1. Regulating Space Tourism: impact on registration requirements and exposure to liability André FARAND, ESA Legal Department Cologne, Germany, 10 June 2005

2. REGULATING SPACE TOURISM INTRODUCTION A number of parallels can be established between Air Transport and transport of passengers in outer space: this exercise would show that approach and preoccupations differ significantly for both sectors 1) historical perspective of the development of the regulatory framework at international level: -both established at different times in the XXth Century; -preoccupation – facing reality: exercise of sovereignty, encouraging commercially-viable transport of passengers;

3. REGULATING SPACE TOURISM Parallels Air Transport – Space Tourism (continued) 2)Liability: ceiling to damages, cross-waiver of liability, absolute or fault-based liability; scope of compensation; 3)Establishing and imposing specifications for building space transport vehicles and facilities in outer space or on celestial bodies; 4)Certification of space transport vehicles and facilities (internationally-recognised procedures); 5)Unruly passengers; 6)Overflying national territory.

4. REGULATING SPACE TOURISM Different stages in the regulation of astronaut activities: I. 1960’s-1970’s: 5 Conventions under the aegis of the UN approach: “envoy of mankind”; “duty to provide assistance”: these concepts are still relevant; II. Space Station era: challenge: regulate activities of a permanent crew of 5 international partners (individual States + group of States) conducting experiments in outer space; III. Space Tourism “Towards a new aerospace convention”?

5. REGULATING SPACE TOURISM ISS has shown that different issues need to be addressed GENERAL JURISDICTION Autonomous regulation applicable only to outer space activities: no “parliament” with sufficient legitimacy to adopt regulations in all fields of law relevant to human activity in outer space. Only possibility: establish links with legal systems of various States, on the basis of agreed criteria; This will be established through conclusion of International Conventions between States concerned; same approach as for the 1944 Chicago Convention for air transport (including exchange of traffic rights?) - Convention could be concluded among States carrying out these activities - for example through an extension of ISS IGA among the 5 Partners - or on a larger scale (i.e. United Nations); Possibilities for establishing basis for jurisdiction over “space tourists”: State(s) of registration of the launch vehicle and of the flight element(s) visited; “nationality” as a basis = questionable except for criminal jurisdiction.

6. REGULATING SPACE TOURISM Making the link with national legislation Fixing an altitude for the beginning of outer space: compliance with international law requirements; Ratification of international conventions will require adoption of appropriate legislation to enable the State concerned to abide by its obligations and take advantage of its rights; National legislation: concept of “launching State” - linked to liability issues; Registration: National law shall establish a system of registration/permits for private entities conducting space activities (launch, “tour operators”); the permit will be issued when registration agency will be convinced that the applicant has complied with basic requirements (including insurance coverage for a minimum amount).

7. REGULATING SPACE TOURISM Liability Specific problem: on the short term, the ISS is the place to go for tourists. Specific liability issues because ISS is a multinational facility Space tourists may act against the interests of the ISS Partner States: i.e. cross waiver of liability, significant increase of risk compared to professional astronauts; is there a need/is it practicable to envisage a “fault-based” liability? (need for insurance coverage) Cross-waiver of liability currently does not cover damage to person (injury, death, other impairment of health); is there a need to agree on a ceiling for damages (Warsaw Convention approach) What is the efficiency of “disclaimers of liability” clauses in contracts with tourists ?

8. REGULATING SPACE TOURISM Behaviour in outer space: Code of Conduct - Criminal Jurisdiction General Space Law approach: jurisdiction of the State providing the flight vehicle, element or facility (Art. 8 of Outer Space Treaty of 1967); ISS: jurisdiction of the State of nationality of the “alleged perpetrator” of a crime, provided that the State is an ISS Partner State; for the others, see “non-Partners”; Also the “victim State” approach in the ISS; Other issues: extradition, mutual legal assistance in criminal matters, the “unruly passenger”.

9. REGULATING SPACE TOURISM Various issues Status of astronaut: currently no difference between career/”one-off flight” astronauts in the relevant legal texts (including international), ISS partners have made distinctions, not yet incorporated or reflected at international law: (a)Code of conduct for ISS; specific provisions on the Commander’s responsibilities; (b)“Criteria for selecting spaceflight participants”: first distinction made officially between members of astronaut corps and “tourists”; (c)training curriculum is different for mission specialists or other categories of astronauts (such as flight engineer).

10. REGULATING SPACE TOURISM Jurisdiction and Control Need to establish a “legal system of reference” (jurisdiction provisions) to cover situation not provided for explicitly: -wedding, -birth, -conclusion of contracts (election of legal forum possible), -inventions, -circulation of currencies, fiscal law etc.

11. REGULATING SPACE TOURISM Non-Partners Originally, flight opportunities is likely to be “taxi flights” to the ISS by Soyuz vehicles; efforts for commercialisation by ISS Partners will make this expensive commodity available on the market world-wide; Non-Partners’ nationals: acceptability of candidate astronaut for all the Partners, from a “foreign policy” standpoint; Task force of Cooperating Agencies on all aspects of “Non-Partners’ participation”: resulted in the adoption of a “Non-Partner” process document setting out requirements and deadlines.