On the 60th Anniversary of John Glenn’s Historic Flight: A look at Current Legal Issues for Commercial Space Launches
In celebration of the 60th anniversary of John Glenn’s historic flight in which he became the first American to orbit the Earth, this article looks at one of the biggest contemporary topics in space operations: private space companies operating space tourism programs. In particular, this article summarizes several legal issues related to private space flight that will need to be addressed in the coming years.
John Glenn boarding the Mercury Capsule, Friendship 7, on February 20, 1962. Photo: Wikimedia Commons.
By: Leah Dorn, Staff Member
On February 20, 1962, astronaut John Glenn became the first American to orbit the Earth. After three years of training (in addition to his extensive career as a pilot), and ten postponements, Glenn launched from Cape Canaveral, Florida aboard the Mercury Capsule, Friendship 7. During his nearly five-hour flight, Glenn circled the Earth three times and reached speeds of 17,000 miles per hour before landing in the Atlantic Ocean. Despite mechanical malfunctions, which forced Glenn to take over manual control of the craft, the launch was a huge success and considered to be the United States’ “greatest day in space” yet and an achievement that put the country back in the running to win the space race.
In the sixty years that have passed since Glenn’s mission, national space agencies have worked independently and in cooperation to send men to the moon, build, launch, and operate the International Space Station, and prepare for a mission to Mars. The last few decades have seen a new actor begin to enter the scene: private space companies. While private companies have been launching satellites into space since 1962, and private citizens have been able to purchase a seat aboard governmental space missions since 2001, there is a new trend in private companies operating their own space tourism businesses. Today, Blue Origin, SpaceX, and Virgin Galactic have all launched suborbital tourism programs. One of the most recent space tourists, William Shatner of Star Trek fame, also broke the record for the oldest person in space when, on October 13, 2021, the ninety-year-old flew aboard Blue Origin’s New Shepard capsule. The most recent space tourist, as of this publication, was Yusaku Maezawa, a Japanese billionaire who traveled to the ISS on a Russian Soyuz rocket chartered by the US company Space Adventures on December 8, 2021.
In looking to future operations, SpaceX, Axiom Space, and Boeing all have plans in place to launch tourists to the International Space Station, and Virgin Galactic is scheduled to launch the first mass-commercial space flight in 2022. Several companies have already invested billions of dollars in projects to develop orbital and lunar hotels. Many also have the long-term goal of sending tourists to the Moon and Mars. Current forecasts predict that the space tourism market will be worth at least $3 billion by 2030.
While the space tourism industry has been developing at—pun intended—an astronomical rate, space law has not kept pace. Currently, the only international treaties governing space law are a set of UN space treaties written in the 1960s and 70s. These treaties were written for a time when widespread commercial space operations were inconceivable and, as such, they failed to address many of the legal issues private space companies are likely to face in the coming years. While many countries have imposed national policies, there is concern that too much regulation will suffocate the budding industry. In response, the Federal Aviation Administration, for example, has imposed a moratorium against regulation through 2023. While this policy may have merit, it could come at the cost of passenger safety, environmental health, and national security. Here is a closer look at some legal issues that private companies may face in their space tourism operations:
Are space tourists considered astronauts under the UN space treaties?
The UN space treaties make reference to “astronauts,” “envoys of mankind,” and “personnel of a spacecraft.” It is hard to consider a tourist traveling for personal amusement as an “envoy of mankind,” and “personnel” has generally been understood to be limited to the crew of the spacecraft. It is still not clear what the term “astronaut” means, but the original use was in reference to state-sponsored actors, and most scholars agree that a certain amount of training is required to fall under this title. This would not likely apply to tourists on a Blue Origin flight who receive one day of “active and fun” training prior to launch.
If space tourists are not considered astronauts, they would not be eligible for protections under the UN space treaties. For example, the Outer Space Treaty provides that state parties “shall render [astronauts] all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas.” It has yet to be seen whether states owe such a duty to private corporations and their space tourist passengers.
Who is liable for damages?
Under the UN Liability Convention, states are liable for damages caused by any space object launched by the state or from their territory. This would mean that damage caused by a private space operation would be entirely the responsibility of the territory from which it launched. While some countries, such as the United States, have created national liability regimes, these are far from sufficient and still do not address the possibility of international lawsuits or forum shopping for launching states without such regulations. In addition, space tourists are not allowed to seek damages under UN law and may have difficulty filing a national lawsuit if they are not a citizen of the launching country. As of right now, their only protection is to take out a good life insurance policy.
Pollution
There are currently more than 27,000 pieces of “space junk” orbiting around Earth in addition to man-made debris beyond our orbit. Every piece of trash added to Earth’s orbit increases safety concerns and hardships in space travel. The international community has yet to come up with a solution or way to hold individual states responsible and this problem will only be exacerbated by commercial space missions. The rapid growth of the space industry is also predicted to increase the depletion rate of key resources and increase carbon dioxide emissions.
Which state has jurisdiction over the mission?
Under the UN Outer Space Treaty, the state to which a space object is registered has jurisdiction over that object and any personnel aboard the craft. The state of registry can mean either the state that launches or procures the launching of a space object or from whose territory or facility the object is launched. For a private company, this would mean they are under the jurisdiction—and thus must follow the regulations—of the country from whose territory they launched. But what if the spacecraft launched from an aircraft in international airspace? In this situation, one could argue that the launching state is the state that the aircraft launched from before heading into space. However, to push this hypothetical a step further, what if the entity launched from international waters? There remain possible situations in which a company and its passengers could find themselves under the jurisdiction of no state. Such a loophole will become more attractive to companies as launching states increase regulations on spacecraft under their jurisdiction.
So much has changed in the space arena since John Glenn’s orbit sixty years ago. Today, anyone (assuming they can foot the bill) can launch off in a rocket, circle the Earth, and get the same view Glenn did sixty years ago. As quickly as the industry is moving, however, there are still plenty of legal issues that need to be addressed. While space travel may always be inherently risky, there is much that can be done from a legal standpoint to manage those risks and create a framework that distributes liability and responsibility.
Leah Dorn is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from North Carolina State University in 2020.