LEGAL ISSUES PERTAINING TO SPACE

TOURISM AND ITS FUTURE IN INDIA.

Space tourism has been identified as "any commercial activity offering customers direct or indirect experience
with space travel." [3] The official definition of tourism presented by the World Tourist Organization (WTO)
and the United Nations Statistical Committee in 1994 reads: "The activities of persons travelling to and staying
in places outside their usual environment for not more than one consecutive year for leisure ..." [4] Tourism,
hence, requires the accessibility of three distinct elements:(1) a flexible income available for leisure travel; (2)
abundant leisure time to expend on both arrangements for and taking the trips themselves; and (3) an
infrastructure sustaining tourism that offers lodging, food and amenities, transportation systems, and attractions
to see and do at the site visited. [5]
The above definition of space tourism includes "indirect experience," which refers to activities such as
parabolic flights for the sake of enjoying a few seconds of weightlessness. However while these flights come
close to the edge of outer space, they never enter outer space. [6] Thus, from most angles indirect experiences
such as parabolic flights do not legally encompass issues of space law.

Space tourism refers to the reason for private individuals to undertake the activity: the wish to enjoy space
travel is not altogether a legally-decisive criterion. For instance, "typical" aircraft will carry both tourists
(persons taking a flight because they love flying or want to spend their holidays away far from home) as well
as passengers who merely need to go to another place for business reasons. Yet, legally speaking, all
passengers on such a flight are equal in terms of aviation law - whether it concerns contractual liability,
consumer rights, or the need to bring a valid passport.

Furthermore, it should be pointed out that Mr. Will Whitehorn, the CEO of Virgin Galactic (the company most
likely to first start offering sub-orbital flights to tourists), has stated that the ultimate purpose of private
spaceflight activity is not to undertake tourism, but to demonstrate the safety of the technology used. [7]

It is submitted, therefore, that "private spaceflight" is the more precise and more helpful term for the purpose
of legal analysis. The level of private participation in these new types of space activities requires analysis and,
likely, adaptation of the current legal environment for undertaking space activities, whether national or
international.

Development Of Outer Space Law

1. United Nations Outer Space Committees and Agencies

In 1958, the U.N. formed the United Nations Ad Hoc Committee on the Peaceful Uses of Outer Space
(COPUOS) to address all possible legal insinuations of outer space activities. [8] COPUOS became a
permanent U.N. body in 1959 and at present has more than sixty-five member states. In addition to the creation
of COPUOS, the U.N. established a procedure intended to aid the international negotiation of U.N. space
treaties and agreements. COPUOS enables the U.N. to serve as the primary body for the growth of outer space
law and provides a platform for international scholars to build a legal skeleton for outer space activities. Two
subcommittees comprise COPUOS, the Scientific and Technical Subcommittee (STS) and the Legal
Subcommittee (LS). STS and LS perform outer space research and study international legal questions
concerning space exploration.

The U.N. established the Office for Outer Space Affairs (OOSA) in 1962 to appendage COPUOS. OOSA,
initially a sub division within the U.N. Department of Political and Security Council Affairs, is presently a
bureau within the Department for Political Affairs. OOSA implements the COPUOS and U.N. General
Assembly resolutions, facilitates developing countries in using outer space expertise for developmental
purposes, and supports the decisions of COPUOS, LS, and STS. OOSA launched an international space
information service to aid in providing technical information to member states, U.N. offices, and international
organizations.

2. United Nations Outer Space Conferences

Since 1968, the U.N. has been a host to global conferences endorsing international deliberations about the
utilization of outer space. [9] The first Conference on the Exploration and Peaceful Uses of Outer Space in
1968 examined past progress in outer space expertise, resulting in a demand by several nations for a raise in
international assistance. [10] The opening conference led to the 1971 formation of the Space Applications
Programme, now put into practice by OOSA. [11] The Space Applications Programme hosts courses designed
to enlighten and tutor nations in the use of technology in outer space.

The second conference in 1982, UNISPACE 82, reassessed broad space activities and highlighted on the role
of developing nations during a time of increased advancements in outer space technology. [12] UNISPACE 82
supported developing nations in receiving assistance from technically superior countries regarding the
utilization of outer space for promoting their own nation and population. [13] Prior to UNISPACE 82, these
developing nations had no past contribution in the opportunities available in outer space, even on the most
primary stage. [14] While attending UNISPACE 82 and in the years subsequent to the conference,
representatives from some of the poorest nations, such as Sri Lanka and Honduras, received significant
technological support and execution aid from the advanced countries. [15] Direct assistance and tutoring on
outer space enabled Sri Lanka to establish its own telescope facility in 1996 and assisted Honduras in creating
a Central American observatory in 1997. [16] After UNISPACE 82, the Space Applications Programme
workshops and training courses offered developing nations with the methodology and means to implement
space projects within their home territories. [17]
As innovations in space technology continued globally, the U.N. hosted a third conference, UNISPACE III, in
July 1999. [18] In preparation for UNISPACE III, OOSA synchronized several worldwide regional
conferences during 1998 and 1999. [19] The conferences called for collaborated efforts among nations within
four hosting regions: Asia and the Pacific, Africa and the Middle East, Eastern Europe, and Latin America and
the Caribbean. [20] These collaborations resulted in nations integrating their assets and knowledge to develop
viable and technological outer space curriculum. [21] The intention of UNISPACE III was to kick off an action
plan endorsing peaceful uses of outer space for the next decade. [22] After a comprehensive drafting stage and
ongoing debate among nations, participants of UNISPACE III adopted the Vienna Declaration on Space and
Human Development. [23] The Vienna Declaration presented guidelines for the U.N.'s actions and focused on
supplementing the developing nations with their use of outer space technology. [24]

3. United Nations Outer Space Treaties

Since the adoption of the U.N.'s first space treaty in the 1960s, a firm foundation of general laws and
international regulations relating to space activity remains in effect. [25] Unlike the international law-making
community's reply to other subsections of international law, such as international criminal law, guidelines and
international rules regarding outer space exploration and the presence of humans in space surfaced promptly
after the start of space travel and research. [26] The U.N. utilized previously-established international
regulations, such as the Antarctic Treaty, as models for developing outer space law. [27] The U.N. further
relied on traditional international legal principles, which endowed a foundation for the key outer space legal
issues of appropriation and the common interests of mankind. [28]

3.1 Outer Space Treaty 1967

The early work of COPUOS effected in the 1963 Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space (Declaration of Legal Principles) which formed the
foundation of the 1967 Outer Space Treaty. [29] The Outer Space Treaty was the first of the U.N.'s five
international treaties expressing various phases of space law. [30] The U.N. sketched the Outer Space Treaty
with the general objective of purging any sovereignty claims over outer space and celestial bodies. [31] This
treaty was the first of its kind to regulate space activities and exploration by humans. [32]

Article I of the Outer Space Treaty declares outer space must be used to advantage all nations and may not be
dominated by individual countries or organizations. [33] Article I specifies the exploration and use of outer
space should be free of prejudice and adhere to principles of international law. [34] The Treaty encourages
international collaboration in order to promote scientific research in outer space and on celestial bodies. [35]

Article II of the Outer Space Treaty declares that outer space, as well as celestial bodies and the moon, is free
from any manner of national appropriation. [36] While nations retain jurisdiction over their citizens and matter
that enters the sphere of outer space, nations are not permitted to aver national sovereignty over portions of
outer space. [37] The Outer Space Treaty provides nations with the right to access, explore, and use outer space
without making any claims of territorial sovereignty. [38] The treaty hence eradicates the possibility nations
could appropriate portions of the moon and the celestial bodies. [39]

In spite of the prohibition of exercising national sovereignty, the Outer Space Treaty allows nations control
and jurisdiction over objects and personnel while such entities are on a celestial body or in outer
space. [40] Although nations retain jurisdiction over their space vessels and personnel while in outer space,
nations do not have the right to use their objects or space vessels in a way that denies other nations access to
the celestial bodies, described as the "province of mankind." [41] Article VII establishes the concept that states
are internationally liable for any damage caused by their objects or personnel while in space. [42] The Outer
Space Treaty also tackles the importance of cooperation among nations and the U.N. with regard to research
and outer space trips. [43]

3.2 Agreement on the Rescue of Astronauts, the Return of Astronauts 1968, and the Return of Objects
Launched into Outer Space (Rescue Agreement)

The U.N. approved the Rescue Agreement in December 1968. [44] The Rescue Agreement draws the
procedures for conducting astronaut rescues during times of anguish in outer space. [45] Article V of the Outer
Space Treaty describes astronauts as "envoys of mankind in outer space," which is expanded upon in the
Rescue Agreement to incorporate data on accidents and emergencies in outer space. [46] The Rescue
Agreement commands nations to perform rescue duties for other nations experiencing problems while in outer
space, and also requires the return of astronauts and equipment to that nation. [47]

3.3 Convention on the International Liability for Damage Caused by Space Objects (Liability Convention)
1972

In 1972, the Liability Convention articulated liability terms for states launching objects into outer
space. [48] The Liability Convention explicitly outlines liability relating to objects in outer space, covering the
object and its parts. [49] Article I of the convention defines "damage" to adequately answer the question of
liability and injury between the states involved. [50] "Damage" in outer space includes death and personal
injury, as well as destruction of a state's property. [51] Nation-parties to the Liability Convention that suffer
"damage" under the terms of the convention may present claims for compensation to the state that launched the
damaging object, or through other diplomatic methods as provided in Article VIII. [52]

3.4 Convention on the Registration of Objects Launched into Outer Space (Registration Convention) 1976

The 1976 Registration Convention mandates that each nation-party to the convention register and maintain a
registry of its launched space objects. [53] If an object is launched by more than one nation, the participating
states must settle which nation will register that object. [54] In a situation of multiple launching states, the
Liability Convention says that joint liability may exist. [55] In addition to keeping a registry, a state must
provide the United Nations Secretary-General information attesting the establishment of a registry. [56] The
requirements under the Registration Convention smooth the progress of the process by which the U.N. and
states identify a space object that has caused damage to a celestial body or another object in space. [57]

3.5 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, or Moon
Agreement of 1979 complements the Outer Space Treaty by providing cultured statements of the principles
first suggested in the 1967 treaty. The Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, or Moon Agreement, is an international treaty that turns jurisdiction of all heavenly bodies
(including the orbits around such bodies) over to the international community. Thus, all activities must
conform to international law (notably this includes the UN Charter).

In practice, it is a failed treaty since it has not been ratified by any nation which engages in self-launched
manned space exploration or has plans to do so (e.g. the United States, Russian Federation, People's Republic
of China, Japan, India, and Iran) since its creation in 1979, and thus has a negligible effect on actual
spaceflight.

The treaty makes a declaration that the Moon (which the treaty notes includes all celestial bodies for the
purposes of language) should be used for the benefit of all states and all peoples of the international
community. It also expresses a desire to prevent the Moon from becoming a source of international conflict. To
those ends the treaty:

Bans any military use of celestial bodies, including weapon testing or as military bases.

Bans all exploration and uses of celestial bodies without the approval or benefit of other states.

Requires that the Secretary-General must be notified of all celestial activities (and discoveries developed
thanks to those activities).

Declares all states have an equal right to conduct research on celestial bodies.

Declares that for any samples obtained during research activities, the state that obtained them must consider
making part of it available to all countries/scientific communities for research.
Bans altering the environment of celestial bodies and requires that states must take measures to prevent
accidental contamination.

Bans any state from claiming sovereignty over any territory of celestial bodies.

Bans any ownership of any extraterrestrial property by any organization or person, unless that organization is
international and governmental.

Requires all resource extraction and allocation be made by an international regime.

The treaty was finalized in 1979 and entered into force for the ratifying parties in 1984. As a follow-on to the
Outer Space Treaty, the Moon Treaty intended to establish a regime for the use of the Moon and other celestial
bodies similar to the one established for the sea floor in the United Nations Convention on the Law of the Sea.

As of December 19, 2008, only 13 states; Australia, Austria, Belgium, Chile, Kazakhstan, Lebanon, Mexico,
Morocco, Netherlands, Pakistan, Peru, Philippines, and Uruguay, have ratified it. France, Guatemala, India and
Romania have signed but have not ratified it. [58] As it is unratified by any major space-faring powers and
unsigned by most of them, it is of no direct relevance to current space activities.

Space Tourism In India And Its Prospect Relating

To Growth.
Recently India has been hit by a space tourism buzz when British entrepreneur Richard Branson's Virgin
Galactic opened its office in New Delhi, after brisk worldwide sales for passenger flights to space circ
2010. [59]

Virgin Galactic, a global commercial space tourism group, has entered the Indian market with an eye on
wooing Indians into space - albeit at a fee of $200,000. [60]

It has been decided that the spaceship will be launched at a height 50,000 feet above earth and, on release from
the mother ship, will take a vertical trajectory at three times the speed of sound.

Carolyn Wincer, head of astronaut sales of Virgin Galactic, told reporters that nearly 300 people, including four
Indians, have bought tickets to travel on the spaceship.

According to him India is a growing market and we are hopeful that people who are not astronauts will venture
into space via our commercial spaceships.

Four Indians have already booked their tickets and one of them is in the top 100 list. The Spaceship 2, as the
commercial flight has been named, was supposed to be ready for the test run on or before January 2008.
It was expected that it would take near about 18 months to start commercial operation. Wincer added that
initially the Initially the spaceship will fly once a week, taking six tourists on board. In the second year of
operation we may go for two flights a day.

The mother ship carrying the spaceship is suppose to fly to a height of 50,000 feet and then the rocket will be
switched on. In 90 seconds, the flight will reach a height of 110 km from 50,000 feet (16 km).

It is said that the flight will last approximately two hours, including a period of weightlessness.

People with a healthy heart and lungs will be able to go on this voyage. Authorities explained that since these
are short duration flights, tourists would not face space sickness. [61]

Conclution:
The option of space tourism really looks lucrative but how far it could be implemented in India without body
of Rules and Laws in force is a question. No doubt that its one of the most lucrative and heavily money rising
prospect. But its viability has to be analyzed from various point of views. For example, whether it accords with
the principles of sustainable development or not. The issue with regard to right to sovereignty of orbital space.
Etc. Simultaneously it also had to be seen what kind of labor with what kind of sills are need to run this
industry. What is the possible risk that they can imbibe. That whether the industrialists are making any kind of
provision for risk minimization and compensation or not and how it could be implemented. The establishment
of this industry would invite inclusions in the present tax structure as well. Also, at the same time new
regulation has to be bought with regard to the maintenance of the industrial machines.

Various Indian ministries have to come up with new schemes and arrange for resources in order to support this
industry our country. Since this industry would involve a large amount of hi-fy technological machineries, its
need less to say that over a period of time it would convert into one of the most expensive industry consuming
a lot of state resources amenities. Therefore it also has to be seen that what percentage of Indians with there
disposable income can actually afford the luxury of space tourism. It also has to analyzed that how competitive
would this industry grow in comparison to the land tourism industries. Since this option is highly fascinating it
has to be seen that whether it could dominate the tourism market in such a manner that it gives the land tourism
industry a heavy loss. Therefore regulations are need on this front also, predominantly when Indias
constitutional ideology is motivated by the concept of social welfare.

However, extending good wishes to Virgin Galactic, Aviation Minister Praful Patel said: "I am sure with
disposable income increasing among Indians, many will go to space. The adventurous spirit of Indians will get
a further boost by venturing into space via commercial spaceships".
CONSIDERATIONS TOWARDS THE LEGAL FRAMEWORK OF SPACE TOURISM

Abstract
With space tourism and law it is a typical situation. Every time somebody develops a
vision and plans to make it feasible, it is just a question of time until lawyers show up
to complicate the situation. It is inherent to law, that it is lacking behind innovations in
some respect. Complex undertakings require a legal framework to manage its
complexity. Space tourism promises to become a multi-billion-dollar-business, and it
is certainly a challenge to create or arrange a legal environment for this undertaking.
This short paper tries to touch on some of the essential topics regarding space tourism
under the viewpoint of public international law.

2. 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 eversince 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.

Private enterprises first of all have to conform with their respective national law. This
here is not the right forum to discuss the details about questions related to this,
because the several and different national legal situations would require too much of
our time. But private enterprises that perform space tourism in outer space also have
to conform to international regulations, since international interests are touched. It is
not new that private enterprises participate in space activities. This mainly takes place
in an indirect way, which means that governmental or non-governmental entities
delegate certain tasks on private enterprises. Space tourism will require another
dimension: direct or leading participation. Therefore the legal conditions regarding
private activities in outer space have to be examined.

3. International space law / treaties

3.1 Outer Space Treaty of 1967
The Outer Space Treaty can be considered the backbone of international space law.
When the Outer Space Treaty was created and went into force, nobody would have
wasted a thought about direct private activities in outer space. Due to this remarkably
not any provision of the Outer Space Treaty even mentions the word "commercial".
Nevertheless the Outer Space Treaty does not reject private activities in outer space
in principle. This could be concluded from Art. VI and Art. IX Outer Space Treaty .
This follows as well from the freedom-principle (Art. I Outer Space Treaty ). Finally
the Outer Space Treaty stipulates the principle of "exploration and use of outer
space". Space tourism falls in the scope of "use" in this respect=2E The Outer Space
Treaty appears a bit old-fashioned regarding commercial activities like space
tourism, when Art. VIII Outer Space Treaty gives jurisdiction, ownership and control
over the space object and its personnel in outer space into state's hands. Although
the Outer Space Treaty mainly addresses States Parties it is out of question that it
also has a completely ruling effect on activities by private enterprises. In Art. VI 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 . In respect of
space tourism state responsibility means practically that these activities touch State
Parties' interests in general. Risks of space tourism could finally fall back on state
responsibility (and liability). Consequently - in the worst case - a state that is not
interested in commercial activities with space objects in outer space is legally able to
block these activities, since the Registration Convention gives states a proper tool for
that. This legal situation is of course not satisfying, neither for the State Parties, nor
for the private enterprises engaged in space tourism. In other words: the backbone of
international space law is too inflexible to be a stabile basis for space tourism.

3.2 Liability Convention

In consequence of Art. VI Outer Space Treaty , the responsibility-principle,
the Liability Convention was created. Art. II of the 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 (Art. III Liability Convention ), and this counts as well for non-
governmental entities (Art. VI Outer Space Treaty ). 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. This could lead to some kind of forum-shopping towards
launching states that either cannot or do not want to grant sufficient control over space
activities, or that - in case of damage - would not pay compensation anyway, because
of the lack of legal tools for enforcement. However, the Liability Convention must be
considered as insufficient concerning the aspect of settlement of claims. An execution
of the regulations of the Liability Convention is not secured. Therefore my point of
view is, that 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=2E

Another gap of the Liability Convention is that nationals of the launching state are
excluded from the scope of the Liability Convention . Furthermore it should be
mentioned that environmental questions are not part of the Liability Convention so
that damage caused to outer space is not covered.

3.3 Registration Convention

The Registration Convention has on one hand the function to coordinate launches, and
on the other hand to ensure identification of the launching state in respect of
the Liability Convention . Private enterprises that want to perform space tourism have
to comply to this procedure. This could lead to practical difficulties that cannot be
avoided: taking into consideration that in long-term-scenarios at least two space
touristic launches per day are considered to be necessary for a space tourism
enterprise to work profitable, and borne in mind that not only one space tourism
enterprise will perform activities in outer space, this could lead to a lot of
registrations, and consequently to launches that need to be coordinated and eventually
have to be cancelled. Another problem occurs when a launching state is not a Member
State of the Registration Convention. This is a gap that needs to be closed for legal
and practical security reasons considering that space tourism expects high flight-
frequency.

3.4 Moon Agreement

According to the Moon Agreement , celestial bodies and their resources shall not be
subject to sovereignty claims. The Moon Agreement refers expressis verbis to the
surface, which could be interpreted in such manner, that buildings or facilities on e.g.
the moon's surface remain national property and consequently underfall national
sovereignty. Lunar bases are subject to state jurisdiction and are legally treated as
space objects. But jurisdiction means the implementation of national law, and thus is a
correlating "minus" to sovereignty.

The Moon Agreement does not have a high practical relevance because the few
Contracting States do not even perform significant space activities. However,
the Moon Agreement does not prevent states other than the Contracting States from
claiming national sovereignty for the respective celestial body. This brings up
infringements with space-touristic projects like a hotel on the moon.

3.5 Rescue Agreement

The problem that occurs regarding the Rescue Agreement is the definition of the
person that needs to be rescued, because the Rescue Agreement does not include
passengers. So, space-tourists may not fall into the scope of the Rescue Agreement
and therefore may not take advantage of the rules stipulated there. On the other hand it
would be a wrongful interpretation to assume the exclusion of passengers, just
because they are not mentioned expressis verbis. This gap stems from the time-period
in which the Rescue Agreement was created, when a touristic participation was not
even considered.

4. Alternatives / Outlook
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 and to prevent states from
practical responsibility. The first option would infringe with several other legal rules
(in Germany e.g. with Art. 14 of the German Constitution - Freedom of property) 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 a legislation for commercial
activities in outer space and to ensure that states supervise the outer-space-activities of
their governmental organizations or private enterprises. Plus there are several other
legal fields that need to be covered since modern space law must be qualified to deal
with such problems like e.g. fiscal law and insurance law=2E The USA preferred to
establish national law dealing with the problems of quality and risk management
towards space activities by private enterprises, the "Commercial Space Launch Act". I
tend to the opinion that a variety of national regulations will lead to totally different
levels of quality and standards, which can in final consequence not be in the natural
interest of the international community and states, whether they promote space
activities or not. Space tourism will not benefit from a situation such as in the
maritime sector where "cheap-flag-states" tolerate ships and crews that are beyond all
sensible safety-requirements. So - in my eyes - it will be the most appropriate solution
to create an international treaty that grants an equal standardization and leads to more
transparency and reliability for private enterprises in space tourism or any other
commercial activity in outer space. Without any doubt a national legislation could be
established according to the principles of such a treaty.

5. The different space tourism projects and their

legal implications
The main aspect of space tourism is transportation, which means transportation within
outer space and transportation to outer space and back as well. So, there are different
approaches of space tourism with different stages and therefore with different legal
implications.

5.1 Earth's surface

Space tourism starts and ends on earth's surface. This concerns - apart from the region
of the high seas that is covered by the law of the sea and is specified in several
provisions of space law - sovereign territory of states. So mainly domestic law rules
this part of space tourism. Thus, there are some exemptions by international space law
that interfere. Just to mention some: continuous supervision of non-governmental
activities in outer space by states, obligation for the launching state to register space
objects and to inform the Secretary General of the United Nations, absolute state-
liability for damage on theearth's surface or to aircraft in flight (Art. II Liability
Convention ), and the obligation to undertake consultations in case of expected
harmful interference from planned space activities.

5.2 Airspace
Since space tourism of course does not restrict itself to the earth's surface, the next
region touched is airspace. Airspace is basically subject to state's territory and
sovereignty. In respect of space objects this rule is limited and an international right of
passage is out of question. This is justified considering that airspace is just a necessary
stage to get into or back from the next region, outer space. The breaking-point for
space tourism could be the definition of space objects. Since the planned vehicles
resemble aircrafts with outer-space-ability, it is highly questionable, whether these
vehicles can be considered as space objects. This was already in doubt with the Space
Shuttle and will be even more discussed when space-tourism-vehicles will be used
just for sub-orbital-flights and start from "ordinary" airports and not necessarily
vertically in a rocket-style (as it was desirable for a frequent traffic with one or two
starts per day).

5.3 Residence in orbit - ISS

ISS :

One project of space tourism plans to establish a hotel-module linked to

the International Space Station ( ISS ). The questions of jurisdiction have to be
regarded under the viewpoint of the ISS -Agreement (International Government
Agreement on the Space Station), which basically follows the link-up-principle.
Liable in respect of the ISS -Agreement could be a contractor or subcontractor of a
Partner State, a user or customer of a Partner State, and a contractor or subcontractor
of a user or customer of a Partner State. Partner States are enabled to exclude by
domestic law the applicability of the Liability Convention concerning the ISS with
effect against third parties.

In general:

A problem that may become important is space debris. In orbit there is a growing
probability of being hit by a piece of debris, which can cause severe damages to man
and material because these pieces can reach a speed of some thousand kilometers per
hour. It is up to the technical engineers to solve this question of security, but it is also
up to insurances to deal with this. Debris must be considered as well under the aspect
of the Liability Convention ; if the responsible state can be identified, it can be held
liable. The other side of the coin is the value of this possible claim, because practically
efficient tools for law-enforcement do not really exist ex lege since dispute settlement
is practically up to good-will of the parties involved.

5.4 Outer space

A significant provision is Art. VIII Outer Space Treaty , that says that 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. Here state and private interests are affected as well.
It is quite clear that this provision means that national law, and consequently
principles of inherent private international law, is applicable on space objects. This
corresponds with the link-up-principle that can be found in air- and sea-law.
Remarkable in respect to space tourism is just that the above mentioned provision
obviously does not cover passengers, but only personnel.

5.5 Residence on celestial bodies

This stage is mainly regulated by the above mentioned Moon Agreement . Additional
provisions can be found in the Outer Space Treaty , but these are rather broad and
unprecise. Without a doubt the basic rules of space law, like the freedom-principle and
the common-heritage-principle, are fully applicable. An additional aspect is of the
ecological and ethical kind, because permanent bases or colonies on celestial bodies
will have to deal with weather-conditions that are rather different from earth. The
aspect of terraforming - to establish an earth-like atmosphere and environment on a
celestial body - is apart from technical difficulties less of a legal problem, but merely
an ethical question.

6. Air law
There are manifold reasons to take air law into consideration, e.g. the used transport-
technology that will probably be a space plane with the capability to be used for space
and air transportation as well the planned high frequency of flights that imply to use
infrastructure of modern airports, horizontal take-off and landing, just to mention a
few. Striking criteria for the law applicable could be - as proposed by Vereshchetin -
purpose and function, technical configuration and capabilities, and the medium where
the operation predominantly takes place. Another point is the conformity to the
aircraft definition that can be found in the Chicago Convention. So a transport-system
which conforms to this aircraft definition but also has the purpose and function to be
used for space-flights could fall into the scope of air law as well as into the scope of
space law. It is out of question that space flights that necessarily cross airspace do not
violate the sovereignty of the respective states. This right of passage through airspace
is not applicable for aircrafts that predominantly are used to move in airspace. It
would not be tolerable if the use of enhanced hypersonic flight systems could avoid
consequences of air law (sovereignty), although being used for transports from one
point on earth to the other. As far as I can see, this problem is not solved yet.
However, in my opinion the purpose/function-principle in conjunction to the
individual purpose (from case to case) seems to be the most sufficient tool to make a
decision towards the applicable law.

There are other elements of air law that make it attractive to use air law at least as a
source of legal configurations that might fit to space tourism. One of these elements is
the safety-standard stipulated by the Chicago Convention. Certification and
standardization is crucial to make risks calculable, e.g. as well for the safety of life,
health and property on one hand, and for risk-management for insurances and the
involved launching state on the other hand. The USA created the Space Launch Act,
that regulates the requirement of a license to launch a space vehicle and the
requirement to monitor activities of such licensees. This is a good model for
corresponding regulations of other states or an international agreement on commercial
use of outer space.

Another element is the limitation on compensations to a maximum amount, as can be

found in the Warsaw Convention. Everybody who travels by airplane knows about
remaining risks and compromises by putting up with the maximum-amount-limit of
the Warsaw Convention that covers a range from damage and loss of luggage up to
loss of life. This limitation is in my eyes not just a welcome solution, but a mandatory
one for space tourism, last but not least for liability-insurance-reasons. The practical
realization of this could e.g. take place in form of an amendment of the Warsaw
Convention (which would be under the systematical viewpoint be dubious, because air
and space law were mixed), or by implementing this into a new international
agreement, dealing with commercial use of outer space. Once again the Space Launch
Act provides models for concrete regulatory contents.

7. Criminal law and space tourism

Criminal law until now has not been considered as highly relevant to outer space
activities. This is due to the fact that the participating crews of space-missions are
especially trained for their missions and are embedded in a clear system of
competencies, to mention an example, the NASA gave the shuttle commander the
authority to enforce order and discipline during all flight phases ... among all on board
personnel. Because of the long-term-character of the ISS , which will be the home for
crew-members for a long time, and because of the international and multi-cultural
character of the crews, the ISS -Agreement contains some provisions towards
criminal law. Since passengers of space-touristic missions are potentially less prepared
and controlled than professional astronauts, the danger of criminal activities must be
estimated as relevant. Regarding the ISS a sufficient system of criminal-law-
provisions exists, but conflicts could occur in other environments than the ISS . Just
to give an example: if a passenger commits a severe crime on board of a space object
that falls under the jurisdiction and control of another state, whose national law and
which state will have the authority and jurisdiction in the end? The deciding argument
is not necessarily "jurisdiction and control" since another aspect is the nationality of
the person, that committed a crime.

8. 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 (Art. IX Outer Space Treaty , Art. 7 Moon Agreement ) 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 to environmental standards.

9. Procedural law
It is a well-known problem of public international law, that a violation of its rules does
not necessarily lead to an enforceable claim against a state. Of course there are rules
dealing with procedure and dispute settlement. The Outer Space Treaty provides
rules on dispute settlement by relating to consultations (Art. IX Outer Space Treaty ).

The Liability Convention contains such rules as well, for the case of a failure of
diplomatic negotiations Art. XIV Liability Convention stipulates that a Claims
Commission shall be established. The decision of the Commission shall be final and
binding if the parties have so agreed, otherwise the Commission renders a
recommendatory award (Art. XIX Liability Convention ). So this procedure is rather
soft and appeals to the good faith of the parties.
The Moon Agreement as well refers to consultations (Art. VIII and XV Moon
Agreement ).

However, a mandatory and effective system for dispute settlement in space law does
not exist. Dispute settlement and the realization of claims is mainly up to the good-
will of the participated states. It is obvious, that space tourism, just like every
commercial activity in space, needs legal security because otherwise the investments
would be in the danger of becoming playthings of state's will that could be led by any
motives, e.g. diplomatic, political or simply financial ones. Although a profound Draft
Convention on the Settlement of Space Law Disputes exists, it has not come to a
binding international agreement yet. On a contractual level it will not be as difficult as
on the level of public international law to find a sufficient system that provides
mandatory settlement, whether adjudication or arbitration, with the obligation to
accept and obey the decision made.

Especially for private enterprises that perform commercial space activities such as
space tourism, legal security - on a level of private and public international law - is a
mandatory requirement.

10. Conclusions
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. There
have been efforts made to create such an agreement, to mention one, e.g. the Draft
Convention on Manned Space Flight that deals with basic aspects of above mentioned
topics. 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.