space activities, as set out by the treaties. S38 states that regulations may be made to require that licensees have relevant insurance for any spaceflight activities and may dictate the amount of cover required and over which matters. This would protect the state from private space flight activities and allow compliance with treaty obligations.

European space law and potential issues that impact upon UK commercial space flight

While part of the EU, the UK must treat space planes as aircraft (although the SIA makes no inference as to the UK’s position either way), whilst in commercial airspace.[21] Additionally they’d have to meet the standards of other commercial air transporters under European Union Aviation Safety Agency (EASA) regulations, but space vessels cannot yet achieve the same safety standards as commercial airplanes. Hence, they’d have to meet the standards of certification, continuing airworthiness and operations of the EASA, however as the UK exits the EU, these regulations will no longer be applicable.[22]

Licences and the impact of the Space Industry Act 2018 on space tourists

The SIA provides more comprehensive coverage of the granting of licences than the OSA. Licences for space activity will be granted by the regulator, (likely the UK Space Agency (UKSA)), with the approval of the Secretary of State (SS) s8(4) and any licences granted by the regulator must take into account s2(2) factors, with public safety of paramount concern.[23] This includes s2(2)(a), the interests of persons being carried during the space flight. s9(9) describes taking part in space activities, as including passengers, and in s9(4), those who are not involved in some capacity with the operation of the spacecraft.[24] Under s9(2) SIA, the licence holder must take all steps to ensure that risk to such individuals is as low as possible, and acceptable.

Sch 3 (safety regulations) may prohibit the carriage of passengers unless prescribed conditions are complied with, or entirely halt the mission. Such regulations, as discussed above, may be unachievable presently due to the experimental nature of space flight, thus a balance must be struck between the protection of the consumer and allowing the industry to flourish. This is mitigated under s17 SIA via informed consent; however, the regulator would have to allow the carriage of passengers where passenger safety isn’t guaranteed.

 

Consent

Generally, when a passenger pays for a plane ticket, high safety standards of air-travel are implied. However, due to the dangerous nature of space flight, under s17 SIA, informed consent must be given by participants.[25] This means that the reasonable expectations of the participants will have been met as they’ve been informed of the risks. Until CST is normalised, we cannot truly know how safe it is. Sch 1, paragraph 26 and 27 sets conditions requiring specified persons taking part in spaceflight activities to be informed that the activities carry an inherent risk of danger.[26] The international treaties don’t carry liability for personal injury and a state must be willing to represent an individual, for that individual to claim damages, in contrast with the airline industry.[27] Hence conflicting the delimitation of airspace and how a spacecraft will be defined at different points in the mission.

 

The Chicago Convention 1944 (CC)

The CC concerns international civil aviation and established the International Civil Aviation Organisation (ICAO), who can amend the CC to keep up with air traffic practices.[28] Therefore, applying aircraft laws to CST would be advantageous, as involving the ICAO would allow for ease of incorporation of CST into commercial airspace.[29] Thus, a spacecraft could be defined as an aircraft, or the definition itself expanded.

However, if defined as a space object under article 1 OST, this would allow the vehicle to occupy any airspace without national interference and would invoke state liability, but there’d be no established governing body.[30] Regarding international law, there’d be no protection for commercial passenger on spacecraft for personal injury as they aren’t defined in international law and would only be able to claim against the state, not the operator.[31]

Currently, there’s not a unified legal system for the accommodation of commercial spacecraft, and as with aircraft, standardisation will be imperative to ensure that space travel functions and is safe.[32] Technologically advanced states are interpreting existing principles, to further their own interests, instead of engaging in protracted multilateral negotiation processes that risk upsetting the balance of the existing space law regime that primarily favours them.[33] The global nature of spacefaring activities nevertheless requires that the resulting patchwork of domestic space legislation be coordinated, lest an inconsistent implementation of the obligations of the space treaties impede international cooperation.[34] As CST develops, most states will desire harmonisation of technical standards and practice, to facilitate mutual benefit.[35]

 

Conclusion

 

            The United Kingdom is legislating effectively in preparation to be at the forefront of the space economy. The SIA provides a solid foundation for further regulation and licencing when the time comes for such, however how the UK space industry will interact with the international space community is unclear. There’s a glaring void present in international law for the interpretation, and even crafting, of new law that can no longer be ignored. It’s clear that international consensus and agreement is needed in order to fulfil the treaty obligations of the 1960’s and allow peaceful cooperation between nations to continue; without this, nations will continue to pursue their own interests and tensions will inevitably grow.

An agreement such as the Chicago Convention is the most obvious next step and, given the success of the ICAO, would likely be successful. However, the prospect of infinite resources from space offers an irresistible prize, hence legal issues of vertical sovereignty and appropriation of resources must be decided absolutely and enforced resolutely. The protection of space tourists must be addressed, as soon it’ll not be a past-time of only the wealthy and as in all transactions, the consumer deserves legal protection and assurance. Ultimately there are many competing interests for the UK to balance, to profit from this up-and-coming growth sector whilst fulfilling the nation’s obligations in the global communities, protecting consumers and fostering innovation. This has been done well domestically, it’s now time for the UK to lead the discussion into international regulation.

Bibliography

Books

 Dempsey P S, Jakhu R S, Sgobba T, ‘The Need for and Integrated Regulatory Regime for Aviation and Space’ (1, Springer-Verlag Wein 2011)

Fawcett J E S, ‘International Law and the Uses of Outer Space’ (Manchester University Press; Dobbs Ferry: Oceana Publications Inc, 1968)

Ley W, ‘Rockets, Missiles, and Space Travel’ (The Viking Press, rev. ed. 1958)

 

Journals

 

de Man P, ‘State practice, domestic legislation and the interpretation of fundamental principles of international space law’ (2017) 42 Space Policy 92

de Man P, ‘The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resource Challenge’ Tourism’ in: Proc. of the 53rd Colloq. on the Laws of Outer Space, Int. Inst. of Space Law 2010

Freeland S, ‘Fly me to the moon: how will international law cope with commercial space tourism?’ 11(1) Melbourne Journal of International Law 90

George K W, ‘The Economic Impacts of the Commercial Space Industry’ (2019) 47 Space Policy 181

Hobe S, ‘Legal Aspects of Space Tourism’ (2007) 86 Neb. L. Rev. 439

Hobe S, Cloppenburg J, ‘Towards a New Aerospace Convention? Selected Legal Issues of “Space Tourism,”’ (2004) 47 Proceedings of the Colloquium on the Law of Outer Space, 377

Masson-Zwaan T, Freeland S, ‘Between Heaven and Earth: The Legal Challenges of Human Space Travel’ (2010) 66 Acta Astronautica 1597

Pritzsche K U, ‘Natürliche Ressourcen im Weltraum – das Recht ihrer wirtschaftlichen Nutzung’ (Frankfurt am Main, Peter Lang, 1989) 87-96

Reinhardt D N, ‘The Vertical Limit of State Sovereignty’ (2007) 72 Journal of Air Law and Commerce 65

Schick F B, ‘Problems of a Space Law in the United Nations’ 13 (1964) The International and Comparative Law Quarterly 969-986

Simmonds A, ‘The Space Industry Act 2018: a giant leap?’ (2019) 24 Coventry Law Journal 95

Smith L J, Horl K, ‘Legal Parameters of Space Tourism’ in: Proc. of the 46th Colloq. on the Laws of Outer Space, Int. Inst. of Space Law, 2003

Sreejith S G, ‘Whither International Law, Thither Space Law: A Discipline in Transition’ (2008) 38 Calif. West. Int. Law J. 332

Wakimoto T, ‘Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards’ (2019) 49 Space Policy

 

UK government sources

 

HC Deb 15 January 2018, Vol 634, Column 651

‘Impact Assessment: Review of the Outer Space Act (1986)’, (The Department of Business, Innovation and Skills, 2013) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/493187/OSA_Impact_Assessment_FINAL_BIS0067.pdf> accessed 04/02/2020

‘UK Government Review of commercial spaceplane certification and operations’ (Technical report, Department for Transport, Department for Business, Innovation & Skills, Ministry of Defence, UK Space Agency, and Civil Aviation Authority, 15/07/2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/329758/spaceplanes-tech.pdf> accessed 26/05/2020

The UK Space Agency, ‘Understanding the Space Industry Act’ (The UK Space Agency, 08/02/2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777686/190208_Understanding_the_SIA_-_Final_For_Publication_-_Legal_Cleared_-_Initial_Publication.pdf> accessed 26/05/2020

 

 

Online

 

‘The British Interplanetary Society’ <https://www.bis-space.com/what-we-do/the-british-interplanetary-society> accessed 16 May 2020

 

 

 

[1] CST is an orbital and suborbital activity performed by profit-pursuing companies in a competitive marketplace from; Kelly Whealan George, ‘The Economic Impacts of the Commercial Space Industry’ (2019) 47 Space Policy 181

[2] ‘The British Interplanetary Society’ <https://www.bis-space.com/what-we-do/the-british-interplanetary-society> accessed 16 May 2020

[3] Dean N. Reinhardt, ‘The Vertical Limit of State Sovereignty’ (2007) 72 Journal of Air Law and Commerce 65; Stephan Hobe, ‘Legal Aspects of Space Tourism’ (2007) 86 Neb. L. Rev. 439; Detailed and reliable accounts of this history are in: Willy Ley, ‘Rockets, Missiles, and Space Travel’ (The Viking Press, rev. ed. 1958)

[4] Stephan Hobe, ‘Legal Aspects of Space Tourism’ (2007) 86 Neb. L. Rev. 439

[5] ‘UK Government Review of commercial spaceplane certification and operations’ (Technical report, Department for Transport, Department for Business, Innovation & Skills, Ministry of Defence, UK Space Agency, and Civil Aviation Authority, 15/07/2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/329758/spaceplanes-tech.pdf> accessed 26/05/2020

[6] Philip de Man ‘The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resource Challenge’ in: Proc. of the 53rd Colloq. on the Laws of Outer Space, Int. Inst. of Space Law 2010

[7] K.U. Pritzsche, ‘Natürliche Ressourcen im Weltraum – das Recht ihrer wirtschaftlichen Nutzung’ (Frankfurt am Main, Peter Lang, 1989) 87-96

[8] Stephan Hobe, Jürgen Cloppenburg, ‘Towards a New Aerospace Convention? Selected Legal Issues of “Space Tourism,”’ (2004) 47 Proceedings of the Colloquium on the Law of Outer Space, 377

[9] Stephan Hobe, ‘Legal Aspects of Space Tourism’ (2007) 86 Neb. L. Rev. 439

[10] Treaties such as the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1967; Alexander Simmonds, ‘The Space Industry Act 2018: a giant leap?’ (2019) 24 Coventry Law Journal 95

[11] The Outer Space Treaty 1967 Article 7 and 8; J. E. S. Fawcett, ‘International Law and the Uses of Outer Space’ (Manchester University Press; Dobbs Ferry: Oceana Publications Inc, 1968) p. 46

[12] ‘Impact Assessment: Review of the Outer Space Act (1986)’, (The Department of Business, Innovation and Skills, 2013) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/493187/OSA_Impact_Assessment_FINAL_BIS0067.pdf> accessed 04/02/2020

[13] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1967; Convention on International Liability for Damage Caused by Space Objects 1971; Convention on Registration of Objects Launched into Outer Space 1974; The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979

[14] Including to avoid breaching any international treaties, to insure themselves, to dispose of the space object when it’s uses if fulfilled and to be open to inspection by the UK Space Agency. ‘UK Government Review of commercial spaceplane certification and operations’ (Technical report, Department for Transport, Department for Business, Innovation & Skills, Ministry of Defence, UK Space Agency, and Civil Aviation Authority, 15/07/2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/329758/spaceplanes-tech.pdf> accessed 26/05/2020

[15] ‘UK Government Review of commercial spaceplane certification and operations’ (Technical report, Department for Transport, Department for Business, Innovation & Skills, Ministry of Defence, UK Space Agency, and Civil Aviation Authority, 15/07/2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/329758/spaceplanes-tech.pdf> accessed 26/05/2020

[16] HC Deb 15 January 2018, Vol 634, Column 651

[17] Article 1(a) Liability convention qualified damage is ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations’, a launching state as per article II (c) is: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched.

[18] Steven Freeland ‘Fly me to the moon: how will international law cope with commercial space tourism?’ 11(1) Melbourne Journal of International Law 90

[19] Ibid.

[20] F. B. Schick, ‘Problems of a Space Law in the United Nations’ 13 (1964) The International and Comparative Law Quarterly 969-986

[21] Tanja Masson-Zwaan and Steven Freeland, ‘Between Heaven and Earth: The Legal Challenges of Human Space Travel’ (2010) 66 Acta Astronautica 1597

[22] ‘UK Government Review of commercial spaceplane certification and operations’ (Technical report, Department for Transport, Department for Business, Innovation & Skills, Ministry of Defence, UK Space Agency, and Civil Aviation Authority, 15/07/2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/329758/spaceplanes-tech.pdf> accessed 26/05/2020

[23] The UK Space Agency, ‘Understanding the Space Industry Act’ (The UK Space Agency, 08/02/2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777686/190208_Understanding_the_SIA_-_Final_For_Publication_-_Legal_Cleared_-_Initial_Publication.pdf> accessed 26/05/2020

[24] Space Industry Act 2018

[25] Ibid 25.

[26] Space Industry Act 2018

[27] Ibid 21.

[28] Convention on International Civil Aviation, Article 37

[29] Takuya Wakimoto, ‘Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards’ (2019) 49 Space Policy

[30] The Outer Space Treaty Article I; Takuya Wakimoto, ‘Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards’ (2019) 49 Space Policy

[31] Outer Space Treaty, Article 6; “there are no legal provisions in the body of international space law governing safety of passenger launch vehicles.” L.J. Smith, K. Horl, ‘Legal Parameters of Space Tourism’ in: Proc. of the 46th Colloq. on the Laws of Outer Space, Int. Inst. of Space Law, 2003; S.G. Sreejith, ‘Whither International Law, Thither Space Law: A Discipline in Transition’ (2008) 38 Calif. West. Int. Law J. 332; Takuya Wakimoto, ‘Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards’ (2019) 49 Space Policy

[32] Ibid 30.

[33] Philip De Man ‘State practice, domestic legislation and the interpretation of fundamental principles of international space law’ (2017) 42 Space Policy 92

[34] Ibid.

[35] Ram S. Jakhu, Tommaso Sgobba, and Paul Stephen Dempsey, ‘The Need for and Integrated Regulatory Regime for Aviation and Space’ (1, Springer-Verlag Wein 2011); Takuya Wakimoto, ‘Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards’ (2019) 49 Space Policy

Leave a Reply

Your email address will not be published.